Documents
User Generated
Resources
Learning Center

# Outline

VIEWS: 2 PAGES: 69

• pg 1
									                                                                        EVIDENCE OUTLINE
Dean Sekula
Fall 2005

I.    General Information .............................................................................................................................................................. 1
A.    Four Stages of a Trial                                                                                                                                                       1
B.    Four Stages of a Witness                                                                                                                                                     1
C.    Types of Evidence                                                                                                                                                            1
E.    Objections                                                                                                                                                                   2

II.   Relevancy ............................................................................................................................................................................. 2
A.    General Principles [FRE 401 – 403]                                                                                                                                           2
B.    Character [FRE 404, 405, 412 – 415]                                                                                                                                          5
C.    Habit and Routine Practice [FRE 406]                                                                                                                                        12
D.    Subsequent Remedial Measures [FRE 407]                                                                                                                                      12
E.    Compromise and Offers to Compromise [FRE 408 – 410]                                                                                                                         13
F.    Liability Insurance [FRE 411]                                                                                                                                               14

III. Hearsay [FRE Article VIII] ................................................................................................................................................... 15
A.    Definition [FRE 801(a) – (c)]                                                                                                                                               15

IV. Non-Hearsay – Exemptions, Not Exceptions [FRE 801(d)] ................................................................................................. 18
A.    Prior Statement by Witness [FRE 801(d)(1)]                                                                                                                                  18
B.    Admissions by Party-Opponent [FRE 801(d)(2)]                                                                                                                                19

V.    Hearsay Exceptions – Availability of Declarant Immaterial [FRE 803] ................................................................................ 21
A.    Present Sense Impression [FRE 803(1)]                                                                                                                                       21
B.    Excited Utterances [FRE 803(2)]                                                                                                                                             22
C.    Then Existing Mental, Emotional or Physical Condition [FRE 803(3)]                                                                                                          22
D.    Statements for Purposes of Medical Diagnosis or Treatment [FRE 803(4)]                                                                                                      24
E.    Recorded Recollection [FRE 803(5)]                                                                                                                                          25
F.    Records of Regularly Conducted Activity [FRE 803(6), (7)]                                                                                                                   26
G.    Public Records and Reports [FRE 803(8) – (10)]                                                                                                                              27
H.    Learned Treatises [FRE 803 (18)]                                                                                                                                            28
I.    Statements of Prior Identification                                                                                                                                          29

VI. Hearsay Exceptions; Declarant Unavailable [FRE804] ....................................................................................................... 29
A.    Definition of Unavailability [FRE 804(a)]                                                                                                                                   29
B.    Former Testimony [FRE 804(b)(1)]                                                                                                                                            30
C.    Statement Under Belief of Impending Death [FRE 804(b)(2)]                                                                                                                   31
D.    Statement Against Interest [FRE 804(b)(3)]                                                                                                                                  31
E.    Forfeiture by Wrongdoing [FRE 804(b)(6)]                                                                                                                                    33
F.    Residual Exception                                                                                                                                                          33
G.    Confrontation Clause                                                                                                                                                        34

VII. Procedures for Admitting and Excluding Evidence [FRE Article I] ...................................................................................... 35
A.    Objections and Motions to Strike [FRE 103(a)(1)]                                                                                                                            35
B.    Offers of Proof [FRE 103(a)(2), (b)]                                                                                                                                        36
C.    Preliminary Questions [FRE 104]                                                                                                                                             37
D.    Limited Admissibility [FRE 105]                                                                                                                                             38
E.    Remainder of or Related Writings or Recorded Statements [FRE 106]                                                                                                           38
F.    Curative Admissibility (“Opening the Door”) and the Rule of Completeness                                                                                                    38

VIII. Witnesses [FRE Article VI] .................................................................................................................................................. 39
A.    Stages of the Examination                                                                                                                                                   39
B.    Competency [FRE 601 – 606]                                                                                                                                                  40
C.    Impeachment [FRE 607 – 610, 613] (common law usually forbids you to impeach your own witness = voucher rule.
Exception if what is said is both nexpected and injurious)                                                                                                                  42
D.    Bolstering and Rehabilitation                                                                                                                                               49
E.    Mode and Order of Interrogation and Presentation [FRE 611]                                                                                                                  50
F.    Writing Used to Refresh Memory [FRE 612]                                                                                                                                    51
G.    Calling and Interrogation of Witnesses by Court [FRE 614]                                                                                                                   51
H.    Exclusion of Witnesses                                                                                                                                                      52

IX. Opinions and Expert testimony [FRE Article VII] ................................................................................................................. 52
A.    Opinion Testimony by Lay Witnesses [FRE 701]                                                                                                                                52
B.    Testimony by Experts [FRE 702]                                                                                                                                              53
C.    Forms and Bases of Expert Testimony [FRE 703, 705]                                                                                                                          54
D.    Opinion on Ultimate Issue                                                                                                                                                   54

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                                                                     Page i
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

X.    Authentication and Identification [FRE Article IX] ................................................................................................................ 55
A.     General                                                                                                                                                            56
B.     Real Evidence                                                                                                                                                      57
C.     Writings                                                                                                                                                           57
D.     Voices and Telephone Conversations                                                                                                                                 58
E.     Photographic Evidence                                                                                                                                              58
F.     Demonstration (Illustrative) Evidence                                                                                                                              58

XI. Contents of Writings, Recordings, and Photographs (The “Best Evidence Rule”) [FRE Article X] ...................................... 58
A.     General                                                                                                                                                            58
B.     Introduction; Definition of “Writing” [FRE 1001 (1)] (Question # 2)                                                                                                59
C.     Requirement of Original; “To Prove the Content” [FRE 1002] (Questions #1)                                                                                          59
D.     Originals and Duplicates [FRE 1001(3), (4); 1003] (Questions #3 and #4)                                                                                            60
E.     Admissibility of Other Evidence of Contents [FRE 1004]                                                                                                             60
F.     Public Records [FRE 1005] (Question #4 - Exceptions)                                                                                                               61
G.     Summaries (Question #4 – Exceptions)                                                                                                                               61
H.     Testimony or Written Admission of Party [FRE 1007]                                                                                                                 61
I.     Functions of Court and Jury [FRE 1008]                                                                                                                             62

XII. Privileges [FRE Article V] .................................................................................................................................................... 62
A.     General                                                                                                                                                            62
B.     Spousal                                                                                                                                                            63
C.     Lawyer-Client                                                                                                                                                      64
D.     Psychotherapist-Patient and Physician-Patient                                                                                                                      66

XIII. Presumptions [FRE Article III] – NOT COVERED BY SEKULA .......................................................................................... 66
A.     Civil Cases [FRE 301, 302]                                                                                                                                         66
B.     Criminal Cases                                                                                                                                                     66

XIV. Judicial Notice [FRE Article II] ............................................................................................................................................. 66
A.     Kinds of Facts                                                                                                                                                     67
B.     Legislative Facts [FRE 201(a)]                                                                                                                                     67
C.     “Reasoning Facts”; “Jury Notice”; Procedural Matters                                                                                                               67

Text(s) Used for Class:                Wellborn, Cases and Materials on The Rules of Evidence, American Casebook Series, Second
Edition (2003).
Other References Used:                  Strong, McCormick on Evidence, West Group – Hornbook Series, Fifth Edition (1999).

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                                                            Page ii
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

I.     GENERAL INFORMATION
A.    Four Stages of a Trial
1.    Plaintiff‟s / Prosecution‟s case-in-chief – must establish all natural elements of claim / charge
2.    Defendant‟s case-in-chief
a) Rebut prosecution‟s case / evidence
b) Affirmative Defenses – can introduce evidence that supports them
3.    Rebuttal Stage – plaintiff can rebut defendant‟s case – admissible evidence is narrow
4.    Rejoinder – defendant can rebut plaintiff‟s rebuttal and it is confined to only what came out on rebuttal. Also
called sir rebuttal.

B.    Four Stages of a Witness
1.    Direct Examination – witness called by the proponent. Note: can‟t lead the witness.
2.    Cross Examination – scope confined to what came out on direct
3.    Re-direct – scope is confined to what came out on cross
4.    Re-cross – scope is confined to what came out on re-direct

C.    Types of Evidence
1.    Circumstantial Evidence - Evidence is circumstantial when the trier of fact is required to reach the ultimate
factual proposition to which the evidence is addressed by a process of inference. Thus, the introduction of
circumstantial evidence requires that the fact finder make inferences.
a) When circumstantial evidence is offered, the judge must determine whether the ultimate proposition to
which the evidence is directed is consequential and whether the evidence affects the probability of the
existence of that proposition. That is, the judge must determine whether the evidence is both Material
and Relevant.
2.    Direct Evidence - Evidence is direct when the trier of fact is not required to draw inferences. When direct
evidence is offered, the judge need only inquire whether the factual proposition to which the evidence
relates is consequential. In this manner, the judge must only determine that the evidence is Material when it
is direct.

FRE 105. Limited Admissibility – When evidence is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the
evidence to its proper scope and instruct the jury accordingly.
1. Material – a fact of some consequence
a) Immaterial Evidence – evidence which is substantively not important to the case
b) Motive – it is material, but circumstantial
c) Materiality is based on the substantive law where the claim is based. It is also governed by the
procedural rules.
(1) Substantive Law
(a) claim
(b) charge
(c) affirmative defense
(2) Rules of Procedure
(a) Stages of the trial
(b) Rules of pleas
d) Examples
(1) Contributory negligence is not an affirmative defense to a Worker‟s Compensation claim. Thus,
contributory negligence is not material to the case

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                              Page 1
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(2) In a negligence claim by Plaintiff, Defendant puts forth the defense of assumption of the risk.
Plaintiff contends that Defendant failed to plead. This makes the defense immaterial – can‟t argue
what is not pleaded.
2.    Relevant – there is some connection with the evidence being offered and that of which is to be proven.
Relevancy deals with the tendency to make the existence of a material fact more or less probable.
3.    Competent – evidence is considered to be sufficiently reliable to be admitted.

E.    Objections
1.    Hearsay
2.    Privileges
3.    Authentication
4.    Best Evidence
5.    Relevance
6.    Opinion Testimony
Start Notes 9-2-03          7.    Witnesses
8.    Judicial Notice

II.    RELEVANCY
A.    General Principles [FRE 401 – 403]
1.    Rules
FRE 401. Definition of “Relevant Evidence” – “Relevant evidence” means evidence having any tendency
to make the existence of any fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.
(1) Evidence having
(a) Any tendency
(b) To make it more or less probable (any probative value) that
(c) A fact of consequence (pointed towards something in the claim, charge, or defense) to the
determination of the action (includes impeachment of witnesses) occurred (must be material).
A fact is material …if it is pointed toward something in the claim, charge, or defense.
(d) Fact need not be in dispute / the fact does not have to be an ultimate fact. The most common
type is an intermediate fact (i.e., motive – can infer ID of actor or intent of actor).
(i) Primary threshold determination – not admissible unless relevant.
(ii) Favors admissibility but remote or speculative evidence may not meet minimal standards
under Rule 401.
(iii) Court relies on own experience but counsel can submit additional information not
commonly known.
(iv) Usually applies to circumstantial evidence (from which the fact finder can infer an
increased probability that the fact exists) vs. direct (actually asserts the existence of fact to
be proven).
(v) Critical question: Is the “evidentiary hypothesis” valid? (but not the strength of the
hypothesis)…(i.e., admissibility v. weight).
(vi) “Curative admissibility” – once one party opens the door, rebuttal evidence is always
relevant, even if initial evidence s irrelevant (unless rebuttal evidence is unfairly prejudicial
under 403).
FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible – 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.
FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time –
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                   Page 2
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

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.
2.    Legal vs. Logical Relevance
a) Logical (401) + admissible (403), where admissible = probative value > prejudice.
b) Legal Relevance – evidence that is not only relevant but is admissible.
(1) Evidence that is probative of a material issue in the case, but the judge finds that it is more unfairly
prejudicial than probative, then the evidence is found to be without legal relevance.
c) Logical Relevance – evidence that tends to prove or disprove a fact that is of consequence to the
outcome of the case.
3.    Offer of Proof
a) An offer of proof of testimonial evidence can be made in 2 ways:
(1) By counsel who is representing the proponent of the evidence
(2) By question and answer in a formal setting just as through the witness is testifying in front of the
jury.
b) An offer or proof serves the purpose of preserving error concerning evidence not admitted. The error
cannot be raised on appeal unless objected to during trial. FRE 103.
FRE 103. Rulings on Evidence
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to
strike appears of record, stating th specific ground of objection, if the specific ground was
not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context within
which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding the evidence, either at
or before the trial, a party need not renew an objection or offer of proof to preserve a claim of error
for appeal.
(b) Record of offer and ruling. The court may add any other or further statement which shows
the character of the evidence, the form in which it was offered, the objection made, and the
ruling thereon. It may direct the making of an offer in question and answer the form.
c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so
as to prevent inadmissible evidence from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions in the hearing of the jury.
d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial
rights although they were not brought to the attention of the court.
4.    Probative – tendency to make more or less probable
5.    Exclusion of Relevant Evidence – Under Rule 403, even if the evidence is relevant, the evidence may be
excluded under the following concerns…
a) Accuracy – although probative, it may confuse the jury.
b) Policy concerns – discretionary judicial determination.
6.    Conditional Relevancy – evidence which is relevant to the case; however, although the evidence is relevant,
it requires inferences from other facts not yet proved. The power to determine the admissibility under
conditional relevancy is granted to the judge by FRE 104(b).
7.    Notes of FRE 403 Exclusions – Reasons for Inadmissibility
a) Evidence with low probative value must be excluded where probative value is substantially outweighed
by:
(1) Unfair prejudice – Evidence is unfairly prejudicial only if it has undue tendency to suggest decision
on an improper basis, commonly an emotional one. It is unfairly prejudicial if it appeals to the jury‟s
sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a
jury to base its decision on something other than the established propositions in the case.
(2) Confusion of the Issues – Evidence may be excluded for confusion of the issues if it would tend to
distract the jury from the proper issues.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                 Page 3
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(a) E.g. Introduction of evidence about subsequent changes in the product or its design threatens
to confuse the jury by diverting its attention from whether the product was defective at the
relevant time to what was done later.
(3) Misleading the Jury – misleading the jury often refers to the possibility that the jury might attach
undue weight to the evidence.
(4) Undue Delay, Waste of Time, or Needless Presentation of Cumulative Evidence – evidence may
not be excluded solely to avoid delay. Under Rule 403, the court considers the probative value of
the proffered evidence and balances it against the harm of delay.
(5) Surprise – The rule does not enumerate surprise as a ground for exclusion. The granting of a
continuance is a more appropriate remedy than exclusion of the evidence. However, if the
continuance would cause an undue delay or if the surprise is coupled with the danger of prejudice
ad confusion of the issues, then the evidence may be excluded.
b)    Discretionary Exclusions under FRE 403 (Note: FRE 104(b) grants the judge the power to make
relevancy and admissibility rulings.) Remember to consider the scope of the review by the appellate
court – they look for an abuse of discretion.
(1) Similar Happenings Evidence – to avoid exclusion of the evidence, the evidence must show that it
is substantially similar circumstances.
(a) Notice – if the other accident is relevant to show notice, then the requirement of similarity is
less strict.
(b) Absence of Accidents – the lack of other accidents may be relevant to show the absence of
dangerous condition or defect, lack of causal relation, and lack of notice. The admissibility is
also subject to a foundation showing similarity of conditions and the trial court‟s exercise of
discretion under FRE 403.
(c) Impeachment – where the accident may be inadmissible on account of dissimilarity may be
admissible to impeach a witness‟s broad assertions concerning safety.
(d) Similar Contracts or Transactions – a party‟s previous transactions with other parties in similar
transactions may be relevant and admissible to prove probable terms in a disputed agreement.
(e) Similar Claims by Plaintiff – evidence that a plaintiff has brought similar claims that were
fraudulent may be relevant and admissible. Hotel example from Audio CD, Disc 1, Track 16.
(f) Simon v. Kennebunkport – slip-and-fall case; fall on carpeted stairs. Trial court improperly
excluded evidence that others had fallen on the carpet on the stairs under similar
circumstances.
(2) Statistical Evidence – can be unreliable / not competent; can be prejudicial; and can be irrelevant.
(3) Photographs - Must balance probative value vs. prejudice.
(a) Liberal view
(i) Murder is seldom pretty
(ii) Attorneys tend to underestimate the stability of the jury. Supposed influence on jurors of
gruesome photos is often imagined.
(b) Moving pictures – judge should preview in advance.
(c) Ante-mortem pictures in criminal cases – can arouse the passions and emotions of jurors.
(d) Pre-injury photos in civil cases – depends on purpose of photos. If to demonstrate pre-injury
function, then it is OK. If it is to be used to arouse sentiment, then it is not OK.
(e) “Day-in-the-Life” movies – if made to demonstrate daily activities before injury, then OK.
(4) Reenactments and Demonstrations – the demonstration must not mislead the jury and it must be
substantially similar to the actual accident or event.
(a) Fusco v. General Motors – ball-joint snapped and woman crashed vehicle. General Motors
“re-created” the accident on a test track where the driver was a professional and knew when
the joint would snap. The court properly disallowed the evidence because it was not
substantially similar – professional driver and knew when it was going to occur. Note: FRE
403 reads that the opponent of the evidence has the burden to prove that the proffered
evidence is more misleading than probative.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 4
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

B.    Character [FRE 404, 405, 412 – 415]

Start Notes 9-9-03          1.    Evidence Concerning the Accused in a Criminal Case
a) General Prohibition Against Character Attack in the Case in Chief [FRE 404]
FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes –
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,
except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused,
or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged
victim of the crime is offered by n accused and admitted under Rule 404 (a)(2), evidence
of the same trait of character of the accused offered by the prosecution;
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged
victim of the crime offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the alleged victim offered by the
prosecution in a homicide case to rebut evidence that the alleged victim was the first
aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607,
608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
(1) Generally, character evidence is inadmissible because it may create prejudice the person it is being
offered against and denies them a fair opportunity to defend the claim against them. The
disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.
(2) U.S. v. Gilliland – appeal of stolen vehicle conviction.
b) Defensive Use of Character and Prosecution Response [FRE 404(a)(1), 405(a)]
FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes –
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,
except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused,
or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged
victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence
of the same trait of character of the accused offered by the prosecution;
FRE 405. Methods of Proving Character –
(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. On cross-examination, inquiry is allowed into relevant specific instances of
conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person
is an essential element of a charge, claim, or defense, proof may also be made of specific
instances of that person’s conduct.
(1) Generally, the prosecution (victim) may not introduce character evidence as circumstantial
evidence to prove conformity with the character of conduct for a specific event.
(a) Guilt-Assuming Hypotheticals – the prosecution may not cross-examine a defendant‟s
character witness by asking the witness whether their opinion would change if the defendant
were guilty of the charges against them.
(2) Defendant (the accused) may introduce character evidence about themselves under FRE
404(a)(1).
(a) Pertinent Trait – character evidence offered by the accused must address a pertinent trait.
(i) Allowable examples

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 5
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(a) Peaceableness in a prosecution for a crime of violence
(b) Honesty for a theft charge
(c) Truthfulness for perjury or fraud
(ii) Disallowable examples
(a) A good family man and a kind person for illegally bringing an alien into the country
(b) Character for bravery and attention to duty for mail fraud and perjury.
(b) The defendant can only introduce evidence through Reputation or Opinion testimony and may
not offer evidence through specific instances.
(i) Reputation – a reputation witness must be qualified by showing that the witness has a
sufficient acquaintance with the defendant, the community in which he has lived or
worked, and the circles in which he has moved to speak with authority of the terms in
which he is generally regarded.
(ii) Opinion – an opinion witness must have sufficient familiarity to be qualified to express the
opinion.
(c) Cross-examination of defendant‟s (accused‟s) character witness.
(i) Once the defendant introduces character evidence, then the prosecution is allowed to
rebut this evidence through cross-examination of the defendant‟s character witness and
may use specific instances of conduct to test the credibility of the character witnesses
knowledge.
(ii) Form of questions – the prosecution, during cross, must phrase the questions as “have
you heard?” or “did you know?” regardless of whether it was opinion or reputation
testimony.
(iii) Good Faith Basis – must be based on an actual occurrence
(iv) Relevant Specific Acts – must be something that the general public would know or should
have known.
(v) Extrinsic Proof Forbidden – if the witness answers in the negative concerning a specific
instance of conduct, neither the act nor the witness‟s knowledge of it may be shown by
extrinsic evidence; the cross-examiner must abide the witness‟s answer.
(vi) Limiting Instruction – the jury should be instructed that they are to consider any incidents
brought out in cross-examination only as bearing on the credibility and weight of the
(3) Rebuttal by Prosecution – on rebuttal, the prosecution may only use reputation or opinion
witnesses to rebut those specific traits proffered by the defendant. They may not use specific
instances of conduct during rebuttal.
(4) However, if character is a specific element of the crime of the charge, then the prosecution may
introduce this evidence during its case-in-chief and they may use opinion, reputation, and / or
specific instances of conduct testimony.
(5) U.S. v. Monteleone – criminal conviction of illegally disposing of a firearm. During cross-
examination, Prosecution presented “have you heard” questions to defense‟s character witness
offering reputation testimony – asked whether witness knew about accusations that the Defendant
had perjured himself before a Grand Jury. Trial court allowed the questions, but the Court of
Appeals reversed the decision because there is no way that the witness could have known about
this because federal grand jury proceedings are protected by an obligation of secrecy.
c)    Other Crimes, Wrongs, or Acts Admissible for a Non-Character Purpose [FRE 404(b)]
FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes –
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon
request by the accused, the prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence it intends to introduce at trial.
(1) Rule does not allow the Prosecution to attack the Defendant by showing that the Defendant has a
propensity to commit crimes like the one currently charged.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                Page 6
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(2) However, the evidence of Defendant‟s previous crimes can be proffered for other purposes. But,
this is still subject to FRE 403 – the judge‟s discretion that the evidence will not be unduly
prejudicial, confusing, or merely cumulative.
(3) Three requirements to offer an uncharged act as evidence
(a) Relevant for non-character purpose – i.e. the exceptions
(b) Sufficient proof of uncharged act
(c) Subject to Rule 403 balancing test
(4) Exceptions to FRE 404
(a) Motive – defined as the reason that nudges and prods the mind to indulge in criminal intent –
supports intent element of criminal charges. Careful – propensity evidence and motive
evidence can overlap.
(b) Opportunity – this is an express exception to FRE 404(b). It is intended to cover all or part of a
category called “capacity.” The evidence can be admitted if the commission of the uncharged
offense has provided the knowledge necessary to commit the charged offense.
(c) Intent – must be very careful with this one because it is typically an element of the crime
charged. Must have factual similarity.
(d) Preparation / Common Plan or Scheme – before or after crime conduct that shows that the
charged and uncharged crimes are part of a single series of events. E.g. stealing car, buying
weapon, etc. the parts fit together – series of events (high relevance).
(e) Knowledge – this runs parallel to intent. Crimes usually either require knowledge or intent.
Have to show someone at least knew something was a crime – maybe through commission or
similar act. Must still do the FRE 403 balancing test.
(f) Identity – can use such things signature mark, handiwork, or common modus operandi (m.o.).
The method of operation.
(g) Absence of Mistake or Accident – doctrine of chances – the more often an infrequent incident
occurs, the more likely it is that its subsequent reoccurrence is not accidental. This evidence
in identity cases makes prior acts evidence that much more relevant.
(h) Consciousness of Guilt – evidence of flight or escape may be admissible to prove a
defendant‟s consciousness of guilt, consistent with Rule 404(b).
(i) Intrinsic v. Extrinsic
(i) Intrinsic evidence is an exception. “Bad acts” evidence is not extrinsic under Rule 404(b)
if it is
(a) an uncharged offense which arose out of the same transaction or series of
transactions as the charged offense,
(b) necessary to complete the story of the crime, or
(c) inextricably intertwined with the evidence regarding the charged offense.
(ii) Other act evidence is “intrinsic” when the evidence of the other act and evidence of the
other crime charged are inextricably intertwined or both acts are part of a single criminal
episode or the other acts were necessary preliminaries to the crime charged. Intrinsic
evidence is not subject to Rule 404(b).
(5) Notice Requirement under 404(b) – this allows judge to go through the evidence prior to trial and
determine before hand whether it not it is relevant and thus admissible.
(6) U.S. v. Cunningham – woman accused of stealing Demerol from hospital. She passed blood test,
but failed urine tests as charged with the theft. Prosecution proffered evidence to show motive, not
to show propensity to commit the act. Cunningham‟s motive to steal the Demerol was based on
her addiction to the drug – a very powerful motive. The prosecution had to show a similarity
between the previous crimes and this alleged theft in order for the evidence to be admissible to
prove ID and motive. The Court allowed the evidence because motive could be derived from
circumstantial evidence from which to infer intent.
(7) U.S. v. Van Metre – Van Metre was convicted in federal court for kidnapping – violation of the Mann
Act – Federal law which requires intent of sexual gratification. The Prosecution proffered evidence
of a previous kidnapping that Van Metre had been convicted on in Pennsylvania showing the same.
They also put forth evidence that Van Metre had solicited another inmate to try and murder the
victim. The court allowed the evidence of prior bad acts because “extrinsic act evidence is

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 7
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

admissible if the evidence is 1) relevant, 2) necessary to prove an element of the crime, and 3)
reliable.”
(8) U.S. v. Mills – Mills was convicted on false statements, mail fraud, Medicare fraud, and witness
tampering. Mills had filed papers she was traveling to one place for business, but actually traveled
somewhere on personal business – falsifying passenger manifests. The Prosecution had proffered
evidence of prior bad acts in that she attempted to conceal jewelry from customs inspectors. The
Court of Appeals found that it was an abuse of discretion for the trial court to allow the evidence
because the events were not substantially similar. However, they did not reverse the conviction
because they did not believe it was reversible error – found that the jury gave little weight to the
(9) Whitty v. State – abduction case of little girl with “black and white rabbit.” Prosecution proffered
evidence through testimony of the little girl and another girl about the rabbit. The court found that
the evidence introduced about the rabbit did not create undue prejudice, confusion of the issues,
misleading of the jury or an unfair surprise because it was relevant to show identity of Whitty.
(10) People v. Howard – Howard was convicted of robbing a professor. The Prosecution proffered
evidence that the defendant used the same m.o. in another robbery of a another professor. The
Start Notes 9-16-03
court found that relations the Prosecution put forth was too generic to establish a relationship to
identity.
d)    Sex Offenses [FRE 413 – 415]
(1) Rules
FRE 412. Sex Offense Cases; Relevance of Alleged Sex Victim’s Past Sexual Behavior or
Alleged Sexual Predisposition –
(a) Evidence generally inadmissible. The following evidence is not admissible in any civil
or criminal proceeding involving alleged sexual misconduct except as provided in
subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
(b) Exceptions.
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under
these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to
prove that a person other than the accused was the source of semen, injury or
other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with
respect to the person accused of the sexual misconduct offered by the accused
to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the
defendant.
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition
of any alleged victim is admissible if it is otherwise admissible under these rules and
its probative value substantially outweighs the danger of harm to any victim and of
unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible
only if it has been placed in controversy by the alleged victim.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under subdivision (b) must:
(A) file a written motion at least 14 days before trial specifically describing the
evidence and stating the purpose for which it is offered unless the court, for good
cause requires a different time for filing or permits filing during trial; and
(B) serve the motion on all parties and notify the alleged victim or, when appropriate,
the alleged victim’s guardian or representative.
(2) Before admitting evidence under this rule the court must conduct a hearing in camera
and afford the victim and parties a right to attend and be heard. The motion, related
papers, and the record of the hearing must be sealed and remain under seal unless
the court orders otherwise.
FRE 413. Evidence of Similar Crimes in Sexual Assault Cases –
(a) In a criminal case in which the defendant is accused of an offense of sexual assault,
evidence of the defendant’s commission of another offense or offenses of sexual assault
is admissible, and may be considered for its bearing on any matter to which it is relevant.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                  Page 8
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(b) In a case in which the Government intends to offer evidence under this rule, the attorney
for the Government shall disclose the evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony that is expected to be offered,
at least fifteen days before the scheduled date of trial or at such later time as the court
may allow for good cause.
(c) This rule shall not be construed to limit the admission or consideration of evidence under
any other rule.
(d)For purposes of this rule and Rule 415, “offenses of sexual assault” means a crime under
Federal law or the law of a State (as defined in section 513 of title 18, United States Code)
that involved -
(1) any conduct proscribed by Chapter 109A of title 18, USC;
(2) contact, without consent, between any part of the defendant’s body or an object and
the genitals or anus of another person;
(3) contact, without consent, between the genitals or anus of the defendant and any part
of another person’s body;
(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or
physical pain on another person; or,
(5) an attempt or conspiracy to engage in conduct described in paragraphs (1) – (4).
FRE 414. Evidence of Similar Crimes in Child Molestation Cases –
(a) In a criminal case in which the defendant is accused of an offense of child molestation,
evidence of the defendant’s commission of another offense or offenses of child
molestation is admissible, and may be considered for its bearing on any matter to which it
is relevant.
(b) in a case in which the Government intends to offer evidence under this rule, the attorney
for the Government shall disclose the evidence to the defendant, including statements of
witnesses or a summary of a substance of any testimony that is expected to be offered, at
least fifteen days before the scheduled date of trial or at such later time as the court may
allow for good cause.
(c) This rule shall not be considered to limit the admission or consideration of evidence under
any other rule.
(d) For purposes of this rue and Rule 415, “child” means a person below the age of fourteen,
and “offense of child molestation” means a crime under Federal law or the law of a State
(as defined in section 513 of title 18, USC) that involved -
(1) any conduct proscribed by Chapter 109A of title 18, USC;
(2) any conduct proscribed by Chapter 110 of title 18, USC;
(3) contact, without consent, between any part of the defendant’s body or an object and
the genitals or anus of another person;
(4) contact, without consent, between the genitals or anus of the defendant and any part
of another person’s body;
(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or
physical pain on another person; or,
(6) an attempt or conspiracy to engage in conduct described in paragraphs (1) – (5).
FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
Molestation –
(a) In a civil case in which a claim for damages or other relief is predicated on a party’s
alleged commission of conduct constituting an offense of sexual assault or child
molestation, evidence of that party’s commission of another offense or offenses of sexual
assault or child molestation is admissible and may be considered as provided in Rule 413
and Rule 414 of these rules.
(b) A party who intends to offer evidence under this Rule shall disclose the evidence to the
party against who it will be offered, including statements of witnesses or a summary of the
substance of any testimony that is expected to be offered, at least fifteen days before the
scheduled date of trial or at such later time as the court may allow for good cause.
(c) This rule shall not be considered to limit the admission or consideration of evidence under
any other rule.
(2)   These rules were not proposed by the Supreme Court. They came directly from Congress.
(3)   FRE 413 deals with criminal cases involving sexual assault.
(4)   FRE 414 deals with criminal cases involving child molestation.
(5)   FRE 415 deals with civil cases involving either sexual assault or child molestation.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                Page 9
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(6) To be admitted all evidence of prior sexual acts have to be disclosed 15 days prior to trial to be
(7) U.S. v. LeCompte – LeCompte was on trial for sexual assault of his wife‟s 11y.o. niece.
Prosecution proffered evidence of an uncharged crime that he had performed the same sexual
misconduct with a niece of his previous wife. In the first trial the court government tried to offer the
evidence under 404(b) because it failed on the notice clause. The trial court admitted the evidence.
On appeal, the court reversed the conviction. On remand in the second trial, the government gave
notice and attempted to include the evidence under 414. The trial court noted that the evidence
was potentially admissible under 414 but excluded it under 403 stating that its probative value was
limited, that there were substantial difference between the events, and there was a high risk of
undue prejudice. On this appeal, the court found that the evidence was admissible because it was
Congress‟ intent to specifically exclude Rule 414 from the 403 balancing test.
(8) U.S. v. Mound – Mound challenges the introduction of a prior conviction of child sexual abuse.
Mounds challenge was grounded on the assertion that the Rule was unconstitutional in that it
violated the Due Process Clause and that it is a violation of his equal-protection rights. The Due
Process Clause challenge is shot because there is no fundamental right in the exclusion of prior
bad acts. The equal-protection challenge fails because the promotion of effective prosecution of
sex offenses is a legitimate end.
(9) State v. Burns – Burns appealing conviction of first degree sodomy and sentence of 15 years. He
is challenging the constitutionality of the Mo statute which states that the evidence “shall be
admissible” not that it “must be admissible.” This offers no 403 protections. The Court found that
the prior, uncharged sexual conduct evidence was subject to the 403 balancing test. Under the
test, the court found that the evidence should have been excluded because it caused prejudice and
because it was being introduced for the sole purpose to show that the defendant had the propensity
to commit the charged crime.
2.    Evidence Concerning the Victim in a Criminal Case
a) Homicide and Assault [FRE 404(a)(2)]
FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes –
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a particular occasion,
except:
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged
victim of the crime offered by an accused, or by the prosecution to rebut the same, or
evidence of a character trait of peacefulness of the alleged victim offered by the
prosecution in a homicide case to rebut evidence that the alleged victim was the first
aggressor;
(1) Under this exception, evidence of the victim‟s aggressive character, prior bad acts, may be
admissible to establish that the victim was the aggressor. The use of evidence of a victim‟s violent
character to prove that the victim was the aggressor is circumstantial use of character evidence.
(2) Under FRE 405, Defendant can only use reputation or opinion testimony. CANNOT use specific
instances.
(3) In assault cases, only defendant can introduce character evidence of the victim. The prosecution
can only offer evidence of the victim‟s peaceable character if the defense attacks first. If the
defendant uses character as evidence of need for self-defense, the prosecution cannot rebut.
(4) In homicide cases, use of victim‟s character will open the door for rebuttal by the prosecution.
(5) Government of Virgin Islands v. Carino – Carino appealed his conviction for assault. He uses
character evidence to support a self-defense claim. Character is not an element of self-defense,
but is circumstantially relevant. Victim had prior history of manslaughter of boyfriend. Under
404(a)(2) defendant can offer evidence of alleged victim‟s character, but only through 405‟s
restriction of reputation or opinion testimony. The defense failed because they attempted to use
specific instances instead of that allowed under 405.
b) Rape and Sexual Assault [FRE 412]
(1) For rule see above.
(2) Here the defense is putting forth accusations about the chastity of the victim.
(3) Must be concerned with the jurisdiction‟s Rape Shield Laws. Typically, the Rape Shield Laws bar
evidence of:

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                              Page 10
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(a) Sexual character,
(b) Reputation or conduct without regard to purpose, and / or
(c) Relevancy.
(4) Breakdown of Rule
(a) Evidence that any alleged victim engaged in other sexual behavior is not admissible.
(b) Evidence of alleged victim‟s sexual predisposition is not admissible.
(5) Exceptions in Criminal Cases:
(a) Evidence of specific instances to prove that a person other than the accused was sources of
semen, injury or other physical evidence.
(i) Not available if defendant admits to intercourse but claims consent.
(ii) Inapplicable to prior false charges.
(b) Evidence of specific instances by the alleged victim with respect to person accused if
misconduct to prove consent or by prosecution
(i) Available only where consent appears to be genuine issue
(c) Evidence the exclusion of which would violate the constitutional right of the defendant. Three
provisions:
(i) Guarantee of confrontation
(ii) Compulsory process
(iii) Due process
(6) Exception in Civil cases
(a) Sexual behavior or predisposition admissible if probative value substantially outweighs the
danger of harm to the victim or unfair prejudice. Reputation evidence only admissible if placed
in controversy by alleged victim.
(b) Procedure to determine admissibility:
(i) Notice. Party wishing to offer evidence must
(a) File written motion 14 days before trial specifically describing the evidence and stating
the purpose for which it is offered.
(b) Serve motion on all parties and notify alleged victim.
(ii) Court must conduct hearing in camera and afford the victim and parties a right to attend
and be heard.
(iii) Proof. Papers must be sealed.
(iv) Balancing test. Used by the court to decide whether the evidence is relevant and whether
its probative value outweighs the danger of unfair prejudice.
(a) Includes embarrassment of exposure and questioning.
(b) Bias is against admissibility.
(7) Summit v. State – D was tried and convicted on two counts of sexual assault of a 6 yr.o. girl. D
tried to introduce evidence that a similar event happened to the girl just two years earlier to attempt
to impeach the Prosecution‟s witness. The court allowed the evidence because this could cause
doubt that the same exact event occurred two years later by a different D.
(8) In the Interest of John Doe – a 13yr.o. male was charged with sexual penetration of a female who
was mentally defective. The D counsel made a motion to allow evidence of sexual activity of the
victim. The motion was denied and the D was found guilty. D appeals his conviction on the
grounds that the trial court should have allowed the sexual activity testimony because it was not
based on attacking the victim‟s character but was designed to explore whether or not the victim
actually understood the consequences of sexual activity. The appellate court found that the D was
entitled to this under the due process and confrontation clauses because it was necessary to
establish whether or not the victim was actually mentally defective.
3.    Civil Cases [FRE 404, 405]
a) For Rules see above.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 11
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

b)    Under FRE 404(a) character can not be used defensively (even though it can be used in criminal cases)
because it is of slight probative value and may be prejudicial. It also tends to distract the jurors from the
main question.
c)    Under FRE 404(b) – cannot use character / prior bad acts to show conformity of a certain behavior.
d)    Of course, if character is “in issue,” then character can be used. E.g. defamation, libel.
e)    SEC v. Towers Financial Corporation – SEC filed suit against D and D attempted to bring-in defense
witnesses to testify that he was an honest person. The SEC moved to preclude this evidence in a
pretrial motion. The court granted the SEC‟s motion to preclude the witnesses because it is disallowed
under 404(a) – character witnesses in a civil trial offer little probative value and can be prejudicial.

C.    Habit and Routine Practice [FRE 406]
FRE 406. Habit; Routine Practice – evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the presence of eye witnesses, is relevant to prove
that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine
practice.
1. FRE 406 allows evidence that would otherwise be inadmissible if it rises to the level of habit.
2. Habit refers to the type of non-volitional activity that occurs with invariable regularity.
a) Habit is a consistent method or manner of responding to a particular stimulus.
b) The doing of habitual acts may become automatic.
3. Under the rule, evidence of the 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 with the habit or routine practice.
4. It is necessary to examine the ratio of reactions to the situations and to show regularity of conduct by
comparison of the number of instances in which any such conduct occurs with the number in which no such
conduct takes place.
5. The burden of proving that conduct is habitual or a routine practice rests with the party proffering the
evidence.
6. Weil v. Seltzer – Note: An estate is never a legal entity and cannot sue or be sued. Weil had been receiving
steroids from his doctor who had led Weil to believe that they were antihistamines. The steroids led to
Weil‟s death. During the trial the P attempted to introduce former patient evidence that the prescribing of
steroids by Dr. Seltzer had been in fact a habit for him. The district court allowed the evidence to come in
under FRE 406. The Defendant appealed and the appellate court reversed the decision stating that the trial
court abused its discretion because the evidence did not rise to the level of being a habit. The court further
held that the former patient evidence may have been admissible under FRE 404(b) to show plan,
knowledge, identity, or absence of mistake or accident.

D.    Subsequent Remedial Measures [FRE 407]
FRE 407. Subsequent Remedial Measures – When, after an injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect
in a product’s design, or a need for a warning or instruction. This rules does not require the exclusion of
evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or
feasibility of precautionary measures, if controverted, or impeachment.
1. Evidence of subsequent remedial measures is in admissible if being offered to prove negligence or culpable
conduct.
2. However, evidence of subsequent remedial measures is admissible to show ownership, control, or feasibility
of precautionary measures if controverted, or impeachment.
a) But, the evidence must still be relevant and its probative value must outweigh any dangers associated
3. Examples of remedial measures include:
a) A repair
b) Firing or disciplining an employee
c) Changing rules or policies
d) Adding or changing a warning

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                 Page 12
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

4.    Evidence of a design changes effected after manufacture but before the accident is not barred by FRE 407.
5.    When the D affirmatively controverts the feasibility of the safety measures, the evidence comes within the
exception of the rule.
6.    In diversity cases, the federal courts follow state law on the admissibility of remedial measures.
7.    In PA, rule 407, excluding subsequent remedial measures, does not apply in product liability cases based on
strict liability.
8.    Measures undertaken by nondefendants – FRE 407 has been construed not to bar evidence of a
subsequent remedial measures by a party who is not a defendant, on the theory that such a party will not be
deterred by admission of the evidence.
9.    Anderson v. Malloy – woman was raped at a motel. After the incident, the hotel installed chains and
peepholes on the doors. Defendant argued in its defense that it had done everything it could to protect its
patrons. The Plaintiffs on rebuttal attempted to introduce the remedial measures to rebut the issue of
feasibility because the issue was controverted – to impeach the credibility of the Defense‟s argument by
showing that the measures contradicted their testimony that they did everything to make the place safe. The
trial court refused the evidence. However, the appellate court found that the Defendant‟s argument
controverted the feasibility of safety measures and that the trial court abused its discretion when it excluded
the evidence.

E.    Compromise and Offers to Compromise [FRE 408 – 410]
Start Notes 9-23-03
1.    Rules
FRE 408. Compromise and Offers to Compromise – Evidence of (1) furnishing or offering or promising to
furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to
prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible. This rule does not require the exclusion of any
evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
This rule also does not require exclusion when the evidence is offered for another purpose, such as proving
bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
FRE 409. Payment of Medical and Similar Expenses – Evidence of furnishing or promising to pay
medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the
injury.
FRE 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements – except as otherwise
provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against
the defendant who made the plea or was a participant in the plea discussion:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal
Procedure or comparable state procedure regarding either of the foregoing please; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority
which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However such a statement is admissible (i) in any proceeding wherein another statement made in the
course of the same plea or plea discussions has been introduced and the statement ought in fairness be
considered contemporaneously with it, or (ii) 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.
2.    FRE 408 – Evidence of an offer to compromise a claim is not admissible as an admission of the validity or
invalidity of the claim.
a) However, admissions of liability with respect to some items of damages and a disclaimer of liability with
respect to others is not an offer to compromise.
b) The rationale behind this rule is to promote settlement agreements – based on three theories:
(1) Expeditious and extra judicial settlements are to be encouraged and privacy of communication is
necessary to achieve this.
(2) Relevance Theory – claim may be settled to avoid the annoyance of dealing with it – it does not
(3) Contract Theory – express reservation of secrecy. If not agreed to, then the offer is null and void.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                              Page 13
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

c)   For 408 to kick-in, there must be
(1) A claim (demand)
(2) A dispute
(3) An effort to compromise
d) FRE 408 exceptions:
(1) Proving bias or prejudice of a witness
(2) Negating a contention of undue delay
(3) Proving an effort to obstruct a criminal investigation
3.    FRE 409 – can‟t use offer to pay hospital charges as an admission of liability for the injuries.
4.    FRE 410 – Evidence of pleas, plea discussions and related statements are not admissible against the D who
made the plea or was a participant in the plea discussions.
a) FRE 410 includes:
(1) Guilty plea later withdrawn
(2) Plea of nolo contendere
(3) Statements made under Rule 11 FRCP (plea bargaining) or state procedure regarding these two
pleas.
(4) Statement made during plea discussions with an attorney for the prosecution which don‟t result in a
guilty plea, or a guilty plea which is later withdrawn.
b) FRE 410 admits statements in any proceeding where another statement has been made during the
course of the plea discussions that in fairness should be considered with it and in criminal proceedings
for perjury or false statements if the statement was made under oath.
(1) Statements made to a government attorney or law enforcement agent who has express authority to
act for the attorney are excluded from the evidence.
(a) Actual authority may be express or implied. It refers to authority created by acts of a principal
that would reasonably lead another to believe that the other was authorized to act for the
principle.
c) During the sentencing phase of the trial, FRE 410 does not apply. Any statements made during pleas
of plea discussions can be used for or against the D.
5.    Rochester Machine Corp. v. Mulach Steel Corp. – involved an issue as to whether or not the letter was an
offer to compromise. The court found that the letter was not an offer to compromise because it was
expressly admitting or denying actual facts. The court further held that even if the letter had been an offer to
compromise, the admissions of certain facts would still be admissible.
6.    U.S. v. Greene – the D moved to suppress statement he made during conversations with the DEA agent.
The trial court denied the motion. The appellate court upheld the trial court‟s decision to suppress the
motion because the DEA agent had no authority to engage in plea discussions with the D.

F.    Liability Insurance [FRE 411]
1.    FRE 411. Liability Insurance – Evidence that a person was or was not insured against liability is not
admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rules does not
require the exclusion of evidence of insurance against liability when offered for another purpose, such as
proof of agency, ownership, or control, or bias or prejudice of a witness.
2.    The existence of a liability insurance policy is not admissible to show one‟s negligence or other wrongful
conduct because the relevance and probative value is questionable and it is often prejudicial.
3.    This evidence can be offered to show proof of agency, ownership, control, bias or prejudice of a witness.
4.    Lack of insurance, as well as D having other forms of insurance, is equally immaterial and erroneous.
5.    Direct Action Statutes – some states allow the P‟s to sue the insurer directly. LA, WI, RI.
6.    Charter v. Chleborad – this was a diversity action to recover for medical malpractice. Both sides offered
expert testimony. D‟s expert witness was also employed by his insurance carrier. P attempted to offer
evidence of this. The trial court denied P‟s offering of the evidence. The appellate court reversed the
decision stating that the evidence was admissible because it was being offered to show bias and impeach
the witness‟s testimony not that the insurance policy was being used to show liability.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                              Page 14
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

III.   HEARSAY [FRE ARTICLE VIII]
A.    Definition [FRE 801(a) – (c)]
FRE 801. Definitions – the following definitions apply under this article:
(a) Statement. A “statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
(b) Declarant. A “declarant” is a person who makes a statement.
(c) Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the matter asserted.
1.    Introduction – issue is that the jury can‟t determine how much weight should be given to a stmt if the
declarant is not available for cross examination. Probative value of the stmt depends on whether the stmt is
true, thus it depends upon the declarant‟s credibility. On stand, jury would be able to view demeanor: gain
perception of witness as to whether they really remember and their sincerity. Even if stmt is admitted under
hearsay, still have to be able to show its relevance. You can‟t do indirectly that which you can‟t do directly.
a) How to identify if there is a hearsay problem – 3 questions to ask to show stmt is NOT hearsay
(1) is there an out of court stmt
(a) could be verbal or conduct that is intended as an assertion (please raise your hand if you do
not understand
(2) what is the evidence being offered to prove
(a) the same stmt may be hearsay for one purpose but not for another
(3) does the probative value of the stmt depend on the credibility of the declarant
(a) is it important whether the declarant is lying or mistaken
(b) if you only care that the stmt was made, and don‟t care about credibility, then STOP HERE, the
stmt is NOT hearsay
b) Hypotheticals
(1) Passenger killed in car accident. Wrongful death suit brought by survivor. To prove the driver‟s
actions were responsiblewitness testifies that right after accidentpassenger said “the driver ran the
stop sign”
(a) out of court stmt – YES
(b) stmt was offered to prove that the driver was negligent
(c) does the probative value of the stmt depend on the declarent‟s credibility – YES. If passenger
was lying or mistaken, it would make a difference as to what was said.
(2) Action for damages for passenger‟s pain and suffering for survival action. Driver claims that
passenger was killed instantly. Witness testifies that right after accidnet passenger siad “driver ran
the stop sign”.
(a) out of court stmt – YES
(b) stmt was offered to prove that the passenger was still alive after the accident
(c) probative value does NOT depend on declarent‟s credibility as to whether stmt was correct.
Only care that passenger made a stmt, to prove that he was still alive after the accident
(3) D on trial for stealing. Witness testifies she heard clerk say that D stole the money
(a) out of court stmt – Yes. Clerk was declarant
(b) stmt offered to prove that D stole the $(c) does the probative value depend on the clerk‟s credibility – Yes. Would want to know if the clerk was mistaken in what he said. (4) D sues his ER for wrongful termination. TO rebut the charge, ER testifies that the clerk told the ER that the he saw D steal the$
(a) out of court stmt by clerk
(b) offered to rebut D‟s claim that ER acted in bad faith - that Er had a GOOD FAITH basis for
firing D
(c) probative value does NOT depend on credibility. Offered to show that ER had a good faith
reason to fire D. Even if the stmt is not true, it only matters that it was made
(5) I heard Testator tell several people that his sone was a bad person

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                              Page 15
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(a) out of court stmt made by T
(b) offered to prove that T intended to disinherit his son
(c) probative value does NOT depend on whether or not the stmt is true. Only matters that it was
made – to show how he felt about his son.
(6) Breach of K. W heard D offer to sell hat to P for $10….to establish that he entered into K (a) out of court stmt made by w (b) offered to prove that D entered into contract (c) probative value depend on credibility – NO. An objective standard is used to determine whether the contract exists. Even if D had his fingers crossed and didn‟t intend to pay, the contract was formed when he uttered the words. The very fact that he said the words makes the contract exist . These are words of independent legal significance. (d) REMEMBER – if all we care about is that the stmt was made, and not whether the stmt was true, then there is NO hearsay problem c) Categories that are NOT hearsay – that could be misleading and easily mistaken for hearsay (1) Stmt was important for the effect that it had on the listener (2) Circumstantial evidence as to the state of mind of the D (3) Substantive law says the words are of legal significance (4) Stmt is offered to impeach the W, showing prior inconsistent stmt d) Commonwealth v. Farris – appellant was convicted for conspiracy relating to a robbery. The issue at trial was identification. The bar owner only saw identified the appellant as the perpetrator, but only saw the man‟s face for a matter of seconds. An off-duty officer outside the bar saw the men burst out and he also identified the appellant, but he too only saw the man‟s face for seconds. Before the car drove away, the officer identified the driver as Gary Moore. During trial, the officer testified as to what Moore told him and that he arrested Farris from that information. Farris (defendant) objected to the testimony on the grounds that it was hearsay. The objection was overruled. The appellate court found that the district court erred in overruling the objection. They held that there is no distinction between the way that the officer testified – flat-out narrative (“Moore told me that***”) and an oblique narrative (“as a result of what Moore told me, I did***”). The court held that testified to either way it is hearsay. 2. Verbal Acts – hearsay at common law and federal law a) Verbal assertions – oral or written statements that assert directly what is being offered to be proved. (1) If you say that it‟s raining outside – to prove that it‟s raining outside. b) Statements which may themeselves affect the legal rights of the parties are not considered hearsay under the FRE. c) If the significance of an offered statement lies solely in the fact that it was made, no issue is raised as to the truth of anything asserted and the statement is not hearsay. d) The effect is to exclude from hearsay the entire category of “verbal acts” and “verbal parts of an act,” in which the statement itself affects the legal rights of the parties or is a circumstance bearing on conduct affecting their rights. e) Hanson v. Johnson – Action in conversion – the corn crop case. Schrik leased a farm from the Plaintiff and the terms stated that Shrik was to give the Plaintiff two-fifths of the corn grown as payment. Shrik harvested and husked the corn, placed it into separate barrels and then notified Hanson through a direct statement to Hanson as to which corn was his. The statement was not being offered to prove the truth of the statement but was being offered as to the fact that the statement was made. 3. Effect on State of Mind of Listener or Reader a) Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of an utterance, it is obvious that no assertive or testimonial use is to be made of it, and the utterance is therefore admissible. b) Notice or Knowledge – for the purpose of showing notice, not that the condition exists, statement could be admitted. c) Good or Bad Faith – can admit evidence to show that company continued to sell bad product to customers even though it knew it was bad. d) Motive – offered to show that Defendant believed victim was carrying a lot of money, not whether or not victim actually had money or not. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 16 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 e) Probable Cause or the Reason for an Investigation – evidence of a tip used to show why law enforcement was watching a house / suspect, not whether or not the tip was true. f) McClure v. State – appeal from a conviction of murder. The trial court denied testimony concerning evidence that McClure‟s wife was having an affair. The appellate court held that the evidence was admissible stating that any evidence which has a tendency to show that the person had a reasonable cause to be excited, troubled, distracted and frenzied, that he had knowledge of the facts well calculated to destroy his mental equilibrium, to dethrone his reason, to render it improbable that he could and did act with cool, sedate and deliberate in mind in committing the homicide, was in our opinion, admissible. Defendant had to show that he had knowledge. 4. Implied Assertions a) Non-verbal assertion - hearsay at common and federal law (1) A sign or gesture that is intended as an assertion. Compare raising your hand in class to show that you don‟t understand compared to raising your hand just to stretch. b) Non-verbal, non-assertive conduct – (non verbal and not intended as an assertion) (1) Hearsay at common law but NOT federal level. (2) To prove that it‟s raining, witness testifies that he saw the man open his umbrella. You can infer from the fact that he opened the umbrella that it was raining, that he had a belief it was raining. (3) You could infer that the Testator was competent b/c letters were written to him as though her were competent to understand them (4) Sea captain inspected his boat and took it out to sea. Hearsay to prove that the boat was seaworthy. c) Verbal, non-assertive conduct – words are written or spoken and are not assertive b/c there is no intention to make an assertion. (1) hearsay in common law, not under federal law (2) if verbal conduct, but not in the form of an assertion, then NOT hearsay (3) example to show that D is bookie – P answered phone call to “put$5 down” – no assertion under
federal rules
d) Assertion offered to prove implied matter rather than matter asserted – a statement is offered to prove
something implicit in the stmt rather than the truth of the matter asserted.
(1) hearsay in common law, NOT in federal rules
(2) Offer the stmt (damn, I forgot my umbrella – asserts that it‟s raining), not offering it to show that you
forgot your umbrella, offering it to show something implicit in the stmt.
e) Silence – silence of a person will normally be nonhearsay under Rule 801, since silence is nonverbal
Start Notes 9-30-03              conduct and silence would not normally be intended as a substitute for verbal expression.
f) United States v. Zenni – government agents answered the phone at bookie‟s house. Statement from
phone caller was “put $10 down on this horse”. The courts held that this was not admissible to show that owner of house was running a gambling ring. The court deemed this to be non-assertive verbal conduct. Non-assertive conduct is NOT hearsay. Verbiage must be intended as an assertion. 5. Circumstantial Evidence of Declarant‟s State of Mind a) NOT HEARSAY b) The condition of a speaker‟s mind, as to knowledge, belief, rationality, emotion, or the like may be evidenced by his utterances, either used testimonially as assertions to be believed, or used circumstantially as affording indirect inferences. If used circumstantially, then the hearsay rule makes no opposition, because the utterance is not used for the sake of inducing belief in any assertion it may contain – it is not being used then to assert the truth of the matter. c) Bridges v. State – Statement was not offered to establish what exactly was in the room. The statement went to establish that the little girl knew what was in the room, that she had knowledge of what was in the room in order to draw the inference that it was the Defendant‟s room....in order to identify the Defendant. The statement was used as circumstantial evidence. The court held that the statement was NOT hearsay and was thus admitted. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 17 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 IV. NON-HEARSAY – EXEMPTIONS, NOT EXCEPTIONS [FRE 801(d)] A. Prior Statement by Witness [FRE 801(d)(1)] FRE 801. Definitions – the following definitions apply under this article: (d) Statements which are not hearsay. A statement is not hearsay if- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross- examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or 1. Inconsistent Statements [FRE 801(d)(1)(A)] – if the declarant testifies, subject to cross, concerning a statement that is inconsistent with a prior statement that was made under oath at a trial, hearing, etc....then the prior statement is non-hearsay and is admissible. You can use this to impeach the statement now being made. It can also be used substantively. a) Requirements for admissibility – the prior statement must be: (1) Given under an oath; (2) Subject to prosecution for perjury; and (3) Given in a “trial, hearing, or other proceeding.” b) Public policy – don‟t want people making up false statements to get into court only to change their stmt once in court. c) Can always use inconsistent statement for impeachment b/c it‟s not going to the truth of the matter asserted – it‟s going to show inconsistency. Judge might use limiting instruction. d) NOTE: even if the out-of-court declarant is the in-court witness – if a statement is asserted for its truth, then it‟s hearsay...(general provision, not applying to inconsistent statements) e) United States v. Castro-Ayon – Castro appeals his conviction of illegally transporting illegal immigrants. Border patrol stopped a van registered to Castro carrying eleven illegal immigrants. The aliens were taken into custody, read their Miranda rights, placed under oath, and interrogated. The interrogation was recorded. During the trial, the witnesses (the illegal aliens) tended to provide testimony that exculpated the defendant. Prosecution then asked foundation questions to impeach their testimony and then called Agent Pearce who did the interrogations. He testified that the testimony provided by those witnesses were inconsistent with the testimony they provided during the interrogation. The trial court overruled the objections of the Defendant and held that the statements were not Hearsay. Appellate court affirmed the trial judge‟s decision. 2. Consistent Statements [FRE 801(d)(1)(B)] - A statement is not hearsay if the declarant testifies at trial, subject to cross-examination concerning the statement and the statement is consistent with the testimony and is offered to rebut an express/ implied charge against the declarant of recent fabrication or improper influence or motive. a) Tome v. United States – the case involves a custody battle over little girl. The child made an out-of- court accusation regarding instances of sexual abuse by her father. The statements were made by 6 witnesses to corroborate that the statements were made. There was a timing problem with when the statements were made – they were made after a basis for the child‟s bias was made – wanting to live with mom. The trial court did not let the statements in because the government used them substantively and not to rebut the charge of motivation. 3. Identification of a Person [FRE 801(d)(1)(C)] – a statement is not hearsay if the declarant testifies at the trial or hearing, subject to cross-examination concerning the statement and the statement is one of identification of a person made after perceiving the person. a) 801(d)(1)(c) stands on its own. Even if 801(d)(1)(a) is not met, evidence may still come in under this part of the rule. Even if the ID was not given under oath, at a trial or hearing, etc. b) The testimony concerning extra-judicial identifications is admissible regardless of whether there has been an accurate in-court identification. c) The court considers the out-of-court identification to be more reliable than the in-court identification. The closer the initial identification is to the event, the more reliable it will be considered. d) United States v. Lewis – Sharpe pointed out Marshall in an out-of-court photo array and not under oath, and then again in court. The out-of-court identification was deemed to be more reliable than the in-court C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 18 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 identification because it was made much after the first. The first identification is relatively reliable and witness can be crossed in-court. e) United States v. Owens – Foster, a correctional officer was assaulted by an inmate. Mansfield takes his story and gets an identification from Foster of Owens. Foster can‟t make the identification later in court. Mansfield testifies to Foster‟s previous identification – defense objects as to hearsay and violation of confrontation clause. Defense argues that not under 801 (d)(1)(c) because of memory loss – it doesn‟t allow for cross. Scalia determines that 801 and 803 are separate and distinct. You have the right to the opportunity for cross but there is no right for it to be as effective as you want it to be. As long as person is present and competent to be questioned, confrontation clause is satisfied. The Court ruled that the initial identification made from his hospital bed was admissible. B. Admissions by Party-Opponent [FRE 801(d)(2)] FRE 801. Definitions – the following definitions apply under this article: (d) Statements which are not hearsay. A statement is not hearsay if- (2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant’s authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). 1. Most important, look for this one first – important because it supports the adversarial system. You should be held accountable for what you say 2. A party may admit any statement by other party opponent without worrying about hearsay – does NOT have to be an admission, just any statement. Even if the statement is self-serving to the declarant, any statement made is NOT hearsay. 3. The exception is not based on the fact that the statement is unreliable, but on the fact that the party should be estopped from objecting to his own statement on the basis of hearsay – you said it, you should be responsible for it. 4. You should be able to rely on opponent‟s statements. a) Limited Admissibility – the admission is only admissible as evidence against party that made the statement. b) It abandons the rule that the declarant must have personal knowledge of facts asserted. If it is shown that he did not have first hand knowledge even though he made statement, then too bad for the declarant the evidence will be admissible. Not hearsay – let him try to explain it. 5. Individual – party‟s own statements a) Example – statement as to how an accident occurred, even if declarant didn‟t see the accident occur. b) In criminal cases, statements by an accused made prior to arrest are admissible against him as admissions. c) The State, not the victim, is the party-opponent of the accused in a criminal proceeding. Therefore, an out-of-court statement by the victim, while it may be admissible to impeach the victim as a witness under Rule 613, it is not admissible against the State as substantive evidence under Rule 801(d)(2)(A). d) Jewell v. CSX Transportation, Inc. – Negligence and survival action against CSX for operation of train - killed parents in car. Their daughter, also in the car, testifies that the parents were fighting. The statements were allowed in under admission by party-opponent. The statements were not an admission of the estate – only admissible to the daughter‟s claim and her mother‟s claim – those to which she was a party. 6. Adoptive a) Explicitly adopt someone else‟s statement (1) Example – read statement and explicitly state agreement by nodding or saying “that‟s right”. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 19 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (2) Example – Two timer remains silent when accused by spouse – tacitly adoptive – failure to deny is an adoption of the assertion. It must be reasonable to count silence as to adopting the statement. (3) Example – right to remain silent when under arrest. Silence in response to questions is not tacit adoption. There is another reason for silence other than adoption of the statement. b) Manifest a belief in a statement made by someone else. c) Requirements for adoption of a statement: (1) Person must have heard and understood the statement; (2) Had knowledge of the contents of the statement; and (3) Was free from any emotional or physical impediment which would inhibit an immediate response. d) United States v. Morgan – Morgan was guilty of possessing drugs with the intent to distribute. Start Notes 10-7-03 Informant notified police that they could drugs from a certain house from a person named Timmy. Police went to the home. Timmy was not there and Morgan answered the door. Morgan dropped drugs from his pocket at the sight of the police. The police stormed the home and found additional drugs in the basement. During the trial, defense attempted to introduce evident that Timmy was the one who was selling drugs from the home. Defense counsel tried to use the statements made by the police‟s informant also contained in the search warrant affidavit. The trial judge rules that evidence to be hearsay and denied its admissibility. However, the appellate court overturned the decision holding that the evidence was admissible under Rule 801(d)(2)(B). The Court found that police manifested an adoption and belief in the statements made by the informant because they used those as their basis for obtaining the search warrant. e) People v. Green – Green appeals his conviction of conspiracy to commit first degree murder, attempt to commit first degree murder and criminal solicitation. During an in camera hearing, a witness testified that they accused Green of having the victim murdered and that he did nothing to dispute the accusation. The trial judge ruled that the evidence was admissible. Defense counsel objected to the admissibility and appealed the conviction. The appellate court ruled that Green was not free from any emotional or physical impediments and thus did not find that he adopted the statement. The conviction was overturned and the case was remanded for a new trial. 7. Authorized a) A vicariously connected party is responsible for what someone else says, even if nothing explicit or implicit for adopting the statement. Because of a special relationship with the party, the statement is attributed to the party – not allowed to keep out based on hearsay. It is fair to allow the party to explain or clarify the declarant‟s statement. b) The rule requires that the declarant be an agent of the party-opponent against whom the admission is offered, and this precludes the admission of the prior testimony of an expert witness where the expert has not agreed to be subject to the client‟s control in giving his or her testimony. c) Kirk v. Raymark Industries, Inc. – asbestos related personal injury case. Kirk attempted to introduce evidence that a previous expert witness of the defendant from an unrelated case offered testimony that contradicted the testimony of their current expert witness in this case. The trial judge allowed the this evidence to be admitted over defense counsel objections. The Court of Appeals overturned the decision because under Rule 801(d)(2)(C) the rule requires that the declarant must be a party-opponent and it precludes prior testimony of an expert witness. Here the expert did not agree to be subject to the client‟s control in giving the testimony. 8. Agent or Servant a) Vicarious (agent / EE) b) Federal law (1) The agent must be authorized to speak on behalf of the party (must establish express authority) OR (2) The statement concerned a matter within the scope of the agency or employment AND the statement was made while the speaker was still an agent or employee – no authority to speak is required to be shown. c) Mahlandt v. Wild Candid Survival & Research Center, Inc. – civil action arising out of an alleged attack by a wolf on a child. A note was left on the door of the home of an employee of the Center where the wolf was being kept that said that “the wolf bit someone.” There was also a Board meeting of the Center that made a further statement that the “wolf bit a child.” The defense offered expert testimony that the wounds on the child did not indicate that the child was bitten by the wolf, but instead probably C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 20 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 suffered those injuries from sliding under the fence of the wolf‟s enclosure. The trial judge over Plaintiff‟s objections found the note and board meeting evidence to be in admissible. However, the appellate court found that those statements were a manifestation of the declarant‟s adoption and belief as if it was the truth that the wolf bit the child. Thus since the declarant was an employee of the Center, they found the statements to be adopted by the Center. 9. Coconspirator – partners in crime. Hold party responsible for partners‟ in crime stmts. a) Proponent must show (1) Declarant and party were coconspirators (2) Statement was made during the conspiracy. (3) Statement was made in furtherance of the conspiracy. b) The court decides whether the three requirements were met and allows statement in over hearsay objection. Preliminary questions of admissibility are decided by the court. c) Supreme Court decided in 1987 that for this, and thereby for all hearsay exceptions, a preponderance of the evidence is the standard of proof. The judge needs to decide that it‟s more likely than not that the three requirements are met. d) Can a statement be considered to determine if the conspiracy exists? – Federal rules say the statements MAY be considered, but they can NOT be considered by themselves to prove conspiracy. e) United States v. Inadi – Inadi was convicted of conspiring to manufacture and distribute drugs. Inadi appeals on the grounds that the government must show that a nontestifying co-conspirator is unavailable to testify, as a condition for admission of that co-conspirator‟s out-of-court statements. The Supreme Court held that there is not a requirement that the government show the unavailability of the declarant because the conspirators are likely to speak differently when talking to each other in furtherance of their illegal aims than when testifying on the witness stand. They further stated that it is highly unlikely that the in-court testimony will recapture the evidentiary significance of statements made when the conspiracy was operating in full force. Start Notes 10-14-03 f) Bourjaily v. United States – case involves recorded phone conversations between the defendant and the co-conspirator declarant. The issue before the court is 1) whether the court must determine that the conspiracy existed; 2) the level of proof on the government; and 3) whether the court must examine the circumstances of such statement and determine its reliability. The Supreme Court held that 1) the court must be satisfied that the statement was made in the furtherance of a conspiracy; 2) the government must prove by a preponderance of the evidence; and 3) the Court found that the Confrontation Clause does not require an independent inquiry into the reliability of the statements. V. HEARSAY EXCEPTIONS – AVAILABILITY OF DECLARANT IMMATERIAL [FRE 803] A. Present Sense Impression [FRE 803(1)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 1. This is a spontaneous statement made before declarant had time to think about what he was saying – it is said to be reliable. 2. The rule covers statements that describe or explain an event and / or condition and that are made while Defendant is perceiving the condition or immediately thereafter. 3. The spontaneity requirement ensures that the Defendant will not have had time to think about what they should say and guarantees sincerity. 4. The danger of memory loss is negligible since it occurs during or immediately thereafter the event occurs. 5. Person who heard the statement may be able to verify accuracy unlike excited utterance. 6. Time factor is CRUCIAL, more important than the excited utterance. The statement must be made while the event or condition is being conceived or immediately thereafter. Only a very slight time lapse is allowed. 7. Houston Oxygen Co. v. Davis – car accident case. Defendants, Houston, offered testimony of a Mrs. Cooper – Davis had sped by them earlier on the road prior to the accident. At the time Davis sped by her, she stated “they must have been drunk, that we would find them somewhere on the road wrecked if they kept that rate of speed up.” On plaintiff‟s objections, the court denied admissibility of Mrs. Cooper‟s C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 21 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 testimony. The appellate court overturned the decision holding that the declarant‟s statement is 1) safe from any error from defect of memory; 2) there is little or no time for calculated misstatements; and 3) the statement was made in front of a third person who would have equal opportunity to check for a misstatement. B. Excited Utterances [FRE 803(2)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (2) Excited utterances. 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. 1. These are statements made while the declarant is under the stress of excitement that is caused by a startling event or condition and the statement relates to the startling event or condition. 2. The rationale – the stress / excitement insures spontaneity and precludes fabrication. 3. The statement must be made before the declarant has had time to reflect – but no specific time qualification. 4. Example – statement made after declarant regains consciousness after being knocked out immediately after accident. 5. Three requirements of the rule: a) A startling occasion / event b) Statement made before time to fabricate. c) Statement relates to the circumstances of the occasion. 6. Lapse of Time – requires that the statement be made while the declarant was under the stress caused by the exciting event. Several factors must be considered: a) The lapse of time between the event and the declarations; b) The age of the declarant; c) The physical and mental state of the declarant; d) The characteristics of the event; e) The subject matter of the statements. 7. City of Dallas v. Donovan – Donovan‟s sued the city because of injuries suffered in a collision. The accident happened within the city limits and was attributed to the fact that a stop sign was down at the time of the accident. The jury ruled against the city finding that a third party had removed the stop sign, the city had notice that the sign had been removed, city failed to remedy the situation in a reasonable time, and that the failure was the proximate cause of the accident. The plaintiff‟s had admitted evidence from a Mrs. Backhaus. She testified that when she drove up and saw the accident and the injured children, she jumped out of the car and in an excited state she volunteered a statement that she had notified the city just days earlier that the stop sign was down. The trial court admitted the evidence. The appellate court upheld the decision finding that the utterance had met the requirements necessary – 1) there was a startling occasion; 2) the statement was made before there was time to fabricate; and 3) the statement related to the circumstances of the occurrence. C. Then Existing Mental, Emotional or Physical Condition [FRE 803(3)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (3) Then existing mental, emotional, or physical condition. 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. 1. Then Existing Physical Condition a) Statements regarding the declarant‟s existing bodily pain are an exception to the hearsay rule. b) The statements need not be made to a physician to be admissible. A verbal and articulate statement of complaint comes within the exception to the hearsay rule. c) Casualty Insurance Co. v. Salinas – this is a worker‟s compensation case. Salinas offered testimony from three lay witnesses and tendered proof that Salinas had complained of present existing pain at various times subsequent to his injury. The trial court excluded the testimony. The Court of Appeals C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 22 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 overturned, and the Texas Supreme Court affirmed, the exclusion of the testimony. The Tx SC held that the declarations, to whomsoever made, are competent evidence to prove his physical state. 2. State of Mind “in Issue” a) This is where the present state of mind is itself a relevant issue. b) Examples – (1) Statement of current belief - “I think my brakes are bad” - where belief of soundness of brakes is at issue. (2) Statement of current attitude - “I don‟t like Ethel” - where feelings toward Ethel are at issue. (3) Statement of mental feeling - “I am depressed” - where D committed suicide (4) Statement as to physical condition - “My back hurts” - where D‟s physical condition is in issue c) Justification for exception – (1) State of mind or physical condition raises no problems of memory or perception. Since right then being perceived – not worried about memory or perception. (2) Since state of mind is hard to prove there is often a need for direct evidence of it. d) Declarant‟s state of mind must be material. e) The statement must be of the declarant‟s, not another‟s, state of mind. f) The statement must refer to a “then existing” state of mind; a statement recalling a previous state of mind is not admissible under this exception. g) Adkins v. Brett – this is an action for damages for the alienation by the defendant of the plaintiff‟s wife. For plaintiff to be successful, he must prove that 1) that she once loved him; 2) that someone interfered with that relationship; and 3) she doesn‟t love him anymore. The must be a determination as to the wife‟s state of mind – an element of the claim. At issue in the case is the admission of evidence of conversations between the Plaintiff and his wife. The court found that only part of the statements are admissible as evidence of her state of mind. The Court held that the statements regarding the rides in the automobile, the flowers, dinners, and attentions generally are NOT admissible. However, the statements regarding her feelings concerning her husband, “her utter distaste for him,” is admissible. 3. State of Mind to Prove Conduct; Statements of Memory or Belief a) This hearsay exception covers statements of presently existing intent to do something in the future if is offered to prove the Defendant actually carried through with his plans. To show that he acted in accordance with expressed intent. th (1) Example - Issue as to whereabouts on June 12? On June 5, D said he was leaving on the 10 and staying out for a week. Stmt may be offered for proof that D was out of town on that date. (2) Hillman case – body found in creek. Wife says it‟s her husband and brings suits to recover u/ insurance policies. Insurance CO‟s say not Hillman, but another body that he set up – Walters body. Co has letters written by Walters that he planned to go to creek with Hillman. Corpse looked like Walters. Letters were admissible that he intended to go to creek, followed out intent and that his was the body found at the creek. b) LIMITATION on state of mind exception – extremely important (1) Although you have current belief about something that happened in the past – this exception may not be used to offer that statement as proof that the past conduct or event occurred. (2) Shepherd case – “Dr. Shepherd poisoned me” as statement of now deceased person u/ exception. Her statement of her current existing belief as to past event - who had poisoned her. Rejected – exception does not reach to backward looking statements. Statements of memory or belief may not be used to prove the fact remembered or believed. WHY – because every out-of-court statement about what happened in the past could then be cast as a statement of Defendant‟s then existing belief or memory. The exception only applies to forward-looking not backward-looking statements. (a) One qualification to that end – a statements of memory / belief may be offered to prove the memory or fact believe in ONE circumstance = if it relates to execution, revocation, identification or terms of the declarants‟ will. (i) Example – Testator statement – “I disinherited him because he flunked Evidence” would be admissible that Testator disinherited her son. Why allow this – because we need the evidence. Such statements are offered in will contests when the Declarant / Testator is already dead. Rather have Testator‟s hearsay statements than not have the evidence at C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 23 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 all. c) Joint Conduct – most courts admit a statement of A that he or she intends to do an act with B, as evidence of both A‟s and B‟s subsequent conduct. d) United States v. Pheaster – 16 year-old Larry Adell went missing after he told some friends he was meeting a man named Angelo to obtain marijuana. Over the objections of the Defendant, the prosecution proffered the testimony of Larry‟s friends testifying to what Larry stated to them. Following the Hillmon Doctrine (see above), the Court held that the testimony was admissible because it went to showing the state of mind that Larry at the time he headed to the parking lot. e) Norton v. State – Norton was convicted in a jury trial for the murder of Bill Bailey. Norton contends that the trial court erred (1) by admitting a hearsay rendition of a statement allegedly made by the victim to his wife into evidence over objection. Under a limiting instruction, the trial court allowed the prosecution to present testimony from Bailey‟s widow that she had awaken the night of the phone call from Norton and her husband stated that he was going to the shop to meet Norton. On cross-examination, she stated that she had no personal knowledge of the telephone conversation because she was asleep and never heard the phone ring. The appellate court overturned the conviction holding that the testimony of Bailey‟s widow was hearsay and did not fall under the one of the exceptions. The court stated, “for a witness to recount what another person told her about receiving a call, about who had called, and about what was said was hearsay that does not fit under the state of mind exception.” D. Statements for Purposes of Medical Diagnosis or Treatment [FRE 803(4)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 1. Although exception generally covers statements of present pains, conditions, etc. 2. Common Law - the Common Law did not admit statements if they were said to a non-treating doctor - typically a doctor is consulted for litigation because there is too much incentive to lie or exaggerate. 3. Federal Rules a) The Federal Rules of Evidence reject this and allows statements to be admitted even if made to consultant attorney. Why – the jury can take into account the fact that he may be lying under weight of evidence. b) The FRE extends the exception to potentially allow statements regarding past symptoms / pain. “My back hurt all of last month.” c) The FRE extends the exception to cover medical history, IF the statements were made for the purpose of obtaining medical diagnosis and treatment. The statements may be made to both treating and non- treating doctors (consulting expert). WHY? - You wouldn‟t lie to get good treatment and the jury will learn about the statement anyway under expert testimony. d) The FRE also allows statements as to the cause / external source of the pain or condition in so far as it is pertinent as to the diagnosis and treatment. (1) Example – “My neck pains started after the car accident when my car was hit from behind.” (2) This is OK to show that the injury / pain was caused by the accident. The fact that she was in a car that was hit from behind is pertinent to the diagnosis / treatment of the condition. (3) The statement of cause MUST be pertinent to the diagnosis or treatment to be covered by the exception. “I was hit by a blue, ‟57 Chevy that ran the stop sign”...is not admissible because it is not pertinent to the diagnosis or treatment. 4. Requirements for admissibility: a) The statement must be made for purposes of medical diagnosis or treatment; b) The statement must describe or relate “medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause or external source thereof”; and c) The statement must be “reasonably pertinent to the diagnosis or treatment.” 5. Statements describing an offense and / or identifying a perpetrator is admissible. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 24 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 6. Statements need not be made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included. 7. Statements made by the doctor or other medical personnel to the patient are not covered by this exception. 8. Statements need not be made for the purposes of medical treatment; the exception extends to statements to a nontreating physician consulted solely for purposes of expert testimony. 9. State v. Moen – Moen was convicted of the murder of his wife and mother-in-law, Mrs. Chatfield. Defendant objects and seeks reversal of his conviction on the grounds that Dr. Mulkey‟s testimony should not have been admitted. Dr. Mulkey, witness for the prosecution, testified that he had seen Mrs. Chatfield. Mulkey testified that he had diagnosed her condition as situational depression and recommended that the Defendant be removed from her home since he believed through her statements that he was the root cause of her depressionary state. The Oregon Supreme Court upheld the trial court‟s decision because the testimony met the three requirements above. Start Notes 10-14-03 E. Recorded Recollection [FRE 803(5)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. 1. This Hearsay exception allows the use of a previously written statement by a witness who can no longer remember what happened despite counsel‟s best effort. 2. Who is testifying? The document is testifying. The document has to be offered into evidence before you can read from it. The document can NOT be rec‟d into evidence, meaning it can not go back with the jury. 3. Need to meet 4 requirements in order to satisfy exception: a) Eyewitness must testify that she once had personal knowledge as to what happened. b) The witness must testify that she has insufficient recollection to testify fully and accurately about the event. c) The witness must testify that she made a statement about the event when it was fresh in her mind. d) The witness must testify that the letter accurately reflected her knowledge at the time. 4. Limitation on writing that qualifies – the exception denies the memorandum entrance to the jury room as an exhibit. 5. Memorandum not made but adopted by witness – the exception extends to a memorandum or record “adopted” by a witness, such as where the witness orally recounted a matter to another who reduced the account to a written statement which the witness then verified. 6. Failed memory requirement – a faithful memorandum is acceptable, not conditionally on the total or partial absence of a present remnant of actual recollection in the particular witness, but unconditionally; because, for every moment of time which elapses between the act of recording and the occasion of testifying, the actual recollection must be inferior in vividness to the recollection perpetuated in the record. 7. Example - Car accident and eyewitness who can‟t recall details. Try to refresh recollection – no good. Try to get the letter she wrote to sister immediately after the accident that included the details introduced into evidence – but, it‟s hearsay. The letter would be testifying, thus you need an exception. The situation must meet the four elements above in order for the letter to qualify under the exception. 8. United States v. Patterson – Patterson appeals his conviction on two counts of receiving stolen property and on one count of conspiracy to transport stolen motor vehicles in interstate commerce. During the trial, Defendant‟s nephew testified that he could not remember as to what his uncle told him about the source or legality of the forklifts. After the prosecutor tried to refresh his memory without success with the transcript of his grand jury testimony, the trial judge allowed the pertinent portion of the grand jury testimony to be read into the record as a past recorded recollection exception to the hearsay rule. Patterson contends that the government failed on the requirement that the matter was not fresh in his nephew‟s mind when he gave testimony to the grand jury. The appellate court denied this argument because the nephew testified that he did not think he lied to the grand jury and that he had recalled the events better when he testified before the grand jury. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 25 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 F. Records of Regularly Conducted Activity [FRE 803(6), (7)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (6) Records of regularly conducted activity. A memorandum, report, record, date compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memorandum, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, of data compilation was regularly made and preserved, un less the sources of information or other circumstances indicate lack of trustworthiness. 1. If the business creates and relies on records for it‟s day to day affairs, then it is reasonable to assume that the business has an incentive to ensure accuracy of it‟s records. The incentive to ensure the accuracy looks to whether there is accountability for the one who keeps the records. 2. Reliability of the Records a) Four Requirements must be met – for the record to be reliable (KeepRegularAtPersonal)(check with note 3 at end of Casino case in textbook. Also review page 131 and the note on the confrontation clause) October 21 (1) It must be a regular practice of the business to keep such records. (2) The record was be made in the regular course of the business. (3) It must be recorded at or near the time of the event or condition. (4) The record must be made by EE with personal knowledge of the event, OR upon information provided by someone with a business duty to report the information. b) The four elements may be established by ANYONE who has knowledge as to how the business records are made and kept. It could be the maker of record or the custodian of record, but it does not have to be either, although it could be. c) Even if all four requirements are met, the record is only presumptively reliable. It will not qualify for admission if the source of the information or if the method or circumstances of preparation indicate a lack of trustworthiness. If trustworthiness seems to be lacking, then exception does not apply. (1) The courts are suspicious of records that are made in anticipation of litigation. Records that are made after an accident with an eye toward litigation tend to lack reliability. (a) Remember if dealing with hospitals, hospitals keep medical records on a regular basis – but only for purposes of medical treatment....not for excited utterances or admissions made by patients that are treated...so not admissible for these purposes. October 21 3. Problem area - IF the maker has personal knowledge of the events reported...then OK, but what if no personal knowledge? Sekula gave same example in class October 21. I think we should know this. Also, review p 203 in case book. a) The police officer D files accident report = .”I saw the cycle run the red light and hit the truck” . (1) He‟s making the report and has personal knowledge so OK under exception. b) Officer D files reports “Officer Jones told me that she saw accident ” = may be admissible but have double hearsay problem. (1) Officer Jones‟ out of court stmt to Officer D is made while she is u/ biz duty to report to Officer D, the investigating officer – confident that she wold report accurately. (2) Officer D‟s stmt written down of what Jones told him is biz record – even if he doesn‟t have personal knowledge of recorded facts – the information came from someone with a biz duty to report the information, the personal knowledge requirement is fulfilled. (Information may be transmitted through several EE‟s before actually being recorded....Source of information MUST have biz duty) C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 26 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 c) If Officer D writes report that says he talked with civilian observer who saw everything – no good. Double hearsay – (1) no reason to think that observer‟s stmt was accurate – they did not have biz duty (2) Even though Officer D recorded the report in a biz record and his stmt is OK u/exception d) What if there is reason to believe that observer‟s stmt was correct.....observer was screaming „he ran the red light” Still have double hearsay, but (1) Officer D covered by biz record – it‟s his duty to record such information accurately. (2) Observer‟s stmt is reliable if deemed as excited utterance. 4. As with ALL HEARSAY EXCEPTIONS – the burden falls on the proponent of the hearsay to establish that the elements of the exception have been met. 5. Keogh v. Commissioner of Internal Revenue – IRS tax deficiency case. Keogh was found to be underreporting tip income for three years. He was a poker dealer at a casino. The IRS proffered evidence from Whitlock, a now deceased former dealer who worked with Keogh. This diary contained detailed records of his tip income for each day worked. Whitlock‟s widow testified that she saw Whitlock and only Whitlock make entries into the diary; he usually made them after each time he worked, and if he didin‟t make entries for several days he would transfer notes kept in his wallet into the diary; that he made no entries into the diary on his days off; and that she understood that the diary contained a record of tips he received on the job. Her testimony went to the support that although the records were personal, they were an account of his business and that they were regularly and systematically conducted. 6. United States v. Baker – Baker was convicted on three counts of selling government property. Baker was selling ATFS Form 1133 which is sent to people believed to not have received their checks from the US Treasury. The trial court allowed the admission of the completed forms as proof that the payees submitted the claim forms. The appellate court found that the objection by the Defendant should have been sustained. The court found that the forms did not fall under the exception. The court held that a problem of double hearsay results when a business record is prepared by one employee from information supplied by another employee. In this case, the court found that the intended payees were not acting in the regular course of business, and their statements do not fall within any other hearsay exception. 7. Scheerer v. Hardee’s Food System, Inc. – slip-n-fall case. The Court found that the report created after the woman fell was created not as a regular business record but had actually been in made in anticipation of litigation and was thus inadmissible. The court found that “the incident report lacked realiability or trustworthiness because it was not made in the ordinary course of business but instead with the knowledge that the incident could result in litigation.” G. Public Records and Reports [FRE 803(8) – (10)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.. (9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. (10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. 1. FRE has expanded the reach – records and reports of governmental agencies are admissible if they set forth information in the following three categories: a) Activities of Public Agencies – Records that set forth the public agencies own activities (e.g., treasury department records of receipts and disbursements) b) Reports of Observations of Public Agencies – Records that set forth matters that the agency is required by law to observe and report (rainfall records of weather bureau – as own first hand observations). C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 27 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (1) However, this is NOT applicable in criminal cases as to matters observed by police and other law enforcement personnel – police report can not be offered against accused here. c) Authorized Government Investigations – Reports that set forth factual findings resulting from authorized government investigation(s) are admissible in civil cases and against the government in criminal cases. (1) Important because they may and can include conclusions as to fault (report from gov‟t agency investigating plane crash that concludes pilot error was cause of crash) (2) Examples would include investigations from OSHA, MSHA, NTSB, etc. 2. The foundation for a public record or report need only establish that the document is authentic and that it contains one of the three types of matters specified in the rule. It is not necessary to show that the public record or report was regular or made at or near the time of the event recorded. 3. Double Hearsay Problem – Public records may present a double hearsay problem as with business records. The courts will not admit for its truth a statement made by an outsider declarant having no official duty to report, unless the statement happens to fit within another hearsay exception or exemption. 4. Legal Conclusions – legal conclusion contained in a public record or report are inadmissible because the jury would have no way of knowing whether the preparer of the report was cognizant of the requirements underlying the legal conclusion, and, if not, whether the preparer might have a higher or lower standard than the law requires. 5. Public records or reports that meet the requirements of this exception may still be rendered inadmissible by statute or regulation. 6. United States v. Quezada – Quezda was an illegal alien deported from the country. Seven months later, he was incarcerated on a public intoxication charge. Subsequently, he was indicted by a federal grand jury for illegally reentering the country. The trial court allowed the admission of the warrant for deportation to be admitted into evidence. The court held that this was not part of the law enforcement exception which presumes the unreliability of observations made by law enforcement officials at the scene of a crime, or in the course of investigating a crime. The court found that “due to the lack of any motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter, such records are, like other public documents, inherently reliable. 7. Beech Aircraft Corp. v. Rainey – the case involves a Navy aircraft training accident. The JAG conducted and investigation and created a report. The report included not only factual findings but also included opinions and conclusions as to the cause of the accident. Initially, the trial judge ruled that the report would only be admissible as to its factual findings, but days before the trial, it reversed itself and found that certain conclusions would also be admissible. After reviewing the legislative comments of both Houses, the court ruled that the term “factual findings” did not include just statements of facts and automatically reject any language of opinions and conclusions. Thus, the court ruled that the report could not be per se ruled inadmissible simply because it contained conclusions. H. Learned Treatises [FRE 803 (18)] FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness. (18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct-examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. 1. Two requirements must be met to use these a) A statement in learned treatises, periodicals, pamphlets may be used only to extent they are called to the attention of an expert on cross-examination or to the extent they are relied on by an expert on direct-examination. These only come in conjunction with the testimony from an expert to provide the jury with guidance as to the meaning and importance of such statements. b) The material must be established as a reliable authority by either the witness or by another expert or by judicial notice. 2. One further limitation – the statement admitted under this exception may only be read into evidence. It may not be introduced as an exhibit that the jury can take back to the jury room for review. This is done to prevent the material from receiving undo authority – maybe more than the expert‟s testimony, itself. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 28 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 3. Who is testifying – the treatise is testifying to the truth of the matter asserted. The treatise can be used to impeach AND to go to the substantive issue, so long as the treatise has been acknowledged as being a reliable source in the field of the expert witness. The treatise can come in even if author not available. 4. Double check to see if this can go back to the jury...if it‟s read from and if it‟s NOT read from. a) In general review what has to be entered into evidence, when it has to be entered and what dan NOT go back with the jury!!!!!! 5. When use a treatise – must use it in conjunction with an expert. Assume the jury would not understand without expert‟s exlanation. 6. Review how this rule might work within the different stages of a trial. 7. Zwack v. State – Zwack was convicted for murder of a police officer. On appeal, Defendant contends that the trial court erred in refusing to permit the Defense counsel to read portions of a treatise. Defendant‟s medical expert witnesses testified that Defendant was suffering from paranoia and was borderline schizophrenic. Prosecution medical experts testified that he was not suffering from any mental illness. During the trial, Defense counsel attempted to read portions of a treatise into the record as substantive evidence. I. Statements of Prior Identification 1. It is much more convincing to hear that the victim had identified the accused from a line-up or photo array rather than the victim attempting to point-out the accused in the court room. 2. An out-of-court statement from the Witness now testifying is considered hearsay – even though the declarant is now the witness and is available for cross-examination. 3. Certain out-of-court statements made by the witness who then testify and are subject to cross-examination are exempted from hearsay – prior identification of a person made after perceiving the person is one category defined as non-hearsay. VI. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE [FRE804] A. Definition of Unavailability [FRE 804(a)] FRE 804. Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant– (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the subject matter of the declarant’s statement; or (4) us unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), (4), the declarant’s attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 1. Meaning of unavailability –federal rules can be established in any of 5 different ways (PRIMA) a) Privilege – declarant asserts privilege to not testify – takes the 5th b) Refuses to testify despite being ordered by the court c) Ill / infirm / dead – declarant is too ill to testify d) Memory – declarant‟s testifies to lack of memory e) Absent - declarant is absent and proponent can not procure her attendance 2. The Common Law states may differ and some jurisdictions may define unavailability differently for different hearsay exceptions. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 29 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 B. Former Testimony [FRE 804(b)(1)] FRE 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. 1. This is an out-of-court statement from another hearing or deposition now being offered to be made as testimony in another hearing or deposition – potentially, it could be deemed sufficiently reliable to be admitted. 2. The rule requires that the declarant (witness in earlier hearing) MUST be unavailable to testify in current trial. (If declarant is available, would rather have them come in person). 3. The party against whom former testimony is now being offered, must have had opportunity and motive to develop the testimony in the former hearing. Ask three questions: a) Who is the former testimony now being offered against? Focus on this party against whom testimony is now being used. b) Did that party, have the opportunity to develop the testimony in the former hearing? If yes, then go to next question. c) Did the party against who it is now being offered have similar motive to develop the testimony in the former hearing? Did they have the opportunity to ask questions of the witness in the previous hearing? And, did they have the incentive to ask those questions that would be asked now if witness was available? If Yes, then fair to allow the former testimony to be used. 4. Opportunity to Develop – only opportunity is required; there need not have been actual examination of the witness by the party or predecessor in interest. Moreover, it need not have been an opportunity for cross- examination; direct examination suffices. Hence, grand jury testimony may be admitted against the government, provided that the similar motive requirement is met in the particular circumstances. 5. Constitutional Requirement of Unavailability – in order for former testimony to be constitutionally admissible against an accused under the Confrontation Clause, the prosecution must establish that the witness is unavailable despite good faith efforts to produce the witness at trial. 6. Example – An eyewitness testifies against Defendant in Defendant‟s murder trial. Witness → “I saw the Defendant shoot the victim.” Case concludes with a hung jury and the witness dies. In re-trial, prosecutor wants to enter transcript from first trial. Is declarant / witness unavailable? →Yes. Who is former testimony now being offered against? → Defendant. Did the Defendant have the opportunity to question witness at the first trial? Did the Defendant have the incentive to ask similar types of questions expected of him to ask to ask if witness was testifying in the current testimony? → The Defendant had every incentive to show that witness was wrong or lying during the first trial → Yes, so former testimony is admissible. 7. Federal Rules – Civil Cases a) Even if party did not have opportunity and motive to develop the testimony at the former hearing, the former testimony is admissible IF the predecessor in interest of that party had the opportunity and motive to do so. b) Predecessor in interest – 2 interpretations: (1) Stand in must be someone in privity with person against whom the testimony is now being offered.....Buyer/Seller, Grantor/Grantee, Buyer/Buyee. (2) The federal courts have interpreted this more loosely → It could also be someone with a similar interest in developing the testimony. (a) Example – A and B are passengers on a train and are injured in the same accident, but bring separate proceedings. In A‟s case, the witness testifies for defendant-train against A. Witness dies before B‟s case goes to trial. Defendant-Train offers transcript of witness‟ testimony from A‟s trial. The testimony may be admissible even though B did not have the ability/opportunity to develop the testimony in A‟s case. A had similar motive and did have the opportunity. So, IF A is considered a party in interest, then the testimony is admissible under this exception because this is a civil case. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 30 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 8. State v. Ayers – Defendant Ayers and her husband were convicted for murder and conspiracy for the killing of her previous husband. During the first trial, she tried to use self-defense as an affirmative defense. During her re-trial, she attempted to use the defense that individuals other than herself had committed the murder. At issue is the defense‟s objections to the admissibility of Mr. Ayers prior testimony describing the murder plot, the procurement of the murder weapon, and the commission of the crime. She contends that she did not have the opportunity or similar motive to develop the testimony because of the change in her defense strategy. The Court found that this was nonsense because in both trials, her guilt or innocence of that crime was the identical issue. 9. Clay v. Johns-Manville Sales Corp. – Plaintiff‟s action for damages on the basis of products liability claims resulting from exposure to asbestos. In a previous case, the company had employed a Dr. Smith who gave a deposition relevant to the extent of the knowledge of the company regarding the hazards of asbestos containing products during the years the plaintiffs were exposed to asbestos. Dr. Smith died before this trial. The trial court denied admission of the testimony. On appeal, the Court held that the current parties had a similar motive to confront the testimony of Dr. Smith C. Statement Under Belief of Impending Death [FRE 804(b)(2)] FRE 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 1. Dying declaration – as people are drawing closer to death, they are less likely to risk their spot in heaven by lying. So, statements made by person who believes that death is imminent are likely to be true and are considered trustworthy. 2. The exception requires a showing that the declarant is unavailable to testify; however, the declarant does NOT need to be dead. 3. This exception allows the dying declaration to be admissible in all civil cases and criminal homicide cases. It is not restricted to cases where Defendant is being tried for killing the declarant. The statement is admissible in tort cases against the driver where the victim gasped, “I‟m a gonner, the driver ran the red light.” 4. The Declarant must believe that death is imminent – if they have any hope that they may survive, then the statement doesn‟t qualify. “Get a doctor” doesn‟t qualify; however, “get a priest” does. Remember, the Declarant does NOT have to die. 5. The statement must concern causes or circumstances as to what the declarant believed to be his impending death. Cancer patient that declares that “Bill killed Joe” does not qualify because the statement does involve the cancer patient‟s impending death. 6. State v. Quintana – Quintana was convicted of voluntary manslaughter for the death of Lopez. The trial court admitted the deathbed statement of Lopez. The court of appeals ruled this was reversible error. On further appeal, the Supreme Court of New Mexico reversed the court of appeals. The State sought to introduce into evidence a deathbed statement made by Lopez from the hospital to his family attorney that identified Quintana as the person who shot him. Lopez had not been told that he was dying and Lopez told his attorney that he knew he was seriously injured. Court found that the statement had been made by Lopez knowing and believing that his death was imminent. D. Statement Against Interest [FRE 804(b)(3)] FRE 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 31 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 1. People ordinarily do not say things against their own interest unless they are true – courts consider these to be trustworthy. 2. Civil Cases a) The exception requires that the Declarant must be unavailable. If available, then the hearsay statement is not be admissible under this exception. b) Under the Common Law, the statement is admissible only if the statement is against a pecuniary (financial) or proprietary (property) interest of the declarant → cuts against financial or property interest. This includes statements that would tend to subject the declarant to civil liability → “the accident was all my fault” → the statement increases the likelihood that the declarant would be sued and lose. c) Robinson v. Harkins & Co. – this is a personal injury action brought under the doctrine of respondeat superior, arising from a motor vehicle-train collision. Husband and wife riding in work truck. He was on- call 24-hours a day. She rode to work with him, then went to the bar for 7+ hours, and then got into the accident. She needed to prove that her husband was driving the truck to be able to succeed in her claim. The trial court denied the admission of her evidence – husband‟s injury report filed with work and his statements made to her. The appellate court found that her husband‟s statements in the injury report and his verbal statements to her went against all three interests – pecuniary (potential liability in negligence); criminal (he was driving under the influence); and social (he was responsible for making his wife a paraplegic). Thus, the Court rule that her evidence was admissible as a statement against interest. 3. Criminal Cases a) Offered by the Prosecution (1) Statements that would subject declarant to criminal liability – “I shot and killed victim” – are typically not admissible under this exception. It is too easy for the Defendant to try to exculpate himself by offering a statement from an unavailable declarant. But, the Federal Rules now include a declaration against penal interests as an admissible exception only if the statement is used to exculpate an accused and only when the circumstances clearly indicate the trustworthiness of the statement. (2) Example - The prosecution wants to offer a declaration against interest statement as evidence against the accused / defendant regarding possession of the stolen goods. First, Sam, the suspect, denies that he knew the goods were stolen. Then, Sam says, “Joe told me he stole the goods before he gave them to me.” The statement is clearly against Sam‟s penal interest – receipt of stolen goods. If Joe is later prosecuted for stealing the goods, then Sam‟s statement may be offered against Joe as Sam‟s declaration against interest provided that Sam is unavailable. (3) More likely occurrence to happen → Sam admits to his role in the sale of drugs. Sam‟s confession implicates courier and prosecution against courier wants to use Sam‟s statement/confession under this exception against the courier. The statement can‟t come in under the admission by party opponent because the courier is on trial and the statement was made by Sam. Nor can it come in under the co-conspirator theory because the statement was not made in furtherance of the conspiracy. (Remember → the declarant is speaking against his own interest and that‟s what makes the statement more likely to be true). Problem → although Sam incriminated himself during the confession, the parts that mention the courier might not be against Sam‟s interest. They might be used to minimize his involvement and maximize the courier‟s involvement, so is it really against Sam‟s interest when he is trying to emphasize the blame on the courier? → see the Williamson v. U.S. case below. (4) Williamson v. United States – the court said “entire confession can not be viewed as one big statement” because the exception does not apply to non-self-inculpatory parts of the statement. In applying the exception, you have to look at each individual remark of the declarant. The remark will qualify only when viewed in context → it can be said that that remark can be sufficiently disserving so that a reasonable person in the declarant‟s position would not have made such statement unless he believed it to be true. b) Offered by the Accused (1) Courts have identified a variety of factors or circumstances that are relevant to the court‟s determination whether a statement against penal interest offered to exculpate an accused possesses sufficient corroborating circumstances clearly indicating the trustworthiness of the statement; including: C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 32 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (a) The relationship between the declarant and the accused (the absence of a close relationship makes it less likely that the story is fabricated for the benefit of the accused); (b) Whether the statement was made voluntarily after Miranda warnings; (c) Whether there is evidence that the statement was made in order to curry favor with authorities. (2) United States v. Paguio – this was a case involving a father making false statements on a loan application. The father used his son‟s and daughter-in-law‟s information and got them to sign-it under false pretenses. The son and daughter were convicted and the trial court excluded the father‟s statement that they were not involved for exculpating the children, but admitted it for inculpating the father. The issue arises from the father‟s statement that his son had “nothing to do with it.” The government argued that the statement should be seen merely as exculpatory of the son, not inculpatory of the father. The court disagreed and concluded that the father‟s statement should have been admitted in its entirety. E. Forfeiture by Wrongdoing [FRE 804(b)(6)] FRE 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. 1. The exception requires the declarant to be unavailable. 2. If the party engages / acquiesces in wrongdoing that was aimed at making the hearsay declarant unavailable to testify and their effort succeeds, then the hearsay statements will be admissible against that party. 3. Example – Defendant bumps-off the key witness, then the Defendant forfeits their right to object when the prosecutor now offers the dead witness‟s statements against the Defendant. 4. If a witness‟ silence is procured by the defendant himself, the defendant cannot assert his confrontation clause rights in order to prevent prior grand jury testimony of that witness from being admitted against him. 5. The Rule 104(a) preponderance of the evidence standard applies to the preliminary determination whether a party has engaged in conduct justifying a forfeiture under this rule. 6. Conspiracy – where the unavailability of the declarant resulted from the acts of a party‟s conconspirator, “mere participation in a conspiracy does not suffice – yet participation may suffice when combined with findings that the wrongful act at issue was in furtherance and within the scope of an ongoing wrongful conspiracy and reasonably foreseeable as a natural and necessary consequence thereof. 7. United States v. Aguiar – Aguiar appeals from his conviction of witness-tampering. Albino had been arrested on drug trafficking charges and agreed to cooperate with authorities. Several days later he changed his mind and stated that he had received verbal and written threats from Aguiar. Several days after that he again refused to cooperate. Thereafter, the prosecution obtained a search warrant for Albino‟s cell where they found several letters. The letters told Albino to clear Aguiar of the allegations and told him to falsify testimony. The letters were not signed by Aguiar, but contained his fingerprints. Still, Albino refused to testify even though he was granted immunity. At Aguiar‟s trial, the court allowed the letters / evidence to be admissible. The appellate court affirmed the decision. F. Residual Exception 1. This is a catch-all provision → there are still instances where hearsay can be presented that may prove to be reliable yet not qualify under any of the listed exceptions. 2. Even if the hearsay does not fall into one of the defined exceptions, then it may be admissible if it possesses the equivalent circumstantial guarantees of trustworthiness. a) Necessity – the statement must be more probative for the point on which it is being offered than any other evidence that the proponent can reasonably be expected to come up with. b) Notice – the proponent must give the opponent notice of intention to offer the hearsay statement under this exception including the name and address of the declarant. The notice must be given sufficiently in advance of the trial to afford the opponent a fair opportunity to meet the evidence; however, there is no specific time frame. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 33 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (1) Most federal courts hold that a lack of pretrial notice does not preclude admissibility so long as the opponent is given a fair opportunity to prepare to contest the use of the evidence. 3. Federal courts have sometimes excluded hearsay offered under the residual exception where the declarant or another person with personal knowledge was available to testify concerning the matter. 4. Most courts have admitted uncrossexamined grand jury testimony into evidence at a subsequent trial where the declarant is no longer available and the requisite indicia of reliability exists. 5. Idaho v. Wright – the case involves a review of whether the admission at trial of certain hearsay statements made by a child declarant to an examining pediatrician violates a defendant‟s rights under the Confrontation Clause. Wright and Giles (her boyfriend) was charged with two counts of lewd conduct involving her two daughters of 5 ½ and 2 ½ years old. The eldest daughter told her father‟s companion about the assaults. The police were informed and she was taken to the hospital for examination. The medical examiner found evidence of sexual abuse. In a voir dire hearing there was determination that the youngest daughter was not capable of testifying. The trial court then allowed the testimony of the examining doctor as to what the young girl told him under objections of the defense. Wright appealed that the testimony violated her Confrontation Clause right. The Idaho Supreme Court agreed and reversed her conviction. The Supreme Court agreed with the Idaho SC that the hearsay statements in the doctor‟s testimony had no special reason that they were particularly trustworthy. The Court said that the trial court was incorrect to use corroborating evidence as a means for determining the trustworthiness of the statement. G. Confrontation Clause 1. This is a Constitutional limitation on the use of hearsay against criminal defendants. It restricts the ability of prosecutors to introduce hearsay against the accused. Unfortunately, the limits are unclear. 2. It applies ONLY in criminal cases – a right guaranteed to criminal defendants. 3. Clear – if the hearsay declarant testifies at the trial and is subject to cross-examination, then there is no confrontation clause problem. If there is an exception that exists for the admissibility regarding the truth, then there is no problem. The accused has the opportunity to confront the witness against him 4. The problem arises when the declarant does not testify and the hearsay is admitted → RULE – if the hearsay declarant is unavailable for the trial, then the hearsay can be introduced as long as it‟s reliable, based upon: a) a firmly rooted hearsay exception – the older and more widely excepted the exception, the better, and b) Particularized guarantees of reliability → if the hearsay statement is not rooted in an exception, then the prosecution must show that this statement possesses the circumstantial guarantees of reliability (i.e., the statement was made under circumstances that guarantee its trustworthiness). 5. The constitutional right of confrontation requires distinguishing among four categories of hearsay statements: a) Prior statements by witnesses: substantive admission of a prior statement by a witness who testifies in the present proceeding under oath and subject to cross-examination concerning the prior statement does not offend the constitutional right of confrontation, even if the witness denies making the prior statement or testifies to a lack of memory. b) Former testimony – constitutional requirement of unavailability: in order for former testimony to be constitutionally admissible against an accused, the prosecution must establish that the witness is unavailable despite good faith efforts to produce the witness at trial. The Supreme Court has indicated that “unavailability analysis is a necessary part of Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding.” c) “Firmly rooted” exception: where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied. Most of the hearsay exemptions and exceptions specifically denominated in Rules 801(d)(2), 803, and 804 qualify as “firmly rooted.” The Supreme Court has identified as “firmly rooted” the exceptions for excited utterances and statements made for medical treatment and conconspirator statements. However, declarations against penal interest inculpating the accused and offered under Rule 804(b)(3) do not qualify as within a firmly rooted exception. d) Not within a “firmly rooted” exception: if the hearsay offered against an accused does not fall within a “firmly rooted” exception – for example, if it is offered under the “residual” exception, Rule 807 – then the Confrontation Clause requires a showing of particularized guarantees of trustworthiness. Particularized guarantees of trustworthiness must be shown from a totality of the circumstances, but the relevant circumstances include only those that surround the making of the statement and that render C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 34 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 the declarant particularly worthy of belief. The evidence must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial – i.e., not by corroboration. 6. Treated differently when declarant is available to testify but is not produced by the prosecution. Not explored by the tapes. Treated somewhat on par with declarant as unavailable. VII. PROCEDURES FOR ADMITTING AND EXCLUDING EVIDENCE [FRE ARTICLE I] A. Objections and Motions to Strike [FRE 103(a)(1)] FRE 103. Rulings on Evidence (a) Effect on erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting the evidence, a timely objection or motion to strike appears on record, stating the specific ground of objection, if the specific ground was not apparent from the context; or 1. General a) Basis for appeal – error requires a substantial right of a party affected and timely and specific objection or offer of proof required. b) For ruling on the admission of evidence on appeal there must have been a timely objection or motion to strike on the record and the specific grounds must also appeal on the record. c) A failure to object or move to strike = waiver. d) Errors (1) Harmless Error – factors for determining whether error is harmless: (a) Whether erroneously admitted evidence was the primary evidence relied upon, (b) whether the aggrieved party was nonetheless able to present the substance of its claim, (c) the existence and usefulness of curative jury instructions, (d) the extent of jury argument based on tainted evidence, (e) whether erroneously admitted evidence was merely cumulative, and (f) whether other evidence was overwhelming. (2) Plain Error – Error that is not only clear in retrospect but also causes a miscarriage of justice. Four prerequisites of plain error: (a) An error; (b) that is clear and obvious under current law; (c) that affects the defendant‟s substantial rights; and (d) that would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected. e) Motion in Limine (1) This is a pretrial motion of evidence objections. (2) Usually the courts ruling is only considered tentative. (a) There are no appeals for such rulings. (b) The losing party can put issue up again by offering the evidence at trial; however, the proffering party must no expose sensitive points to jury. (c) The opposing party must renew there objection during the trial if the other side offers it. Remember – failure to object waives right to appeal. (d) The judge may change their ruling during the trial if the trial shows developments that turn out differently than expected at the pretrial ruling. 2. Timeliness a) An objection is considered timely when an objection is made when the grounds for objection first become apparent. This is usually before the question is answered but not if the witness jumps the gun or gives testimony later becoming objectionable. b) “Connecting up” – if evidence is not connected up in trial a waiver occurs unless the objector renews the earlier objection by a motion to strike at an appropriate time → the close of the proponent‟s case. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 35 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 c) Continuing objections – this preserves error with respect to a series of similar or connected questions or offers of evidence but only to the extent that the continuing objection is adequately specific and unambiguous. d) Depositions – Must object to form or anything that can be cured or obviated at the time the question is asked during the deposition. All other objections are reserved until the deposition is offered during the trial. e) Government of the Virgin Islands v. Archibald -– the case involves an appeal of a conviction for aggravated rape. Testimony had been provided on behalf of the prosecution regarding a prior criminal act by the defendant. Defense counsel failed to make an objection until a limiting instruction was provided to the jury just prior to deliberations. The objection was denied and the appellate court affirmed the conviction stating that counsel should have objected at the time the testimony was offered. 3. Specificity a) NO general objections, the party making objection must state the grounds for exclusion. b) However, no grounds are necessary if it is apparent from the context. (e.g., the parties previously argued the point – such as a motion in limine. c) Specific Ground – objection to photos, not proper basis for admission is too vague. If the proper ground is a relevancy problem under 401, 402, or 403, then an objection on that ground may suffice if it is clear. d) Specific objection, wrong ground – if an objection naming an untenable ground is overruled, the ruling will be affirmed on appeal even though a good but unnamed ground existed for exclusion of the evidence. e) Specificity as to parts – an objection must be specific as to parts as well as grounds. If part of an offer is admissible and part inadmissible, an objection to the whole, even if it names a valid specific ground, may be properly overruled, and the entire offer admitted, if the objector fails to properly specify properly which part of parts of the offer are inadmissible. f) McEwen v. Texas & Pacific Railway Co. – McEwen is appealing the judgment for the Railway that she was contributorily negligent in a personal injury case resulting from an accident while getting off a train. The Defense proffered evidence that she was fond of playing bridge. Her counsel objected on the grounds that the testimony was irrelevant and immaterial. The trial court overruled the objection. On appeal, the judgment was affirmed stating that her counsel‟s objection was nothing more than a general objection. The court found that it could be found from the record that the objection was based on the fact that the testimony was prejudicial, but that counsel should have stated why it was prejudicial. B. Offers of Proof [FRE 103(a)(2), (b)] FRE 103. Rulings on Evidence (a) Effect on erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding the evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. 1. Form of offer of proof – Rule 103(b) accords the trial judge the discretion as to the form of an offer of proof. A formal offer, in question-and-answer form, is a more reliable method. It eliminates doubt as to the harm caused by the exclusion, and may encourage the trial judge to reconsider the ruling. 2. During cross-examination – the requirement of offer of proof to preserve error in exclusion of evidence applies equally to cross-examination. 3. Overbroad offers of evidence – if a party offers evidence that is partly admissible and partly inadmissible, without limiting the offer to the admissible part, the party may not complain on appeal if the court excludes the entire offer. 4. Padilla v. State – Padilla appeals judgment and sentence of first degree sexual assault. During the re-cross- examination of the victim by Defense counsel, counsel attempted to refresh the victim‟s memory about her testimony during the preliminary hearing. Prosecution objected and stated that Defense counsel should be C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 36 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 using a transcript. Defense counsel stated that no transcript was made but he had a recording of the testimony, but it was partially recorded over. The trial judge sustained the objection. On appeal, the court affirmed the ruling stating that Defense counsel made no attempt to make an offer of proof. C. Preliminary Questions [FRE 104] FRE 104. Preliminary Questions (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). in making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. (d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and credibility. The rule does not limit the right of a party to introduce before the jury relevant to weight or credibility. 1. The admissibility of evidence often turns upon an issue of fact. Rule 104 sets forth the respective roles of the judge and the jury in deciding preliminary questions and also addresses some procedural matters concerning the disposition of preliminary questions. 2. Questions of admissibility generally – Rule 104(a) embodies the common-law doctrine that the judge, not the jury, decides preliminary questions of fact that determine the admissibility of evidence under the rules of evidence. 3. Rules of evidence, except privileges, inapplicable on preliminary questions – the second sentence of Rule 104(a) liberates the judge from the rules of evidence, except privileges, in determining preliminary questions relating to admissibility. 4. Relevancy conditioned on fact – paragraph (b) of Rule 104 in effect gives to the jury issues that go only to the relevancy, as opposed to the competency, of evidence. a) Other crimes or acts – Rule 104(b) applies to evidence of other crimes, wrongs, or acts offered under Rule 404(b) as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, or for another purpose. b) Authentication or identification – this is the most common example of conditional relevancy. (1) The authentication of a document or an item of real evidence requires evidence sufficient to support a jury finding that the offered item is what its proponent claims. (2) The function of a judge is merely to determine whether a prima facie case has been presented, not to decide the actual issue of genuineness. c) “Connecting up” – (1) Where evidence is presented that is subject to exclusion on an objection that its relevancy has not been shown or that it lacks adequate foundation, the judge may admit the evidence conditionally upon counsel‟s promise to “connect it up later.” (2) If sufficient “connecting” evidence fails to appear by close of the proponent‟s evidence, the judge, upon the opponent‟s motion, will strike the conditionally admitted evidence and instruct the jury to disregard it. (3) A waiver may occur, however, if the opponent fails to renew his original objection by a motion to strike at the end at an appropriate time, usually the close of the proponent‟s case. 5. Hearing of jury – a) Rule 104(c) addresses whether hearings on preliminary questions must be out of the hearing of the jury. b) Determining the issue is a matter of the trial judge‟s discretion → if hearing the preliminary matter does not threaten exposure to prejudicial inadmissible matters, then there is no requirement of the inconvenience of withdrawing the jury. c) Two situations in the Rule eliminates discretion: (1) When the hearing is to determine the admissibility of a confession, and C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 37 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (2) when an accused is a witness on the issue and requests withdrawal of the jury. 6. Testimony by accused – in general, the prosecution may not use the testimony of the accused from the preliminary hearing outside the hearing of the jury against the accused as evidence in chief, but under some conditions it my be used for impeachment. 7. Weight and credibility – Rule 104(e) is to clarify that the procedures provided in Rule 104 for the disposition of preliminary questions determining admissibility do not limit the introduction of other evidence before the jury for purposes of weight and credibility. D. Limited Admissibility [FRE 105] FRE 105. Limited Admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. 1. Limiting instruction a matter of right – if evidence is admissible only for a limited purpose and an appropriate limiting instruction is requested, it is error to refuse it. 2. Responsibilities of party - a) If an opponent fails to request an instruction, then the opponent may not complain on appeal if the evidence is admitted without limitation. b) If evidence is offered that is admissible against one party opponent, but not another, then the other party must request a limiting instruction that the evidence is only admissible as to the first party opponent. c) An overbroad objection, demanding total exclusion of the evidence instead of a limiting instruction operates as a waiver. 3. Timing of limiting instruction – ordinarily, the court gives the instruction at the time the evidence is admitted. However, it is a matter of discretion for the trial judge and may be deferred until the giving of the general charge. 4. Exclusion under Rule 403 – sometimes a limiting instruction is insufficient to protect from unfair prejudice. If the danger of unfair prejudice outweighs the probative value, even considering the effect of the instruction, then the evidence must be excluded. E. Remainder of or Related Writings or Recorded Statements [FRE 106] FRE 106. Remainder of or Related Writings or Recorded Statements. 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. 1. The party-opponent‟s counsel must object on the spot when the evidence is being presented. 2. Writing need not be formally introduced to trigger the rule – Rule 106 applies when the contents of a writing are effectively presented even if the writing itself is not introduced into evidence. 3. Oral conversations – Rule 106 applies to only to writings or recorded statements. An opposing party may not invoke Rule 106 to force the remainder of an unrecorded conversation; however, they may develop the remainder on cross-examination. 4. United States v. Sweiss – Sweiss was convicted of conspiring to destroy a competing grocery store and of attempting obstruct the government‟s investigation of that crime. Through hidden recording devices, two conversations were recorded between Sweiss and a trial witness for the prosecution. Prosecution attempted to admit the transcript of the September conversation. The transcript was admitted over the objections of Defense counsel who stated that the August conversation should also have been admitted to help explain the statements made in the later conversation. The trial court denied admission of that August transcript. On appeal, the court affirmed the judgment stating that although the August conversation may have been useful to the jury, it was not necessary to explain the evidence (Prosecution‟s admittance of the September conversation) already admitted. F. Curative Admissibility (“Opening the Door”) and the Rule of Completeness 1. Two possibilities to allowing in inadmissible testimony that is partially introduced: a) Opening the door (curative admissibility) – limited to responses (to rebut or explain) otherwise inadmissible evidence that is introduced by an opposing party. It allows the curing of tainted evidence. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 38 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 Another response would be to object and keep out the inadmissible evidence entirely. Counsel needs to make a strategic decision to leave the opposition‟s hearsay in. b) Optional completeness – when the witness testifies to only part of a conversation on cross-examination, then counsel, on re-direct examination can elicit the whole conversation on the same subject. 2. Government of the Virgin Islands v. Archibald – During cross-examination, defense counsel had asked the witness whether or not she had ever seen the accused and the victim alone and whether she had ever overheard any conversations regarding the accused and the victim. On redirect examination, the witness gave testimony, over defense counsel‟s objections, that she had seen the victim and accused kissing at a party. The trial court ruled that the defense counsel had “opened the door. On appeal, the court over turned the trial court‟s decision stating that the doctrine of “opening the door” provides that when one party introduces inadmissible evidence, the opposing party thereafter may introduce otherwise inadmissible evidence to rebut or explain the prior evidence. In this case, the testimony elicited during cross-examination was admissible and thus did NOT open the door to the admission of hearsay on redirect examination. VIII. WITNESSES [FRE ARTICLE VI] A. Stages of the Examination 1. Direct – no leading questions – we want the witness to testify, not the lawyer. a) Leading – if ordinary person would get the impression that the questioner desires one answer rather than another, then a leading question. Could be wording, could be voice inflection, etc. b) Exceptions – when permitted (1) If they relate to preliminary issues not in dispute (name, address, etc) (2) where necessary – witness is having difficulty responding to non-leading questions (child, week- minded, language problem, infirm witness....if witness is unable to remember anything, may jog their memory – should not overly lead) (a) PRESENT RECOLLECTION REFRESHED – technique and procedures to jog a forgetful witness‟ memory. Witness testifies from memory – so there is no hearsay problem. (i) Example – Car accident that occurred years ago but only coming to trial now. You try to jog memory of eyewitness with leading questions. No good. You have a letter that eyewitness wrote to her sister right after the accident. Can you show her the letter in order to jog her memory – Yes. Can you show her a letter written by someone else – Yes. Can show her ANYTHING to attempt to refresh the witness‟ memory. Danger here is that the witness really hasn‟t had her memory refreshed but instead is jut remembering is only what she has just read. Can NOT enter the letter into evidence because witness is testifying from MEMORY not from the letter, which is just a prod to jog her memory. Opponent has right to inspect letter, cross on the letter, and introduce any relevant portions of the letter. If prior to trial, witness reviews the letter, court has discretion to give opposing counsel the right to review, cross and introduce portions of the letter. (b) PAST RECOLLECTION RECORDED – hearsay exception that allows the use of a previously written stmt by a witness who can no longer remember what happened despite counsel‟s best effort. (i) Example – Same car accident and eyewitness who can‟t recall details. Try to refresh recollection – no good. Try to get the letter introduced in evidence – but it‟s hearsay. It would be testifying – you need an exception. (3) Need to meet 4 requirements in order to satisfy exception: (a) Eyewitness must testify that she once had personal knowledge as to what happened (b) Must testify that she has insufficient recollection to testify fully and accurately about the event (c) Must testify that she made a stmt about the event when it was fresh in her mind (d) Must testify that the letter accurately reflected her knowledge at the time (4) Limitation – writing that qualifies, as past recollection recorded may not be introduces as an exhibit. Just a substitute for witnesses testimony – so may only be read to the jury. c) when questioning a witness who is unlikely to follow your lead - you call an adverse party, call a witness identified with an adverse party (CEO of defendant corporation) C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 39 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 d) When questioning a hostile witness who does not respond to nonliving questions – request of the court to have them declared and with permission to ask leading questions. 2. Cross – allow leading questions. You want to put words into the witness‟s mouth on cross. 3. Redirect – limited to issues from cross 4. Recross – limited to issues from redirect B. Competency [FRE 601 – 606] FRE 601. General Rule of Competency. Every person is competent to be a witness as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined with State Law. 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’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. FRE 603. Oath or Affirmation. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.. FRE 604. Interpreters. An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. FRE 605. Competency of Judge as Witness. The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. FRE 606. Competency of Juror as Witness (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. 1. General a) Two things that can bear on witness‟ competency to testify: (1) Personal attributes of witness – things that affect their ability to see, hear, remember, relate, etc (a) Every person is competent to be a witness. Personal attributes may be used to attack the weight of the evidence. Only need to be able to swear or affirm that will testify truthfully and they have personal knowledge as to the matters about which they will testify. Witnesses are assumed to be competent – issues must be raised by objection. (2) Witness‟ status – (a) judge may not testify in a case over which he is presiding (b) Juror may not testify in a case in which the juror is sitting – an objection must be made here to preserve error 2. Mental Competency; Oath [FRE 601, 603] a) Except as otherwise provided, every person is competent to be a witness. Rule 601 does not specify any mental or moral qualifications for testifying. b) Discretion is regularly exercised in favor of allowing the testimony of a witness. c) Minimum competency: witness able to (1) observe, (2) remember, and (3) relate C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 40 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 d) United States v. Odom – this case involved voter fraud. Odom was accused of casting absentee ballots for people who were in a Rest Home, were advanced in years, and were both physically and mentally feeble. Defense counsel objected to those people being called as witnesses by the prosecution. The trial court denied their objection. On appeal, the court agreed with the trial court stating that “neither feeble-mindedness nor insanity renders a witness incompetent or disqualified. The only grounds for disqualifying a witness under Rule 601 is that the witness i) has no knowledge of the matters, ii) no capacity to recall, and iii) does not understand their duty to testify truthfully. Additionally, the Defense argued that they were prejudiced by the fact that the jury saw the witnesses in that physical state. The court ruled that it was extremely relevant for the jury to see and consider the state of the witnesses. 3. Children a) Children can testify. b) Courts looks at competency through sufficient intelligence to (1) observe, (2) recollect, and (3) narrate the facts. c) Capps v. Commonwealth – Capps was indicted on a charge of first-degree sodomy of a minor under 12 years of age – she was 5 ½ years old at time of trial. The trial court permitted the victim to testify over the objections of the Defense. On appeal, the upheld the judgment stating that the trial judge did not abuse their discretion by holding a voir dire hearing, outside of the hearing of the jury, to determine the competency of the girl where he found the child to be able to meet the requirements set forth above. 4. Dead Man‟s Statutes a) At common law, no party or person interested in the results of the litigation was permitted to testify. b) Today, statutes have removed many of the disqualifications and it should read liberally. On the other hand, any exceptions to these disqualification removal statutes are to be strictly construed. c) Exceptions to the Dead Man‟s Act (1) Will contest (interstate heirs v. representatives) (2) 20 PACS 2209 (elective share statute) – surviving spouse may testify to acts prior to testator‟s death; for common law marriage. (3) 20 PACS 3121 – permits surviving spouse to testify with regards to desertion. (4) 42 PACS 5932 & 5935 - (a) 5932 – is the Defendant a competent witness for the Plaintiff? Under this, yes. The Plaintiff may call the Defendant as a witness as if under cross-examination. (b) 5935 - ??? (5) Failing to object (6) Discovery – check on the health of the client. As soon as you would send out interrogatories, then the Dead Man‟s Act would be waived. (7) 42 PACS 5933 – e.g. Probate Estate of A v. Sekula. Witness testifies about interactions with Sekula. This statute allows Sekula to rebut the testimony of the Witness. d) Farley v. Collins – case involves the determination of whether an automobile collision constitutes a transaction within the contemplation of the Dead Man‟s Statute. Collins is the administrator of the estate of Dann. Farley and Dann were involved in an auto accident. Farley testified as to the movements of both vehicles over the objections of Collins. The trial court overruled the objection and the court of appeals reversed the decision. The Florida SC held that the trial court was correct in its ruling. The Court stated that “transaction” in the statute should not be construed simply to mean an exchange of reciprocal conduct or negotiation but should also include an automobile accident. The Court further stated that the survivor of the accident would be under oath and their credibility could be evaluated by the jury and tested through cross-examination. 5. Lack of Personal Knowledge [FRE 602] a) Hearsay declarants must have personal knowledge unless it is a party admission. b) A witness may testify only if there is sufficient evidence that the witness has personal knowledge of that matter. c) Speculation and Conjecture – personal knowledge includes inferences – all knowledge is inferential – and therefore opinions. But, the inferences and opinions must be grounded in observation or other first- C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 41 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 hand personal experience. They must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience. d) Relation of Rule 602 to Rules 802 and 701(a) – (1) When a witness asserts a fact, there are basically three possibilities: (a) The witness personally perceived the fact or rationally inferred it from personal perceptions. (b) Someone else whom the witness credits communicated the fact to the witness, or (c) The witness chooses to believe the fact based upon a hunch, conjecture, or the like. (2) Rule 602 overlaps with Rule 802, the hearsay rule. (3) Rule 602 overlaps with Rule 701(a), which requires that a lay witness may state an opinion or inference only if it is rationally based on the perception of the witness. e) Kemp v. Balboa – state prisoner, Kemp, filed suit accusing a prison guard, Balboa, of improperly confiscating his medication used to control his epilepsy, resulting in epileptic fits, which injured him – judgment for Defense. Defense had offered the testimony of Dr. Maness who testified that Kemp had failed to pick-up his medication. However, on cross-examination, it was shown that she did not have personal knowledge of the fact – she was basing her knowledge off of medical records not prepared by her. The court held that the district court should have struck the testimony of Dr. Maness. f) Rock v. Arkansas – case involves the hypnotically refreshed memory of the accused to testify in her own trial. Rock was charged and convicted with manslaughter of her husband. The Supreme Court of Arkansas upheld the conviction and its per se rule disallowing testimony after the witness‟ memory was refreshed from hypnosis. The US SC ruled that the per se rule violates the Constitution because the rule operates to the detriment of any defendant who undergoes hypnosis, without regard to the reasons for it, the circumstances under which it took place, or any independent verification of the information it produced. It went further to state that procedural safeguards could be put into place to prevent the introduction of inaccurate memories, or suggested memories. 6. Competency of Juror as Witness [FRE 606] a) A member of the trial jury may not testify as a witness before the jury in which he is a member of (may not impeach the verdict) except (1) When there is an inquiry into the validity of a verdict, a juror may testify as to whether any extraneous prejudicial information was improperly brought to the jury‟s attention or whether there was any outside influence on any juror. (2) They may not testify as to any statement made during jury deliberations, juror‟s thoughts or emotions, or the juror‟s mental processes. b) Extraneous prejudicial information – information about the case not presented into evidence, such as a juror reading a newspaper article, obtaining information from another person, conducting an investigation, or visiting the scene of events. c) Outside information – includes such things as brides, threats, or entreaties from nonjurors. d) Wilson v. Vermont Castings, Inc. – products liability case involving a wood burning stove. Plaintiff appeals verdict because juror brought in a user manual from home for same stove and also the same juror told the jury of her own personal experiences with the stove. The Court held that the existence of warnings inside the manual went solely to the issue of defect, but because she had prevailed on the issue of defect at trial, she was not prejudiced by the fact that the jury had the manual. With regards to the juror‟s statements of own experiences, the district court would have been in error if they considered the effect of extraneous information on a juror, which is prohibited under Rule 606(b) C. Impeachment [FRE 607 – 610, 613] (common law usually forbids you to impeach your own witness = voucher rule. Exception if what is said is both nexpected and injurious) FRE 607. Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness. FRE 608. Evidence of Character and Conduct of Witness (effective December 1, 2003) (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. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 42 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by the accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. FRE 609. Impeachment by Evidence of Conviction of Crime (a) General rule. For the purpose of attacking the credibility of a witness,. (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted it if involved dishonesty or false statement, regardless of the punishment. (b) Time Limit. Evidence of a conviction under this rule is not admissible if a period or more than ten years has elapsed since the date of the conviction or of the relase of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such conviction. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. FRE 610. Religious Beliefs or Opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing tha by reason of their nature the witness’ credibility is impaired or enhanced. FRE 613. Prior Statements of Witnesses (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 1. Five Methods of Impeachment – representing five types of attacks upon the credibility of a witness (BICCC) a) Evidence that the witness has made a prior inconsistent statement; b) Evidence that the witness has a bias or interest, either legitimate or corrupt, relating to one or more of the parties or to the outcome of the case; C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 43 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 c) Evidence that the witness has a bad character for truthfulness, as shown by previous conviction of a crime, or other misconduct, or by reputation or opinion evidence as to character; d) Evidence of a defect of capacity of the witness to observe, to remember, or to relate; e) Evidence that any matter in the witness’ testimony is false – this is called contradiction or specific contradiction of the witness. 2. Prior Inconsistent Statement [FRE 613] - IS ANYTHING BE ENTERED INTO EVIDENCE?? a) Most difficult from conceptual standpoint b) Example – Defendant on trial for murder. Witness told police that he saw Defendant shoot victim. Without the Witness, no case. When prosecution calls the Witness, he testifies that he did not see the shooting. Prosecution wants to offer the prior statement to the police to prove that he saw the shooting and that the Defendant was the shooter – not admissible. Witness‟ own out-of-court statement is hearsay, if offered as substantive evidence. The Prosecutor MAY be able to impeach the Witness with their prior statement. The prior statement detracts from the Witness‟ credibility. The Prosecutor is not asking the jury to believe the prior statement – they just want the jury to know that he made the statement...Witness blows both hot and cold, both sides of fence. In this example, Prosecution still has no substantive Evidence that the Defendant was the shooter. Typically, the prosecution must have additional substantive Evidence to get to the jury and not throw out. c) The Defendant is entitled to a limiting instruction upon request from the Defense, the judge will instruct the jury as to the limitation regarding the credibility issue only, but it will not be considered for its truth. d) Some prior inconsistent statements are deemed to be non-hearsay and are admissible for their truth and to impeach. (1) REFER TO FRE 801(d)(1) (a) The Witness must be available for cross-examination about the prior statement (b) The prior statement must have been made: (i) under oath (ii) made subject to penalty for perjury (iii) at trial, hearing, other proceeding or deposition e) Federal rules – no foundation requirement exists f) Extrinsic evidence – admissible so long as (1) the Witness has an opportunity to explain or deny the statement, and (2) the opposing counsel has an opportunity to question the Witness about the statement. The opportunity may come after the prior inconsistent statement has been proved. Or, they may choose to not ask W1 about the prior inconsistent statement while W1 is testifying; but, they may call W2 to testify that W1 just made an inconsistent statement – so long as W1 is available to explain the statement and opposing counsel can question W1. g) State v. Hines – Hines was convicted of illegally possessing marijuana. On appeal, Hines asserts that the cross-examination, the impeachment, of his chief alibi witness was improper. The cross- examination was based on questioning that showed the witness omitted certain facts in a prior interview with the prosecutor that she later testified to. The court affirmed finding that a failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. They held it would have been natural for a reasonable person to realize that she was supposed to tell him everything. Hines‟ second argument contends that if the omissions were prior inconsistent statements, impeachment should not have been permitted because the prosecution failed to lay the proper foundation. The court dismissed this because the Rule does not have foundational requirements, other than the statement must be shown to the witness if they request it. Hines‟ third argument contends that if the statements were inconsistent and no foundation was required, the impeachment was improper because the prosecution failed to follow up his questions with extrinsic evidence of the omissions. This argument failed because the witness had admitted that she had been previously asked about the events. Thus, no further proof was necessary. 3. Bias or Interest a) Counsel can impeach the Witness by showing that the Witness has reason independent of merits of the case to give testimony favoring one side or the other. b) Bias may arise from animosity, financial interest in outcome, intimidation, family relative, paid witness, etc. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 44 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 c) Presence of one of these is not proof positive that the Witness is lying, but it is pertinent to the Witness sincerity. d) Extrinsic evidence may be offered to prove bias – not limited to asking Witness about the source of bias, but can show it through other witnesses, which are subject to the tests of relevancy, etc. (1) Some jurisdictions require a foundation be laid wherein the Witness must first be asked about the bias – the purpose is to save time, but NOT in the Federal System. e) United States v. Harvey – Harvey was convicted of bank robbery and bank larceny. Sole question on appeal is whether the trial court committed reversible error in excluding evidence proffered by the Defendant as to possible bias on the part of the government‟s chief identification witness. The witness, Mrs. Martin testified that she knew the appellant and denied that she accused him of fathering her child and denying support for them. Mrs. Harvey testified that she knew mrs. Martin and that Mrs. Martin had accused Defendant of being the father. The trial court denied the testimony stating that it was collateral. The Court of Appeals overturned the conviction holding that the trial court erred in denying the testimony of Mrs. Harvey because showing bias in a witness is not a collateral issue and that extrinsic evidence is admissible to prove that a witness has a motive to testify falsely. The rule requires that the witness must be afforded an opportunity to explain the circumstances suggesting bias. Here the defense counsel had specifically asked her about the accusation made about the Defendant – father of her child. 4. Character for Truthfulness – double check what rule this is...is it FRE 608??? a) General (1) The Witness may be impeached by showing that their character for truthfulness is bad → the jury may infer that the Witness is now acting in accordance with their bad character and now they are testifying untruthfully. (a) Warning bells about character evidence rules → not admissible to show action in conformity therewith. (b) Exception – character evidence may be used to impeach...and is explained here. Untruthful character may be proven in one of three ways. (2) Opinion or reputation testimony – FRE 608(a) - to impeach W1, the impeaching party may call W2 to testify as to her opinion of W1‟s honesty or reputation as to truthfulness. (a) W2 is limited to stating her opinion or relating the reputation of W1. (b) W2 may not cite specific instances of misconduct to support either her opinion or W1‟s reputation. (c) Proponent of W1 can not call W‟s to support good character for truthfulness of W1 until W1‟s character has first been attacked. Then may call own “good opinion” W‟s. (i) Price to pay → these “good opinion” witnesses may be cross-examined as to specific instances in the form of “ Have you heard” and/or “Did you know” questions in an effort to establish how knowledgeable the “good opinion” Witness is about W1 or how familiar the “good opinion” Witness really is with W1. (ii) The questioner of the “good opinion” Witness is bound by their answer...”NO, I didn‟t know that he embezzled from the Brownie Troop”. (iii) Extrinsic evidence is not allowed in to rebut what the good opinion witness says. (3) Evidence of specific acts of the Witness that have not resulted in a conviction – in the discretion of the court W1 himself may be asked on cross-examination about specific things that he has done that would bear on his truthful disposition → “Isn‟t it true you embezzled from Brownie Troop last year?” (a) The cited conduct MUST be probative of untruthful character, relating to dishonesty, deceit, lying, etc. Violent conduct questions are not permissible. (b) The cross-examiner is bound by the answer given by W1. (c) Extrinsic evidence is not admissible to show that W1 actually engaged in the specific conduct. Counsel can‟t have 10 Brownie troop leaders lined up to testify that he did embezzle even if he says he did not – they will not be permitted to testify. b) Conviction of Crime [FRE 609] (1) This involves testimony attempting to show that the Witness has been convicted of certain crimes – this is a controversial area of the law and differs from state to state. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 45 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (2) Federal Rules – two factors that may influence whether W1 may be impeached by showing previous convictions: (a) Nature of the crime (i) Did the crime involve some element of deceit or dishonesty - perjury, false statement, criminal fraud, embezzlement, false pretenses – if so, then the conviction may be used to impeach the Witness; OR (ii) was the crime a felony – one that is punishable by death, or imprisonment for more than one year. (The Rule is not concerned whether the Witness was actually punished as so, just whether the crime is classified as a felony.) (a) If so, then it may be used ONLY if it passes a balancing test = probative value of conviction as bearing upon the W1‟s credibility versus the danger of unfair prejudice. (b) Nature of balancing test depends on whether the Witness being impeached is the criminal defendant or not. (i) If the Witness being impeached is the criminal defendant in the current trial, then a felony NOT involving dishonesty may be used ONLY if the court determines that the probative value of the conviction outweighs the prejudicial effect. EXAMPLE – the Defendant is on trial for murder and testifies in his own defense. The Prosecution wants to impeach him to show that he is untrustworthy and should not be believed by showing that he had previously been convicted of felony assault. The court should allow the evidence of the conviction only if the probative value of the assault as evidence of untruthfulness outweighs the danger of unfair prejudice → danger that the jury would use the conviction as evidence of his violent character rather than as evidence of defendant‟s untruthful character . (ii) WHEN THE WITNESS BEING IMPEACHED IS THE ACCUSED (in the current trial), HE MAY NOT BE IMPEACHED (by conviction of felony that did not involve dishonesty) UNLESS THE COURT AFFIRMATIVELY FINDS THAT THE PROBATIVE VALUE OF THE CONVICTION FOR IMPEACHMENT PURPOSES (untruthfulness) OUTWEIGHS THE DANGER OF UNFAIR PREJUDICE. (The risk to the criminal defendant is great – the fear is that when the jury hears of the previous convictions they will be more willing to convict here and that character evidence will be used to show propensity to act in conformity therewith. They‟ll confuse propensity to commit crime with ability to tell the truth.) (iii) IF the Witness being impeached is anyone other than the accused, then a felony not involving dishonesty or false statement may be used to impeach. The court may exclude if the probative value is substantially outweighed by the prejudicial effect. (iv) IF THE WITNESS BEING IMPEACHED IS ANYONE OTHER THAN THE ACCUSED, THEN THE IMPEACHMENT WILL BE ALLOWED UNLESS THE COURT FINDS THAT THE DANGER OF UNFAIR PREJUDICE SUBSTANTIALLY OUTWEIGHS ITS PROBATIVE VALUE. (b) Remote Convictions – what about really old convictions and fact that people can reform and change over time. (i) Special balancing test → used to impeach only if the court specifically finds that the probative value substantially outweighs its prejudicial effect. (ii) Conviction will be considered remote if 10 years have elapsed since release for confinement or from date of conviction if no time served. (3) Manner of Proof – to introduce impeaching conviction → Counsel must ask the Witness about the impeaching conviction. (4) Use of public record – limited to basic fact of conviction. Counsel can‟t refer to aggravated facts of crime. (a) CAN USE → “Isn‟t it true that you were convicted for this at that time?” (b) CAN NOT USE → “Isn‟t it true that you were convicted of beating your kids with a baseball bat?” (5) Example – this section deals with impeaching W‟s credibility to be truthful. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 46 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (a) Defendant company seeks to impeach the Plaintiff‟s Witness by asking, ”Isn‟t it true that you threatened to kill the owner of the company last year when he fired you?” Although it could not be used to prove untruthful character, it may be used to show bias, bias against defendant company. Question may be asked. IF denied, then extrinsic Evidence may be used to show that he did. ALWAYS ASK – WHAT IS THE EVIDENCE BEING OFERED TO PROVE???? (6) State v. Roy – Roy was tried and convicted of the crime of taking indecent liberties. The State cross-examined Roy about a prior conviction. Roy‟s counsel objected to the cross and moved for a mistrial, but denied the motion and admitted the testimony under a limiting instruction that it was only to be considered as bearing on Roy‟s credibility as a witness. Roy argues that the admission of that entire testimony was reversible error. On appeal, the Court stated that before such evidence of a prior conviction can be admitted, the trial court must weigh its probative value against the dangers of prejudicial effect. Here in this case, the court held that because the prior conviction was so similar to the charge at hand, there was a high probability that the jury would use it improperly and that it had little probative value with regard to his honesty as a witness. Unites States v. Tse – Tse was convicted of distributing cocaine. The DEA attempted to record a conversation between Tse and a cooperating witness (Williams), but they were unsuccessful. As such, they relied heavily on Williams‟ testimony describing the events. Thru direct and cross examinations, the jury heard that Williams had used and sold drugs in the past, had been convicted of at least one crime, had made inaccurate statements to a grand jury, received substantial compensation for being a DEA informant, and bought a new car after being paid by the DEA. Tse attempted to impeach Williams‟ credibility by introducing evidence of an assault and battery against a police office (ABPO). Court first ruled the evidence admissible under 609(a)(1), but reversed saying that Tse made a motion to exclude Tse‟s own convictions for the same crime, if Tse were to testify. Court excluded both convictions. Tse appeals arguing that Williams‟ conviction should have been admitted. Rules – If the witness is the accused evidence of prior convictions shall be admitted if the court determines that the probative value of the evidence outweighs its prejudicial effect on the accused (609). If the witness is not the accused, the evidence will be admitted subject to 403 (excluded if the probative value of the evidence is substantially outweighed by its prejudicial effect). This also applies if the witness is a government witess. (7) United States v. Brackeen – per curiam opinion deciding whether or not bank robbery involves dishonesty. They held that it does not reasoning that dishonesty involves being deceitful and that bank robbery is a crime of violent, not deceitful, taking. c) Other Misconduct [FRE 608(b)] (1) Can only be proven by what the witness says in cross-examination, have to be probative of truthfulness or untruthfulness, admissible only after the witness‟ character of truthfulness has been attacked. (2) Can ask in good faith on cross-examination about character regarding truthfulness subject to restrictions that as a collateral matter, must be bound by answer witness gives and can‟t bring in extrinsic evidence. Subject to: (a) Good faith basis for questioning, (b) Bad character for truthfulness, and (c) FRE 403 balancing test. (3) Waiving self-incrimination privilege – Defendant can waive privilege if they voluntarily testify to facts that are relative to the merits of the case – can‟t use privilege if you do this. (4) Act vs. Arrest or Charge – in instances where it is proper to ask a witness under Rule 608(b) whether he committed an act, it is not permissible to elicit that the witness was arrested or charged with regard to the act. (5) Gustafson v. State – Gustafson was convicted of burglary, attempted theft and soliciting capital murder. The Arkansas SC found prejudicial error was committed and reverse the conviction and remanded the matter for a new trial. Over the objections of Defense counsel, the prosecuting attorney asked Gustafson about some previous criminal convictions and previous misconduct. The first question asked concerned a prior conviction – this was allowed by the trial court and the appellate court. The next question concerned his knowledge of possessing a known stolen vehicle. The trial judge ordered him to answer the question over his claim of a privilege against self- C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 47 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 incrimination. On appeal, the court held that this was prejudicial error and that he had a right to claim the privilege. (6) Smith v. State – Smith was convicted of rape, statutory rape, child molestation, and cruelty to children. Issue on appeal is whether the rape-shield law bars admission of testimony regarding victim‟s alleged false accusations against persons other than Defendant. Outside the presence of the jury, Smith proffered ten witnesses who had been wrongfully accused of sexual misconduct by the alleged victim. The trial judge disallowed the testimony. The appellate court reversed Smith‟s conviction because they found that it was a harmful error to disallow the testimony. The court reasoned that the Defense witnesses would provide evidence showing the victim‟s propensity to make false statements regarding sexual misconduct and not to her past sexual conduct. d) Reputation or Opinion Evidence of Character for Truthfulness [FRE 608(a)] (1) (2) (3) United States v. Lollar – Lollar appeals his conviction for interstate transportation. After Lollar testified at trial, the government recalled one of its witnesses and asked whether or not they would believe the Defendant under oath. Over Defense counsel‟s objection, the witness answered no. The appellate court held that once the Defendant takes the stand in their own defense, they place their credibility in issue. By taking the stand, the Defendant does not open the door for general character attacks, but the government can attack the Defendant‟s believability and that it may be attacked by evidence in the form of opinion or reputation. The appellate court upheld the conviction. (4) United States v. Medical Therapy Sciences, Inc. – Berman and his company, Medical Therapy, were convicted of falsifying claims to obtain Medicare payments. Berman was also convicted of perjury. On appeal, Berman contends that the trial court committed error in allowing character witnesses that bolstered Russell‟s (a co-conspirator in the fraud claims) credibility. On direct examination, the prosecuting attorney questioned Russell about her prior convictions. By doing this, she anticipated attack from the defense counsel. Since Defense counsel tried to impeach the witness, it allowed the prosecution to “defend” its witness‟ credibility through character witnesses. The court affirmed stating that it was well within the trial judge‟s discretion to allow the evidence. 5. Capacity a) Trying to show existence of defect in perceptual / testimonial capacity – to see, hear, recall or recount the facts. b) Questions you might ask (1) show insane / subject hallucinations (2) trouble telling fact from fantasy (3) Question drug / alcohol use during perception of event (4) test memory by questioning details – what time was that, how many people were there c) No Foundation Requirement - no certain/specific questions that must be asked d) May use extrinsic evidence to prove incapacity e) Lack of Opportunity for Personal Knowledge – a different form of capacity attack is to offer evidence that the witness, though organically sound, was not in a position to have acquired first-hand knowledge. This form of impeachment is referred to as “knowledge” or “opportunity.” Lack of personal knowledge is not collateral and may be shown by extrinsic evidence. f) United States v. Lindstrom – Lindstrom and Slater appeal convictions for mail fraud and conspiracy to commit mail fraud. On appeal, they contend that the district court improperly 1) placed limitations on defense questioning of the government‟s chief witness relating to her prior psychiatric treatment and confinement, and (2) denied the defense access to medical records suggesting that the government‟s witness suffered from psychiatric illness, including delusions. The appellate court reversed and remanded the decision. It stated that “certain forms of mental disorder have high probative value on the issue of credibility…We hold that the jury was denied evidence necessary for it to make an informed determination of whether the witness‟ testimony was based on historical facts as she perceived them or whether it was a product of a psychotic hallucination. They were denied any evidence on whether this key witness was a schizophrenic and were denied any evidence of whether the witness was capable of distinguishing reality from hallucinations.” 6. Contradiction C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 48 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 a) Get the Witness to contradict their earlier testimony in this case. b) When will the impeaching party be allowed to use extrinsic evidence for the purpose of contradicting some aspect of the Witness‟ testimony, so long as that aspect of the testimony is NOT collateral. Extrinsic evidence not allowed if the contradiction goes to a collateral matter. c) Collateral – if it relates to a tangential issue and the only purpose of contradicting the Witness on this point is that it makes it that much more likely that the W is also lying or wrong about something hat is important to the case. (1) Example – Defendant on trial for bank robbery in OK on Oct 1. Calls alibi Alex from NM – who testifies that Defendant was in his store in NM all day on Oct 1. On Cross, prosecution asks Alex – was Defendant in your store every day for the proceeding month. Then on rebuttal – prosecution calls Fred to testify that he was on camping trip with Defendant for the last month, which contradicts Alex‟s testimony that Defendant was in Alex‟s store for the last month. But Fred‟s testimony goes to a collateral / tangential matter that is not relevant to any substantive fact in the case. No one cares where Defendant was in September. The only reason for calling Fred was to discredit Alex – to show that it was more likely that he was mistaken about Defendant‟s whereabouts on Oct. 1. (2) Same case – Defendant on trial for same robbery and Alex says Defendant was in his store that day. Rebuttal calls clerk from Alex‟s store to testify that Defendant was NOT in Alex‟s store on Oct 1. Testimony is admissible even though extrinsic evidence offered to discredit Alex‟s testimony, it is also relevant to a substantive issue in the case → where was the Defendant on the date of the crime. d) Contradiction and Collateral Matters – impeachment by contradiction simply involves presenting evidence that part or all of a witness‟ testimony is incorrect. The inference to be drawn is not that the witness was lying, but that the witness made a mistake of fact, and so perhaps her testimony may contain other errors and should be discounted accordingly. Thus, while the accuracy of a witness‟ perception or memory can always be tested through traditional cross-examination techniques, the collateral evidence rule limits the extent to which the witness‟ testimony about non-essential matters may be contradicted by extrinsic proof. e) Kellensworth v. State – Kellensworth was convicted and sentenced for rape and burglary. The Arkansas SC reversed and remanded the case because the trial court erroneously allowed certain testimony from the Defendant‟s ex-wife. On rebuttal, the prosecution called the ex-wife to provide testimony that contradicted the testimony of the Defendant and his parents offered by the Defense to show that he loved his wife. The court stated that a witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness. Rule 405 permits a defendant to offer evidence of his good character but that evidence is limited to testimony as to his reputation and opinion testimony. Such evidence may be directly challenged through cross-examination. Or the State can rebut the evidence in kind with contrary evidence of reputation. But the State cannot produce witnesses to testify to specific acts of misconduct. The issue of whether he loved his wife was not an essential element of a charge of rape – it was a collateral issue. 7. Impeaching One‟s Own Witness [FRE 607] a) Good-faith Standard – impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible. b) Prior Statement of Own Witness that is Substantively Admissible – if the prior statement offered by the calling party is not hearsay, or is fully admissible hearsay, then the statement will be received without restriction. c) United States v. Webster – Defendant Webster was convicted of aiding and abetting the robbery of a federally insured bank and receiving stolen bank funds, was sentenced to nine years in prison, and appeals. The prosecution was called King to the stand. He had already been convicted of the bank robbery charges. The prosecution was calling him because they believed that he would make statements that would inculpate Webster; however, King made statements that tended to exculpate Webster. Because the prosecutor had asked the trial judge for a voir dire hearing to question King outside of the jury, even though denied the hearing, the court found that the prosecutor did not show bad faith. D. Bolstering and Rehabilitation 1. Bolstering – build up credibility before it has been attacked. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 49 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 2. Rehabilitation – build up credibility after it has been attacked. 3. EXAMPLE: you want to build up credibility by showing prior consistent statements and reputation, but you can NOT do this. General rule is that you can‟t do this if no attack has yet been made because witness is assumed credible unless and until they are attacked. Saves time. a) However, once attacked, you want to start the process of rehabilitation. The rehabilitation technique must match the impeachment technique that is being used. Lack of capacity = show capacity. Lack of truthfulness = show truthfulness. Have the witness explain away the inconsistency. b) The general rule is that you can not show a prior consistent statement once it has been shown that the witness has made a prior inconsistent statement → that does not rehabilitate. c) Exception would be the use of a prior consistent statement to rebut the attack / charge of recent fabrication based on improper motive → the prior statement must have been made before the motive arose to change the story or fabricate the testimony. This is also considered non-hearsay, refer to the hearsay exemptions. It is admissible to rehabilitate and for the truth of the matter asserted. E. Mode and Order of Interrogation and Presentation [FRE 611] FRE 611. Mode and Order of Interrogation and Presentation (a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. 1. Control by Court [FRE 611(a)] a) In General (1) (2) (3) (4) (5) Geders v. United States – SKIPPED BY SEKULA b) Protecting Child Victim Witnesses (1) (2) (3) (4) (5) United States v. Garcia – SKIPPED BY SEKULA 2. Scope of Cross-Examination a) b) c) d) e) Lis v. Robert Packer Hospital – SKIPPED BY SEKULA 3. Leading Questions a) b) c) d) C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 50 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 e) Lawrence v. State – SKIPPED BY SEKULA F. Writing Used to Refresh Memory [FRE 612] FRE 612. Writing Used to Refresh Memory Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either– (1) while testifying, or. (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony, or if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 1. 2. 3. 4. 5. United States v. Riccardi – SKIPPED BY SEKULA 6. S&A Painting Co. v. O.W.B. Corp. – SKIPPED BY SEKULA G. Calling and Interrogation of Witnesses by Court [FRE 614] FRE 614. Calling and Interrogation of Witnesses by Court (a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party. (c) Objections. Objections to the calling of witnesses by the court or to interrogatories by it may be made at the time or at the next available opportunity when the jury is not present. 1. Calling by Court a) b) c) d) e) United States v. Karnes – SKIPPED BY SEKULA 2. Interrogation by Court; Objections a) b) c) d) e) United States v. Filani – SKIPPED BY SEKULA 3. Questions by Jurors a) b) c) d) e) United States v. Richardson – SKIPPED BY SEKULA C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 51 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 H. Exclusion of Witnesses 1. 2. 3. 4. 5. Towner v. State – SKIPPED BY SEKULA IX. OPINIONS AND EXPERT TESTIMONY [FRE ARTICLE VII] A. Opinion Testimony by Lay Witnesses [FRE 701] FRE 701. Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to 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. 1. They possess no particular expertise at drawing inferences or conclusions from the case; but, they have personal knowledge about facts relevant to the case. 2. Objective Base – a) the lay witness tends to draw from: (1) what the person was told directly; (2) what they were in a position to see or hear; (3) what statements they made to others; (4) conduct in which they engaged; and (5) what their background and experiences are. b) When a witness has not identified the objective bases for their opinion, then the proffered opinion obviously fails completely to meet the requirements of Rule 701 because (1) there is no way for the court to assess whether it is rationally based on the witness‟ perceptions, and (2) the opinion does not help the jury but only tells it in conclusory fashion what it should find. 3. Lay person may testify in form of opinion or inference so long as a) the witness has personal knowledge of the events from which he is drawing the opinion; b) the opinion is rationally based / drawn on that knowledge / perception; and c) the opinion is helpful to a clear understanding of witnesses testimony or to a determination of a fact in issue. 4. Example – testify as to speed, drunk, 5. Brother-in-law test = whether this is the kind of opinion he could give, then probably OK...she‟s drunk, she‟s crazy, not I believe she has a ruptured spleen. 6. Rationally Based on Perception – the requirement that lay opinion testimony be rationally based on perception precludes opinions based on hearsay, or, more commonly, on speculation. 7. Government of the Virgin Islands v. Knight – Knight was convicted of voluntary manslaughter, possession of a firearm during the commission of a crime of violence, and possession of a firearm by a felon resulting from an incident where Knight was striking the victim‟s head with a gun when it accidently discharged and killed the victim. Knight argues on appeal that it was reversible error to exclude an eyewitness‟ and an investigating officer‟s testimony that the firing of the gun was an accident. The Appellate court held that the trial judge was correct to exclude the testimony of the investigating officer because he was not an eyewitness of the events. Regarding the eyewitness, the Court found that the trial judge should not have excluded the testimony of that witness because it would have been helpful to the jury to resolve a disputed fact. However, the court ruled that it was a harmless error and that Knight had not been prejudiced by the exclusion of the testimony. They affirmed the conviction. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 52 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 B. Testimony by Experts [FRE 702] FRE 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witnesses has applied the principles and methods reliably to the facts of the case. 1. Proper Subjects; Qualifications of Witnesses a) Broad standard – scientific, technical or other if it assists the fact finder to determine an issue or understand the evidence. b) Two basic inquiries under the Rule: (1) Whether the subject matter is one appropriate for expert testimony, and (2) Whether the witness is personally qualified c) If expert testimony is offered as to scientific knowledge, it must be based on scientifically valid principles and it must have a valid scientific connection to an issue in the case → (Daubert) 4 factors: (1) whether the theory or technique in question can be or has been tested; (2) whether the theory or technique in question has been subjected to peer review and publication; (3) whether a means is known or a potential means for the rate of error exists for controlling its operation; and, (4) the extent to which the theory / technique has been accepted (although general acceptance is no longer the test, it is one factor to consider). d) Becoming clear that non-scientific testimony, but technical (economist) must survive preliminary determination by trial judge that the Testimony is reliable and relevant. e) Qualification of witness – before the expert may give an opinion, it must be shown that the witness has requisite expert knowledge (i.e., formal education, informal education, experience, etc.). (1) The party calling the witness must prove qualifications done by offering testimony. (2) The opposing party may voir dire / cross-examine the witness about the Expert Witness‟ qualifications. (3) Whether the Witness displays the sufficient expertise to be treated as an expert witness is to be decided by the court. f) Opinions Exceeding Witness‟ Expertise – even though qualified as an expert, the witness may not give opinions on matters beyond the established expertise. g) Sources of Expertise – the possible sources of expertise are broad; Rule 702 lists knowledge, skill and experience alongside training and education. h) United States v. Montas – US Customs case involving drugs in suitcases. Two of the bags were checked under the name Rivera and bore identification tags with Rivera‟s name. A third bag was also checked under the name of Rivera, but bore tags with the name Felix. Drugs had been found in the first two bags from a K-9 unit. Hector Julio Felix Montas was apprehended and convicted on possession with the intent to distribute cocaine. On appeal, Montas asserts that the court erred by allowing expert testimony because it concerned a subject within the average juror‟s understanding. The prosecution used a customs agent as a expert to testify that drug dealers frequently used false names to hide their identity in case the drugs were detected. The court held that this was something well within the jurors abilities to infer. The appellate court upheld the conviction because it was harmless error. i) United States v. Paul – Paul was convicted on extortion charges for trying to get$100,000 from a bank.
This case involves using a handwriting expert. The court reviews the experts qualifications to be a
handwriting expert since there is no degree or certification for this. Thus, the court reviews his
experience, affiliations, and the fact that he lectures and teaches handwriting analysis to qualify him as
an expert.
2.    Basis of opinion
a) We allow the experts to base their opinion on personal opinion of the litigated facts.
(1) Example – the Plaintiff‟s treating Doctor is called to testify as to the nature and the extent of the
Plaintiff‟s disability...seen the injury, treating the injury, seen the progress....may testify that in his
opinion, the Plaintiff is permanently disabled.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                  Page 53
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

b)    Do not require experts to have personal knowledge of the litigated facts. They can offer their opinion on
facts even if no personal knowledge.
(1) Present questions to expert based on a hypothetical situation....assuming that the Plaintiff had a
high fever, was allergic to sulfa drugs....what would a doctor normally prescribe?
(a) Only limitation is that all facts contained in the hypothetical must be part of the case at hand by
the end of the case.
(b) Cross-examiner may ask their own hypothetical....assume NOT allergic to sulfa drugs....then
what would you prescribe?
(2) Lawyer asks the expert to assume the truth of the testimony given by other witnesses in order to
analyze and give opinion.
c)  Expert may base opinion on facts made known to him at or before the hearing → liberalizaing the
common law. Facts outside his personal knowledge and that are not part of the record. The facts need
not even be admissible into evidence, so long as they are facts reasonably relied on in the field.
(1) The expert may base his expert opinion on medical records reviewed, conversations with other
experts and conversation with family (even if that conversation would be inadmissible hearsay)
even if it is not entered into evidence, so long as the court decides that these are the types of
things that other experts in the field would rely upon when rendering an opinion. They operate in
the court room the way they would operate outside the courtroom.
3.    Reliability, Relevancy, and Gatekeeping: Daubert
a)
b)
c)
d)
e) Daubert v. Merrell Dow Pharmaceuticals, Inc. – (Supreme Court Opinion) – Fry test does not control
f) Daubert v. Merrell Dow Pharmaceuticals, Inc. – (Circuit Court Opinion) -
g) Kumho Tire Company, LTD v. Carmichael -

C.    Forms and Bases of Expert Testimony [FRE 703, 705]
FRE 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon
by the experts in the particular field in forming opinions or inferences upon the subject, the facts or datd
need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that
are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference
unless the court determines that their probative value in assisting the jury evaluate the expert’s opinion
substantially outweighs their prejudicial effect.
FRE 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give reasons therefore without first testifying
to the underlying facts or data, unless the court requires otherwise. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.
1.
2.
3.
4.
5. Arkansas State Highway Commission v. Schell -

D.    Opinion on Ultimate Issue
1.    It is no longer a valid objection that opinion goes to the ultimate issue in the case – federal court.
2.    The court may exclude mixed opinions of law and fact – “In my opinion, the D is guilty”, “I think that the
testator lacked testamentary capacity” – because it is not helpful to the jury. If the Witness doesn‟t know
what the test is for testamentary capacity, then the expert can not testify as to capacity.
3.    Still a valid objection under the Hinkley Rule – acquitted by reason of insanity. The experts may not give
their opinion as to whether a criminal Defendant did or did not have the mental state or condition constituting

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                Page 54
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

an element of the crime charged or defense thereto. On ultimate issue of an accused‟s mental state, expert
testimony is not permissible.
4.
5.
6.
7.    Torres v. County of Oakland -
8.    United States v. Thigpen -

X.     AUTHENTICATION AND IDENTIFICATION [FRE ARTICLE IX]
FRE 901. Requirement of Authentication or Identification
(a) General provision. The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claim.
(b) Illustrations. By way of illustration only, not by way of limitation, the following are examples of
authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based
upon familiarity not acquired for purposes of litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with
specimens which have been authenticated.
(4) Distinctive characters and the like. Appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or
electronic transmission or recording, by opinion based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number
assigned at the time by the telephone company to a particular person or business, if (A) in the case of a
person, circumstances, including self-identification, show the person answering to be the one called, or
(B) in the case of a business, the call was made to a place of business and the conversation related to
business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact
recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in
any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilations. Evidence that a document or data compilation, in any
form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in place
where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is
offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing
that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by Act
of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.
FRE 902. Self-Authentication
Extrinsic Evidence of authenticity as a condition precedent to admissibility is not required with respect to the
following:
(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the
United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the
Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision,
department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic public documents not under seal. A document purporting to bear the signature in the
official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal,
if a public officer having a seal and having official duties in the district or political subdivision of the
officer or employee certifies under seal that the signer has the official capacity and that the signature is
genuine.
(3) Foreign public documents. A document purporting to be executed or attested in an official capacity
by a person authorized by the laws of a foreign country to make the execution or attestation, and
accompanied by a final certification as to the genuineness of the signature and official position (A) of the
executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                             Page 55
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

and official position relates to the execution or attestation or is in a chain of certificates of genuineness
of signature and official position relating to the execution or attestation. A final certification may be
made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of
the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the
United States. If reasonable opportunity has been given to all parties to investigate the authenticity and
accuracy of official documents, the court may, for good cause shown, order that they be treated as
presumptively authentic without final certification or permit them to be evidenced by an attested
summary with or without final certification.
(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a
document authorized by law to be recorded or filed and actually recorded or filed in a public office,
including data compilations in any form, certified as correct by the custodian or other persons
authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or
complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory
authority.
(5) Official publications. Books, pamphlets, or other publications purporting to be issued by public
authority.
(6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in
the course of business and indiciating ownership, control, or origin.
(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in
the manner provided by law by a notary public or other officer authorized by law to take
acknowledgments.
(9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents
relating thereto to the extent provided by general commercial law.
(10) Presumptions under Acts og Congress. Any signature, document, or other matter declared by Act of
Congress to be presumptively or prima facie genuine or authentic.
(11) Certified domestic records of regularly conducted activity. The original or a duplicate of a
domestic record of regularly conducted activity would be admissible under Rule 803(6) if accompanied
in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to
statutory authority, certifying that the record–
(A) was made at or near the time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intedning to offer a record into evidence under this paragraph must provide written notice of
that intention to all adverse parties, and must make the record and declaration available for inspection
sufficiently in advance of their offer into evidence to provide and adverse party with a fair opportunity to
challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate
of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if
accompanied by a written declaration by its custodian or other qualified person certifying that the
record–
(A) was made at or near the time of the occurrence of the matters set forth by, or from information
transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to
criminal penalty under the laws of the country where the declaration is signed. A party intending to offer
a record into evidence under this paragraph must provide written notice of that intention to all adverse
parties, and must make the record and declaration available for inspection sufficiently in advance of
their opportunity to challenge them.
FRE 903. Subscribing Witness’ Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws
of the jurisdiction whose laws govern the validity of the writing.

A.    General
1.    All that authentication requires is that the proponent of the evidence establish that it is what it purports to be.
Proponent needs only to introduce enough evidence for a reasonable juror to find that the item is what it
purports to be. Even if the court does not believe that the item is what it purports to believe, it is still
authenticated if there is sufficient evidence that a reasonable juror could find that it is what it purports to be.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                 Page 56
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

2.    Before the writing / tangible evidence / voice identification can be offered into evidence, the proponent must
authenticate it. They must establish that the item is what it is purported to be.
3.    The proponent needs only to introduce sufficient evidence that a reasonable juror could find that it is what it
is purported to be. Even if the court does not believe its authenticity, if a reasonable juror could find that it is
authentic, that‟s enough (same as conditional relevance).
4.    Self-Authenticating Item – the likelihood of forgery / tampering is so small that the proponent is not required
to present any evidence to establish that the item is what it is purported to be. The proponent only has to
present the item at trial. (CONTAC).
a) Commercial Paper: commercial paper, signatures on commercial paper and related documents by
commercial law. Example – bank records showing dishonor of a check – defer to UCC.
b) Official Publications: purportedly issued by public agency or authority – statue, court reports, rules, and
regulations. Example – Bureau of the Census – all you need to do is bring it into court
c)    Newspapers and Periodicals: Jack brings libel against Enquirer → just needs to bring-in a copy of the
article.
d)    Trade Inscriptions: have a splitting headache and go get Tylenol, but you get one laced with Cyanide.
The label on the bottle says who the manufacturer is, which is enough to establish that this was real
Tylenol → label tags that purport to be affixed in the course of business.
e)    Acknowledged Documents: documents that have already been acknowledged before a notary or other
officer authorized to take acknowledgements.
f)    Certain Public Records: requirements vary whether the documents are foreign, domestic, under seal,
certified as correct, or not.

B.    Real Evidence
1.    Tangible objects – must authenticate that this is the object that actually played a role in the case. Objects
presented to the trier of fact for viewing and inspection.
2.    Knife used on victim – call victim to stand – do you recognize it? Yes, the mugger held this knife to my
throat = enough evidence for a reasonable juror to conclude that this is the knife.
3.    Chain of custody – from time it was seized from the Defendant from time of check-out from the evidence
vault to be brought to trial. This is usually not fatal to justify every link, but substantial compliance with chain
of custody is normally sufficient to authenticate.
4.    United States v. Johnson -
5.    United States v. Olson -

C.    Writings
1.    Writing must be authenticated by it‟s proponent before being offered into evidence.
2.    Someone who has personal knowledge that the document is what it is purported to be – even if lacking, the
document may be authenticated through circumstantial evidence.
a) Witness may testify that they wrote the document.
b) Proponent of document may call someone who saw the author write the document.
c) Circumstantially –
(1) By identifying the handwriting of the author through lay opinion, expert opinion (graphologist) or jury
comparison between 2 writings (one of which is known). As long as the proponent presents
sufficient evidence for a reasonable juror to find that it was their handwriting, then it is
authenticated.
(2) Ancient Document – the underlying notion is that crooks do not have a highly attuned sense of
delayed gratification. Requirements:
(a) The document must be at least 30 years old;
(b) it must be in such a condition that it is free from suspicion (1930‟s document printed on dot
matrix printer); and,
(c) the writing must be found where it is likely to be kept.
(3) Reply letter doctrine: Trying to prove the author of the typed letter. May be able to identify by the
contents, if they indicate that it was written in reply to previous communication addressed to the
purported author and that it‟s unlikely that anyone other than the purported author would have

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                  Page 57
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

written the response, then that‟s enough to authenticate. (“…in reference to your fax this morning, I
assure you there is a warranty on all products that I sell”...unsigned fax).
3.
4.
5.
6.
7.    United States v. Mangan -

D.    Voices and Telephone Conversations
1.    Same as writing in that it can identify by personal knowledge, or circumstantial evidence.
2.    Example – suppose Plaintiff sues Defendant for the price of 10 kegs of beer. Defendant denies ever
ordering the beer. Plaintiff testifies that he received a call at the store from someone who identifies himself
as the Defendant and told him where to deliver the beer. This is not enough for the Plaintiff to authenticate
the voice as that of the Defendant. Plaintiff could authenticate through personal knowledge, if Plaintiff says
he recognizes the voice...that‟s enough to authenticate.
3.    There is a special circumstantial doctrine for phone conversations when you are the person who placed the
call. You can authenticate the voice on the other end of the phone, if you can show:
a) that you properly dialed the number that‟s listed in phone book, and
b) the person identifies themselves....someone answered, “this is Daisy Danvers.”
4.
5.
6.    United States v. Vitale -

E.    Photographic Evidence
1.    Must present testimony from witness who is familiar with the scene or object depicted to testify that it is a fair
and accurate representation at the relevant time.
2.    The person who took the photo / built the model need not testify.
3.
4.
5.    Fisher v. State -

F.    Demonstration (Illustrative) Evidence
1.
2.
3.
4.
5.    Smith v. Ohio Oil Co. -

XI.    CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS (THE “BEST EVIDENCE RULE”)
[FRE ARTICLE X]
A.    General
1.    How to analyze a “best evidence” rule problem – 4 questions arise:
a) What do we mean by proving the contents of a writing, recording, photograph?
b) What qualifies as a writing, recording, photograph?
c) What qualifies as an original?
d) What are the exceptions to the rule? (dupe, public records, summaries...)
2.    Despite it‟s name, the rule does not require the party to offer the best evidence available, but only that the
party use the original writing, recording or photograph when the party seeks to prove the contents therein –
unless an exception arises.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                Page 58
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

3.    The rule is a product of the days when documents were copied by hand. The law developed a preference
for the original of the writing.

B.    Introduction; Definition of “Writing” [FRE 1001 (1)] (Question # 2)
FRE 1001. Definitions
For purposes of this article the following definitions are applicable:
(1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or
their equivalent, set down by handwriting, typewriting, printing, photostating, photographing,
magnetic impulse, mechanical or electronic recording, or other form of data compilation.
1. Broad definitions – includes every tangible process of recording words, pictures or sounds.
2. Writing – printed material and material recorded on computer disk or tape.
3. Photos – movies, video tapes and X-rays. Photos usually don‟t involve the BER because not trying to prove
the contents, but using for illustrative reasons. If trying to prove contents – prosecution for obscene
photographs – then must have originals.
4.
5.
6. United States v. Duffy -

C.    Requirement of Original; “To Prove the Content” [FRE 1002] (Questions #1)
FRE 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is
required, except as otherwise provided in these rules or by Act of Congress.
1. What do we mean by “proving the contents of the W, R, P” – QUESTION #1? Most difficult part of the
analysis relates to this threshold question of whether the evidence is being offered to prove the contents of
the W, R, P.
2. Question is satisfied and the BER applies if the evidence falls into one of the two following categories (if the
evidence does NOT fall into one of these categories then the Best Evidence Rule does NOT apply)
a) Where the legal rights, obligations or consequences arise directly from the writing, recording or photo
(1) The contents of the writing possess independent legal significance. Even a slight variation of the
words can significantly and directly affect the legal relationships. Because of fear of fraud or
mistake, the original is required.
(2) APPLIES: contracts, leases, written libel, copyright actions, wills, photographs.
(3) DOESN”T APPLY: where writing is only evidence of a fact: minutes from meeting of hearing,
receipt of purchased goods. Writing does not have direct legal impact.)
(4) EXAMPLE - Plaintiff sues the Defendant for breach of written contract. The contract provides that
100 scarves would ship after payment of $100,000 is received. Defendant‟s best evidence rule objection would be sustained. The terms / contents of the writing are themselves at issue. BUT, if Plaintiff states that he paid the Defendant$100,000, then Defendant objects stating that Plaintiff
must produce the original receipt that Defendant gave him or the cancelled check. The objection
will be overruled because neither has independent legal significance.
b) Where a party is relying on the writing as evidence to prove something, either by introducing the writing
or by testifying to what the writing says.
(1) If a party physically offers writing into evidence, then they are trying to prove the contents because
they are asking the trier of fact to rely on the writing.
(a) Example - if the Plaintiff seeks to prove that she paid $100,000 by offering books that reflect the payment, then she must offer the original unless an exception applies. The Plaintiff may also prove payment by testifying ”I remember paying Defendant the money” – here she is not relying on the writing and the best evidence rule does not apply. (i) Note – by offering the books she may also face a hearsay objection because it is the books that are testifying – could use business record exception. (2) May also try to rely on the writing as evidence to prove something by testifying as to what the evidence says. Party seeks to tell the trier of fact what the writing says – the writing, not the witness is the basis for the information. IF she is trying to prove the contents of the writing, then under the BER must produce the original, unless an exception applies. C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc Page 59 Last printed 10/15/2011 1:07:00 AM EVIDENCE OUTLINE Dean Sekula Fall 2005 (a) Example – if the Plaintiff seeks to prove that she paid the Defendant by testifying “my records show that I paid the Defendant$100,000 on March 1” – she is seeking to prove the contents of
the record and the BER applies. This is different from testifying that she remembers that she
paid the Defendant the money – no BER problem because the Plaintiff is testifying as to
independent knowledge of event.
3.
4.
5.    United States v. Gonzales-Benitez -

D.    Originals and Duplicates [FRE 1001(3), (4); 1003] (Questions #3 and #4)
FRE 1001. Definitions
For purposes of this article the following definitions are applicable:
(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart
intended to have the same effect by a person executing or issuing it. An “original” of a photograph
includes the negative or any print therefrom. If data are stored in a computer or similar device, any
printout or other output readable by sight, shown to reflect the data accurately, is an “original.”
(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, of from
the same matrix, or by means of photography, including enlargements and miniatures, or by
mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent
technique accurately reproduces the original.
FRE 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the
original.
1.    What do we mean by an original – usually the original document, recording, photo.
2.    If a person issuing / executing the writing intends a counterpart to have the same effect, then the
counterpart will be considered an original.
a) Parties to a contract make and sign two copies, each will be an original – duplicate originals.
b) Photos – original includes the negative or any print made form the negative.
c) Computer Printout(s) – any printout shown to reflect the data accurately is an original.
3.    First Exception – Duplicates: Unless a genuine question is raised as to the authenticity of the original, a
duplicate may be used in place of the original. The court recognizes the technological abilities to reproduce.
a) Duplicate – copy that is produced by technique that accurately reproduces the original
b) Examples – carbon copy, xerox copy, back-up disk, copy form same printing plate, copy from microfilm
4.
5.
6.    United States v. Rangel -

E.    Admissibility of Other Evidence of Contents [FRE 1004]
FRE 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of a writing, recording, or photograph is
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent
lost or destroyed them in bad faith; or
(2) Original not attainable. No original can be obtained by any available judicial process or
procedure; or
(3) Original in possession of opponent. At a time when an original was under the control of the
party against whom offered, that party was put on notice, by the pleadings or otherwise, that the
contents would be a subject of proof at the hearing, and that party does not produce the original at
the hearing; or
(4) Collateral matters. The wiriting, recording, or photograph is not closely related to acontrolling
issue.
1. Dispense with BER entirely and allow for any type of proof of the original W, R, P, if it meets the
requirements.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                             Page 60
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

2.    If original is unavailable by no fault of the proponent, any evidence of it‟s content either oral or written may
be used.
3.    Unavailability may be shown in several ways:
a) If the original is lost or destroyed, then the BER is inapplicable unless the proponent lost or destroyed
the original in bad faith. Some businesses routinely destroy papers.
b) If the original can not be obtained by traditional process / procedure, then the BER is inapplicable –
located in a war zone – contents may be proved by any means.
c) The opponent has control of the original and has been put on notice that the contents would be the
subject of proof at trial and he does not produce it.
4.    If the evidence goes to a collateral matter / if the contents do not closely relate to a controlling issue in the
case, then the BER is not applicable – again, the contents may be proved by any means.
5.    Chattel Exception: A Witness of a bank robbery comes in and gives you the license plate of the getaway car.
The Defendant objects on the grounds that it violates the best evidence rule. The Witness is testifying as to
the contents of the writing, so the license plate and the original must be produced. The objection will be
overruled. If the writing appears on something that is impracticable to produce in court – e.g., a tombstone,
a license plate – then the court will deem it “chattel” and not a writing. If it is deemed a chattel and not a
writing, then the BER does not apply!!!
6.
7.
8. Neville Construction Co. v. Cook Paint & Varnish Co. -
9. United States v. Marcantoni -
10. Farr v. Zoning Board of Appeals of Town of Manchester -

F.    Public Records [FRE 1005] (Question #4 - Exceptions)
FRE 1005. Public Records
The contents of an official public record, of if a document authorized to be recorded or filed and actually
recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy,
certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it
with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of
reasonable diligence, then other evidence of the contents may be given.
1. A certified copy of the original may be used in place of the original.
2. This is a copy that is testified to be correct by a witness who has compared this copy to the original record.
To keep originals from being removed form safe keeping.
3.
4.
5. Englund v. State -

G. Summaries (Question #4 – Exceptions)
1.    Summary of voluminous records – no sense to make proponent bring all 13 volumes for small paragraph in
book #3. It may be presented in a chart or a summary.
2.    Opponents of this evidenced are protected by a notice requirement – the opponent must be given a
reasonable opportunity to inspect and copy the original.
3.
4.
5.    United States v. Bakker -

H.    Testimony or Written Admission of Party [FRE 1007]
FRE 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party
against whom offered or by that party’s written admission, without accounting for the nonproduction of the
original.
1.
2.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 61
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

3.
4.
5.

I.    Functions of Court and Jury [FRE 1008]
FRE 1008. Functions of Court and Jury
When the admissibility of other evidence of contents or writings, recordings, or photographs under these
rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled
is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an
issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or
photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects
the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
1.
2.
3.
4.
5.    Seiler v. Lucasfilm, LTD. -

XII. PRIVILEGES [FRE ARTICLE V]
FRE 501. General Rule
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules
prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government,
State, or political subdivision thereof shall be governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and
proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision,
the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in
accordance with State law.

A.    General
1.    In general –the law of evidence is not solely concerned with achieving accurate fact finding. Privileges result
in the exclusion from evidence of information that is quite probative. Law recognizes privileges b/c it‟s
determined that cost incurred by loss of reliable evidence is outweighed by social benefits that accrue from
having certain privileges. Quasi privileges: subsequent remedial measures and offers to compromise – both
act to exclude relevant evidence in hope of furthering public policy external to trial process. B/c cost is high
– ct sometimes says privileges are to be construed narrowly.
2.    Federal Rules on Privilege – do not contain a set of enumerated privilege rules. As proposed, they did, but
too controversial, Courts punted the issues straight to the courts:
a) Fed rules only provide that privileges are to be governed by principles of the common law as interpreted
by the cts in light of reason and experience
b) And, In diversity cases and other cases in tried in federal court where state substantive law governs the
federal courts must apply state privilege law, as well
3.    Broken down into 2 groups.
a) Designed to protect confidential communications – certain relationships require or are encouraged
and strengthened by guaranteeing confidentiality. Based on view that guaranteeing confidentiality is
necessary to foster what society deems to be an important relationship. The benefits gained from
fostering the atty / client is thought to outweigh the harm caused by preventing their communications
from being disclosed. Communication b/t those sharing in the relationship must be kept confidential in
order to relationship to flourish. Clergy / person seeking counsel, husband / wife, atty. / client,(first three
are universally recognized), Dr. / patient, psychotherapist / patient, (second two are widely accepted-
not unanimously), accountant, CPA, drug counselors, social workers are recognized by some states,
only.
(1) Gives to the holder of the privilege the power to refuse to disclose protected communications and
the power to keep others from disclosing protected communications.
(2) Only the communication will be protected NOT the underlying information.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                                 Page 62
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(3) Example - When P deposes D, P will not be allowed to ask D “did you tell your lawyer that you ran
the stop sign?”, but could ask “did you run the stop sign”. Protects client from the first question ,
but not from the second. What the client knew independent of communication with the lawyer is
not protected.
(4) Six problem areas or questions to run through for a communication privilege issue
(a) Is there a privileged relationship?
(i) There must be a relationship for the privilege to apply – not just a conversation
(b) Was there a germane communication?
(i) If there was a communication, did it relate to the privileged relationship? Communications
to your lawyer must relate to the legal advice you are seeking
(c) Was the communication confidential?
(i) Privileges only guarantee confidentiality to confidential communications.
(d) Is the holder of the privilege asserted the privilege?
(e) Has the holder waived the privilege?
(i) The privilege is not self-executing, they must be asserted. Who has the power to assert
the privilege – the holder.
(f) Is there an exception to the privilege? (4)
(i) Crime-Fraud exception
(ii) Breach of duty b/t client and atty
(iii) Joint Defense
(iv) Two parties claiming through the same deceased client – Example: Will is ambiguous as
to which of 2 nieces was to take under the will. Relevant communications b/t testator and
atty may then be revealed.
b)    Matters other than confidentiality – grab bag – constitutional concerns (privilege against self-
incrimination, keep sources confidential), state secrets, informer‟s identity privileges, trade secrets
privilege, and marital testimonial privilege. Of all privileges that protect something other than
confidential communications, marital testimonial privilege is most likely to be covered in basic Evidence
class.

B.    Spousal
1.    Adverse Testimony in a Criminal Case
a) Adverse testimony in a criminal case falls into second category of types of privileges.
b) Averse testimony from a spouse can only be applied in a criminal cases.
c) Two forms
(1) Old Common Law form - Gives criminal defendant the right to prevent his spouse from testifying
against them. Privilege was held by the accused, not by the testifying spouse.
(2) Federal courts – the witness spouse has the right to refuse to testify against an accused spouse.
Spouse may refuse or decide to testify. Why the choice? The law should not be allowed to drive
the wedge into a happy marriage, but if the spouse already wants to testify, please do so.
(a) The right of the spouse to refuse to testify ends with the end of the marriage. Testimonial
privilege only operates when the spouses are married
d) Keep in mind – the two spousal privileges (testimonial and confidential) are completely independent –
Even in jurisdiction where spouse may choose to testify against spouse in criminal case, the accused
spouse may still keep the witness spouse from testifying about confidential communications that
occurred while they were married. Example – Husband on trial in federal court for robbing bank. Call
wife to testify that on the night of the robbery husband told her he robbed the bank. She may choose to
testify against him, but he can assert confidential communication privilege as to her telling about the
statement he made to her. She could testify as to other things though that was NOT confidential
communications to her by him.
e) Exceptions: - not sure if these are federal or not
(1) Spouses charged with child abuse – neither privilege will apply.
(2) In many jurisdictions where spouse charged with spousal abuse, neither privilege will apply.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 63
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

f) Trammel v. United States -
2.    Confidential Communications
a) Confidential communications made during legal marriage...not before or after– falls into first category.
b) Timing – communications made while the two are legally married. If communication made during
marriage, it will remain even after divorce. But communications made before marriage or after divorce
are not protected
c) Communication – controversial and varies from state to state.
d) Stafford v. State -
e) Constancio v. State -
3.    Parent – Child
a) Where spouse is charged with child abuse – the witness spouse can be forced to testify and the
confidential communication privileges will both not apply. Parental abuse is an exception to the
assertion of both privileges.
b)
c)
d)
e) State v. Maxon -

C.    Lawyer-Client
1.    Introduction
a) Every state recognizes this privilege.
b) It allows a client –
(1) Someone who consults a lawyer with the idea of obtaining legal services is a client. Even if after
consultation the atty is not retained, is not paid, refuses to represent you,....still a client.
(2) The client is the holder of the privilege and may waive it. The lawyer may assert it but only on the
client‟s behalf.
(3) What if client dies – the privilege survives the client‟s death. After death, the privilege may be
asserted by the client‟s successor or personal representative, ie executor of estate. (Swiddler and
Berlin v US)
(4) Client could be a corporation – who speaks for the corporation to the atty and is thus protect? Two
tests:
(a) EITHER those under the “Control Group Test” – those who are part of the group who control or
those who have the authority to obtain legal services or act on the attorney‟s advice.
(b) OR, privilege protects any communication made by someone outside of the control group if the
communication was made by the employee‟s superior and if the communication was in regard
to something within the scope of the employee‟s duties. The latter / broader test SEEMS to be
the rule in the federal courts. The first / more narrow was explicitly rejected.
c) To refuse to disclose and prevent others form disclosing
(1) Privilege is not self-executing, must be asserted in a timely fashion
(2) Client may waive privilege is by failure to assert in timely fashion – if asked a question whose
answer calls for the disclosure of privileges information and the client or the atty on the client‟s
behalf fails to assert the privilege, then it has been waived in regard to that communication
(3) May waive the privilege by voluntarily relaying the communication – if after talking with atty client
says to friend “ I just told my lawyer about the insider trading I did on that stock” – then voluntarily
waived privilege as to that communication.
(a) Exception – not a waiver if client discloses privileged communication to someone with whom
the client has a privileged relationship. Tell wife what you just told attorney – does not waive
privilege as to that communication with atty,
d) Confidential – SO long as confined to lawyer, client and representatives it will be considered
confidential. Presence of friend whose attendance is unnecessary will destroy the privilege.
Eavesdropper (common law – it destroys), more modern view is that it is the intent of the client that the

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 64
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

communication be confidential that governs – should not lose benefit of privilege b/c the office was
bugged.
e) Communications – Verbal conducts whether oral or written and non-verbal conduct intended to
communicate. Observations made by the atty are NOT communications, writing that did not originate,
as a communication to the lawyer does not qualify for the privilege, even if client subsequently turns the
writing over to the lawyer. The privilege does not cover business files or personal letters that are given
to atty. BUT if client writes down history of a dispute instead of telling her orally, then protected.
Communication must be germane in course of atty / client relationship.
f) Made between the attorney and client or their representatives – What if you confer with someone who is
not licensed? Most jurisdictions say that if mistake is reasonable then privilege applies. What about
communications to atty‟s secretary or other representative of a lawyer? Covered by privilege if made to
a representative of an atty – someone employed by the atty to assist in rendition of legal services.
2.    “Confidential Communication”
a) Client‟s Identity; Fee Arrangements
(1)
(2)
(3)
(4)
(5) In re Grand Jury Subpoenas (Anderson) -
b)    Client‟s Appearance and Behavior; Content of Communication vs. Fact of Communication
(1)
(2)
(3)
(4)
(5) United States v. Kendrick -
c)    Physical Evidence and Documents; Communications Not Intended to Remain Confidential
(1)
(2)
(3)
(4)
(5) Clutchette v. Rushen -
3.    Representative of the Client; Relation to Work Product Protection
a)
b)
c)
d)
e) Upjohn Co. v. United States -
4.    Representative of the Lawyer; Joint Defense / Common Interest
a) Representative of the Lawyer – Relevant to an issue of breach of duty between the client and the atty
are not privileged. In suit for failure to pay fees or in a malpractice suit
b) Joint Defense / Common Interest – If two or more clients consult the lawyer upon a matter of common
interest, then their communications are NOT privileged if they have a falling out and seek separate
counsel. One client can seek to offer evidence against the other client.
c)
d)
e) United States v. Schwimmer -
5.    Crime-Fraud Exception
th
a) Goes to the 6 question – is there an exception?

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                            Page 65
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

b)    Privilege does not attach to any communication made by a client who is seeking the atty‟s advice to
enable the client to commit what the client knew or should have known was a crime or fraud. Want to
encourage communications to atty for legal advice – not to commit a crime or fraud.
c)
d)
e)    Clark v. State -
f)    Caldwell v. District Court in and for the City and County of Denver -
6.    Waiver
a)
b)
c)
d)
e) In re von Bulow -

D.    Psychotherapist-Patient and Physician-Patient
1.    Many states have one or both, many do not.
2.    Psychotherapist – who does it include = states vary – psychiatrist (yes), PHD(usually), licensed counselor
(sometimes)
3.    Germane communication – protects communications made by patient to Dr and hospital and medical
records including info observed by Dr through exams and tests. Example – results of blood alcohol test
would be privileged in many states.
4.    Issues of confidentiality – patient is holder and Dr may assert the privilege on behalf of the patient
5.    Waiver – by failure to assert in timely manner or voluntary disclosure
6.    Exceptions – A lot of them and they vary much from state to state. Among the most common:
a) Neither may be applicable at all in criminal cases
b) Patient litigant exception – if the patient puts physical or mental condition in issue, then they may not
assert the privilege. If the Plaintiff claims the injury resulted from use of the Defendant‟s product then
they may not assert the privilege to keep the Defendant from obtaining their medical records which is
relevant to the ailment.
7.    Gaffe v. Redmond – recognized psychotherapist – patient for federal courts. No indication for federal Dr.-
patient.

XIII. PRESUMPTIONS [FRE ARTICLE III] – NOT COVERED BY SEKULA
A.    Civil Cases [FRE 301, 302]

B.    Criminal Cases

XIV. JUDICIAL NOTICE [FRE ARTICLE II]
FRE 201. Judicial Notice of Adjudicative Facts
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When discretionary. A court may take judicial notice if requested by a party and supplied with the
necessary information.
(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary
information.
(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tnor of the matter noticed. In the absence of prior notification, the
request, may be made after judicial notice has been taken.
(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                             Page 66
Last printed 10/15/2011 1:07:00 AM
EVIDENCE OUTLINE
Dean Sekula
Fall 2005

(g) Instructing the jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive
any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required
to, accept as conclusive any fact judicially noticed.

A.    Kinds of Facts
1.    Facts Generally Known [FRE 201(b)(1)]
a)
b)
c)
d)
e) Varcoe v. Lee -
2.    Verifiable Facts [FRE 201(b)(2)]
a)
b)
c)
d)
e) Laster v. Celotex Corp. -

B.    Legislative Facts [FRE 201(a)]
1.
2.
3.
4.
5.    United States v. Gould -

C.    “Reasoning Facts”; “Jury Notice”; Procedural Matters
1.
2.
3.
4.
5.
6.    United States v. Jones - *

C:\Docstoc\Working\pdf\ee714d32-d8a5-434a-aa01-195e4a5f7a09.doc                                                               Page 67
Last printed 10/15/2011 1:07:00 AM


To top