The Law Dictionary

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Evidence 2

  1. Introduction
    1. Evidence concerns the process of the trial – it starts where criminal and civil procedure stops
    2. Rule 102 – These rules shall be construed to secure fairness in administrationelimination of unjustifiable expense and delayand promotion of growth and development of the law of evidence to the end that the truth may be ascertainedand proceedings justly determined.
      1. notice we exclude things even if they are truthful –
        1. Prior convictions and criminal acts
        2. Evidence obtained in violation of the 4th
      2. This means that justice is an important consideration. Even if some things are truthful and relevant, they will be excluded because there is some independent value to avoiding harassment and preserving fairness.
    3. Rule 606(b) – A juror may not testify as to any matter or statementoccurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions.
      1. The jury is a black box – we don’t want to know what goes on during deliberations. When the judge says that some evidence should be excluded, we assume that the jury does not consider it.
      2. Notice: this is clearly not grounded in fact finding or truth seeking.
    4. Federal rules –
      1. prior to the federal rules…
        1. 1908 – Wigmore wrote a model code that no state adopted
        2. 1945 – Professor Morgan wrote a code that no state adopted (eliminated hearsay)
        3. 1972 – Federal Rules of Evidence were adopted for the federal system
          • they were a response to Nixon and Watergate.
          • FRE have been adopted in 42 states
            • BUT, not NY, PENN, CA, or ILL.
  1. Schallock v. Heinze – ARP 2-10
    1. Facts – sexual harassment suit. The π is trying to get in evidence that the Δ (perpetrator’s company) knew about his prior bad acts to (a) get the evidence in and (b) prove vicarious liability.
    2. What is interesting about this case?
      1. Relevance – what is the evidence suppose to prove
      2. Material – is what the evidence is suppose to prove an element of the case?
      3. Logical relevance – does the evidence increase the likelihood of the material fact?
      4. Prejudice – despite the materiality and logical relevance of the evidence, will that evidence be properly evaluated by the jury?
    3. How this plays out –
      1. Trying to prove a pattern or propensity for the alleged perpetrator to harass (ultimately using this to prove that he did in fact harass)
      2. Is Heinze harassing Shallock an issue in the case? Answer – YES, so this is material.
      3. Does the evidence increase the likelihood that Heinze did harass Shallock? Answer – YES, so it is logically relevant.
        • Claim that it increase the likelihood – if Heinze harassed other women in the past it proves a propensity for him to harass in the future (increases the chance that he harassed Shallock).
      4. Will this evidence be properly evaluated by the jury? Answer – UNCLEAR, probably.
        • If the jury is going to disregard whether the alleged perpetrator actually harassed the π because it doesn’t like the person, then this is improper evaluation by (prejudicial impact on) the jury.
          • Notice the real reason we want to get this evidence in is because we hope the jury will misuse the evidence for precisely that purpose.
  1. Relevance
    1. Judicial Control of Mode and Order
      1. Rule 611(a) – control by the court – The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to…
        1. (1) Make the interrogation and presentation effective for the ascertainment of the truth;
        2. (2) Avoid needless consumption of time;
        3. (3) Protect witness from harassment or undue embarrassment.
      2. Scope of cross-examination – Rule 611(b) – Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
        1. What is credibility? Answer – believability of the witness (there are 4 aspects).
          • Perception – are the witness’s perceptions skewed
          • Memory – is the witness’s memory accurate
          • Narration – does the listener misunderstand; is what is sent out decode improperly? (e.g. irony believed to be the truth)
          • Sincerity – lying; this is the biggest concern in evidence rules.
        2. Why is cross-examination limited to the scope of direct?
          • Ordering the way the case-in-chief is presented – cross-ex out of scope interferes with that because it allows issues to be brought up out of order. This rule is consistent with the notion that each party is given control of the presentation of their case.
            • Plus, the other party can make those claims when their side comes up.
          • The accused as witness – if cross-examination can go beyond the scope of direct, it can potentially violate the right against self-incrimination for the accused.
            • Taking the stand should not subject the criminal defendant to free-wheeling inquiry on cross examination.
            • Problem – this rationale is only relevant in criminal cases, yet the rule applies in criminal and civil cases.
          • Vouching for the witness – this isn’t really used much any more. We don’t vouch for the witnesses we call anymore. But at the very least, questioning outside the scope goes beyond how much we are willing to vouch for the witness.
        3. Exception to scope of cross-examination limited to direct – Rule 611 – The court may, in the exercise of discretionpermit inquiry into additional matters as if on direct examination.
          1. Why might the judge allow this?
            • Avoids wasting time, resources (flying the witness back), and undo delay and waste of administrative time and resources.
          2. Objections –
            1. make the objection or lose it – Rule 103 – in case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific grounds was not apparent from the contexts.
            2. Leading Questions –
              1. Rule 611(c) – Leading questions are NOT okay on direct unless necessary.
              2. What is a leading question?
                • Warning signs –
                  • Questions that convey the desired response (the question tells the witness what you want to hear)
                  • Questions that can be answered yes/no(then there is a good chance that it is a leading question and that it is hearsay)
                  • Tag question lines (“didn’t you”, “aren’t you” (“didn’t you have fun last night”)
                • Problem with leading questions –
                  • Put words in the mouth of the witness
                    • The witness should speak to the jury in his/her own words.
                  • Leading questions can impair the witness’s memory and narration.
                  • Can impact the witness’s answer
                    • g. study about cars and how fast they were going changed based on context – “how fast were the cars going when they contacted” versus “how fast were the cars going when they smashed”. | “did you see abroken headlight” versus “did you see the broken headlight”
                  • When are leading questions okay (necessary)
                    • Witnesses who are hostileunwilling, or biased;
                    • Child witness or adult witness with communication problems
                      • Ironic because these are the witnesses most susceptible to memory problems
                    • Witness whose recollection is exhausted
                    • Undisputed preliminary matters
                      • g. “Do you live at X address”
                    • Rule 611 – ordinarily, leading question should be permitted on cross-examination.
                      • Why ordinarily? If the opposing party calls your client, under direct examination the lawyer could use leading questions because the witness is hostile/unwilling/biased. BUT the cross-examiner cannot use leading questions because there is no such bias.
                        • So leading questions are NOT allowed on cross when leading is allowed on direct because of hostileness or unwillingness of the party.
                      • Rule 611 – when a party calls a hostile witnessan adverse party, or a witness identified with an adverse partyinterrogation may be by leading questions.
  1. Asked and answered –
    1. Lawyer asks same question or similar question and its been answered already
      • He is badgering, browbeating, harassing the witness
    2. assumes facts not in evidence –
      1. asks questions that base the question on supposition that is not supported by evidence
        • fear the fact finder – if questions are asked based on things not in evidence, there is a concern that the jury will take that as fact.
      2. Misleading –
        1. Assumes facts that are not in evidence but assumes facts that have disporven or are in dispute.
      3. Argumentative –
        1. Questions/statements that aren’t even questions
      4. Compound –
        1. asks more than one question in a single question
        2. Why is this excluded?
          • If it is a yes or no answer to multiple questions, does it mean yes to both or no to both or yes to one and no to one.
        3. Calls for speculation or a conclusion –
          1. Why is this bad? Experts are allowed to speculate or make conclusions, but lay witnesses are suppose to testify to things that they have personal knowledge of.
            • Witness is supposed to stick to the facts
            • Conclusion or speculation is the job of the jury
          2. Purpose of objections?
            1. Stop question or answers from getting in
            2. Break up the rhythm of the lawyer
            3. Be careful – want to avoid getting the jury upset with you.
          3. Materiality and Logical Relevance –
            1. Relevant Evidence Defined – Rule 401 – Relevant evidence means evidence having any tendency to make the existence of any fact (a) material – that is of consequence to the determination of the action (b)logically relevant – more probable or less probable than it would be without the evidence.
              1. Evidence is a relational concept – it might be relevant to some things but not relevant to others.
              2. Inquiry –
                • What is E offered to prove (we’ll call this X)?
                • Is X an issue in this case?
                  • Is X a material fact – is X a fact that is consequence to the determination of the action
                • Does E (the evidence) increase the likelihood of X (what we are trying to prove)?
                  • Logical relevance – Does E tend to make X more or less probable than it would be without the evidence.
  1. Notice something can be logically relevant but not material OR material and not logically relevant
    • Something showing that Heinze is a bad person (is material, but not logically relevant)
    • Something showing that Heinze rides the elevators often (is logically relevant, but not material).
  2. Exclusion of evidence – Rule 402 – All relevant evidence is admissible, except as otherwise provided by the US Constitution, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.
    1. Notice that there are sources of law not included
      • Common law is not included
      • State law is not included.
        • Why? Because these are procedural rules and under Erie, procedure is not regulated by state law (it is regulated by federal law).
  1. How this all plays out.
    1. What is the evidence (E) offered to prove (X)?
      • If X is not an issue in the casethe evidence (E) is inadmissible because it is immaterial.
      • If X is an issue in the caseback to the chart.
    2. Does the evidence increase the likelihood of what we’re trying to prove (X)?
      1. If nothen the evidence (E) is not admissible because it is not logically relevant.
      2. If yesthen the evidence (E) is generally admissible.


  1. Libel versus extortion – pg. 53
    • Libel –
      • X says publicly that J is embezzling money and tells J he will repeat the story unless J pays him off. J sues for libel.
      • Issue – is evidence offered to prove that J was embezzling money material?
      • Answer – YES, because libel requires that the statement be not true.
    • Extortion –
      • What if X was being prosecuted for extortion?
      • Issue – is evidence offered to prove that J was embezzling money material?
      • Answer – NO, because evidence submitted to prove embezzlement is not material because whether or not there was embezzlement is NOT relevant to extortion.
  1. Speeding car example
    • Facts – head-on collision between G and R. R’s widow sues arguing G was speeding. The evidence is that Hill testifies that G was speeding 30 miles west of the accident.
    • Issue – is that evidence logically relevant?
    • Analysis –
      • It is not material that he was speeding 30 miles from the accident. Instead, we want to prove that he was speeding at the time of the accident.
      • Is it relevant that he was speeding at the time of the accident? Answer – YES, that would be material to a wrongful death suit.
        • So, speeding could be an issue in the case (back to the chart)
      • To get past materiality, the evidence has to prove something else – the evidence has to increase the probability that X is true.
    • So, how this all plays out –
      • E = he was speeding 30 miles west
      • X = he was speeding at the time of the accident
      • If we can show that speeding at some point (e.g. 30 miles west of the accident) increases the likelihood that he was speeding at the point of the accident (X), then it is logically relevant.
  1. Inferential evidence –
    1. This is an inferential step that is needed to get from E to X.
      • Whenever there is an inferential leap required for relevance, that is a logical relevance issue (e.g. conditional relevance is a form of logical relevance).
      • How can you avoid that inferential step? Answer –
    2. Difference between specific and general facts – these are the facts that bridge E to X.
      • Specific facts – specific facts can be used not as often (specific fact would be that he maintains his speed).
        • There is no evidence of that in this case.
      • General facts – are often used to prove logical relevance (e.g. people that speech are more likely to be speeding later).
        • This is a question of common knowledge.
        • If the opposing party can prove to the judge that we need specific evidence to go from E to X, then that is conditional relevance.
  1. Direct versus circumstantial evidence –
    • When the only leap (inferential leap) is that the witness’s testimony is accurate, that is direct evidence. When there is an additional inferential leap, then it is circumstantial evidence.
    • Direct evidence is usually considered superior to circumstantial evidence, because of the inferential leap required in assessing circumstantial evidence.
      • BUT, that isn’t necessarily true – there can be circumstantial evidence that is quite strong and direct evidence that is
        • Bad direct evidence – witness has bad eyesight
        • Good circumstantial evidence – killer’s blood at the crime scene.
  1. When using general facts (speeders that speed at Point A speed at point B), how certain must those statements be?
    1. Answer – must prove logical relevance, so speeders at Point A speed at Point B more often than non-speeders at Point A.
      • Why is this the answer – because it makes it more likely that the Δ was speeding at Point B (E makes X more likely).
    2. The correct answer is NOT –
      1. Speeders at Point A ALWAYS speed at Point B –
        • It isn’t necessary to prove always
      2. Speeders at Point A SOMETIMES speed at Point B –
        • This is not sufficient because sometimes doesn’t give an indication of how it increases the likelihood;
      3. Speeders at Point A USUALLY speed at Point B?
        • This makes it more likely than not, but necessarily more likely.
        • Plus, “usually” is not necessary.
      4. For materiality, we only need to prove that the evidence makes the conclusion we are trying to prove (X) more likely than it would be without the evidence.


  1. People v. Dunkle – ARP 16 –
    • Set up –
      • Evidence – child sexually victimizes other children.
        • Cycle of violence theory – abused children will become abuses.
      • Offered to prove (X) – that the child (perpetrator) was sexually abused.
      • General (inferential statement) – children who victimize are themselves victims.
      • The evidence is not logically relevant because while the evidence may bear on the issue, it does not render the desired inference more probable than not.
      • The problem with the court’s reasoning is that it says that the evidence doesn’t make X (offered to prove) more probable than not, but the standard for materiality is just that the evidence makes X more likely than without the evidence.
    • What should the Court have done?
      • The court should have determined whether the evidence made it more likely that the perpetrator has herself the victim of abuse.
      • So, if there is a 3% chance that the victim of sexual abuse will abuse others, then if the chance that non-abused children will sexually abuse others is below 3%, the evidence that the perpetrator victimized others makes it more likely s/he was abused.
        • Consider this – if NO abusers abused unless they were themselves abused, then 100% of abusers would once be abused (even if only 3% of those that were abused go on to abuse others).
        • Consider this – even if a symptom is exhibited by the majority of the population, that does not make it relevant. That 80% of abused kids are scared of the dark is not logically relevant IF more than 80% of all kids (abused or not) are scared of the dark.
      • What does this mean?
        • Rule – when the percentage of abused children who exhibit the symptom is higher than the percentage of nonabused children who exhibit the symptom, it is logically relevant because having the symptom increases the likelihood that the person was abused.
        • Don’t compare abused kids with symptoms to abused kids without symptoms. Instead, compared abused kids to nonabused kids.
  1. Conditional Relevance –
    1. Questions of admissibility – Rule 104(a) – Witness qualificationsprivileges, and admissibility all determined by the court UNLESS the preliminary question is conditional relevance.
      1. The court is NOT limited in making its 104(a) decision on admissible evidence – the court can consider any unprivileged information in deciding whether evidence is admissible.
      2. Is this standard lenient or strict? Answer – BOTH. It is lenient because these decisions can be made while relying on inadmissible evidence. However, it is stringent because the decision is made by the judge for witness qualifications, privileges, and admissibility unless it’s a conditional relevance issue and in which case 104(b) applies.
    2. Relevancy conditioned on fact – Rule 104(b) – When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon or, subject tothe introduction of evidence sufficient to support a finding of the fulfillment of the condition.
      1. When evidence is conditionally relevant (when relevance depends on something) there must be ‘evidence sufficient to support a finding of the precondition.
        • What is conditional relevance? When does ‘the relevancy of evidence depend upon the fulfillment of a condition of fact’?
          • Answer – when moving from evidence (E) to what you are trying to prove (X) requires an inferential leap, which must be filled by facts specific to the case.
          • Difference between logical and conditional relevance
            • Logical relevance is based on general statement about the world.
            • Conditional relevance is based on a specific fact in the case that must be proved.
              • Conditional relevance is part of logical relevance.
  1. “upon or subject to”
    • upon – cannot introduce the evidence UNTIL the pre-condition has been satisfied
    • subject to – can bring in the evidence now, but will have to later prove the foundation by meeting the condition.
      • The side introducing the evidence would rather bring in the evidence now and prove the foundation later (it’s easier that way)
      • Plus, the remedy is the condition is not met is that the court (subject to a motion to strike) will strike the testimony. HOWEVER, by then the jury has already heard the testimony and could be influenced by it.
  1. What is the standard of proof to meet the pre-condition?
    • Answer – the judge must think that a reasonably juror could conclude the condition has been met.
      • However, because a reasonable juror has to be convinced, the evidence considered to prove conditional relevance must be admissible (under 104(b)).
      • So the standard is more lenient because the judge doesn’t have to be convinced, but more stringent because the judge can only use admissible evidence when evaluating whether a reasonable juror could conclude….
  1. How does this all play out? Look at the chart on the speeding example (the left side is conditional relevance, the right side is logical relevance).
    1. Example – conditional relevance
      • Facts – biking accident and there is a suit alleging the brakes were broken. After the accident, the π send the bike to be tested (2 times after the accident). Since then, the bike has been in storage. After it has been in storage for two years, the π’s sue and have another expert test the brakes.
      • Issue – should the court allow in the testimony of the 2nd expert?
      • Answer – NO. The condition has not been met. The pre-condition is that the bike is in the same condition that it was at the time of the accident this cannot be met here because…
        • The original testing may have altered the bike’s condition as compared to when the accident occurred.
        • The bike’s condition may have deteriorated while in storage.
      • The witness can only testify to whether or not the brakes worked at the time of inspection. It requires an inferential leap to show that the brakes were in the same condition on the day of the accident as on the day of the examination.
        • Notice, this is the same thing as a logical relevance problem.
  1. Prejudice –
    1. Flight as an example of bias.
      1. Does flight prove guilt or disprove guilt or not prove anything?
        • What facts do you need to go from evidence that the defendant fled to prove X (that defendant commit the crime)? Answer – guilty people are more likely to flee than non-guilty people.
      2. Illinois v. Wardlaw – flight + high crime area sufficient for reasonable suspicion.
        • Determination of reasonable suspicion is based on common-sense and inferences about human behavior.
        • HOWEVER, common sense depends on how common you are. Minorities in high crime areas might think that contact with police is bad (even when you are innocent) and so they flee. Does that prove guilt? Doesn’t seem like it.
      3. Prejudice – Rule 403 – Although relevant evidence may be excluded if its probative value is substantially outweighed by (a) the danger of unfair prejudiceconfusion of the issues, or misleading the jury (b) consideration of undue delaywaste of time, or needless presentation of cumulative evidence.
        1. Rule – evidence will be excluded IF the probative value is substantially outweighed by (a) prejudice, confusion of the issues, misleading the jury.
          • Notice the presumption and the burden of proof –
            • The prejudicial value must be greater than the probative value to exclude. If they are equal, the evidence should be allowed in.
            • Burden of proof – burden of proof on the side opposing the introduction of the evidence.
  1. What is probative evidence – for evidence that is logically relevant (tends to prove the matter in issue), probative value is determined by how much it tends to prove. Probative value can go up or go down.
    • The court then weighs the probative value (how much the evidence tends to prove) versus the prejudicial impact of the evidence.
  2. Unfair prejudice – means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.
    • Prejudice refers to emotion.
    • The concern is that emotion makes the trial unfair.
      • People v. Chappel – (AZ case where photos should not have been admitted because they were prejudicial) – When the evidence is of a nature to incite passion or inflame the jury.
    • Prejudice also includes the jury weighing the evidence too heavily.
    • Prejudice is only an issue if the evidence is first relevant. If it isn’t relevant, this doesn’t come up because the evidence is excluded for other reasons.
      • Evidence doesn’t always get excluded because it is prejudicial – e.g. past sex crimes of the Δ and evidence of past spousal abuse are allowed in evidence in relevant cases.
  1. How to justify if prejudice justifies exclusion?
    • Rule 105 – limiting instructions – the judge can give the jury limiting instructions.
      • If the judge believes that the limiting instructions can prevent the bias, the judge might be more willing to let in otherwise prejudicial photos.
        • The Advisory Committee Notes (ACN) say that the limiting instructions work, or at least it must be presumed that they do because the jury system is based on them working.
      • Court’s don’t seem to be too optimistic about the actual effectiveness of limiting instructions. THOUGH, the courts say that they must assume that the instructions work.
    • Availability of other means of proof –
      • Can the Medical Examiner explain the scene without the pictures
      • Can the defense attorney stipulate
        • Seems like if the defense a attorney stipulates to the substance of the pictures, the only thing left from showing the pictures is inflaming the jury.
        • Why is stipulating not sufficient? Stipulating leaves the prosecutor’s narratives with holes and the jury might end up blaming the prosecutor for those holes.
  1. Probative value (relevance) of photographs – prosecutor wants to get the evidence in as evidence in part to inflame the jury.
    • State v. Chapple – photos were excluded
      • Charge is first degree murder. Two eyewitnesses identify defendant as Doe who had told one he had shot the decedent in the head.
      • Defense – argues mistaken identification and alibi
        • Defense is not claiming that the victim isn’t dead or that the crime scene is not how it is described.
      • Holding – the court excludes the evidence. Why?
        • Defendant did not contest the testimony (only challenged the ID)
        • Needless since defendant stipulated to cause of death
          • It wasn’t just stipulation by silence, instead the defense was willing to actually stipulate to these facts.
        • The corner testified (the pictures were cumulative of the testimony offered by the medical examiner)
      • Commonwealth v. Lopinson – photos were allowed in
        • Prosecutor claimed the photographs were relevant because they showed (1) who died (2) where they died (3) how they died (4) severity and atrocity of the crime, and (5) to aid the jury in understanding the witness’ testimony.
        • Holding – Court finds the pictures admissible. Why?
          • Reason to not let the pictures in – the jury may be angry and just want to get someone for the crime without caring whether the defendant was guilty.
        • Court distinguishes – pictures are different than prejudicial evidence because they don’t point specifically at the defendant.
          • The court seems to be less concerned with gory pictures because they do not point to this defendant.
          • The more common type of prejudicial evidence is the evidence that puts this defendant in a bad light.
        • What distinguishes these two cases?
          • Crime scene versus pictures after the ME had changed the scene – the photos were more prejudicial in Chapple because the pictures were more gruesome than the scene because the ME had conducted an autopsy and cut open the head (removed the bone flap) and showed the wound in the head.
          • Chapple decision does not mention that the prosecutor is allowed to demonstrate the atrocity of the crime. Judge in Lopinson clearly favors this argument and allows the evidence in because it demonstrates the atrocity of the crime.
          • Stipulation seems to have a lot of sway with the judge in Lopinson.
            • Why this might be problematic –
              • Gory pictures remind the jury of the decedent who is not present at the trial and thus avoids the concern that the decedent will be forgotten.
              • Gory pictures help to prevent the jury from pitying the defendant and thus failing to convict for that reason.
            • Research shows that jurors that are showed gory pictures tend to require less certainty than in cases where they are not showed gory pictures.
            • Chapple opposes the idea that the defense can use stipulations to keep this evidence out and to force the prosecution to try the case in a sterile setting.
  1. Stipulations – Old Chief – pg. 54 –
    • Charge – convicted felon in possession of a firearm.
      • Prosecutor wanted to a statement that the “Defendant was convicted of assault causing serious bodily injury, which is punishable by imprisonment exceeding on year.”
      • Defense wanted to stipulate that the “defendant was convicted of a crimepunishable by imprisonment exceeding one year (felony).
    • Issue – is the prosecutor’s statement prejudicial in light of the defendant’s willingness to stipulate to being convicted of a felony?
    • Application – both of these statements are equally effective in proving that the Δ is a convicted felon and falls within the statute for convicted felon in possession of a firearm.
      • Why, then, does the prosecutor want to get the crime in? Answer – because it will prejudice the jury against the defendant.
    • Willingness to stipulate does NOT make the evidence irrelevant.
    • Does willingness to stipulate make the evidence prejudicial? Answer – potentially. It depends what the defendant is willing to stipulate to and what the impact of letting the evidence in is in light of the defendant’s willingness to stipulate.
    • Why does stipulation NOT substitute for introduction of evidence in the absence of prejudice?
      • The prosecution submits the evidence to convince the jurors that a guilty verdict would be morally reasonable as well as point to the discrete elements of a defendant’s legal fault.
        • The level of proof is important but so is the force of the proof. Stipulation undermines the force of the proof.
      • A stipulation logically equals the proof, but emotionally it does NOT equal the proof. Sterility is non-emotional, purely logic. But the lack of evidence may leave the jury under-emotional.
      • Introduction of evidence is necessary to satisfy the jurors’ expectationsabout what proof should be.
    • Why DOES stipulation substitute for introduction of evidence when there is prejudice?
      • Stipulation conveys the relevant information; it does not turn an eventful narrative into an abstract proposition.
      • Arguably it is different when we area talking about legal status. Legal status is entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense.
    • Holding – despite the reasons given above, the Court accepts the stipulation in this case.
      • Why?
        • Because the previous offense is distinct from the current offense.
        • The condition precedent in this case is about a past felony not related to this crime (except to the extent that being convicted of a past crime is a condition precedent to commit this crime).
  1. Confusion of the issues / Misleading the Jury –
    1. In addition to the emotional aspects of prejudice, there are other things that lead to prejudice such as confusion of issues and misleading the jury.
    2. Key – the distinction between materiality and logical relevance defines elicits this form of prejudicial evidence.
      • Prejudicial evidence is evidence that is an immaterial fact.
      • g. Evidence that Heinze harassed other women. That is an immaterial fact that Heinze is a bad person. It also misleads the jury as to logical relevance because the jury thinks that the evidence has too much probative value.
    3. Adamson –
      • Facts – charge is murder and burglary (there might have been a sexual element to the case).
      • Evidence – woman’s stocking tops found in the defendant’s possession.
      • Relevance – a stocking top had been taken from the decedent.
      • Defendant claims introduction of stocking tops prejudiced him because they suggested he was a sexual degenerate.
        • Is that an issue in the case?
          • Uncertain materiality but it makes the jury dislike the defendant whether or not he actually committed the rime.
        • Holding – Court rejects this argument and allows the stocking tops in because they are relevant. A man with a stocking top is more likely than a man without a stocking top to have raped and killed a woman whose stocking top was taken.
        • So, the court rejects the prejudice argument, but there is also a relevancy argument.
          • Innocent explanations reduce the relevance of evidence.
            • Stocking tops were used as do-rags.
            • The frequency of this characteristic amongst the innocent population, reduces the probative value of the evidence.
  1. Waste of time –
    1. Waste of time has already come up in Rule 611 – judge’s ability to control presentation of evidence with an eye toward minimizing waste.
  2. Limiting Instructions –
    1. Rule 105 – Can request court to give jury a limiting instruction to tell the jury not to use evidence for inadmissible purpose.
  3. Rule of completeness –
    1. Rule 106 – 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 of any other writing or recorded statement which ought in fairnessbe considered contemporaneously with it.
      • Can require the ‘whole story’ be admitted, usually through the remainder of a document or recorded statement.
    2. This rule allows one party to admit evidence that they might not otherwise have been able to reveal if the other side had not first used some of the evidence.
      • This rule is based on fairness.
    3. Probabilistic Proof –
      1. This stuff comes up pretty often with DNA evidence
      2. Collins – random match probabilities –
        1. The evidence –
          • Statistics – Jury heard evidence about probabilities of a black man and a blonde woman as a couple, the black man having a moustache, the black man having a beard, the automobile being yellow, the girl having a ponytail, the girl having blonde hair, and an interracial couple in a car.
          • The prosecutor used that evidence to show what the probability was that allow those things would happen (the “population frequency” (how often the populations occur within the population) as a random-match).
        2. Problem #1 – there is no evidence to support that these statistics are accurate. The prosecutor just has the statistician assume that those are the accurate stats.
        3. Problem #2 – product rule – the prosecutor assumes that all of these characteristics are mutually independent.
          • The statistician and the prosecutor base their calculations on mutual independence (probability rule) – the probability of a joint occurrence of a number of mutually independent events equals the product of the individual probabilities of each event.
            • g. flip a coin 2x, the chance of it coming up heads twice is 25% (1/2 * 1/2)
              • Joint occurrence = flip a coin twice and get heads twice
              • Mutually independent = getting the first result doesn’t influence getting the second result (getting heads once doesn’t influence getting heads the second time)
            • It is unclear if these facts are mutually independent
              • Doesn’t a black man with a mustache have a greater likelihood of having a beard than a black man that doesn’t have a mustache?
              • Maybe a woman with blonde hair is more likely to have a ponytail
  1. Problem #3 – the probabilities don’t account for the witness being mistaken or lyingor that the guilty couple was somehow disguised.
  2. *** Problem #4 – the prosecutor erroneously equated incriminating characteristics (1 in 12 million chance) with the probability that any given couple possessing those characteristics would be innocent.
    • Logical relevance – to assess the significance of the match between the defendant’s characteristics and those of the criminal’s, we need to know how often innocent people (the general public) have such characteristics.
    • The statistics, assuming everything the statistician said was true, only proves that if you took 12 million people, 1 of them would meet the description (that has nothing to do with innocence).
      • In LA County with 240 million people, that means 20 couples match the description and thus each of them has only a 1 in 12 million chance of NOT being the robbers. This is obviously false.
    • Easier example –
      • Facts – murderer left an extra large sized glove.
      • Issue – how strong is that evidence?
      • Prosecution says that because he wears an extra large glove, there is only a 1 in 5 chance that it is an innocent match.
        • This is obviously wrong (if there is an 80% chance that anyone that wears extra large gloves did it, then on a jury of 12, at least two of them had an 80% chance of being the murderer).
      • So, the error is that the prosecutor equates the probability of a match (assuming the matchee is innocent) with the probability that a matched person is innocent.
        • This is not the same thing. Just because I match the criminal (1 in 100 chance) does not mean there is a 1% chance that I am innocent.
  1. Given these problems, why did the prosecutor use probabilities? Answer – because the eye witnesses were not able to positively ID the Δ’s. The prosecutor had to do something to make a case.
    • Lab error is around 3-4%. This means that lab error puts a limit on probative value of this sort of evidence.
  2. Smith v. Deppish – ARP – pg. 24 –
    1. Evidence against Δ –
      • Motorcycle (or 3-wheeler) hear at time of crime, defendant owns a motorcycle
        • It would be helpful to know how many people own motorcycles
      • Shell casing from defendant’s .22 matches shell casing found near decedent
        • Would be helpful to know how many people own .22s
        • Would be helpful to know how often the random matches from shell casing
      • 2 ‘Negroid’ body hairs found in carpet samples
        • she had vacuumed but that doesn’t mean all the hairs had been picked up by the original vacuumed
        • how many African-Americans are in this community
        • how many African-Americans had been in her apartment and how often?
      • Defendant’s DNA type matches DNA in semen taken from vaginal swab.
        • The DNA evidence established that there is a 1 in 500 chance that the DNA matches a person chosen at random.
          • This does not mean that there is a 1 in 500 chance that the person is innocent. That is the fallacy of Collins.
  1. Dershowitz Fallacy –
    1. He was hired by OJ to make the argument that just because OJ abused is wife, 99.9% of spousal abusers do not end up killing their wives.
      • His argument – He says that you look at all the men who beat their wives, a very, very small percentage of them kill their wives.
    2. Problem: that is the wrong question. The question is: given that an abused wife is murdered, what is the probability that the abusive husband is the murderer.
      • We are looking for post-diction. We know that she is dead and abused, so the question is based off of knowing those two things.
      • The answer when that is computed – about 80%.
    3. DNA evidence
      1. How helpful are random match probabilities for things like DNA when the suspect is a family member
      2. Possibility of error or falsification of laboratory results
        • What if the lab tests the crime scene evidence instead of the Δ’s
      3. The random probability that a defendant would match the blood drops if he is NOT the source is .01%
        • So if 1/1000 people in Houston who are not the source would match the blood drops, that is a lot of people (maybe 200-300 out of 2-3 million).
      4. Authentication –
        1. Requirement of Authentication or Identification – Rule 901 – The requirement of authentication or identification is a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what is proponent claim.
          1. Rule – Authentication is when you prove something is what you claim it is. Authentication is a conditional relevance problem (in that it relies on a specific fact, and in that case it is that the evidence is what you claim it is).
          2. “sufficient to support a finding” is the same language used in conditional relevancy problems.
            1. You can treat this like a conditional relevance problem – use a flow chart (remember the “bike with the allegedly broken break” problem).
              1. What does it take to get from E to X? Answer – evidence that the condition of the brake has not changed. This is conditional relevance.



  • Rest of 901 – (the list included is illustrative, not exhaustive).
  1. How is a voice recognized? Can only recognize a voice if you have heard it before and can connect the voice with the speaker.
  1. If it is a document, then move to the document chart (below).


  1. Couple of notes about the document tree –
    • Notice that these questions are not particularly concerned with fabrication. Why? Answer – the opposing side can argue fabrication or argue against the evidence and the jury will determine for themselves whether or not the evidence is fabricated.
      • g. we are not focused here on whether or not the lay witness could possibly make a mistake authenticating handwriting because the jury will be able to evaluate the credibility of that witness’s statement(s).
    • Example – Paul (π, law student) is interviewing for jobs. He never met O’Rourke but he gets a phone call from a woman that says she is O’Rourke’s secretary and he gets the message and calls O’Rourke at the country club. Person claiming to be O’Rourke negotiates a job. He never gets anything in writing and it turns out later he doesn’t have the job.
      • Authentication –
        • Is this identifiable eye witness? Answer – NO.
        • Is there distinctive character? Answer – NO (not enough evidence to know that)
        • Is there a process? Answer – NO.
        • Is there a document? Answer – No.
        • Is there voice identification? Answer – yes.
          • W recognizes voice? Answer – NO.
          • W called his/her number? Answer – NO, called the club.
        • So, this evidence should be excluded. Might be allowed in if it was really important to the case, but doctrinally, should be excluded.
      • What about emails? Hmm, kind of tough; it is pretty easy to fabricate IP addresses.
  1. Authenticating pictures –
    • If a witness perceived what is pictured or recorded, s/he can authenticate it (901(b)(1)).
    • If the witness did not perceive what was pictured, must look elsewhere (e.g. distinctive characteristics (901(b)(4)) or process (901(b)(9))).
  2. Demonstrative evidence –
    1. Hypothetical – expert wanted to show that the evidence from the catscan and autopsy is consistent with shaken baby syndrome. Expert is trying to do this through animation.
    2. Rule on demonstrative evidence – demonstrative evidence is not suppose to be independent evidence; it isn’t independent of a witness’s testimony (is not individually admissible but rather is admissible to illustrate a witness’s testimony).
      • How does this play out? The jury cannot take demonstrative evidence into the jury room because of concern that the jury will give it too much evidence.
      • Even though they are not allowed in the jury room, demonstrative evidence is VERY INFLUENTIAL on jurors, so a lawyer still wants to use it when possible.
    3. What about photographs?
      • Photographs are demonstrative (e.g. is a fair characterization of what the witness sawBUT photographs are also independently admissible as real evidence.
  • Categorical Rules of Exclusion (notice these are all still under Article 400 (relevance))
    1. Subsequent remedial measures – Rule 407 – When, after an injury or harm, allegedly caused by an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures it not admissible to prove negligence, culpable conduct, a defect in a product, a defect in products design, or a need for a warning or instruction in connection with the event.
      1. You can’t prove that someone took remedial measures following an accident in order to prove she (or the product) was at fault.
        1. Exception – But you can prove that someone took remedial measures following an accident in order to prove….
          • (1) ownership or control (if controverted);
          • (2) feasibility of precautionary measures (if controverted);
          • (3) impeachmentOR
          • (4) another purpose besides culpability.
        2. This rule covers both NEGLIGENCE and PRODUCT LIABILITY
        3. If someone gets into an accident and tries to fix it, it is NOT admissible that they tried to fix for the purpose of showing liability, but it can be used to prove something else.
        4. What is a remedial measure? –
          1. Adding safety devices
            • YES (so the evidence would be excluded to prove liability)
          2. Change in company rules and policy
            • YES (so the evidence would be excluded to prove liability)
          3. Firing employee
            • YES (so the evidence would be excluded to prove liability)
          4. Cleaning up the spill (slip and fall)
            • YES (so the evidence would be excluded to prove liability)
          5. Investigation
            • NO (this means that evidence of an investigation is admissible)
          6. Rationale for this rule –
            1. This evidence is not relevant –
              • Remedial action doesn’t prove liability – if it is a true accident (rather than negligence) the party could still try to prevent the ‘accident’ from happening again.
            2. This evidence is prejudicial –
              • Juries will give too much weight to this information. These reason a don’t mean it is irrelevant, but juries might think it is more important than it is.
            3. Social policy – we want to encourage entities to take remedial measures, and if that evidence can be used against them, it discourages remedial measures.
              • Is this really true? Probably not; the company still has an incentive to fix the problem to avoid more accidents.
            4. When does the federal rule control in these situations? – Flaminio v. Honda – ARP – pg. 37 –
              1. Facts – π (Flaminio) is a middle-aged man, suing Honda for defective design and failure to warn. While π was driving 60 mph on his motorcycle with his feet on the highway pegs, the cycle began to wobble. When he lifted himself up to see what was wrong, the motorcycle shot off the road and crashed. After the accident, Honda made the struts thicker to reduce wobble.
              2. Issue – is the evidence admissible?
              3. Erie problem –
                • The concern is that Erie means that when the court is sitting in diversity, the substantive law that must be used is that of state law. The procedural rules, though, can be federal rules.
                  • State Rule – evidence rule does NOT exclude subsequent remedial action in product liability cases.
                  • FRE 407 – evidence rule does exclude subsequent remedial action in product liability cases.
                • Is this procedural or substantive?
              4. Holding – 7th Circuit (Posner) says this is a procedural judgment and thus the FRE apply and the evidence of subsequent remediation is excluded.
                • Why? Posner says relevancy is a procedural issue and whenever the issue is a procedural issue, Erie doesn’t apply and the federal rule prevails.
              5. Rule – if there is any “accuracy” or “expense of the trial” rationale, the issue is procedural and Erie does NOT apply and the FRE are controlling.
                • It does NOT matter that the primary rationale for the rule was policy and not procedural. As long as there is an element of accuracy/expense of trial/procedural aspect, then FRE prevail.
              6. Controverted Evidence –
                1. When is something controverted?
                  • This is important because you can prove subsequent remedial measures to prove ownershipcontrol, or feasibility of precautionary measures IF the opposing party controverts any of those claims.
                  • How a Δ can clearly avoid controverting something?
                    • Stipulation
                    • Make an admission
                      • (these are both analogous to FRE 403 (prejudice); the only effect is prejudice since the other side is willing to stipulate or admit to the evidence)
                    • Refusing to stipulate is NOT controverting the evidence. It is more of a gray area, but refusal to stipulate alone is not sufficient.
                    • What if a witness controverts but the opposing party does not (e.g. a witness says it is impossible)?
                      • Answer – witnesses do not speak for a party, so that is not controverting evidence sufficient to get it in as real evidence.
                      • HOWVER, the evidence that remediation is feasible OR subsequent remediation to prove ownership OR subsequent remediation to prove control can all be used to impeach the witness.
                        • g. can use the fact that an owner cleaned up a wet spot that caused a slip and fall in order to prove ownership or control of the area where there was a slip and fall.
  1. Feasibility –
    • Flaminio v. Honda – ARP pg. 37 – Honda argues that the struts weren’t thicker because that would increase the danger of weave, which is more important for a ‘hog’.
      • Doesn’t this controvert feasibility of design improvement (we didn’t do it because ew knew it would be stupid to do it)?
        • Pro-Δ argument – if feasibility means ‘possible’ than that favors defendant; evidence only admissible if Δ says remediation wasn’t possible.
        • Pro-π argument – if feasible means practical (e.g. not a good idea), then that favor plaintiff; evidence is admissible if Δ says the remediate wasn’t practical.
      • Rule – Posner takes the narrower, more pro-Δ version (“possible”) – if Δ just says that the design change is not “net advantageous,” that is different than saying “not feasible” and thus the claim is not controverted and the evidence is excluded.
    • Tuer v. McDonald – pg. 433 – medical malpractice case
      • Facts – Tuer is waiting for heat surgery and is on an anti-coagulant (prevents blood clotting). He is going into surgery so they take him off the heiprin (because if a vein is nicked during surgery, he could bleed out if still on heiprin). Something came up and Tuer could not be taken into surgery right away and Tuer dies of a heart attack.
        • There is a lawsuit claiming that wrongful death.
        • After Tuer died, the hospital changed its policy and decided that if a person’s surgery was delayed, they should be put back on heiprin while awaiting surgery.
      • The hospital says that it would not have been advisable to put the patient back on Heiprin.
      • Issue – is the hospital controverting feasibility?
      • Holding – NO. the Court is not questioning the ‘feasibility of putting the patient back on Heiprin; instead the hospital is questioning the advisability (practicality) of putting the patient back on Heiprin.
      • Rule – questioning advisability is NOT the same as questioning feasibility; since the claim is not controverted, the evidence of subsequent remedial action is NOT admissible.
      • If you are the π’s lawyer, you want to ask the doctor if it would have been feasible to have restarted the heiprin (hoping the doctor would say ‘no’ and the evidence would then be admissible to impeach the doctor (if just a witness) or as real evidence (if the doctor is a party)).
        • However, it seems unlikely the court would let you argue that since the question is not relevant.
  1. Compromise and Offers to Compromise –
    1. Rule 408 – 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.
      1. Offers to settle claims or the settling of claims which were disputed as to either validity or amount (at the time of negotiation) are NOT admissible to prove the claims were valid or invalid.
      2. When is a claim disputed as to amount or validity.
        • Agent says: “You just tell us the damages you’re claiming, and we’ll be Cheron”
          • NO, this claim is not disputed as to amount or validity; which means the offer to settle or the actual settlement IS admissible.
        • Agent says: “Regarding the $100 I owe you, how about I give you $50 and we forgot”
          • NO, this claim is not disputed as to amount or validity.
        • Agent says: “Look, I only owe you $50, take it and leave me along”
          • YES, there is a dispute (so the evidence is not admissible).
  1. Rule 408 – Evidence of conductor statements made in compromise negotiations is likewise not admissible. This rules does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
    1. Anything you say or do in compromise negotiations is also inadmissible. BUT, you cannot make evidence inadmissible by presenting it during compromise negotiations.
    2. This does not mean that you can say things that are otherwise admissible in court during compromise negotiations just to get that evidence kept out of court.
    3. What is a report is created as part of compromise negotiations? Answer – if the report or some piece of information exists only because of negotiation, it is excluded (see pg. 442-43).
  2. Exception – Rule 408 – 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.
    1. Can use offers of settlement or settlements to prove
      • Bias or prejudice
        • g. bias of a witness testifying for Δ after witness settled her claim.
      • Rebutting assertion of delay;
        • g. Can answer that you are unduly delaying (e.g. you were delaying to reach a settlement)
      • Obstruction of a criminal case.
        • g. evidence of obstructing a criminal case (e.g. paying someone not to go to the cops) is NOT something the FRE want to encourage and thus it is not protected.
  1. Rationale for Rule 408 –
    1. Relevance – consistent with desire for peace (not necessarily liability)
    2. Policy – want to encourage settlement.
  2. How does all of this play out –
    1. Hypo – π and passenger are struck by Δ. Π sues in court but passenger settles out of court.
    2. Issue #1 – can π use evidence of settlement with passenger to prove liability? Answer – NO.
    3. Issue #2 – can π use evidence of settlement to show bias of passenger IF passenger testifies on Δ’s behalf? Answer – YES.
  3. Payment of Medical and Similar Expenses –
    1. Payment of Medical and Similar Expenses – Rule 409 – Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is NOT admissible to prove liability for the injury.
      1. Offers to pay (or the payment of) medical expenses for an injury are NOT admissible to prove liability for the injury.
      2. rationale for Rule 409 –
        • relevance – consistent with humane impulses (consistent with charity, good Samaritanism, etc.)
        • policy – we want people to encourage assistance.
      3. What about things that fall between Rule 408 and 409 – you might not know if someone is offering to settle or pay medical expenses. If one is broader (so more stuff gets excluded), the Δ wants to use that one. If one is narrower (so more stuff gets in as evidence), the π wants to use that one.
        1. Offer AND payment (offer to pay and then the actual payment)
          1. 408 – compromise – YES, covered by the rule and thus excluded
          2. 409 – medical expenses – YES, covered by the rule and thus excluded
        2. Associated statements (maybe I was a little negligent, so…)
          1. 408 – compromise – YES, covered by the rule and thus excluded
          2. 409 – medical expenses – NO, not covered by the rule and thus admissible.
            • So π wants to characterize the offer as merely an offer to pay medical expenses (not compromise),so then there is no exclusion of the associated statement (“I was negligent”)
          3. What about using the evidence not to prove actual liability but instead to prove other things (e.g. bias, delay, obstruction of criminal prosecution)
            1. 408 – compromise – NO, not covered by the rule and thus using the evidence to prove bias, delay, obstruction of criminal prosecution is ADMISSIBLE)
            2. 409 – medical expenses – NO, not covered by the rule and thus using the evidence to prove bias, delay, obstruction of criminal prosecution is ADMISSIBLE).
            3. Rule – These rules are only about using the evidence to prove liability, not about using the evidence to prove other things. You can ALWAYS argue that this evidence should be admitted to prove other things. Rule 408 spells out some of the exceptions and Rule 409 does not, but can still use the other rules of evidence to justify using that evidence to prove things beyond liability.
          4. Inadmissibility of pleas, plea discussions, and related statements –
            1. Rule 410 – 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 discussions: (1) a pleas 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 FRCrimP or a comparable state procedure regarding either or the foregoing pleas; (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.
              1. The following are inadmissible against person who made a plea or was involved in plea negotiations –
                • Guilty plea later withdrawn;
                • Nolo plea;
                • Statements made when plea was taken;
                • Statements made in course of discussion with attorney for prosecution.
              2. Exceptions –
                • If it is part of the plea or plea discussion introduced by defendant, prosecution can introduce the rest if fairness requires (similar to rule of completeness).
                  • Prosecution cannot use evidence of seeking a plea, but if defendant uses that.
                • Prosecution for perjury of false statement (lying while under oath).
              3. What is included and what is excluded under Rule 410?
                1. Guilty pleas?
                  • Guilt pleas are NOT excluded under Rule 410.
                    • Why? Because evidence of guilty pleas are SO relevant.
                  • Guilty pleas that are withdrawn are NOT admissible under 410.
                2. Statement by Δ’s attorney (e.g. my client is guilty)?
                  • Statements by Δ’s attorney ARE excluded.
                3. What if the Δ tries to open plea negotiations?
                  • Δ attempts to open negotiations ARE excluded.
                  • Why? We want to encourage defendants to plea.
                4. What if the Δ tries to open negotiations and use that against the prosecutor?
                  • It is not excluded by 410 BUT advisory committee notes are okay with that evidence being excluded. So courts are on their own to say whether or not the Δ should be allowed to offer that evidence.
                5. What about prosecutor’s offers to settle?
                  • Answer – probably not excluded. Rule 408 talks about settling “claims” which solves like civil litigation—not criminal litigation.
                6. What about negotiations with the cops or postal inspectors?
                  • Rule – Generally speaking negotiations with cops, postal inspectors, etc. IS admissible under 410 because plea discussions must be with an attorneyBUT, IF the Δ reasonably believes that he is negotiating a plea, then Rule 410 kicks in and the evidence is excluded.
                    • g. if law enforcement claims authority to bargain, then there is a 410 situation and the court is likely to exclude the statement because it is as if the defendant was talking to the prosecutor.
  1. Liability insurance – Rule 411 – Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose such asproof of agencyownership or control, or bias or prejudice of a witness.
    1. Liability insurance is NOT admissible to prove culpability, BUT that evidence is NOT excluded to prove controlownershipprejudice, or bias.
    2. Policy rationale?
      1. Relevance – this is not relevant information
        • Prejudice – worried that juries will side with the π because the Δ is covered and it is the insurance company than ends up paying.
      2. Policy – want people to get insurance (but that is much less of a concern than relevance)
    3. Hearsay
      1. What is Hearsay –
        1. Personal Knowledge –
          1. Personal Knowledge Required– Rule 602 – 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.
            • The witness must have personal knowledge. According to the ACN, the witness must have perceived what they testify to. It is not just that the witness knows something (because that knowledge can be hearsay). The issue is the witness’s personal knowledge.
            • For example – Wendy testifies “Al killed Bob”
              • Test for relevance – does the testimony increase the likelihood of what is trying to be proved (that Al killed Bob)? Answer – YES.
              • Offered to prove: Al killed Bob.
              • What is the specific fact that is needed to get to that conclusion?
                • Answer – Personal Knowledge.
              • Thus, personal knowledge is kind of a conditional relevance issue.
  1. How to prove personal knowledge – Rule 602 – Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony.
    • If Wendy doesn’t know from personal knowledge that Al killed Bob, that testimony is excluded because there is no personal knowledge; it’s hearsay.
  2. Hearsay Dangers –
    1. Perception – witness might have misperceived (e.g. thought it was Al but it was really Andy)
    2. Memory – witness may have witnessed but has forgotten OR her biases have led her to unintentionally substitute for who she thought did it.
    3. Narration – refers to what the witness said and how it was perceived (e.g. Witness meant “kill” to mean murder but jury thought “kill” meant to tell a great joke).
    4. Sincerity – maybe the witness is a liar (intentionally, deliberately, etc.) and is distorting the truth, subverting justice, etc.
      • This is what hearsay is most concerned about. There is a fear that there is an intentional distortion of the truth; the theory is that the trial process makes people tell the truth but the statement by an out of court declarant to the witness does not have those safeguards.
      • What are the safeguards to avoid insincerity –
        • Testifying under OATH – (though there is a possibility of unsworn testimony in FRE)
        • Cross-examination – “cross-examination is the greatest legal engine ever established for the uncovery of truth.”
        • Demeanor – face the jury, face the accused.
          • The jury can watch, see, and assess the demeanor of the witness.
          • The trial system believes that a witness is less likely to lie in front of the defendant the witness is accusing.
  1. What’s the problem with hearsay – (e.g. Wendy testifies – “Deborah said: ‘Al killed Bob.’”
    1. Defendant wants the right to confront his accuser
    2. Judicial process is concerned about the declarant (Deborah)
      • Insincerity – Deborah could be lying to Wendy
        • Lack of court procedure –
          • Deborah not under oath
          • Deborah not subject to cross-examination
          • Deborah’s demeanor isn’t subject to observation by the fact finder.
        • Misperception
        • Memory
        • Narration
  1. We are less concerned that a witness has these infirmities because we believe that the trial procedures can check much of that. However, when the declarant is not testifying, the trial procedures are not as effective (even if the witness is discouraged from lying, we don’t know that the declarant that is being quoted told the truth to the witness).
  1. Hearsay Definition –
    1. Hearsay is inadmissible – Rule 802 – hearsay is inadmissible.
    2. What is hearsay – Rule 801(c) – “hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
      • Rule – Hearsay is an out-of-court assertion offered to prove the truth of the matter asserted.
      • What about repeating one’s own statement? (e.g. Wendy testifies – I told the police: ‘Al killed Bob’”)
        • Rule – a witness quoting himself or herself is hearsay.
          • Why? Answer: the truth of the statement should be subject to the trial process (not what the witness is now saying under oath).
            • This seems odd; the declarant is testifying under oath, subject to cross-examination, and your demeanor is being examined.
            • Also seems odd because she is testifying to what she told the police not whether or not the statement is true (so she really isn’t testifying to prove the truth of the matter asserted).
          • What about repeating one’s own testimony?
            • Rule – quoting testimony (even the witness’s own testimony) is hearsay.
            • This doesn’t seem to make sense – not only is it her own statement and is subject to trial procedure about that, but ALSO she was subject to trial procedures when she said it.
            • Why exclude it? Answer – because allowing in such a statement means the court is now NOT testing the statement (e.g. Al killed Bob) but instead whether the witness did or did not testify to that statement previously.
  1. Offered to prove the truth of the matter asserted? –
    • Rule – The statement is excluded IF it was an out-of-court assertion offered to prove the truth of the matter asserted in the statement.
    • So, if Wendy testifies “Deborah said: ‘Al killed Bob.’”…
      • IF Deborah’s statement is offered to prove that Al killed Bobit is hearsay and excluded.
      • IF Deborah’s statement is offered to prove that that Deborah said that (e.g. a libel suit)it is not hearsay and the statement is admissible.
  1. Assertion? –
    • Definition – intended communication.
      • Includes oral or written assertions (801(a)(1))
      • Includes “nonverbal conduct of a person, IF it is intended by the person as an assertion (ACN)
        • g. nodding your head, shrugging your shoulders, pointing, etc.
  1. Involuntary actions are NOT hearsay –
    • Rule – involuntary actions are not hearsay.
    • Why is it that voluntary actions are excluded but involuntary actions are not hearsay and thus not excluded? The hearsay dangers of misperception, memory, and narration all still exist.
      • Answer – there is no concern about insincerity because the action is involuntary. The risk of insincerity, however, is nonexistent (assuming that the action really was involuntary and thus the declarant did not intend to assert anything by her action).
    • The converse is not necessarily true – NOT all voluntary actions are hearsay.
      • The question is whether the voluntary action was an intentional communication.
        • If it was an intentional communicationthen it is hearsay and is inadmissible.
        • If it was NOT an intentional communicationthen it is NOT hearsay and is admissible.
      • Examples –
        • So, a ship captain examining the boat before he embarks on it with his family offered to prove the ship is seaworthy is NOT hearsay IF it was not meant as an assertion. IF it was meant as an assertion, it is hearsay.
        • Witness testifying that a truck driver drove into the intersection offered to prove the light was green is NOT hearsay because the truck driver was not asserting anything with this nonverbal act.
          • Notice: there is no accounting here for whether or not the truck driver was correct, whether or not the witness misperceived or remembered incorrectly. The assumption is that the trial process (jury observing demeanor and c-x) will address that concern.
  1. Silence –
    • Cain v. George – pg. 119
      • Facts – Motel owner testifies “the previous guest in the room did not complain about the heater” offered to prove the heater in the room was not defective.
      • Holding – the court said that was hearsay and excluded the silence of the previous tenant.
      • Rule – de facto, silence is not hearsay.
        • So, silence can be an intentional communication but it has to be clear; the silence has to mean something.
        • However, it is a close case where the declarant is asked a question, hears it, and does not respond.
      • Why is silence generally excluded under hearsay? Answer – there is such a large chance of misperception.
  1. Indirect hearsay –
    • beliefs based on hearsay –
      • g. someone testifies to their date of birth offered to prove their date of birth.
        • If really pressed, the witness would have to admit that she does not have personal knowledge of her actual birth date (602 objection) and that she knows the information in so much as she has been told by other people and her birth certificate says so (802 hearsay objection).
      • HOWEVER, there is an exception that allows for testimony to this effect.
    • Actions based on hearsay –
      • If the statements are offered to prove the truth of the matter asserted, then it is hearsay. IF the statements are being offered to prove the justification for the action, then it is NOT hearsay.
      • For example – a police officer testifying that he arrived at the scene, questioned Gary, and based on Gary’s answers went and arrested Emmanuel”…
        • … it is NOT hearsay if being offered to prove probable cause for arrest (reasonable belief) because it is not offered to prove the truth of the matter asserted, it is being offered to prove the officer’s reasonable belief that it was the truth.
        • … it IS hearsay if it is being offered to prove that Emmanuel is guilty.
  1. Machines and animals –
    • Refers to persons only – Rule 801 – a statement does NOT include animals; a statement is a written or oral assertion of a human.
      • Doesn’t apply to animals.
      • Doesn’t apply to computers.
    • Why is this screwy? There are the obvious hearsay dangers of misperception (dogs could misperceive), forgetting (dogs could forget), and misperception (easy to misinterpret was dog is trying to communicate), BUT dogs don’t lie, so there isn’t intentional miscommunication.
  1. What is NOT hearsay – evidence offered to prove something different than the matter asserted
    1. What does this mean?
      • Offered to prove
        • “offered to prove” refers to what the party (attorney) offering the evidence intends.
      • The truth of the matter asserted
        • The assertion is by the out-of-court declarant.
        • The truth of the matter asserted refers to what the declarantintended.
          • We want to know what the declarant intended; problem is, it isn’t always that clear.
        • Matter asserted
          • Witness testified “Declarant said ‘Higgins came into the bank with a gun.’”
            • If offered to prove Higgins came into the bank with a gun, it is obviously hearsay.
            • What if offered to prove Higgins robbed the bank? Answer – it is still hearsay.
              • Rule – trying to prove an additional inference (e.g. that he came into the bank with a gun + he robbed the bank) does NOT make the statement not hearsay.
            • Witness testified “Declarant said with reference to the bank robbery: ‘They ought to put Higgins in jail for this, and throw away the key.’”
              • If offered to prove Higgins robbed the bank, it is STILL hearsay. The declarant was implicitly stating (implying) that Higgins robbed the bank.
              • Rule – The assertion is not just limited to the statement; matter asserted includes what the declarant implied.
                • A speaker sometimes implies more than he says, that is still covered by hearsay.
              • Inference versus implication
                • If the speaker implies something, then it is hearsay.
                  • Proving what the declarant didn’t say – the courts will sometimes allow those statements
                    • Pacelli case – “what a lousy job burning the body”. The court didn’t allow the statement because it was unclear what it meant, but not because it was hearsay.
                  • Non-declarative sentences (commands, questions)
                    • Some judges will allow questions even though they clearly imply something (e.g. “did you drive by the barn” implies that there is a barn).
                  • Unspoken thoughts (Δ turns to co-conspirator and says “I didn’t tell them anything about you”).
                    • This isn’t hearsay because the prosecution is not trying to prove the truth of the matter asserted 9that he didn’t say anything about the co-conspirator). Instead, the prosecutor wants to use the statement to prove a connection, which is inferred from the statement.
                    • IF it is implied that he is a co-conspiratorthen it is hearsay.
                    • IF it is not implied but rather inferredthen that is not hearsay and it is admissible.
                  • Test – the question is whether the declarant intended to communicate more than what was actually said. (e.g. see Bettsbelow, proving emotions)
                • If the listener infers something, then you can get around hearsay.
                  • That is the definition of not trying to prove the truth of the matter asserted; the declarant says something but you are using it for something different.
  1. Statements NOT offered to prove the truth of the matter asserted –
    • Easy test to remember if something is or is not “offered to prove the truth of the matter asserted: ask yourself: if you don’t know if the declarant was sincere or not, would the statement still have probative value?
      • If nothen it is hearsay.
      • If yesthen it is NOT hearsay.
  • Impeachment by prior statements –
    • This is not an attempt to prove the truth of the statements, just that the witness is inconsistent between past and present statements.
    • Hypo – Bystander testifies that Burton ran the red Charles testifies that Bystander said that Burton had a green light.
      • Is there a hearsay problem?
      • Answer – NO, there is NOT a hearsay problem IF offered not to prove the truth of the matter asserted, but rather offered to prove that declarant makes inconsistent statements.
    • Thought experiment – even if I had no idea whether Bystander was being truthful when he made the out of court statement, the statement still has probative value because it shows that Bystander makes inconsistent statements.
      • Notice: if Bystander never testified, Burton could not present this evidence because there is no substantive value to the evidence.
    • Effect on the listener –
      • Rule – This is not an attempt to prove the truth of the statements, rather just that the statements were made and what the person who heard the statement was led to believe.
      • Hypo – Jack testifies “Joe said: ‘I’m from the gas company, can you show me where the leak is.’” Offered to prove that Jack acted reasonably in getting close to the leak.
        • Is there a hearsay problem.
        • Answer – NO, it is not being offered to prove that Joe is from the gas company, it is being offered to prove that Jack acted reasonably in showing Joe where the gas leak is and thus getting close to the leak.
        • Thought experiment – even if I had no idea whether Joe was telling the truth when he said he worked for the gas company, the statement still has probative value because Jack believed that Joe was from the gas company and showed him the leak.
      • Hypo – drug company has a label that says “the drug can cause kidney failure”. It is offered to prove notice to the user of potential danger.
        • Is there a hearsay problem?
        • Answer – NO, it is not offered to prove the drug causes kidney failure (in fact the drug company-Δ would like argue it doesn’t). Instead it is offered to prove the π-user was on notice of the potential dangers.
        • Though experiment – even if I had no idea whether the statement was true (that the drug can cause kidney damage), the statement still has probative value because it provides notice to the user.
      • Hypo – libel – π testifies “Δ said: “π is a liar and a thief” to prove that D defamed P.
        • Is there a hearsay problem?
        • Answer – NO. The statement is not offered to prove that P is a liar and a thief (which is the matter asserted.
      • Effect on listener and sincerity – sincerity isn’t assumed, because the fact that the listener hear the statements gives it its probative value.
    • Verbal acts –
      • These are all words that do something; there is some operative effect to the wordsWhile it superficially seems like you are trying to prove the truth of the matter asserted, in fact you are really trying to prove that the statement was made by the declarant.
        • g. promises, fits, oral contracts, guarantees, offers, etc.
          • How would you prove a marriage (the person said “I do”) if this was hearsay?
          • How would you prove a contract (offer and acceptance) if this was hearsay?
        • For example – π testifies “Δ handed me the ring and said ‘This is a gift’” offered to prove that the Δ gave the π the ring as a gift.
        • Thought experiment – even if the declarant was insincere when she said “I do” or accepted the offer, the fact that the declarant made the statement gives it probative value.
      • Verbal objects –
        • We are not relying on the truth of the matter asserted
        • g. Police found the book of matches in the Δ’s apartment and are using it to connect them to the place. Matches say “Eagle’s Rest Bar and Grill” offered to prove that the book of matches came from Eagle’s Rest Bar and Grill.
          • This is not excluded as hearsay because it is offered to prove not the truth of the matter asserted, but instead to prove the link between the Δ and the restaurant.
          • Consider this – if you did a chemical test on the matches to prove they came from Eagle’s Rest, that obviously wouldn’t be hearsay.
            • So, why is this? It isn’t if you have independent evidence.
          • Rule – as long as the linkage is based on more than the assumed truth of the written assertion, you have a verbal object and it is NOT hearsay.
            • So, the fact that the matchbook says “Eagle’s Rest Bar and Grill” isn’t enough; there needs to be independent evidence (e.g. that Eagle’s Rest has matchbooks that look like that)
            • The words are like fingerprints – the words are assertions. Fingerprints (e.g. the matchbook) are taken at the scene and then independent evidence is used to connect the fingerprints to the Δ.
          • Thought experiment – even if the statement wasn’t true, there is still probative value because there is independent evidence to prove the verbal object.
          • What about verbal conduct offered to prove something else besides the truth of the matter asserted? Answer – is NOT considered hearsay. ACN Rule 801 – verbal conduct which is assertive but offered as a basis for inferring something other than the matter asserted [is] also excluded from the definition of hearsay by the language of subdivision (c).
        • Emotions –
          • Want to prove the emotions of the speaker—not the objective truth of what the speaker said
            • g. the little girl that said her step-dad killed her brother to prove that she didn’t like her step-dad
          • Betts v. Betts – Wash App 1970 –
            • Facts – foster mother testifies that when Tracey hear her mother was marrying Raymond, she started crying and said “He killed my brother and he’ll kill my mommy, too.”
            • This is offered to prove the ‘strained relationship’ between Tracey and Raymond.
            • Issue – is this offered to prove the truth of the matter asserted?
            • Could go either way –
              • Not hearsay – Superficially not offered to prove the truth of the matter asserted—it isn’t being offered to prove that Raymond killed the brother, instead it is being offered to prove that Tracey doesn’t like Raymond.
                • If you didn’t know if Tracey was being sincere or not, there is still probative value to her statement because it reveals that she does not like Raymond very much.
              • Yes hearsay – the statement implies (which is covered by hearsay) that she doesn’t like Raymond very much. If Tracey was intending to communicate that she doesn’t like Raymond, it is hearsay.
            • Holding – court keeps the evidence out, but it is a bad opinion (the court was worried about the technical problem that the girl would not be a competent witness).
          • Proving mental states –
            • Statements may lead to inferences about relevant emotions, desires, or knowledge.
            • These statements are often considered non-hearsay – two reasons –
              • Declarants are not clearly asserting these mental states when they make the statements. Tracey is not saying “I don’t like him.”
                • However, her statement does imply her emotion, which should be hearsay.
              • The probative value of the statement is not entirely dependent on the declarant’s sincerity. Even if the declarant is lying, her statement still has probative value in that it expresses her emotions.
            • Knowledge –
              • Used to prove that the person had knowledge, not necessarily that what they asserted is true.
              • Rule – kind of analogous to verbal object – if there is independent evidence that proves the knowledge is accurate, the evidence can be admitted.
              • Example – Officer testifies “5 year-old victim said “Δ molested me by…” and described sexual acts in explicit detail.” This evidence is offered to prove that the child has knowledge of sexual activity that a 5 year old would not otherwise know about.
                • Thought experiment – even if the victim was lying about whether or not she had been abused by the Δ in that way, her knowledge of explicit sexual activity is itself probative of sexual abuse.
              • Performative statements –
                • Definition – Statements that are conduct – they are conduct in the sense that they do something independent of what they assert.
                  • To be admissible it must be assertions plus non-assertive conduct.
                  • These are actions that communicate (e.g. point to something) and there are words that are connected with the actions (words that themselves do something). When the words do something as well as say something, they are NOT hearsay.
                • How this breaks down –
                  • Sometimes doing something communicates something
                    • This is hearsay (e.g. pointing, nodding, etc.)
                    • The fact that it is behavior doesn’t make it not hearsay.
                  • Sometimes saying something also does something (e.g. verbal acts)
                    • g. “I do”; offer and acceptance; promise, notice, threat
                    • Has an effect on the listener
                    • When saying something also does something, then it is Performative and thus admissible.
                  • US v. Singer – pg. 139 –
                    • Evidence – an envelope addressed to Carlos and Joseph containing their notice to terminate their tenancy.
                    • Offered to prove – Carlos and Joseph live together.
                      • Seems pretty straightforward as hearsay – out of court statement (written statement by someone other than the person testifying). It was submitted to assert the implied truth of the written contents – That Carlos and Joseph lived together at a certain place. HOWEVER…
                    • Holding/Rule – it is NOT hearsay and is admissible nonhearsay because it is assertion plus—its purpose is to infer from the landlord’s behavior.
                      • It would be a bare assertion if the declarant just wrote down on a piece of paper “I am writing this down to state that Carlos lives at X”
                      • It is nonhearsay here because it’s more than just an assertion, it is an assertion +
                    • Godfather example – mailing a letter is non-assertion and thus is admissible (e.g. undercover agent gives the owner a package fr A, then secretly follows him, and sees the owner deliver it to 600 Wilshire.
                      • Why? There is less of a concern about insincerity when the declarant is not trying to tell someone something.
                      • If the declarant is not trying to communicate, then they are not trying to deceive.
                      • Belief that behavior is more reliable than words
                        • Action speaks louder than words; you can talk the talk but can you walk the walk
                      • Lying –
                        • Lying is NOT hearsay. Two reasons
                          • Not trying to prove the truth of the matter asserted – If you want to prove that someone said something that wasn’t true, you are clearly NOT trying to prove the truth of the matter asserted (in fact you are trying to prove the opposite of the truth of the matter asserted).
                          • Lying (e.g. to the police) is a verbal act, since it is illegal, like solicitation.
                        • My husband is in Denver – Barbara (Δ’s wife) told police that her husband was in Denver. The Δ was not actually in Denver, but was found hiding in a neighboring town.
                          • Offered to prove that she attempted to deceive the police.
                          • Holding – Court says the statement is admissible as nonhearsay even thought it is an out of court statement.
                        • Thought experiment – even if the declarant is lying, there is still probative value to the statement (obviously, since the statement was a lie and we are still trying to get it in).
  1. Hearsay Exceptions –
    1. Declarant testifying –
      1. These things are classified in Rule 801 as nonhearsay, but they are really just hearsay exceptions.
      2. Prior statements by witness Rule 801(d)(1) – A statement is not hearsay if (1) The declarant testifies at the trial or hearing AND is subject to cross-examination concerning the statement, and the statement is (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 disposition, or (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant or recent fabrication or improper influence or motive, or (c) one of identification of a person made after perceiving the person…
        • 801(d)(1) declarant testifies and is subject to cross-examination concerning the statement
          • (a) statement that is inconsistent with trial testimony and was given under oath at a proceeding;
          • (b) statement consistent with trial testimony and rebuts (implied or express) charge of fabrication, improper influence, or motive.
          • (c) statement is an identification of a person made after perceiving the person.
  1. Prior inconsistent statements by witness –
    • 801(d)(1)(a) – a statement is not hearsay IF: (1) declarant testifies AND (2) is subject to cross-examination concerning (3) statement that is inconsistent with trial testimony and (4) was given under oath at a proceeding.
      • So 4 requirements
        • (1) Is the declarant testifying?
        • (2) Was the prior statement inconsistent with the current testimony?
          • These first two are all that is necessary for impeachment evidence
        • (3) Was the prior statement under oath in a proceeding?
        • (4) is the declarant subject to cross-examination concerning the statement.
      • We have seen prior inconsistent statements in impeachment.
        • So what is the difference here? Answer – with hearsay, prior inconsistent statements are being offered to prove the truth of the matter asserted.
          • Statements admitted for their truth are called substantive evidence.
        • While we have talked about getting statements in for impeachment, there is a difference. If a prosecutor sought to admit prior inconsistent statements of child abuse to prove that the child-victim is now lying on the stand and that was the only evidence offered by the prosecution, the judge would have to grant a motion for direct verdict because the evidence offered as impeachment cannot be used as substantive evidence and the prosecutor has undermined the testimony of his only witness.
      • Reliability of prior inconsistent statements?
        • Justification – we allow prior inconsistent statements in as substantive evidence because we think that the evidence is reliable under these standards.
        • What standards have to be met to allow prior inconsistent statements in as substantive evidence?
          • Subject to testing by the adversarial process – these statements must be statements that were made under oath at a proceeding.
          • Why is it reliable? Answer – closer proximity to the event (memory); because it is in a proceeding, the belief is that witness has been subject to the constraints on proceedings (such as an oath); sincerity (arguably there is more incentive to lie on the stand now, when it matters.
        • Why taken under oath?
          • The original rules did not require this, but that was changed by Congress because…
            • … it increases the likelihood that the statement is true AND
            • … it increases the likelihood that the statement was in fact made
              • notice this isn’t a hearsay danger, we have a system for testing this.
            • What is a proceeding? – State v. Smith – pg. 158 –
              • Facts – Rachel Conlin brutally beaten. At the hospital, she identifies the Δ as her assailant and tells the offer she is afraid and doesn’t know what to do. At noon that day, the officer got the victim to write and sign a statement identifying the Δ (Smith). At trial, the victim identifies someone else and says that the Δ was not only not her attacker but actually came to her rescue.
                • She acknowledges having made the prior statement but says that she falsely accused the Δ because she was angry with him.
              • Prosecutor wants to get the statement in, how does he explain its more reliable?
                • Memory – Closer in time to the assault
                • Bias/threats – those statements aren’t colored by Δ’s threats after she went to the police.
                  • Judge can consider inadmissible evidence in determining what evidence can or cannot come in. Can use inadmissible evidence to show intimidation and show the prior inconsistent statement was made before the threats documented.
                • Oath – at the time she made the statement to the police, she knew she was under penalty of perjury because she was under oath and the statement was notarized.
                • Narration – she wrote it in her own words, no fear that the officer is putting words into her mouth.
                • No fabrication – the officer read the statement back to her and she signed each page.
              • Rule – the statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.
              • Holding – the court here finds this to be a proceeding because it wants to get the evidence in. the court finds relevant:
                • She recognizes the seriousness of her statement AND
                • She is under penalty of perjury.
              • So, grand jury – clearly a proceeding.
              • Police investigation – hmm, probably not.
            • What is inconsistent? –
              • Definition – the prior statement is inconsistentwith the declarant’s current testimony at the trial.
              • Does the trial testimony have to literally contradict the prior statement? Rule – ACN – inconsistency may be found in evasive answerssilence, or changes in positions. In addition, a purported change in memory can produce inconsistent answers (Williams, pg. 174).
              • Forgetfulness – to get substantive evidence in, many courts have held that you need to prove that the forgetfulness is feigned.
                • Why feigned? Answer –
                  • witness is misusing the trial process;
                  • witness’s infirmity is insincere
                  • if forgetfulness is feigned, it does not show that the witness is denying the truth of the statement, instead they are admitting the truth of the statement but trying to cover it up for some other reason.
                • What if the witness claims to forget the entire thing (they don’t remember anything related—don’t remember making the statement, don’t remember the truth of the statement, etc.)?
                  • Remember – the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statementAs long as the witness willingly answers questions on cross examination, the testimony is inconsistentIF the witness refuses to answer questions on crossthen the testimony is not subject to cross and thus not admissible.
                  • Cross examination can still reveal bias and other problems with the witness’s credibility. Possibly even if the witness says “I don’t remember” under cross, that is still subject to cross examination.
  1. Prior consistent statements –
    1. Rule 801(d)(1)(B) – A statement is not hearsay if (1) The declarant testifies at the trial or hearing AND is subject to cross-examination concerning the statement, and the statement is… (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant or recent fabrication or improper influence or motive…
      1. Rule – a statement is not hearsay IF: (1) declarant testifies AND (2) is subject to cross-examination concerning (3) statement consistent with trial testimony and (4) rebuts (implied or express) charge offabricationimproper influence, or motive.
      2. 4 step approach
        • Did the declarant testify at trial?
        • Is the declarant subject to cross-examination concerning the out-of-court statement?
        • Was there an implied or express charge of fabrication, improper influence, or motive?
        • Does the prior statement rebut that charge?
      3. How does this play out?
        • Hypo Setup –
          • Day 1 – Susan said “David killed the dog.”
          • Day 10 – David’s enemy Frank gives Susan a new car, telling her that her statements against David will be “very helpful.”
          • Day 20 – Susan said “David killed the dog”
          • Trial – Susan testifies “David killed the dog.” She admits on cross-examination that she was given a car by Frank.
        • Issue – can Susan’s prior consistent statement be introduced to rebut her claim of fabrication and improper influence?
        • Answer – YES.
      4. Impeachment/credibility versus hearsay exception uses
        • Remember that prior consistent statements may go to the jury as nonhearsay rebuttal (rehabilitation) evidence.
        • HOWEVER, under 801(d)(1)(B) only applies when the evidence is being submitted as “substantive evidence”.
      5. What constitutes fabrication, influence, or motive?
        1. Claims of relationship (e.g. aren’t you the defendant’s brother?)
          • The bias claim can be express or implied.
        2. Claims of influence (e.g. didn’t you speak with the Δ’s attorney this morning)
        3. Forgetfulness is NOT fabrication, influence, or motive
          • Thus, forgetfulness does not fit into this exception
        4. Infirmity is NOT fabrication, influence, or motive
          • Thus, not wearing glasses and being mistaken does not fit into this exception.
        5. Tome v. United States – pg. 169
          1. Rule – out-of-court consistent statements made after the alleged fabrication, or after the alleged improper influence are NOT admissible.
          2. This makes sense – statements made after the fabrication even if consistent have no probative value. However, statements made before the fabrication that are consistent with the statements after the fabrication have probative value.
            • Supreme Court acknowledges the possibility that Susan’s statement on Day 20 could provide some probative force in rebutting a charge of fabrication or improper influence.
          3. Questions unanswered after Tome –
            1. Can prior consistent statements be used to rebut other kinds of credibility attacks, such as memory loss?
              • BUT, Tome makes clear that the evidence would NOT be admissible as substantive evidence under 801(d)(1)(B).
            2. Can post-motive statements (Day #20 statements) be admitted as nonhearsay rebuttal?
              1. Court makes it clear that the statements are not enough to be a hearsay exception, BUT it is possible that it could be introduced as nonhearsay rebuttal.


1.       Is witness’s testimony attacked?
·         If nothen prior statement NOT admissible.

·         If yesthen back to the chart…

2.       Is the attack based on fabrication, improper influence, or motive?
·         If nodoes the prior statement rebut attack?
o    If nothen the prior statement is not admissible.
o    If yesthe statement is probably admissible as REBUTTAL evidence only.
·         If yesback to the chart…
3.       Is the statement made pre-motive?
·         If nothe statement is probably admissible as REBUTTAL evidence only.
·         If yesstatement is admissible under 801(d)(1)(B) as substantive evidence.
  1. Identification –
    • Rule 801(d)(1)(C) – A statement is not hearsay if (1) The declarant testifies at the trial or hearing AND is subject to cross-examination concerning the statement, and the statement is… (c) one of identification of a person made after perceiving the person.
    • Steps in applying 801(d)(1)(C)
      • (1) Did the declarant testify?
      • (2) Is the statement an identification of a person after perceiving the person?
      • (3) Is the declarant subject to cross-examination concerning the statement?
    • Example – Wendy testifies “I said: ‘It was Motta who robbed the store.’”
      • This would be allowed in as substantive evidence under 801(d)(1)(C) identification hearsay exception.
    • Can the statement be admitted through a witness other than the declarant?
      • Answer – YES, the witness who testifies to the identification may be a different witness as long as the declarant ALSO testifies and can be cross-examined.
    • Does the identification have to be made immediately or shortly after perceiving the person?
      • Why is this an issue? Because the purpose of this exception is to get good evidence in. Want to make sure that this is good evidence, so length of time effects that.
      • Answer – NO. Witness could have made the out-of-court statement at any time after perceiving the Δ.
        • We would hope the jury takes the length of time into account when evaluating the strength of the evidence.
      • Does the identification need to be a visual identification? Can it be an “ear witness”?
        • Answer – NO. The identifier only needs to perceive the Δ; if s/he recognizes the voice that would be sufficient.
      • Is the identification still admissible if the declarant changes her story at trial?
        • Answer – YES, the evidence is still admissible. Out-of-court identifications are allowed in and they are even better than what you hear in court.
  1. Party Opponent – these are statements that are made AGAINST the party
    • Party’s own statement –
      • Party’s own statement – Rule 801(d)(2)(A) – A statement is not hearsay if… (2) the statement is offered against a party and is (a) the party’s own statement, in either an individual or a representative capacity.
        • Rule – it is not hearsay (and thus admissible) IF: the statement offered against a party AND the party said it.
      • What is the rationale for this rule (it isn’t insincerity)
        • Consistent with the philosophy of the adversarial system – you are responsible for your own statements.
          • If you have something you need to explain about the statement, you have the ability to do that if you are a party.
        • Can’t complain of failure to cross-examine (because you are the declarant).
      • Example –
        • Facts – Martin sues Carter (owner of an auto repair) for loss of his truck in the fire. While truck was being repaired, employee Dugan was working with wielding torch near paint storage room. Dugan placed the torch on the ground, left to get a coke, and the fire started. At trial, Martin calls Esher (insurance adjuster) who will testify that when filing his claim, Carter said that the fire started when Dugan put the torch too close to the paint.
        • Issue – is the statement admissible as an admission under 801(d)(2)(A)?
        • Answer – YES. It is a statement offered against the party (Carter) and the party (Carter) made the statement.
        • This rule is really liberal – The ACN Note refers to the freedom that admissions have enjoyed from an assurance of trustworthiness in some against-interest circumstance, and from the restrictive influences of the opinion rule and the rule requiring first-hand knowledge.
          • g.
            • Carter could have made the statement for self-serving reasons (to make sure the liability fell within the insurance coverage)
            • Opinion – Carter is just guessing, but it is still allowed.
            • Lack of first hand knowledge – Carter doesn’t know, but the statement is still admissible.
          • However, this is all still allowed because Carter is a party.
        • What if the declarant is impaired?
          • Answer – it doesn’t matter. Even if the declarant was drunkin severe pain, or semi-conscious.
          • The only two limitations: (1) relevance and (2) if it conclusively appears that declarant is ‘incapacitated’ from making a rational admission.
  • Adoptive Admissions –
    • Adoptive admission – Rule 801(d)(2)(B) – A statement is not hearsay if… (2)the statement is offered against a party and is (b) a statement of which the party has manifested an adoption or belief in its truth.
      • Rule – it is not hearsay (and thus admissible) IF: the statement offered against a party AND the party adopted it.
    • What is an adoptive admission?
      • Easy case – Witness testified “I asked the defendant: ‘Did you rob the bank’ and he said ‘Yes.’”
        • Rule – if someone asks you a question, it is hearsay, BUT, if you (a party) answers the question, then you have adopted the statement and it gets in.
      • Harder case – silence – Witness testified “I asked the defendant: ‘Did you rob the bank’ and he didn’t say anything.”
        • This is a hard case, how is silence interpreted.
        • Rule – silence is an adopted admission IF the person would under the circumstances protest the statement made in his presence if the statement were untrue.
      • What about silence in the face of police questions?
        • Post-Miranda – state cannot offer silence (post-Miranda), failure to take the stand, etc. to prove guilt. That violates the 5thAmendment right against self-incrimination.
          • What about post-Miranda silence for impeachment – it depends not on 5th Amendment rights but on due process. The 5th Amendment has been waived and it is now a 14thAmendment due process issue.
            • If the Δ has testified, s/he has waived his right to remain silent.
            • If the Δ talks to the police, s/he has waived his right to remain silent.
          • When can the State use silence to impeach?
            • Post-Miranda silence – Ohio v. Doyle – the state cannot use post-arrest silence against the Δ because the state has told the Δ he has the right to remain silent and to use that silence against him now violates his due process.
            • Pre-arrest silence – police can use pre-arrest silence against the Δ (Jenkins) (e.g. failure to report a crime).
              • Why? Because the Δ had not yet been warned of his right so using that evidence against him is not as bad as if he had been given his rights.
            • Post-arrest, pre-Miranda silence – state can use post arrest, pre-Miranda silence against the Δ (Fletcher).
              • Why? Because the Δ has not actually been given his rights, but at the same time
            • Speaking Agents –
              • Admission by speaking agents – Rule 801(d)(2)(c)– A statement is not hearsay IF… (2) the statement is offered against a party and is… (c) a statement by a person authorized by the party to make a statement concerning the subject.
                • Rule – it is not hearsay (and thus admissible) IF: the statement is offered against the partyand the statement is by a person authorized to speak for the party.
              • Examples of speaking agents –
                • Board of directors speaks for the corporation (Mahlandt)
                • Attorneys speaking for their clients
                • Brokers
                • Press secretaries
              • Proving speaking agent – the statement itself is insufficient to establish the speaker as a speaking agent (ACN (801(d)(2)(C))
            • Agent/Employee –
              • Agent/employees – Rule 801(d)(2)(d) – A statement is not hearsay IF… (2) the statement is offered against a party and is… (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.
                • Rule – A statement is not hearsay IF: the statement is offered against a party and is a statement made by employeemade while employedconcerning a matter within the scope of employment.
                • Proving agency – the statement itself is insufficient to establish agency (ACN (801(d)(2)(D))
              • Agency – Mahlandt – pg. 207
                1. Facts – Daniel (3 year old0 was bitten by Sophie (wolf-dog). Π’s (Daniel’s parents) sued Wild Canid Survival and research Center and Kenneth Poos, director of Wild Canid. No one saw or knew how Daniel was injured. Neighbor heard child screams, looked through the window and saw Sophie (the wolf) near Daniel’s face (don’t know if she was licking or biting). Clarke Poos (Ken’s son) rather to Daniel’s rescue.
  •  3 pieces of evidence. Are they admissible?
  • Note from Mr. Poos to Mr. Sexton 9President of Wild Canid) – Sophie bit a child that came in our backyard.
    • Admissible against Mr. Poos – offered against the party and the party said it.
    • Admissible against Wild Canid – offered against the party and an agent of the party said it and it was within the scope of his employment (scope is a tougher issue but he had physical custody of Sophie, was acting pursuant to his employment responsibilities (e.g. taking Sophie to schools to show children how safe wolves are).
  • Poos told Mr. Sexton “Sophie bit a child today”
    • Admissible against Mr. Poos – offered against the party and the party said it.
    • Admissible against Wild Canid – offered against the party and an agent of the party said it and it was within the scope of his employment (scope is a tougher issue but he had physical custody of Sophie, was acting pursuant to his employment responsibilities (e.g. taking Sophie to schools to show children how safe wolves are)
  • Minutes of Directors meeting referring to “the incident of Sophie biting the child.”
    • NOT admissible against Mr. Poos – the Board is not an agent for Mr. Poos and so it cannot speak on his behalf.
    • Admissible against Wild Canid – offered against the party and an agent of the party (the Board) said it.
  • Problem with this case – none of the witnesses have ANY personal knowledge; that cannot be explained away with agency, cross-examination, etc.
    • Admissions do NOT require personal knowledge (no personal knowledge requirement under 801(d)(2)(a))The statement also does NOT need to be made against the party’s interest (it can be made for the party’s interest and still be admissible).
      • An out-of-court statement made by a party (whether for or against their interest) does not require personal knowledge to get past a hearsay objection.
    • Judge Weinstein’s criticism – although an express requirement of personal knowledge on the part of declarant of the facts underlying his statement is not written into the rule, it should be. Personal knowledge is required under rule 403 (prejudice) and 805 (multiple hearsay).
  • Co-conspirator –
    • Rule 801(d)(2)(E) – The statement is not hearsay IF… (2) The statement is offered against a party and is… (E) a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.
      • Rule – the statement is not hearsay IF declarant and party conspired; the statement was made (i) during (ii) the conspiracy; and the statement was made (iii) in furtherance of the conspiracy.
      • This exception is relatively narrow – the statement must have been made in furtherance of the conspiracy; using the statement made by the police during interrogation is not in furtherance of the crime and thus is not admissible under this hearsay exception.
        • Prosecutors would rather use the “agent/employee exception” because don’t need to argue ‘in furtherance’ requirement.
        • At the same time, prosecutors would rather use “co-conspirator exception” because it can be used against more people, so its broader.
      • Conspiracy statements can get in through nonhearsay or through a hearsay exception
        • Hearsay exception – the 3 step approach under 801(d)(2)(E).
        • Nonhearsay approach – the statement is a verbal act (e.g. let’s import cocaine).
          • It is offered to prove the truth of the matter asserted, but it is a verbal act (like solicitation is a verbal act).
          • Why then have the co-conspirator exception at all? Answer – because a lot of things don’t fall under verbal acts (e.g. Bud is buying the cocaine right now).
        • How to prove there is a conspiracy?
          • A conspiracy is an agreement to commit a crime.
          • These cases require that a condition precedent be met.
            • Thus, this is a conditional relevance problem. Under Rule 104, the decision as to whether or not the condition precedent is met is determined by the judge.
            • The evidence to prove conditional relevance can include inadmissible evidence – so, a prosecutor has to prove there is a conspiracy to get the statement in as evidence but the statement is being used to prove that there is a conspiracy so the conditional relevance is met.
              • The Court in Bourjaily says that it is okay for the courts to consider evidence that is not otherwise admissible to prove conspiracy.
              • What if the only evidence of the conspiracy is the statement itself? Answer – Bourjaily doesn’t take a position on this issue. HOWEVER, the ACN says: the statement itself is insufficient to satisfy the perquisite.
            • What is the standard of proof? Answer – preponderance of the evidence (Boujaily, pg. 252).
          • In furtherance –
            • Bragging to a friend is probably not in furtherance.
            • Telling a potential buyer (that turns out to be a DEA agent) is probably in furtherance.
            • Blaming the other conspirator while being arrested is probably not in furtherance AND the conspiracy is probably over.
            • What about concealment?
              • Concealment of the crime to avoid detection is NOT in furtherance because all criminals engage in actions to avoid detection (even after the crime, and thus the conspiracy, is completed).
            • Bruton v. US –
              • Facts – Bruton and Evans tried together for robbing a post office. Evants did not take the stand. Evans’ confession to police is admitted and jury is told to disregard the portion of the confession about Burton.
              • Holding – Supreme Court reverses because of the harm to Bruton (it violates his confrontation clause rights).
              • How does this play out
                • Evans’ confession used against Evans – admissible, admission by the party 801(d)(2)(A).
                • Evans’ confession used against Bruton? – inadmissible.
                  • Verbal act? NO.
                  • Admission by party? NO, Evan’s isn’t the Δ, Bruton is.
                  • Declarant testifying? NO, no chance from cross-examination (didn’t actually testify).
                  • Co-conspirator statement? NO, not during and not in furtherance.
  1. Double Hearsay –
    • Hearsay within hearsay – Rule 805 – Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
      • Rule – multiple hearsay is okay IF each layer fits within an exception.
    • How does this work?
      • Single hearsay – Wendy testifies “Deborah said: ‘Al killed Bob.’”
      • Double hearsay – Jill testifies “Wendy said ‘Deborah told me ‘Al killed Bob.’’”
        • Clue – in double hearsay – more than one out-of-court declarant (here Wendy and Deborah)
      • Multiple declarants is not always multiple hearsay – Jill testifies “Wendy said ‘Al killed Bob’ and Deborah said ‘Al killed Bob.’”
        • Wendy is a declarant and Deborah is a declarant, but it is NOT multiple hearsay it is just two different pieces of single hearsay.
        • Test – if you are unable to get in Wendy’s statement, if you can still get in Deborah’s statement it is not double hearsay. IF it is double hearsay, though, Jill’s quote of Wendy quote of Deborah, if one is kicked out, they are all kicked out.
      • Structure of single and double hearsay
        • Example- Witness testifies “Declarant 1said Declarant 2 ‘said the matter asserted.’”
        • Outer layer – declarant 1 (the declarant quoting the other declarant)
        • Inner layer – declarant 2 (the declarant that is being quoted by the other declarant who is then being quoted by the witness).
      • Documents and hearsay
        • Documents are hearsay (they were written out-of-court, they are out-of-court statements).
        • Single hearsay – declarant (author of the document) said matter asserted (no witness, just a document).
        • Double hearsay – declarant 1 (document) says that declarant 2 said the matter asserted.
          • g. a documenting quoting – that is double hearsay.
        • Example –
          • Note from Mr. Poos to Mr. Sexton: “Sophie bit a child that came in our backyard.”
            • Single hearsay – it is a document.
            • Is it double hearsay? Answer – NO, it is not quoting someone else.
          • Witness testifies: “Mr. Poos told Mr. Sexton ‘Sophie bit a child today.’”
            • Single hearsay – Yes.
            • Double hearsay – NO; for double hearsay, there would need a witness quoting someone who is quoting someone else.
          • Why does Weinstein argue for an 805 (double hearsay) violation? Answer: because there is no personal knowledge on the part of Mr. Poos, Mr. Poos is quoting someone, and then Mr. Poos is being quoted either in a document (double hearsay—document quoting someone (whoever Mr. Poos was quoting) OR in testimony (double hearsay—witness quoting Mr. Poos who is quoting someone else).
            • Indirect, double hearsay – Quoting a witness who’s statement is based on someone else’s statementlack of personal knowledge is indirect hearsay.
              • g. Witness quoting Mr. Poos saying “Sophie bit the child” when Mr. Poos statement is not based on his own personal knowledge but on someone else’s knowledge.
            • What happens in Wild Canid?
              • Most of the time, indirect hearsay is subject to a 602 (personal knowledge) objection, which will either keep the evidence out of force the witness to reveal the hearsay source.
              • Here, because we are dealing with an admission, 602 is NOT a valid objection and therefore whether declarant explicitly quotes another person makes a difference.
                • If the declarant does not explicitly quote another personthe evidence is admitted.
                • IF the declarant does explicitly quote another personthe evidence is subject to a hearsay objection.
              • Analyzing double hearsay –
                • Just because something is double hearsay does NOT necessarily mean it is excluded.
                • How to proceed – analyze each layer independently to see if an exception applies.
                • Example – Board Minutes (document) states: “Mr. Poos said ‘Sophie bit a child.’” Offered against Wild Canid.
                  • Does this get in?
                    • Inner layer (Mr. Poos’s statement) – this statement is admissible because it is an admission by an agent/employee of a party within the scope of employment.
                    • Outer layer (Board Minutes (the document)) – this statement is admissible because it is an admission by the speaking agent of the party (Wild Canid).
                  • Answer – YES, each layer meets a hearsay exception and is independently admissible.
  1. Unrestricted exceptions – (can get the statements in, even if the declarant doesn’t testify)
    1. Unrestricted exceptions – Rule 803 – these exceptions cover evidence that is NOT excluded by the hearsay rule EVEN THOUGH the declarant is available as a witness.
      • Rule – for exceptions under 803, it does not matter if the declarant is available or not.
        • How does this differ from the other rules
          • Declarant testifying – declarant is available
          • Admissions of the Δ – Δ can get up and explain (declarant is available)
          • Agent/employee – the rule requires that the person is subject to cross-examination
        • Under 803, though, there is no requirement for the declarant to take the stand and be subject to cross examination.
      • Rationale for 803 – (why are these statements allowed in even though there is no cross-examination possible because the party did not make the declarant available)
        • Reliability of the statements are high
        • Likelihood of untrustworthiness is low
        • ACN statement – the statements possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of declarant in person at trial.
  1. Present Sense impression – Rule 803(1) – A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
    • Rule – A statement (i) describing or explaining an event or condition (ii)made while the declarant was perceiving the event or condition, or (iii)immediately thereafter.
      • What is immediate/present sense impression? Answer – faster than the declarant can come up with a lie. Turns on whether there is sufficient time to fabricate.
    • What are the relevant hearsay dangers?
      • Sincerity – YES, this is the big one, the risk of insincerity is diminished for present perception. It takes some time to consider a lie, and present sense impression occurs before there is a chance to lie.
      • Perception – NO, perception is not any different immediately.
      • Memory – yes, if immediate, less chance f forgetting.
      • Narration – NO.
    • Present sense impression applied – Nuttall v. Reading Co. – pg. 227 –
      • Facts – Florence Nuttall, executrix of Clarence Nuttall is suing because the RR required Clarence to report to work despite his objection that he was ill.
      • Statements –
        • Clarence – “George, I am very sick, I don’t think I will be able to come to work today.
          • This is allowed in because it is effect on the listener (not that he was actually sick but that he told his supervisor he was sick).
        • Clarence – “But George, why are you forcing me to come to work.”
          • This is hearsay BUT it is present sense impressionHe is describing an event/condition of the conversation and what George is saying on the other line as it happens.
        • Holding – Mr. Nuttall’s statements overheard by Mrs. Nuttall get in because she heard her husband characterize the statements of his boss at the very moment he heard what oerge had to say and immediately thereafter.
          • Such characterizations, sine made substantially at the time the event they described was perceived, are free from the possibility of lapse of memory and there is a reduced risk of conscious misrepresentation.
        • This is also really double hearsay – Florence testified “Clarence told me ‘George said; ‘You have to come to work.’’”
          • Inner layer – George’s statement (Clarence has to come to work) is effect on the listener (telling him to come to work).
            • George is an agent for the employer.
          • Outer layer – Clarence’s statement overheard by Florence (present sense impression).
  1. Excited utterance – Rule 803(2) – A statement relating to a startling event or condition made while the declarant was under the stress of excited caused by the event or condition
    1. Rule – while excited by a startling event, the declarant made a statement relating to that event.
      • What’s the difference between this and present sense? This exception can have a longer duration than present sense because it is made while the declarant is under the stress of the excitement, which could last longer than present sense.
    2. What are the hearsay dangers?
      • Sincerity – This is the main reason; risk of lying is reduced when excited about the event.
      • Perception – only if not too
      • Memory – only if not too
      • Narration – only if not too
    3. How this plays out
  1. – United States v. Iron Shell – pg. 232 –
    • Facts – Victim (Lucy is 9 years old) and Defendant is John Iron Shell. Defense concedes that Iron Shell assaulted Lucy but contests charge that he intended to rape her.
      • At 6:15 – Δ seen pulling Lucy down into some bushes. Lucy screaming. Lucy emerges crying and disheveled, pulling up her pants, with a swollen face.
      • At 7:15 – Lucy taken to magistrate’s office, cries, and appears scared during the trip. Once there, she is not hysterical or crying, but still appears nervous and scared. Lucy described the assault.
    • Issue – is the statement admissible?
    • Holding – court allows the statement in as evidence.
    • Relevant factors considered by the court
      • Lapse of time between startling event and statement
        • Application – Wasn’t immediate, but 1 hour isn’t very long.
      • Physical and mental condition of declarant
        • Application – She still appeared somewhat shaken.
        • Application – On the other hand, she is no longer hysterical.
      • Spontaneity of the statement (isn’t in the rule, but is considered here by the court)
        • Application – it was in response to a question BUT it was in response to just one, open-ended question.
      • Nature of the event
        • Application – crime like this is clearly startling, the declarant was personally involved, it was a traumatic event (so the statement should be admitted as an excited utterance)
          • Notice the bootstrapping – allow in statement about the sexual assault by using an exception that is based on the sexual assault (excited utterance)
        • Age of the declarant
          • Application – Iron Shell says younger kids are more reliable because they are less likely to lie.
          • Application – younger kids are also more subject to excitement.
        • Comparing present sense impression and excited utterance
          • Present sense impression –
            • Can be any event (as long as there is personal knowledge)
              • This is broader
            • Must describe or explain the event
            • While or immediately after the event
          • Excited utterance –
            • Startling event
            • Must relate to the event
              • This is broad – isn’t limited to just describing or explaining the even
            • While excited by the event
              • this is broader – Iron Shell it extends at least an hour in that case.
            • Example – Victim gets attacked and is in the hospital for 3 weeks. While in the hospital, the victim is showed some mugshots and all of a sudden, the victim finds the perpetrator.
              • Issue – can the victim’s identification be used at trial.
              • Answer – NO. this is an excited utterance; the exciting even is the reminder (seeing the face in the mugshot), the statement relates back to the event (who was the perpetrator) and the victim was excited by the event (being reminded).
                • Notice that in reminder cases, the exciting event changes; it is no longer the assault that is the exciting event, instead it is the reminder.
              • Bootstrapping – can the prerequisite (that there was a startling event) be proven by the statement itself?
                • Answer – YES. ACN notes prove NO limits – “Rule 104(a) [prerequisites to admissions of evidence] is not limited by the hearsay rule in passing upon preliminary questions of fact.
  1. State of mind –
    • Then existing mental, emotional, or physical conditions – 803(3) – A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) BUT not including a statement of memory or belief to prove the fact remembered or believed but not including a statement of memory or belief to prove the fact remembered or believed UNLESS it relates to execution, revocation, identification, or terms of declarant’s will.
      • Rule – A statement of declarant’s then existing state of mind (what declarant currently thinks, wants, intends, or feels) is admissible, but CANNOT prove that the declarant believed some fact in order to prove that the fact was true UNLESS the facts concern the declarant’s will.
    • How does this play out – Betts (step-daughter says that she hated Raymond “Raymond killed my brother and he is going to kill my mommie.”)
      • The court ruled the statement was nonhearsay because the statement was used to prove not that Raymond killed the boy, but that Tracey didn’t like Raymond.
      • If the court had ruled it was hearsay, it would still fall under the 803(3) state of mind exceptionIt is a statement by an out-of-court declarant about a then existing statement of mind (that Tracey thinks that Raymond killed her brother) (it is not being used to prove that the underlying fact is actually true, just that Tracey hates Raymond).
        • If the statement was being used to prove that Raymond killed the boy, Rule 803(3) would NOT provide any assistance. Why? Because 803(3) does NOT allow the use of state of mind statements to prove the underlying fact is true.
      • Thought experiment – it is okay to use the statement if it is not relevant if the statement is true. As long as there is a statement of mind, the exception is met.
      • When is state of mind relevant?
        • Extortion – (to exact something wrongful by putting in fear)
          • If the statement is being offered to prove fear, then it is admissible
        • Loss of business good will –
          • If offered to prove loss of business good will, the statements are admissible
        • Rebutting self-defense
          • Victim’s expressed fear suggest that she was NOT planning an attack; those statements are admissible.
        • Impact of this exception on the hearsay dangers
          • Sincerity – no impact – telling someone how you feel does not reduce the likelihood of dishonesty
          • Perception – YES – declarant has special insight into his/her own feelings; this is often a necessity
          • Memory – YES – the exception only applies to current state of mind, so memory is enhanced and memory demands reduced because of proximity.
          • Narration – NO – the dangers of narration are not reduced.
        • Using intent to do something to prove declarant actually did something – Mutual Insurance Co. v. Hillmon – pg. 245 –
          • Facts – π (widow) sued to collect on several life insurance policies. Δ (life insurance company) claims the body wasn’t Hillmon’s but was someone else (Adolph Walters).
          • Evidence offered by defense – A letter from Walters to his sister “I expect to leave Wichita with Mr. Hillmon for Colorado or parts unknown”.
            • The letter is hearsay
            • It is offered to prove the truth of the matter asserted (that Walters intended to and did leave Wichita).
          • Holding – Court allows the statement in.
          • Rule – it is okay to use a statement of present mind intention to prove that the intention was fulfilled. Can use evidence of intention to prove the doing of the act intended.
            • The ACN says that this rule is of course left undisturbed.
          • Can the statement be used to prove that Mr. Hillmon left as well?
            • Courts are split – maybe intentions are not admissible to prove that someone else performed the act.
          • This rule makes no sense: intention versus memory
            • The rule allows the statement “I expect to leave Wichita” BUT excludes “I just left Wichita”.
            • Why? Answer – because 803(3) only allows an exception for present state of mind NOT memory. Evidence of memory offered to prove the doing of the act remembered is hearsay and is inadmissible.
              • So, the first statement can get in to prove the declarant actually left because he intends to leave but the second statement (that the declarant already left) is NOT admissible to show he actually left.
            • United States v. Pheaster – pg. 248
              • Statement – I am going to meet Angelo to pick up my free pound of pot.
              • Holding – the court allowed the statement in because it was a present state of mind intention.
              • BUT IF the statement had been “Angelo and I agreed for me to pick up my pot” that statement would NOT be allowed in.
  1. Statements for the purpose of medical diagnosis and treatment – Rule 803(4) – Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations or the inception of general character of the cause or external source thereof insofar as reasonably pertinent to medical diagnosis or treatment.
    • Rule – statements made in order to obtain medical diagnosis or treatment, including medical historypast or present symptoms and the cause of symptoms IF that was relevant for diagnosis or treatment are admissible as an exception to hearsay.
    • Who makes the statement?
      • Seems like the statement is made by the patient or others seeking to provide the doctor relevant information (“statements made for purposes of…”)
    • Does the exception apply ONLY to statements made to doctors?
      • Answer – doesn’t have to be just a doctor – statements to hospital attendants, ambulance drivers, or even members of the family mightbe included.
    • Are the hearsay dangers reduced?
      • Sincerity – YES – incentive to be sincere with a doctor trying to treat a condition
      • Perception – NOT ALWAYS – symptoms are often going to be better perceived when a doctor is asking the right questions, but not necessarily
      • Memory – NOT ALWAYS – medical diagnosis includes past medical history (not just present medical condition), so memory could be limited
      • Narration – NO – a doctor can misunderstand as much as anyone else.
    • Comparing Excited utterance exception with medical diagnosis
      • Excited utterance
        • Statement made while excited by event
        • Spontaneity – is an important factor
        • Motive for speaking – not important
      • Medical diagnosis –
        • Statement made anytime (present medical condition or past history).
        • Spontaneity – is NOT an important factor
        • Motive for speaking – for diagnosis or treatment.
      • Cause of symptoms?
        • Consider the patient’s motives for making a statement about…
          • Medical history – admissible IF for the purpose of diagnosis or treatment
          • Symptoms – admissible IF for the purpose of diagnosis or treatment
          • Cause of symptoms – admissible IF for the purpose of diagnosis or treatment
        • Consider the doctor’s use of the information
          • Medical history – presumed pertinent
          • Symptoms – presumed pertinent
          • Cause of symptoms – presumed pertinent IF the purpose of the statement is for diagnosis or treatment
            • For cause – the doctor needs to explain that the cause is relevant to the treatment.
              • g. need to know the nature of the assault to know if there is a need to do a rape kit.
            • Identity of attacker –
              • Fault is seldom pertinent for the purpose of diagnoses
              • BUT, some courts and prosecutors have argued that this should be accepted because the identity of the attack could be relevant (e.g. sexual abuse where the attacker is the father and the victim is at risk of pregnancy)
  1. Documents –
    1. Most of 803(10)-(18) are about different types of documents. Documents are very authoritative and are likely to fall within the document exception of the hearsay rule.
    2. Refreshed memory – Rule 612 – 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.
      • Rule – IF a witness doesn’t remember some fact, an attorney can show her anything that might ‘refresh her recollection.’
      • Rule – IF a witness uses a writing to refresh recollection, opponent can inspect itcross-examine on it, and admit into evidence those portions of the writing related to the testimony.
        • Rule 612 applies if the witness uses the writing while testifying. If the witness used the writing before testifying, Rule 612 applies If the court finds ‘the interests of justice’ make it necessary.
        • Materials used to refresh recollection are NOT evidence – the idea is that the writing is not evidence but is just refreshing the information already in the witness’s head. So, the jury cannot use that evidence and cannot take it with them when deliberating.
        • Judge still must avoid prejudicial effect on the jury.
  1. Recorded recollection – Rule 803(5) – The following are NOT excluded by the hearsay rule, even though the declarant is available as a witness… (5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may NOT itself be received as an exhibit UNLESS offered by an adverse party.
    • Rule –
      • Recorded recollection is admissible IF…
        • The witness cannot remember enough to testify ‘fully and accurately’ BUT
        • She made or adopted a record
        • While the matter was fresh in her memory
        • Which correctly reflected her knowledge
      • BUT the jury only hears the recorded recollection, and the jury can ONLY take the recorded recollection into the jury room IF the opponent offers the recorded recollection into evidence.
    • Ohio v. Scott –
      • Facts – Randy Scott charged with shooting with intent to kill. Witness for prosecution is Carol Tackett, a friend of Randy’s.
        • Evidence – signed, handwritten statement she gave to police 48 hours after speaking to Randy stating “Randy told me he shot a guy.”
        • While testifying, Ms. Tackett was very uncooperative.
      • Issue – does the recorded recollection exception to hearsay apply?
      • Application – these can all be proved with foundational questions.
        • The witness cannot remember enough to testify “fully and accurately” – she doesn’t remember what Randy said.
        • Witness made or adopted a record – she gave the police a statement that was handwritten by her and signed.
        • While the matter was fresh in her memory – it was made when it was still fresh in her head, within 48 hours of the shooting.
        • Which correctly reflected her knowledge – she testifies that the statement reflected her knowledge at the time.
          • It is NOT necessary that the statement be accurate, just that it correctly reflect the witness’s knowledge.
        • The prosecutor did NOT try to refresh her memory with the document (612)It is NOT necessary under 803(5) to first try to refresh the witness’ recollection.
          • In the typical situation with a cooperative witness, the prosecutor will usually try to refresh.
          • Here, prosecutor tries to get the document in as evidence.
        • Holding – the court allows the evidence in.
      • How far does this rule extend?
        • Made or adopted by the record?
          • Do not have to have written the statement personally
          • The statement can be read by the witness at any time and adopted by the witness.
        • Matter fresh in witness’s memory?
          • No time limit
          • Considerations include – importance of the statement, gaps in the statement, care in making the statement
        • Correctly reflected witness’s knowledge
          • In this case, she said she would not sign a false statement and states that the statement was true “in general” but inconsistent with her testimony.
  1. Records of regular conducted activity – Rule 803(6) – A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum… all as shown by the testimony or the custodian or other qualified witness, or by certification… UNLESS the source of the information or the method of circumstances of preparation indicate lack of trustworthiness.
    • Rule – The statement is admissible under this hearsay exception IF…
      • It is a record made in the course of a business or regularly conducted activity;
      • It is a regular practice to make the record;
      • The source of the information in the record is knowledgeable;
      • The record was made near the time of the event; AND
      • The record has a lack of untrustworthiness.
        • This shifts the burden of proof to the opponent to prove there was a lack of trustworthiness.
        • This is where “in the anticipation of litigation” comes up. If a business makes a report because they are concerned about being sued, it creates an issue of trustworthiness about an otherwise reliable document.
      • What is a business?
        • The term “business” includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
        • g. schools, churches, and hospitalsself-employed businessillegal activities.
      • Knowledgeable source?
        • Made by or from information transmitted by a person with knowledge.
        • Is the person who made the record required to have personal knowledge?
          • Answer – NOThe report can be made from information transmitted by a person with knowledge.
            • g. Computer printout of windows washed in office building. Prepared by secretaries from the forms submitted by floor managers. Floor managers compiled summaries from window washers’ assistant’ reports.
          • This runs contrary to the not of multiple hearsay (805) and personal knowledge (602). BUT, the rationale for the business records exception is that this is the way that businesses must operate (i.e. relying on the information of underlings) and if they can rely on this for the purpose of business, the court can rely on it for the purposes of adjudicating claims.
        • What about outside sources – Petrocelli –
          • Facts – π is James Petrocelli. Δ is Dr. Davis Gallison. The claim is malpractice (π alleges Δ severed a nerve while performing hernia operation).
            • Evidence – report repared by Dr. Schwartz, who performed a second pperation, which says “During the first operation, the nerve was severed.”
          • Is this evidence admissible?
          • Answer – NO.
          • Application –
            • Record made in the course of business – YES
            • Regular practice to make this report – YES
            • Is the source knowledgeable – UNCLEAR
              • If the source is the doctor, then the source is probably knowledgeable
              • If the source is Petrocelli (the π), then the source is not knowledgeable
            • Record made near the time of the event – UNCLEAR
              • If the source is the doctor, then the event is the examination and yes.
              • If the source is Petrocelli, the event is surgery, and then the record is not made near the time of the event.
            • Lack of trustworthiness – UNCLEAR
              • If the source the doctor, there are no trustworthiness issues
              • If the source is the π (and the doctor is just repeating what the π told him), then the trustworthiness of the statement is lees clear.
            • Does the record need to be based on fact or can it be opinion?
              • The statement does not need to be a statement of facts – 803(6) does NOT require the record be based on facts, it can be opinion – “act, events, conditions, opinions, or diagnoses”
            • Necessity of the business source –
              • Notice that the sorts of statements that are allowed in under this exception are multiple hearsay. The justification for this rule, though, is that businesses must operate in this way and so the courts are willing to accept it as well.
              • Rule – 803(6) encompasses only declarants—like nurses or doctors in the case of hospitals—who report to the recordkeeper as part of a regular business routine in which they are participants.
                • So, a patient relating his own diagnosis is NOT included because a patient is not a declarant who reports to the recordkeeper as part of a regular business routine.
              • Are a patient’s statements ever admissible?
                • Sure, a patient statement can still get in under double hearsay (each layer must be independently admissible).
                • Application – Doctor reports “Patient said ‘never cut…’”
                  • Patient statement (inner layer) –
                    • YES, 803(4) patient statement for diagnosis.
                  • Doctor’s report (outer layer)
                    • YES, 804(6) – business record (as long as it is regular practice for the doctor to report patient statements in documents) (business record requires proximity to the event; in the case of a doctor’s report on a patient, the event is the examination of the patient, not the event that injured the patient)
                  • If it would have gotten in under 803(4) and 804(6), why did he try to use the business records exception (803(6)?Answer – because the record was really just Petrocelli and this was his attempt to get the evidence admitted in a way that made it look like it was informed by an expert when it really wasn’t.
  1. Absence of entry in records – 803(7) – evidence that something isn’t in the business records and therefore didn’t happen/isn’t true is admissible under the hearsay exceptions.
    • The fact that something isn’t in the record isn’t hearsay because it is silent. This rule is here to prevent unnecessary quibbling.
  2. Public records and reports – Rule 803(8) – records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (c) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
    • Rule –
      • (803) The following are not hearsay and are admissible…(8) records, reports, statements, or data compilations in any form, of public offices or agencies setting forth:
        • (a) Activities of public agencies;
        • (b) oBservations of public officials IF it is his/her duty to observe and report, except law enforcement’s observations in criminal cases.
        • (c) faCtual findings made by public official in legally authorized investigation BUT not admissible if against the defendant in a criminal case.
      • 803(8) does NOT apply if the statement/report lacks trustworthiness.
    • Memory trick – AB, and C’s of public records
      • A = for Activities
      • B = for oBservations
      • C = faCtual findings
      • BUT, 803(8) does not apply if the statement lacks trustworthiness.
    • Elcona Homes v. Baker –
      • Facts – π Cindy Baker and four deceased friends. Δ is Joe Slabach and his employer, Elcona Holmes. Claim: negligence when Slabach’s truck collided with car in which Baker and the decreased friends were riding.
        • Legal issue – who had the green light.
      • Evidence – police accident report prepared by Joh Hendrickson of Ohio State Highway Patrol. Report included measures and descriptions and Hendrickson’s conclusions that π ran the red light AND Δ Slabach’s statement regarding the accidents.
      • Issue – what is admissible as a public record?
      • Measurements and descriptions – would be admissible
        • Admissible under 803(8)(b) as an observation by a public official with a duty to observe and report.
          • Why allow in this statement? It is more objective; it seems like just an observation.
        • This is a civil case (not a criminal case)In a civil case, the officer’s oBservations in a report are admissible. However, IF this was a criminal case, the officer’s oBservations in a report would be excluded as hearsay.
          • Why? Concern about bias – concern that it is a police officer taking a stance against a criminal Δ.
        • Conclusions (as to π running red light) – would be admissible.
          • Admissible under 803(c) as a factual finding by a public officer legally authorized to investigate.
          • This is a civil case (not a criminal case)In a civil case, the officer’s faCtual findings in a report are admissibleIn a criminal case, the officer’s faCtual findings are admissible if the statements are against the government (admissible on the Δ’s behalf), BUT the statements in the report are inadmissible if the statements are against he Δ.
            • Why? Concern about bias – concern that the police officer is taking a stance against a criminal defendant and probably a concern about confrontation clause requirements.
          • Factors in assessing trustworthiness (applied to Elcona Homes)
            • Timeliness –
              • Application: started investigation immediately;
            • Skill and experience of official
              • Application: 28 years of experience and expert in vector analysis;
            • Whether hearing was held
              • Application: no;
            • Motivational problems
              • Rule – are there reasons why the source would likely distort the truth
              • Application: no apparent motivation for Officer Hendrickson to lie;
                • Is there a motivational problem because of the source of the information (he received information from the truck driver, who is biased)?
                  • Court doesn’t seem to have a problem with it in this case.
                • 803(8) and criminal cases
                  • 803(8)(b) doe NOT allow law enforcement official’s oBservations in criminal cases;
                  • 803(8)(c) doesn’t allow faCtual findings by any official to be used against the defendant in a criminal case.
                  • To get around this, could prosecutors claim that the reports filed by law enforcement under 803(8)(b) or reports filed by any public official under 803(b)(c) are business records?
                    • Answer – NO (Oates, pg. 292).
                  • What’s a law enforcement official (relevant for 803(8)(b))?
                    • Oates – any officer or employee of a governmental agency which has law enforcement responsibilities.
                  • Policy rationale for the difference between observations and factual findings?
                    • What is the difference in rules – ONLY the observations of law enforcement are excluded in criminal cases. ALL PUBLIC OFFICIALS’ factual findings are excluded from being used against criminal defendants.
                    • Why the different –
                      • observations are more objective, so the exclusion is narrow; the only group who is excluded is law enforcement.
                      • Factual findings are less objective and more subjective, so the exclusion is much broader, and all public officials findings are excluded from being used against a criminal defendant.
                    • The purpose of this rule is to keep out evidence that is considered to be tainted, so in situations where there is a more subjective judgment, the group whose reports are excluded is larger. In situations where there is a less subjective judgment, the group whose reports are excluded is smaller.
  1. Records of vital statistics – Rule 803(9) – Records of 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 laws.
    • Rule – Records of births, marriages, and deaths legally required to be submitted to public officers are not hearsay and thus are admissible.
  2. Absence of public record or entry – Rule803(10) – Proving that something isn’t in a public record and therefore didn’t happen/isn’t true is admissible as NOT hearsay.
  3. Learned treatises – Rule 803(18) – 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.
    • Rule – published work is admissible, if an expert witness EITHER relied on the work on direct examination, OR was asked about the work on cross-examination as long as the witness, another expert, or judicial notice establishes the work as a “reliable authority.”
      • Judicial notice = the judge takes notice that the treatise is authoritative.
    • Rule – the jury only hears the work, and CANNOT take the work into the jury room.
      • This is analogous to recorded recollection.
  1. Declarant unavailable –
    1. 804 – Hearsay Exceptions: Declarant Unavailable – The following are NOT excluded by the hearsay rule IF the declarant is unavailable as a witness.
      • Rule – 804 requires unavailability of testimony.
      • Justification for 804 exceptions – the declarant is not be available. The hearsay dangers need to be tested, but if they can’t be, the statements have sufficient reliability to come in.
        • Under 801(d)(1) exceptions, the declarant has to testify and be subject to cross examination. Hearsay danger need to be tested and deferred testing is enough.
        • Under 801(d)(2) exceptions, the declarant is associated with the opponent. Hearsay dangers need to be tested, but the opponent is available to explain the statement.
        • Under 803 exceptions, it doesn’t matter if the declarant is available or not. Hearsay dangers don’t need to be tested because the circumstances make the statements so reliable that cross-examination is not necessary.
  1. Definition of unavailability – Rule 804 – Unavailability of a witness includes situation in which a declarant – (1) is exempted by the ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; (2) persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; (3) testifies to a lack of memory of the subject matter of the declarant’s statement; (4) is unable to be present to testify because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of his statement has been unable to procure the declarant’s attendance or testimony (under 804(b)(2), (b)(3), and (b)(4) by process or other reasonable means.
    • Rule 804 – Declarant Unavailable when
      • Privilege;
      • Refusal (even after ordered by the court);
      • Forgot;
        • Puzzle – can a witness be unavailable due to forgetfulness under 804(3), but be subject to cross-examination under 801(d)(1) (prior inconsistent, prior consistent, identification).
          • Answer – YES, witness cannot remember but is willing to be subject to cross examination.
        • Gone sick or deadOR
        • Gone and lawyer cannot get him into court.
          • And unless this is the prior testimony exception, the declarant could not be deposed.
  1. Former testimony – Rule 804(b)(1) – Testimony given 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 processor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
    • Rule – Former testimony (including a deposition), IF opponent (in civil action: opponent or predecessor in interest) had an opportunity and similar motive to develop the testimony, is admissible as declarant unavailable not hearsay assuming the declarant is actually unavailable.
      • So IF witness testifies in a preliminary hearing or deposition where there is a right for the Δ to cross-examine, then the prior testimony is admissible as non hearsay (if the declarant is unavailable).
        • In a criminal case –
          • Had to be offered against the same Δ AND
          • The Δ had to have the same motive to question (as now exists).
        • In civil cases –
          • Former testimony can be offered even if the party the testimony is being offered against wasn’t the party at the time, IF that party was a predecessor in interest.
        • Why are available and unavailable witnesses treated different?
          • If witness is available, why not admit former testimony?
            • Answer – courts prefer live testimony, it is better for the jury so it can observe the witness’s demeanor.
          • If that’s true, then why all former testimony for unavailable witnesses?
            • Former testimony isn’t the best, but it is better than nothing.
            • If the declarant is not available, the former testimony gives us a lot (just not demeanor).
          • Party’s predecessor in interest?
            • In a civil case, former testimony of an unavailable witness is allowed IF there was a chance for the party that was a predecessor in interest to cross examine.
            • Narrow interpretation – predecessor in interest is someone that was standing in your shoes (e.g. someone with a common property interest, privity).
              • g. Lessor/lessee, denor/donee, testator/executor, heir/ancestor.
              • Consider similar motive, but don’t limit it to that.
            • Broad interpretation – your predecessor in interest, is anyone making the same factual claim because they had the same interest.
              • Overly broad interpretation – Lloyd v. American Export –
                • Facts – Lloyd was an American export’s employee. Lloyd sues American Export because it hired Alvarez. Export impled Alvarez (you don’t want to sue us, sue Alvarez). Alvarez countersues American Export saying “you should have protected me against Lloyd.
                  • Current case – Lloyd drops out and now it just Alvarez and American Export.
                • Prior case – Coast Guard sought to discipline Lloyd for attacking Alvarez (in what amounts to a criminal case against Lloyd).
                  • American Export wants to use Lloyd’s former testimony because he said that Alvarez attacked him.
                • Issue – can American Export offer Lloyd’s former testimony?
                • Are the interests of the Coast Guard and Alvarez similar?
                  • Coast Guard – interest is public interest in safe merchant marine
                  • Alvarez – interest is vindicating the right to safety; he has an interest in his own personal safety.
                • Problem with saying the interest are the same
                  • Coast Guard has a duty to see “justice done”
                  • Alvarez’s attorney has a duty to advance every arguable issue. The problem is that the interest is not the same because the coast guard will not vigorously pursue interest the way that Alvarez’s attorney would. This is only a minor problem but it separates the majority from the dissent.
                  • The result of this case is that it collapses the requirement of “predecessor in interest” and “similar motive,” making predecessor in interest meaningless.
                • It does not matter that the prior action was criminal and the present action is civil.
                • It does not matter that the prior action was disciplinary and the penalties were discipline where the penalty here is damages.
  1. Dying declaration – Rule 804(b)(2) – In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be his impending death.
    • Rule – a dying declaration is admissible under the hearsay exception IF:
      • Used in any civil action or homicide;
      • Declarant believe his/her death was imminentAND
      • Statement concerned the cause or circumstance of the anticipated death.
    • Does the declarant have to die?
      • Answer – NO, just be unavailable (and believe that his death was imminent when the statement was made).
    • Does the declarant have to reasonably believe that death is imminent?
      • Answer – NO, subjective standard; the declarant just needs to believe that they are going to die.
    • How certain of death must the declarant be?
      • Settled hopeless expectation that death is near at hand.
  1. Statement against interest – Rule 804(3) – 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 was true.
    • Rule – statement that, at the time made, put declarant at risk of: losing money or property interestsubjecting him to civil or criminal liability; or losing a legal claim, is admissible under this nonhearsay exception.Reasonable person in the declarant’s position would not say this unless the declarant believed it to be true.
    • Rationale for the exception? Williamson – reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements UNLESS they believe they are true.
      • What is the hearsay danger at issue here? Sincerity (O’Connor and the Court does not believe that sincerity is an issue with against interest statements).
    • Importance of context –
      • The statement might be against interest in one context but not another context.
      • g. workers tell their bosses “we are not underpaid” – seems against interest BUT the statement may be made to appease their employers (e.g. migrant workers)
      • g. bank customer sues bank to recover fund that were allegedly withdrawn without authorization but ends up taking less than that amount from the bank – seems like it is against interest BUT it might be part of a settlement.
    • Defining “a statement” – Williamson –
      • Facts – Defendant (Williamson) is charged with possession of cocaine with intent to distribute and conspiracy to distribute.
        • Evidence: post-arrest confession from Reginald Harris to DEA inculpating himself and Williamson.
        • The confession said: “I rented the car and was taking cocaine to Atlanta for Williamson. He was ahead of me in another car.”
      • Issue – the parts of the statement inculpating Harris himself are against interest. The issue is whether the parts of the statement that inculpate Williamson are admissible.
      • Broad interpretation of statement – then the whole statement can be admitted if any part of the statement is against the declarant’s self-interest.
        • O’Connor rejects this.
      • Rule – narrow interpretation of statement – then only the portions of the statement that are against self-interest are admissible (not the portions inculpating someone else).
        • This is the approach that O’Connor takes.
        • Why is the other part not self-inculpatory? Answer – because the declarant (Harris) is trying to carry favor with the police and he is a little guy and he can get a lesser sentence blames it on the bigger guy and helps get the bigger guy.
  1. Statement against self-interest inculpating the declarant and exculpating someone else – Rule 804(b)(3) – 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.
    • Rule – must corroborate trustworthiness when criminal defendant offers statement that someone else admitted committing the crime.
    • Corroborating trustworthiness?
      • How do you corroborate trustworthiness
        • Independent evidence of facts in the statement
        • Evidence declarant is trustworthy
        • Evidence statement was made
        • Evidence witness is trustworthy
      • What’s odd about these last two factors? Answer – they are not about hearsay dangers. These are things that cross-examination should take care of. HOWEVER, this is an area where for public policy reasons, the rules go beyond hearsay dangers and say we don’t trust the witnesses in these circumstances.
  1. Forfeiture by wrongdoing – Rule 804(b)(6) – A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of declarant as a witness.
    • Rule – If a statement is (i) offered against a party AND (ii) the declarant is unavailable because of something bad that the party did or knew about and agreed to THEN the statement is admissible.
      • g. easy case – the Δ kills or has someone else kill the witness. The witness’s statement is admissible against the Δ.
      • g. hard case – witness gets scared and doesn’t want to testify. The prosecution has to prove that the fright is because of the Δ.
        • In this case, the prosecution needs the witness to testify to the fact that the Δ did something to scare her (her testifying to this is not likely to happen).
      • Does the “wrongdoing” have to be criminal?
        • Answer – NOThe activity needs to deliberately try to create the declarant’s unavailability.
      • What is the standard of proof?
        • Answer – preponderance of the evidence (even if the allegations of Δ’s wrongdoing are criminal in nature).
        • Why only preponderance of evidence for criminal claims? Answer – because this is a prerequisite issue (condition precedent).
      • Can forfeiture by wrongdoing be used against the government?
        • Answer – YESif the government deliberately tries to create the declarant’s unavailability.
  1. The catch-all exception and minor exceptions –
    1. Residual exception – Rule 807 – A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded b hearsay rule if the court determines that (a)the statement is offered as evidence of material a material fact, (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; (c) the general purposes of these rules and the interests of justice will best be served by the admission of the statement into evidence. HOWEVER, a statement may not be admitted under this exception UNLESS the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to prove the adverse party with a fair opportunity to prepare to meet it…
      • Rule – a statement will be admissible IF:
        • (i) the statement has equivalent circumstantial guarantees of trustworthiness as the other exceptions,
          • this prong and prong iii (best evidence) are the only prongs with any teeth.
          • test – look at the piece of hearsay evidence and ask “is it likely to be true” and if so, let it in.
        • (ii) the statement is offered as evidence of a material fact,
          • duh – Rule 403 – if it isn’t relevant, it isn’t admissible.
        • (iii) the statement is the best evidence the poponent can reasonably obtain,
          • This is kind of like the rationale for the 804 (unavailable declarant) exceptions; declarant isn’t available and this is the best we can do.
          • Here, there is no requirement the declarant be unavialble, but it helps.
        • (iv) the purpose of the rules to serve truth and justice are met, AND
        • (v) the notice requirement is met.
          • Have to tell the other side sufficiently ahead of time to provide a fair opportunity to prepare
        • Weaver –
          • Facts – Mary weaver is charged with killing 11-month old Melissa Mathes. The declarant is Tessia (Melissa’s mother).
          • The new evidence is statement by Evelyn Braack (witness) that 3 weeks after Melissa’s death, Tessia (mother, declarant) said “Melissa hit her head the day she died.”
            • Defendant argues that the recent injury caused a re-bleed that compounded previous injuries. The fact that the baby was in custody of the Δ when she died is not evidence of the Δ’s culpability.
          • Can we get it in under something we have already discussed – Answer – NO.
            • This is hearsay – it is offered to prove the truth of the matter asserted.
            • Non-hearsay as impeachment by prior inconsistent statement?
              • NO, it would only be admitted for impeachment, not for the actual evidence.
              • This all assumes the mother testified at trial.
            • Party exception? NO, the mother isn’t a party.
            • Witness at previous time? No, mother wasn’t under oath when she made the statement.
            • Unavailable?
              • Even if she was and you argued exculpatory evidence by inculpating someone else, that is not met in this case because that rule requires corroborative evidence and none is available here.
            • Public agency?
            • Business?
            • Excited utterance? NO.
            • Medical diagnosis? NO.
            • Learned treatise? NO.
          • Rule – Since it doesn’t meet any of the exceptions, the court expands the definition of hearsay exception to get this in.
  1. Grand Jury testimony –
    • g. Witness testifies before Grand Jury against defendant but then becomes uncooperative at trial.
    • Is there an exception that gets this in?
      • Testified in past
        • Unavailable? He is refusing to answer questions, so yes he is unavailable.
        • Is it prior testimony? NO; grand jury testimony does NOT include cross-examination.
      • Witness at a previous time (inconsistent statements)
        • NO – must be subject to cross-examination and the witness is refusing to answer questions, so he is not subject to cross-examination.
      • Defendant’s wrongdoing => forfeiture?
        • Unavailable because of Δ’s wrongdoing…
        • BUT that is hard to prove and isn’t proved here.
    1. (start with not hearsay).
    2. Who made the statement?
      • A PARTY, or someone RELATED to the party
        • Must be offered AGAINST the party and that party must have…
          • Made the statement (801(d)(2)(a)) OR
          • Adopted the statement (801(d)(2)(b)) OR
          • Authorized the statement (801(d)(2)(c)) OR
          • Employed he speaker (the statement was within the scope and during the person’s employment (801(d)(2)(d)) OR
          • Co-conspired (during the conspiracy in furtherance of the conspiracy (801(d)(2)(E)))
        • The WITNESS at a PREVIOUS TIME
          • RECORDED recollection (forgot something, fresh at the time it was made or adopted, the recorded recollection is accurate) 803(5)
          • Witness SUBJECT to CROSS-EXAMINATION at proceeding 801(d)(1)(a)
            • Prior inconsistent statement (under OATH at PROCEEDING) (801(d)(1)(a))
            • Prior consistent statement (REBUT fabrication, before MOTIVE) (801(d)(1)(b))
            • Identification of a person (801(d)(1)(c))
          • Someone UNAVAILABLE (804)
            • Declarant must be DEAD, SICK, GONE (despite process), REFUSES, FORGOT, PRIVILEGE (804(a))
              • FORMER TESTIMONY (804(b)(1))
                • If criminal case, that former testimony must have been offered against the same person (Δ) that it is being offered against now AND the Δ had a chance to cross-examine (e.g. no grand jury testimony, because no cross-ex)
                • If civil case, the former testimony can only be used against some party where the prior testimony was offered against a predecessor in interest and that previous party had the same opportunity and motive to cross-examine that they have now.
              • AGAINST INTEREST (at time made, money, property, liable, lose claim) (804(b)(3))
                1. If the evidence is used to exculpate a criminal defendant, there is an additional corroboration requirement
                  • This is because it would be easier for others to claim they did it (when they are unavailable) to get the Δ off
                2. DYING declaration (804(b)(2)) (declarant needs to subjectively belief he is going to die imminently, topic of the declaration needs to be the topic of cause or circumstance of death)
                  • In criminal cases, can ONLY be offered in murder cases.
                  • Can be used in civil case.
                3. FORFEITURE by WRONGDOING (804(b)(1))
                  • Party engaged in or acquiesced in some kind of wrongdoing intended to and did actually procure unavailability of the witness.
  • Statement by a PUBLIC AGENCY (803(8)(9)(10))
  • 803(8)(a), 803(8)(b), 803(8)(c) – exclude statement IF lack of trustworthiness
    • 803(8)(a) – Activities
    • 803(8)(b) – matters oBserved (duty to see and report)
      • does NOT include matters observed by law enforcement in criminal cases)
      • law enforcement definition fungible – if the statement is very factual, then law enforcement is defined narrowly. If the statement is subject, law enforcement is defined broadly.
        • Why? To keep out potentially biased law enforcement observations of criminal defendants.
      • 803(8)(c) – faCtual findings (that are authorized)
        • cannot be used AGAINST criminal defendants; can be used FOR criminal defendants
      • a BUSINESS (803(6)803(7)) –
        • Regularly conducted activity…
          • … perceived or received
            • can avoid multiple hearsay IF it was received by someone knowledgeable
          • … close in time to the statement
          • … regular practice to make the record
          • EXCEPTION for lack of trustworthiness (it is the opponent’s obligation to PROVE untrustworthiness).
            • g. created in anticipation of litigation, incentive to lie, etc.
  1. Was the statement by the declarant CLOSE IN TIME? (803(1)803(3)) –
    • PRESENT SENSE impression 803(1);
    • EXCITED UTTERANCE (statement related to the event, made while stressed out) (803(2))
    • STATE OF MIND (803(3))
      • Can offer current state of mind (including mental feeling, pain, health, and intent
      • Can offer intention to prove the declarant actually did what s/he intended to do.
  1. Also ASK…
    • Was the statement made for the PURPOSE of MEDICAL DIAGNOSIS (803(4))
      • CAUSE is ONLY allowed in under this exception IF the cause is reasonably pertinent to the speaker and listener.
        • If the statement is about the cause, the courts are more skeptical because the courts are concerned it would impact liability.
      • LEARNED TREATISE (803(18)) –
        • IF expert relied on the work on direct OR was asked about the work on cross-examination AND
        • Established the treatise was reliable
  1. Hearsay and The Constitution –
    1. Crawford is a major change in confrontation clause and constitutional analysis for hearsay. A lot of this is very tentative.
    2. Confrontation Clause – In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him.
      1. Confrontation assumes there is some face to face. The emphasis is that the witness has to face the defendant.
      2. The right to cross-examination. The language (“confronted with”) seems to suggestion cross-examination. However, there is nothing in the clause that says that the accused gets to use a lawyer to confront the witness.
      3. Child abuse cases; an exception to clarify the rule. In child cases, it was not that important fr the defendant to confront the witness; it was just important that the defendant be able to question the child-witness. If the prosecution could show the child would be harmed, then the child could testify through a closed-circuit television.
        • Thus, it seems that it is not necessary in all circumstances that the witness see the defendant.
      4. Two different extreme approaches to hearsay – neither seems to work, so we must find a middle-ground
        1. Definition of witness as just the person testifying in court and not the out-of-court declarant. Thus, the defendant has the right to confront the witness. This would allow in all hearsay.
        2. Definition of witness as anyone who made an out-of-court statement. This would exclude all hearsay.
      5. Green –
        1. Facts – Melvin Porter (age 16, declarant) testified that Green (Δ) had asked him to sell some grass and he picked it up in the bushes outside Green’s parent’s house. At trial, he was dazed and confused, didn’t know if Green was the supplier and he claimed he was under the influence of LSD when he tried to sell to an undercover officer. Because the witness is flipping and changing his story, the prosecutor offer’s Melvin’s testimony from the reliminary hearing and his statements to Officer Wade.
        2. Can Melvin’s preliminary hearing testimony come in? Answer – YES, it is a prior inconsistent statement which was made under oath at a proceeding. He is available (he is testifying) and he is subject to cross-examination (he has changed his story, he isn’t refusing to be cross-examined).
        3. Can Melvin’s statements to officer Wade come in? These come in as prior inconsistent statements. There was no prior opportunity to cross-examine this statement BUT there is a current opportunity.
        4. Holding – as long as there is a current opportunity to cross-examine, there is no confrontation clause problem.
      6. Owens –
        1. Facts – Foster is a correctional officer who is beaten by a prison—as a result of which, he loses his memory. Three weeks later, he is questioned by an officer and picks Owens from a photo-spread. At trial he testifies that he doesn’t really remember the attack, but he remembers making an identification, though he does not know what the basis for the identification was.
        2. Can the identification get in? YES – declarant’s statement at a previous time (identification), declarant is testifying and subject to cross-examination.
      7. United States v. Crawford –
        1. Holding – non-cross-examined testimonial hearsay violates the confrontation clause, UNLESS the declarant testifies and is subject to cross examination.
          1. Witness = anyone who testifies in court or makes an out-of-court statement that is witness-like (testimonial).
            • According to Scalia, the only statements that are subject to confrontation clause are testimonial statements.
          2. Any exceptions?
            • Perhaps testimonial dying declarations (Scalia says that need not be decided here)
            • Perhaps testimonial excited utterances (this issue is not addressed).
          3. How does this play out?

table part23

United States v. Crawford1.      Is the declarant present to be cross-examined? (is declarant capable of being cross examined)

·         If yesthen no confrontation clause problem.

·         If noback to the chart…

2.      Is the statement testimonial hearsay?

·         If noit might be okay (Roberts).

·         If yesback to the chart…

3.      Is the declarant cross-examined?

·         If yesit might be okay (Roberts)

·         If nois it a dying declaration or excited utterance?

o   If yesmaybe okay.

o   If noconfrontation clause is violated.

  1. What is testimonial?
    • Crawford does not define what is testimonial.
    • We know that testimonial includes
      • Statements to police officers
        • What about statements to undercover cops?
          • Could argue this should be excluded because we don’t trust statements and reports from law enforcement used against criminal defendants.
          • Could argue this should be allowed in because from the declarant’s perspective, the declarant didn’t have a reason to lie; the declarant didn’t know s/he was talking to a cop.
        • Statements that the declarant knows or reasonably would know would lead to prosecution
          • Statements from children? Should this determined from the perspective of the child or the police officer? Answer – objective test (does the child know or reasonably should know)
        • Prior testimony
        • Police interrogations.
      • What about this definition – A statement made by a person claiming to be the victim of a crime and describing the crime.
        • Friedman claims that this is usually testimonial (pg. 382). BUT Friedman would also define 911 calls as testimonial, which would make many cases very difficult to prosecute.
      • The one thing that allows prosecutors to go forward is the doctrine of forfeiture by wrongdoing.
  1. Ohio v. Roberts –
    1. It may be the case that the rule for non-testimonial hearsay is as follows – In sum, when a hearsay declarant is NOT present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible ONLY IF it bears adequate indicia of reliability.

Table part25

Nontestimonial declarations·         Is the declarant present to be cross-examined (Does the defendant have the opportunity to cross-examine)?

o    If yesno confrontation clause problem.

o    If noback to the chart…

·         Does the testimony trump hearsay?

o    If nothen back to chart…

o    If yesis the declarant unavailable?

§  If no (the declarant is available)then confrontation clause violation.

§  If yes (declarant is unavailable)then back to chart…

·         Is the declarant’s reliability firmly rooted?

o    If yesthen no confrontation clause problem.

o    If nothen ask if there are particularized guarantees of trust.

§  If yesthen NO confrontation clause problem.

§  If nothen YES confrontation clause is violated.

  • What is “adequate indicia of reliability?
    • Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.
      • The evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness UNLESS it falls into a hearsay exception.
    • Are all the exceptions firmly rooted?
      • Firmly rooted – excited utterancemedical diagnosisco-conspiratordying declarationbusiness records and public records
      • Maybe – everything else.
        • Probablymedical diagnosis given its summary treatment in White.
      • What does it mean for testimony to trump hearsay?
        • When the utility of trial confrontation is remote, then you move on to the reliability question.
        • So, maybe when residual exception is used.
        • NOT when co-conspirator statement, excited utterance, or medical diagnosis exception is used.
  1. Character and Impeachment
    1. Character Evidence –
      1. The rule is that specific evidence is supposed to overwhelm generic evidence (like character evidence). Character evidence is generic because it is not about the event in question, it is generally about the character of a person.
        1. The rules are opposed to proving character in order to prove conduct in conformity with character.
        2. Notice the rule is in the 400s which is where the prejudice rules are placed.
          • 400s is a categorical set of rules that says what is allowed and what is not allowed.
          • The concern is that when a jury is trying to determine whether or not the Δ acted in a certain way, the jury will overemphasizethe importance of character evidenceThe jury will wrongly rely on past acts when determining culpability for current acts.
        3. Concern about using general evidence to prove specific claims.
          1. two situations –
            • proving character to prove conduct.
            • proving previous conduct to prove character to prove conduct
          2. in both situations, the court is opposed to allowing in character evidence to prove the specific allegation.
        4. However, the exceptions basically swallow up the rule.
  1. The rules – what is admissible and what is not admissible character evidence –
    1. Inadmissible character evidence – character to prove conduct – Rule 404 – 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…
      • Rule – you cannot prove character in order to prove someone acted in conformity with their character.
    2. ADMISSIBLE character evidence – character to prove conduct – Rule 404 – … except (1) 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.
      • Rule – in criminal cases, the defendant can offer her pertinent character traits, and the prosecution can rebut the same.
      • So, in criminal cases, the Δ can bring forth evidence to prove pertinent character traits, BUT once the Δ opens the door, the prosecution can provide evidence to rebut those claims.
    3. ADMISSIBLE character evidence – character evidence of the victim – Rule 404 – … except… (2) evidence of a pertinent trait of character of the 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 victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.
      • Rule – in criminal cases, the defendant can offer her pertinent character traits, and the prosecution can rebut the same. The defendant can offer the pertinent character traits of a victim, and the prosecutor can rebut with traits of the victim or the defendant, and in a murder case, the prosecutor can prove the victim was peaceful to rebut self-defense claim by defendant.
    4. ADMISSIBLE character evidence – character of a witness – Rule 404 – … except (3) evidence of the character of a witness, as provided in rules 607, 608, 609.
      • Rule – see below.
    5. How does this play out
      1. The criminal defendant can open the door to his character and the criminal defendant can open the door to the character of the victim.
      2. There is a difference between character evidence and evidence about specific events relevant to the crime.
        • If the Δ says that on the occasion in question the victim began the fight and was aggressive in that instance, that is NOT character evidence and does NOT open the door to character attacks against the defendant.
          • Exception – in homicide cases, the prosecutor can rebut Δ’s claim that the victim was aggressive in that instance and the Δ was thus acting in self defense.
            • Rule – the prosecutor can always admit evidence to rebut defendant’s character evidence or to rebut homicide self-defense claims.
            • Why this exception? Answer – necessity; in the other cases the victim can come to court and defend themselves. In a homicide case, the victim is dead and cannot defend himself/herself.
          • Even though we think character evidence is bad, we still think that the Δ can bring in character evidence (however, that then opens the door to attacks against him).
            • Why don’t we like character evidence? It leads to prejudicial decisions against Δ’s.
            • Risk of prejudice doesn’t exist when the Δ presents good character evidence about himself. HOWEVER, that does open the door to attack against his good character.
  1. Hypo – pg. 400 –
    • Facts – Don charged with assault and battery of Vince. Pleads self-defense.
    • Scenario #1 – prosecutor calls Jones in case-in-chief, who will testify that Don is aggressive.
      • Is this admissible? Answer – NOthe Δ hasn’t opened up the door to character.
      • This is an attempt to prove character to prove conduct and you can’t do that.
    • Scenario #2 – Don calls Gram, who will testify that Don is not an aggressive person.
      • Is this admissible? Answer – YESdefendant can introduce evidence of his own pertinent character traits under 404(a)(1).
      • What can the prosecutor now do? Answer – call Jones in rebuttal to testify that Don is an aggressive person. The Δ opened the door, so the prosecution can now bring in character evidence.
    • Scenario #3 – Don (Δ) calls Ernie, who will testify that Vince, the victim, is an aggressive person.
      • Is this admissible? Answer- YES, defendant can introduce evidence of the victim’s pertinent character traits under 404(a)(2).
      • What can the prosecutor do now? Answer – provide supportive character evidence for the victim AND go after Don’s character, to argue he is aggressive (e.g. call Jones to testify).
        • When the Δ goes after the victim’s character, it allows the prosecution to (a) rebut the charges against the victim’s character and (b) attack the Δ’s character.
      • Scenario #4 – If Don (Δ) only presents evidence that Vince (victim), on the night in question first attacked Don. Can the prosecutor offer evidence of Vince’s peaceful character?
        • Is this admissible? Answer – NO (can introduce evidence of the victim’s character IF either (a) the victim is dead and it is a murder trial for the victim’s death OR (b) the Δ first attacks the victim’s character (not the victim’s behavior at the particular event in question)).
  1. The character trait must be “pertinent”
    • Example – Δ is charged with possession of heroin with intent to sell.
    • What character traits are relevant and admissible?
      • Truthfulness – NO, that isn’t pertinent
      • General good character – NO, that isn’t pertinent.
      • Law-abiding – YES, courts tend to allow this character trait evidence in because it is close to being consistent with the claim that the prosecution I making.
        • So, even if Δ’s good character is not admissible, law-abiding character claims are probably admissible.
  1. Methods of proving character –
    1. Reputation or opinion – Rule 405(a) – in all cases in which evidence of character or a trait of character is ADMISSIBLE, proof may be made by testimony as to reputation or by testimony in a form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
      • Rule – IF character evidence is admissible, can prove by reputation or opinionCross-examination can ask character witness about specific instances of conduct.
        • So when character evidence is admissible, reputation and opinion evidence can be used to substantiate the character.
        • HOWEVER, specific instances of conduct cannot always be used. Specific instances can ONLY be used on cross-examination of general character witness to rebut character evidence.
      • Extrinsic evidence – when you can ask about something on cross-examination but cannot offer independent evidence of that claim, it is called a bar on extrinsic proof.
    2. Specific instances of conduct – Rule 405(b) – in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.
      • Rule – if character is an essential element of the claim or defense, can prove it by reputation or opinion or specific instances of conduct
        • IF character is admissible but not an essential element, can use reputation and opinion (405(a)) BUT not specific instances of conduct.
        • IF character is admissible AND is an essential element of the claim or defense, rules are more generous and ALLOW specific instances of conduct as well as reputation and opinion.
      • Why would you be allowed to prove prior bad acts LESS often than reputation/opinion?
        • Specific instances take the most time to prove and are the most prejudicial (because they are the most convincing evidence of character and could be misjudged by the jury).
      • When is character an essential element of a claim or defense?
        • Theft – Δ’s character as thief?
          • Answer – NO, not essential.
        • Negligent entrustment (where Δ is charged with lending someone to with whom they had no business lending.
          • Answer – character of the person who is entrusted is an essential element to the claim or defense. In order for the π to prove the claim, they can present evidence of specific acts to disprove character of the person to whom the property was entrusted.
        • Defamation –
          • Answer – YES, an essential element of defamation is that the statements are NOT true. So, the π’s character is relevant.
        • Child custody –
          • Answer – perhaps; character might be essential in child custody proceedings.
        • Criminal cases –
          • Crime of seduction (seducing a chased woman). If the woman is not chased, it isn’t a crime. So he character as a chased woman is up for grabs.
          • Generally speaking, no crime relies on a character as an essential element.
  1. How can you prove character?
    • Three ways
      • Reputation – if character evidence is admissible
      • Opinion – if character evidence is admissible
      • Other acts – specific acts – is admissible as character evidence in two situations
        • IF character is essential to the element
        • Is used on cross-examination to challenge character witness.
          • Why does this elicit specific acts?
            • Because it scrutinizes the foundation of the witness’s (claim)
            • These cats are not being offered for their truth, just as character.
          • How does this play out?
            • Scenario #5 – (Don, Δ, tried for assault). Assuming Ernie is allowed to testify that Vince (victim) was an aggressive person, can he testify that…
              • Vince had a short fuse?
                • YES, it’s opinion.
              • Everybody thought Vince was a maniac?
                • YES it’s reputation.
              • Vince was in lots of fights
                • NO, this is specific and it is not essential to the claim or defense.
              • Scenario #6 – Assuming gram was allowed to testify that Don (Δ) was a ‘peaceful fellow’ could the prosecutor…
                • Present rebuttal opinion or reputation regarding Don’s peacefulness?
                  • YES, Δ opened the door and if character evidence is admissible, it can be proven with reputation and/or opinion evidence.
                • Present rebuttal evidence regarding prior fights?
                  • NO, the prosecutor could only ask Gram about them on cross-examination. The prosecutor cannot bring in another witness on rebuttal to testify to specific facts.
  1. Other crimes, wrongs, or acts are inadmissible as character evidence – Rule 404(b) – Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
    • Rule – other acts (other crimes wrongs, acts) to prove character to prove conduct are inadmissible.
    • So, cannot prove that someone has done bad things to prove that they did bad things on this particular occasion.
      • This is analogous to not being able to use character to prove conduct; also cannot prove prior bad acts to prove conduct.
    • SO FAR, the only time that you can use specific acts is when (a) cross-examination a character witness to challenge the foundation of the witness’s character claims and (b) when character is an essential element of the claim or defense.
  2. Character Evidence – What’s admissible (the exceptions that swallow the rule) –
    1. What’s admissible character evidence – Rule 404(b) – It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or abscene of mistake or accident…
      • Rule – You can introduce other acts to prove MIMIKCOP to prove conduct.
        • Motive – prior act provides reasons why Δ committed charged crime
          • Example – Δ charged with tax evasion.
            • Prior act: Δ dealt drugs (it’s the reason there are no records). This is the motive to avoid tax evasion (keeping drug records is problematic).
            • In tax evasion cases, government offers this sort of evidence all the time.
          • Intent – prior act proves current intent
            • Example – charged with possession with intent to sell.
              • Δ will claim “I wasn’t trying to sell it.”
              • Prior bad act – Δ sold drugs before.
              • Proves that the Δ had drugs with intent to sell.
            • Mistake/accident – prior act rebuts claims of mistake or accident;
              • Example – charge of child abuse
                • Prior bad act – child had suffered unusual number of previous injuries.
                • Rebuts the validity of the claim by the ΔΔ that the current injuries were caused either by mistake or by accident.
                  • In such a case, whether the Δ actually contests the part of the crime is important in determining whether certain evidence should get in.
                • Identity – prior act proves modus operandi also used in charged crime
                  • Example – Δ charged with robbery
                    • Prior act- robberies with same modus operandi
                  • Knowledge – prior act shows knowledge necessary for charged crime
                    1. Example #1 – Δ charged with sale of drugs; π claims lack of knowledge of drugs
                      • Prior act – other drug offenses, which prove the Δ’s knowledge about drugs.
                    2. Example #2 – possession of stolen goods; Δ claims lack of knowledge that the property was stolen.
                      • Prior act – other offenses for possession of stolen crime.
  • Common plan or scheme – prior act suggests overall grand design or logical step
  • Example – Δ charged with sexual assault
    • Prior act – sexual abuse of victim’s older sister.
    • Proof that he abused not some other kid but that he abused the victim’s older sister is not just character evidence but specific evidence.
  • Opportunity – prior act shows specialized ability necessary for charged crime
    • Example – Δ charged with robbing a safe
      • Prior act – had stolen money from the same kind of safe before.
    • Preparation – prior act was in preparation of the charged crime.
      • Example – Δ charged with robbery
        • Prior act – sotle car that was used in robbery.
        • This isn’t just general evidence that the Δ is a bad guy, it is specific evidence that this person committed the robbery through preparation to commit charged crime.
      • Even if the evidence fits into MIMIKCOP, still must consider 403(prejudice)—probative value versus prejudicial impact)
        • Factors to consider when evaluating prejudice in MIMIKCOP
          • Is the defendant actively contesting one of the MIMIKCOP exceptions?
            • If actively contesting, then the evidence is more probative.
            • If the defendant is willing to stipulate, there is nothing but potential prejudice from allowing the testimony.
          • Can MIMIKCOP be inferred from the action itself?
            • If it can be inferred, then less probative.
            • So, if the jury can infer intent from the fact that the Δ had 100 lbs of marijan, then there is less reason to allow in prior sale evidence.
          • MIMIKCOP in action –
            • Facts – Δ charged with bank robbery. Evidence is offered that in 9 other bank robberies in the area, 2 men in ski masks go out of a white car, entered the bank, one was “all hunched over” and vaulted the counter, and stuffed money trays into his bag. In all cases, the perpetrators took the white car to a remote location and exchanged it for a brown car.
            • Issue – is the evidence of similarities between the crimes admissible as prior bad act?
            • Holding – this evidence is admissible.
            • Rule – It is admissible as a prior bad act to prove MIMIKCOP (identity) to prove this robbery.
            • The difficult with these cases – how many things does the Δ allegedly have to have done in the past in order for the evidence to be admissible?
              • 1 bank robbery is NOT enough
              • 8 bank robberies? That might be sufficient.
            • How many times is sufficient for modus operendi?
              • Child abuse case
                • The child has been hurt before? NO (kids get hurt all the time)
                  • The fact that the child has been hurt before has some relevance (assuming the child has been hurt more than a non-abused child). In that case there is logical relevance. BUT, to avoid being prejudicial, it probably needs to be more than marginally relevant to avoid prejudice.
                • The child suffered unexplained fractures before? Maybe, but you would have to narrow the class to make it seem like identity.
                • The child has suffered abusive fractures before? Probably.
                  • That the child has suffered abusivefractures before seems to suggest identity.
                • What is the standard of proof required for the prior bad acts to get in?
                  • Answer – this is a “condition of fact” issue, so the appropriate standard is: evidence sufficient to support a finding of the fulfillment of the conditionIt must be reasonable for a jury to find the Δ did it.
                    • Defendant wants the standard to be beyond a reasonable doubt because the information is so At the very least, the defendant would want the standard to be clear and convincing evidence.
                    • The defendant’s challenge here is a claim of conditional relevance. The prior bad act isn’t relevant unless the prosecution can prove the underlying issue (e.g. that the Δ knew that the TV’s were stolen in the past when he was charged with possession of stolen goods).
                      • So, whether the Δ knew the TV’s were stolen is the “condition of fact” upon which the relevance of the sale depends. The Δ’s sale of televisions is relevant ONLY IF he knew the TV’s were stolen.
  • Does this mean that evidence of a prior bad act can be used against a Δ even if that Δ had been acquitted of the prior bad act? Answer – YES.
  • Why? (a) The prior jury might not have believed that there was sufficient certainty beyond a reasonable doubt BUT that doesn’t mean that the jury thinks that he didn’t do it. Instead, they may have believed that he did it, but that belief was just not beyond a reasonable doubt. (b) The current jury only needs to believe that the Δ committed the prior bad act by the preponderance of the evidence NOT beyond a reasonable doubt.
  1. Habit; Routine Practice – Admissible – Rule 406 – Evidence of the habit of a person or 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.
    • Rule – you can prove habit (of a person) or routine practice (of an organization) in order to prove conduct in conformity with habit or practice.
    • Character versus habit –
      • Character – generalized description of general trait
        • More of a moral judgment
        • Don’t allow character evidence because it is based on morals
      • Habit – regular practice of meeting particular situation with certain type of conduct
        • Not a moral judgment under the law (it’s more empirical)
        • IF less thoughtful and more ‘automatic”, then it’s probably habit.
        • If few moral implications, then it is probably habit.
      • How this plays out
        • He’s a bad driver – character
        • He runs lots of stop signs – close to habit (not as moral, based on specific action)
        • He always ran the stop sign at that intersection – habit.
  1. Sex crime rules – victim’s sexual history
    1. Some additional rules that only apply to sex crimes
    2. What questions can the complainant be asked under cross-examination?
      • General questions about her character or questions about her specific allegation
      • The cross-examiner CANNOT as
    3. Past sexual history of victim inadmissible – Rule 412 – 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.
      • Rule – if sexual misconduct is alleged, evidence that alleged victim engaged in other sexual behavior or has any sexual predisposition is INADMISSIBLE.
        • Other sexual behavior is equivalent to prior bad acts
        • Sexual predisposition – equivalent to reputation or opinion.
        • These are both excluded.
      • What does this exclude/include?
        • Use of contraceptives
          • Not admissible – sexual behavior/sexual predisposition
        • Fantasies or dreams about sex
          • Not admissible –sexual predisposition
        • Mode of dress
          • Not admissible – sexual behavior/sexual predisposition
          • Ways to get around this – could still get this in by focusing on whether the clothes were ripped off the victim or whether she took them off herself.
        • Bottom line – if it implies sex or may have a sexual connotation, the facts are inadmissible.
  1. Exceptions to Rule 412 –
    • physical evidence – Rule 412(b)(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
      • Rule 412(b)(1)(a) – In criminal cases, specific sexual incidents are admissible to prove that someone other than the accused was the source of semen, injury, or other physical evidence.
    • Consent through past consent with accused – Rule 412(b)(2) – In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: … (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
      • Rule – in criminal cases, specific sexual incidents with the accused are admissible to prove consent, or if offered by the prosecution.
      • Why would the prosecution want to use this evidence?
        • Answer – to prove past abuse.
      • Why is this rule about “specific sexual incidents with the accused”?
        • Answer- it should be admissible that the victim has had sex with the Δ before.
      • Violation of Δ’s constitutional rights – Rule 412I In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: … I evidence the exclusion of which would violate the constitutional rights of the defendant.
        • Rule – in criminal cases, the defendant must have a due process right to introduce other sexual conduct.
          • This means the defense cannot argue that the victim was promiscuous BUT, the defense could use MIMIKCOP.
          • So can still prove things like motive to lie on the part of the victim; common plan or scheme (had sex with several other of the fraternity brothers that night).
          • What about a claim that the rapist had heard that the alleged victim was promiscuous?
            • First Circuit accepted the argument that this was admissible as showing the defendant’s mental state (knowledge). Why? It goes toward the Δ’s reasonable belief.
          • I the Kobe Bryant case, the judge allowed in the following evidence
            • Sexual contact within 72 hours of the physical examination under Rule 412(b)(1) (physical evidence).
            • General nature of the relationship with the witnesses with whom she reported the rape.
              • Why? Why is it relevant that she only told men with whom she had slept with? Answer – because it speaks to her motive to lie (bias and credibility).
  1. Civil case – what’s admissible – Rule 412(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. In a civil case… Evidence of an alleged victim’s reputation is admissible ONLY IF it has been placed in controversy by the alleged victim.
    • Rule – Added requirement in civil case that evidence substantially outweigh harm to victim and prejudicial impact on any party.
  2. Evidence of the alleged victim’s reputation – Rule 412(2) – In a civil case… Evidence of an alleged victim’s reputation is admissible ONLY IF it has been placed in controversy by the alleged victim.
  1. Sex crimes – defendant’s history
    1. Rules –
      • Evidence of similar crimes in sexual assault cases ADMISSIBLE – Rule 413(a) – In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants 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.
      • Evidence of similar crimes in child molestation cases – Rule 414.
      • Evidence of similar acts in civil cases concerning sexual assault or child molestation is admissible – Rule 415.
    2. Rule –
      • Rule 413414415 – prior acts of sexual assault and child molestation are admissible against party accused of same claim (sexual assault or child molestation, respectively) notwithstanding Rule 404(b).
      • These rules reverse the reasoning and don’t require great similarity – they allow for any prior sex crime to be admissible. If the defendant is accused of a sex crime it is not necessary that the MIMIKCOP exceptions are met.
        • However, courts will still go through the prejudicial analysis (403) and go through the same analysis they would go through in MIMIKCOP. The prosecutor will sill argue for MIMIKCOP even with the liberal provisions in 413-415
  1. Impeachment of a Witness –
    1. Bias, Incapacity, Prior Acts, Opinion –
      1. Prior acts –
        • Character evidence of a witness ADMISSBLE – Rule 404(3) – Character evidence is inadmissible… EXCEPT… (3) Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
          • Rule – This is one of the exceptions to the rule against proving character to prove conformity with character.
          • Remember Rule 405 says when character evidence is admissible, can ask about specific instances on conduct on cross-examination BUT when character evidence is essential, can prove specific conduct. The difference is the use of extrinsic evidence. Under 405, when character is essential, can introduce the evidence—not just ask about it on cross-examination.
        • Admissibility of evidence of character of a witness – Rule 608 – (a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation BUT subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
          • Rule – you can attack a witness’s character for truthfulnessthrough opinion or reputation testimony. You can support a witness’s character for truthfulness though opinion or reputation testimony ONLY IF her character for truthfulness has been attacked.
            • So, truthfulness of a witness can be attacked because dishonesty of a witness is such a big issue and as a result there is a very liberal rule with regard to character evidence of a witness.
          • This rule does NOT subject the defendant to the character attack through presentation of a character witness.
          • 608(a) is about general opinion an reputation of truthfulness.
        • Admissibility of specific instances of conduct of a witness – Rule 608(b) – Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than conviction of a crime, as provided in rule 609, may not be proved by extrinsic evidence.
          • Rule – Specific acts bearing on a witness’s character for truthfulness CANNOT be proven through extrinsic evidence, except for convictions under 609.
        • Admissibility of specific instances of conduct of a witness – Rule 608(b) – Specific instances of the conduct of a witness… 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’s 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.
          • Rule – Specific acts bearing on a witness’s character for truthfulness may be asked about on cross-examination of the witness herself or a character witness for her, in the court’s discretion.
            • Can ask about specific conduct of a witness about her own character
            • Can ask about specific conduct of a witness to a character witness for that witness
          • Privilege against self-incrimination survives taking the stand (for witness or Δ) – Rule 608(b) – The giving of testimony, whether by an accused or by any other witness, does NOT operate as a waiver of the accused’s or the witness’s privilege against self-incrimination when examined with respect to matter which related only to character for truthfulness.
            • Rule – taking the stand does NOT waive your right t take the fifth when asked questions about bad acts that are relevant only because they undermine your character for truthfulness.
              • Still a limited right to invoke the 5th amendment; the 5th amendment is not overridden by necessity for character evidence.
  1. Bias –
    • Other acts v. bias – United States v. Abel –
      • Facts – Defendant John AbelWitness Kurt EhleDefendant’s witness Robert Mills. Mills testified that Ehle told him that he was going to falsely implicate Abel to win favorable treatment for the government.
        • Ehle was going to testify that he, Mills, and Abel were all in the Aryan Brotherhood, whose members would ‘lie, cheat, steal, and kill’ to protect each other.
        • What is the purpose of Ehle’s evidence? Answer – to prove that Mills is willing to lie for Abel.
      • Problem with this evidence – the prosecutor is trying to use a specific bad act to prove character to prove specific lying in this case. Thus is excluded under 608.
        • It isn’t just that Mills is willing to lie, but that Mills is willing to lie for Abel. So this is a prior bad act to prove something more specific (like bias) to prove Mills is lying in this particular occasion).
        • Rule 608(b) – specific acts bearing on a witness’s character for truthfulness cannot be proved through extrinsic evidence, BUT can be asked about on cross-examination.
          • So, the prosecution can ask Mills if he is a member of an underground group that would perjure themselves than admit their existence under the defendant’s theory.
            • Problem is – that isn’t likely to work.
          • If the witness denies it, the prosecutor cannot introduce extrinsic evidence to demonstrate specific acts to prove character to prove he is lying.
            • Rule – in such a situation, the cross-examiner has to take the answers of the witness. If it is a situation where you are cross-examining the witness and want to ask about prior bad acts, if s/he denies, you have to accept the answer.
          • Holding – in this case the court rejects the distinction between bias (relationship between witness and Δ OR witness and witness) and veracity (bias = specific, veracity = general).
            • Court says that since the rule for proving bias is not in the rules, extrinsic evidence may be admitted to prove bias.
              • So, specific evidence can be introduced as extrinsic evidence to prove the more particular act aimed at revealing possible biases BUT NOT at the more general untruthful disposition of the witness.
            • Bias = relationship between a party and a witness which might lead the witness to slant his testimony in favor or against a party
            • This doesn’t make much sense given 608(b) but nonetheless this is the rule.
          • Davis – pg. 529 –
            • Defendant wants to prove not that the witness was a juvenile criminal but that when the juvenile was brought in and questioned about this case, he thought he was a suspect, which impacts his bias (claim is that the witness shifted the blamed to the Δ).
            • Court distinguished between use of prior crimes to prove untruthful disposition (not allowed) and the more particular attack aimed at revealing possible bias (allowed).
  1. Incapacity –
    • Other ways to impeach a witness besides the witness being a liar. The witness could be wrongmisperceivesforgets, etc.
    • It is okay to prove the witness was under the influence of drugs or alcohol when they were witnessing or when they are now testifying.
    • It is okay to prove mental afflictions or illness
      • Want to argue it is somehow related back to the witness (e.g. at the time they were witnessing or presently)
      • This can be proven on cross-examination or through extrinsic evidence.
  2. Witness’s previous crimes –
    • Non-conviction misconduct –
      • Cross-examination of non-conviction misconduct – Manske –
        • Facts – Defendant wanted to cross-examine Stephen about threats made to influence witnesses (Mary and Jackie) but he did not want to ask him about influencing testimony in this case but instead in a related case
        • Issue – 608(b) can cross-examine about specific acts bearing on truthfulness. Does this act bear on Stephen’s character for truthfulness?
          • Broad view – anything bad ever done effects credibility.
          • Narrow view – it must be dishonest acts (e.g. fraud).
        • Rule – If we prove that it is more than truthfulness, but that the prior bad acts show a disrespect for truthfulness, the witness can be cross-examined about the specific issues AND extrinsic evidence can be introduced to demonstrate the claim.
          • General (un)trustworthiness can be shown only on cross-examination or through reputation and opinion BUT general disrespect for truthfulness is different than general untrustworthiness and can be show through specific evidence.
        • Application – threatening witnesses shows a disrespect for truth and that can be shown through extrinsic evidence.
      • Convictions for misconduct –
        1. Rule 609 turns all of this on its head because it is based not on bias or specific disrespect for truthfulness BUT instead on general untrustworthiness, yet Rule 609 still allows the evidence in.
          • Past criminal convictions can be used to impeach a witness.
          • This evidence can be introduced extrinsically to prove just about any crime to prove untrustworthienss.
          • Verification – past criminal convictions are easy to verify, quick to prove, and doesn’t risk becoming a mini-trial.
        2. Rule 609 – 5 parts –
          1. General rule
          2. Time limit
          3. Effect of pardon
          4. Juvenile adjudications
          5. Pendency of appeal
  3. Table part27
* Note – the first few things on this chart should go very quickly because they are exceedingly rare.1.        Did this person get a pardon because they were innocent?

·         If yesdon’t admit the conviction to impeach credibility.

2.        If no, was the person pardoned because they were rehabilitated?

·         If yesask: has the witness committed a subsequent felony?

o    If nodon’t admit the conviction to impeach credibility.

o    If yesback to the chart…

·         If noback to the chart…

3.        Was the witness tried as a juvenile?

·         If yesask: is this a civil case OR is the witness the accused in a criminal case?

o    If yesdon’t admit the conviction to impeach credibility.

o    If nois admitting the evidence necessary for fairness?

§  If nodon’t admit the evidence.

§  If yesback to the chart.

·         If noback to the chart…

4.        Is this crime more than 10 years old?

·         If yesask: does the probative value substantially outweigh the prejudicial impact(different than 403 analysis because of shifting burdens and substantially)

o    If nodon’t admit the conviction to impeach credibility.

o    If yesback to the chart…

·         If noback to the chart…

5.        Does the crime itself involve dishonesty or false statement (e.g. fraud)?

·         If yesADMIT the evidence.

6.        If nowas the crime a felony?

·         If nodon’t admit the conviction to impeach credibility.

·         If yesis the witness the accused?

o    If yesdoes the probative value outweigh the prejudice?

§  If yesADMIT the evidence.

§  If nodon’t admit the conviction to impeach credibility.

o    If no (the witness is not the accused)the proper analysis is Rule 403.

  • The Chart does not answer all of the questions – the general answer is that the rules are written to let the evidence in.
    • What if the juvenile was tried as an adult?
      • Answer – let the evidence in (considered an adult to get the evidence in).
    • “10 years” since what? Conviction? Release?
      • Answer – 10 years from conviction or release from prison (whichever is later).
    • “10 years” to what? Indictment? Testimony?
      • Answer – Probably 10 years until indictment (this gets more evidence in) (it will be less than 10 years and so the evidence has a better chance of getting in)
    • The witness’s conviction is under appeal?
      • Answer – that doesn’t matter; the witness’s party can introduce that it is on appeal.
    • What kind of crime includes inherent dishonesty or false statements?
      • Perjury, fraud – yes, those are easy.
      • Forgery – yes, still pretty easy.
      • Failure to file taxes – yes, but getting a little harder.
      • Embezzlement (taking authority you don’t have the authority to take) – yes, pretty easy.
      • Larceny (theft; has nothing to do with exceed your legal authority) – only if the facts show fraud or deceit, theft alone is not enough.
      • Prostitution – NO.
    • Arguing probative value versus prejudice –
      • Stealth versus deception – To get the evidence in, want to argue that it was deceptive—not just stealth.
      • Conscious disregard for the rights of others – Look for facts of the crime demonstrating conscious disregard for the rights of others
      • Similarity of previous crime – If it is the Δ testifying, is the previous crime dissimilar to the crime charged?
        • Dissimilarity makes it more probative because if the Δ is the witness and the jury uses the prior evidence to prove he committed the current crime, that is prejudice and should be excluded under 403. When the crime is dissimilar, there is less chance of prejudice.
      • Repeat offender – if the witness has repeatedly committed crimes, that is more probative.
      • Recent crimes – the more recent the crime, the more probative it is (even if it is beyond the 10 year guideline).
      • Who is the witness testifying for – the court seems to be more concerned about allowing in the prior criminal convictions of Δ’s witnesses because the court is concerned about prejudicial associations made by the jury between the witness and the Δ.
  1. Impeachment of a hearsay declarant as if they were a witness.
    • Rule 806 – can impeach a hearsay declarant exactly as if they were a witness.
  2. Prior Inconsistent Statements, Contradictions –
    1. Prior statements of witness – Rule 613 – (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.
      • Rule – (a) you don’t have to tell a witness you have a prior statement before asking her about it, but once you’ve asked, the opposing attorney has a right to know what the statement was.
    2. Who may impeach – Rule 607 – the credibility of a witness may be attacked by any party, including the party calling the witness.
      • Rule 607 – You can impeach your own witness.
      • Abuse of 607 = calling a witness just so you can impeach the witness.
        • This is abusive because you are hoping the jury will use the impeaching statement as substantive evidence (otherwise the witness would be no good to you). Technically, if the witness has been impeached, the jury should throw out the witness’s testimony, but your hope is that the jury will believe the previous statement and accept that as the truth for the purpose of fact finding (not just impeachment).
        • What is the standard for abuse of 607? – Webster –
          • Facts – Webster (Δ) is accused of aiding and abetting robbery. Witness (King) is called by prosecutor. King testifies that the Δ was NOT involved (not what the prosecutor would want a witness to say). The prosecutor then introduces evidence of a statement made by King to the FBI that Δ WAS involved.
          • Generally speaking, the statement offered to the FBI could be introduced to impeach because it is a prior inconsistent statement that disproves the witness’s testimony.
            • It could not be admitted as hearsay evidence because King did not make the statement at a proceeding under oath.
          • Issue in this case – is the prosecutor abusing 607? Did he call King to testify just so he could introduce the statement made to the FBI knowing full-well that King would say that the Δ was not involved when asked under oath?
          • Rule – the party calling the witness must know that the witness will give no useful information.
            • We want to know what the prosecutor’s motives were. If the prosecutor knew that King was going to testify just as he did, then clearly the motive for calling King to the stand was just to get in this evidence that would not otherwise be admissible.
          • Application – did the prosecutor know that the witness was going to flip and testify differently than his statement to the FBI? Answer – the court says no; the prosecutor head reasons to believe this might happen (she offered to question him outside of the presence of the jury).
            • Posner argues that her offer to question him outside the jury is actually indicative of the prosecutor trying to avoid abuse of 607.
          • What if the prosecutor believed King would provide someuseful information but believed she would have to impeach most of what he said?
            • Rule – according to Webster, it is okay to call the witness even if the witness only provides some useful information but most of what the witness will say—and even the most important things the witness will say—are going to be impeached.
            • However, you can argue that if the primary purpose is to impeach, then it is not okay to call the witness (this is what the other circuits have said).
          • What about impeaching the defendant with illegally obtained statements? Harris –
            • Facts – Defendant, Harris, is charged with selling heroin to an undercover officer. Harris’s testimony is that he didn’t sell heroin to the cop, it was just baking powder.
              • Evidence – Harris made a statement that was taken in violation of Miranda (and thus not admissible as an admission by a party because it violates the constitutional rule)
            • Issue – the evidence is not admissible as substantive evidence, but can the evidence be used to impeach the defendant?
            • Rule – YES, you can impeach defendant with illegally obtained statement. The statement cannot be used for prosecutor’s case-in-chief BUT it can be used for impeachment.
            • Justifications –
              • Policy – a rule in the other direction provides an incentive for defendant to contradict the story he gave to the police.
                • Is there a concern that police will have an incentive to misbehave? Answer – NO, the police would rather use the statements as evidence of a crime.
              • Testifying – defendant has the right to testify, but not to commit perjury.
            • When would a statement violating Miranda be inadmissible to impeach Δ?
              • Police ignore defendant’s request for counsel
                • Answer – admissible for impeachment (Hass).
              • Δ is debilitated and helpless?
                • Answer – INADMISSIBLE for impeachment (Mincey). The evidence is excluded because it is arguably involuntary. Here, there is a concern that the statements are NOT true.
              • What if Δ is forced to testify under grant of immunity?
                • Answer – INADMISSIBLE for impeachment (Portash). Cannot use to impeach because the testifying is no longer voluntary.
  1. Contradictions – Proving that something the witness said is not so.
    • Can this be proved through extrinsic evidence?
      • Answer – collateral evidence rule – irrelevant evidence.
    • Collateral evidence rule – the evidence is only admissible IF:
      • the contradiction must do more than merely contradict the witness AND
        • if it merely contradicts the witness, that could be on a relatively unimportant or insignificant issue.
      • It must have some independent evidence.
    • How does this play out? Ernie sues Florence for rear-ending him.
      • Setup –
        • George testifies for Florence, Ernie back into Florence.
          • George testifies he first met Florence after the accde.
            • Ike testifies George was dating Florence at the time.
          • George testifies he was coming from Jason’s store.
            • Jason testified – his store was closed that day.
          • Ernie offers Hal – Ernie wasn’t backing up.
        • First statement – (George testifies Ernie backed up & Hal testifies Ernie wasn’t backing up). Are these statements admissible?
          • Answer – YES, they can be proved through extrinsic evidence because they prove substantive points about the case.
        • Second statement – (George testifies he met Florence at the accident, Ike says they were dating). Are these statements admissible?
          • Answer – YES, proves bias and disproves the statement of the witness. Can prove bias and disprove statement of witness through extrinsic evidence.
        • Third statement – (Jason saying his store was closed) Are these statements admissible?
          • Answer – NO. Collateral evidence is bad; we do NOT allow this kind of contradiction because it ONLY contradicts a collateral issue in this case.
        • The contradiction must have some independent relevance –
          • This is not the same as saying that you could have proved it in your case-in-chief.
          • Two reasons –
            • #1 – contradiction may be ‘collateral’ to your case, but central to the witness.
              • g. a fact about which the witness could not be innocently mistaken.
            • #2 – some contradicting evidence can be offered to impeach even though it would be inadmissible in your case-in-chief.
              • g. evidence obtained in violation of Miranda.
              • g. Florence takes the stand and says that she has never had an accident. You can contradict her by proving prior accidents. Those prior accidents would otherwise be excluded because it is inadmissible character evidence.
              • Rule – if there is some independent relevance, we will allow the extrinsic evidence even if the jury cannot use it for that purpose.
                • Propensity logic is insufficient in case in chief but it is sufficient to get past the collateral evidence rule. While propensity evidence is allowed here, it isn’t used for propensity, instead it is used for
              • Is there a risk of abuse of impeachment and collateral evidence rule (similar to abuse of 607)?
                • Under 607, abuse occurs when you produce a witness so you can impeach him with otherwise inadmissible evidence.
                • Abuse of collateral evidence rule – cross-examine a witness so you can contradict her with otherwise inadmissible evidence.
                  • This means asking a question on cross that will elicit an answer that will allow you to introduce otherwise inadmissible evidence to refute that answer.
                • Havens –
                  1. Facts – Defendant charged with importing cocaine. He was caught by customs official with McLeroth, who had makeshift pockets in his undershirt filled with cocaine. The customs officials illegallyseized a shirt in the defendant’s luggage with missing pieces that matched McLeroth’s pockets.
                  2. To get the evidence in, prosecutor wants the Δ to deny some fact that the shirt contradicts because then, through the collateral evidence rule, the prosecutor can contradict the witness as long as there is some independent relevance.
                    • Independent relevance does not mean admissible.
                  3. At trial, the prosecutor asks the Δ about the shirt and Δ denies possession of the shirt. At this point the prosecutor is able to introduce the evidence.
                    • Notice the difference between asking questions and introducing evidence. For introducing evidence, it must be admissible. However, you can ask questions about inadmissible evidence.
  •  Remember, though, cross-examination must be within the scope – Agnello – drug possession case.
  • Defense attorney’s question – “Did you know that the packages contained cocaine.”
    • Answer: “NO.”
  • Prosecutor’s question – “Have you ever seen cocaine?”
    • Answer: “NO.”
    • Prosecutor then introduces evidence of illegally seized cocaine (from prior crime).
  • Does this evidence get in? Answer – yes. Meets the two criteria –
    • contradicts witness’s statement
    • has independent relevance.
  • What’s the argument that this is an abuse of collateral evidence rule?
    • The scope of direct was not about seeing cocaine it was about knowing that the packages in question contained cocaine. The prosecutor’s question does not follow from the scope of direct.
  • When can illegally seized evidence be used to contradict testimony?
    • Statement made on direct? Answer – YES – this gets in because it is the Δ’s fault for making the statement on direct.
    • Statement made in cross? Answer – Maybe – depends on if the question was within the scope and flowed from direct. If the question was within the scopethen YES.
    • What if the statement is volunteered on cross? Answer – YES – this gets in again because the Δ’s fault for making the statement on direct.
    • What if question is “smuggled in”? Answer – NO – this is not okay and the evidence is excluded.
  • When can inadmissible evidence be used to contradict testimony?
    • Statement made on direct? Answer – YES – this gets in because it is the Δ’s fault for making the statement on direct.
    • Statement made in scope of cross? Answer – MAYBE NOT.
    • What if the statement is volunteered on cross? Answer – YES.
    • What if question is “smuggled in”? Answer – NO.
  1. Silence as impeachment –
    • post-Miranda silence –Doyle –
      • Facts – defendant received Miranda warning and was silence.
      • Issue – can that silence be used against him? Answer – NO.
      • Rule – use of silence as impeachment denied him fundamental fairness under the 14th amendment.
    • pre-arrest silence –
      • Hale –
        • Rule – pre-arrest silence is irrelevant and prejudicial, per Federal evidentiary rules.
          • This does not mean that a state could not use this evidence in a state proceeding.
        • Jenkins v. Anderson –
          • Facts – defendant charged with murdering Redding. Defendant testified it was self-defense because Redding attacked him with a knife. On cross, prosecutor impeached Δ by questioning him on the issue of why he didn’t tell the police for two weeks.
          • Does this violate his 5th amendment right against self-incrimination
            • Rule – no, using pre-arrest silence does NOT under 5thamendment right.
            • The state cannot impair to an appreciable degree the policies behind the 5th amendment BUT the state can do things that discourage exercise of the right.
          • Does this under 14th amendment right to fundamental fairness?
            • Rule – no, using pre-arrest silence does NOT undermine fundamental fairness.
            • Why? Fairness is implicated once you are notified of your rights. Here, since you have not been given your rights, your silence is more meaningful.
  1. Repairing Credibility –
    1. Rule 608(a)(2) – Evidence of truthful character is admissible ONLY AFTER the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
    2. When has character been attacked?
      • Medical Therapy Sciences –
        • Defendant Stanley Berman is charged with Medicare fraud. Witness for the prosecution is Barbara Russell, un-indicted co-conspirator.
          • Cross-examination discusses 2 prior convictions and accusation that she embezzled money from Berman.
          • Prosecution wants to support Ms. Russell by introducing character evidence.
        • Issue – has her character for truthfulness been attacked?
        • Answer – YES, and thus the prosecution can introduce evidence to repair her credibility.
          • However, here the prosecution first asked about her conviction and alleged embezzling. Does the defense asking questions about those areas really create an attack on her character sufficient to allow rehabilitation? Answer – YES.
        • Issue #1 – Government raised the issue on direct
          • Direct was brief and to the point whereas the cross-examination was more accusatory. Therefore, this was an attack by the defense.
          • Also, the defense proved her embezzlement extrinsically with additional evidence.
          • Here the defense went beyond direct which proves they are trying to attack her character.
        • Issue #2 – Does embezzlement only prove bias?
          • Rule – If facts prove bias and independently undermine character for truthfulness, then it is an attack—which allows rehabilitation.
          • Application –
            • Bias generally demonstrates you are a trustworthy person but just not in this case.
            • HOWEVER, here, the bias proves not only is the witness bias in this case but more generally impacts her character.
            • Even more so, the witness denied the allegation and lied on the stand, proving even more so that this is a character attack.
          • How do you know when character has been attacked? It is NOT accurate to say that impeachment is always an attack on character for truthfulness.
            • Why not? Answer – because questions of memory or perception or narration are all attempts to impeach the witness’s testimony BUT none of them attack the witness’s character for truthfulness.
            • Does bias constitute an attack against character?
              • Answer – not necessarily. Must look at whether the behavior is itself corrupt and whether cross-examination suggests deliberate distortion.
                • IF cross-examination suggest deliberate distortionthen it is probably impeachment.
                • IF cross-examination suggests unconscious biasthen probably NOT impeachment.
  1. How can someone be rehabilitated?
    • Answer – prior consistent statements.
      • There is a nonhearsay use of prior consistent statements NOT to prove that the statements were themselves true BUT instead to demonstrate to the jury that this person makes statements that are consistent.
      • Pre-motive – Prior consistent statements can often persuade the jury that the witness is trustworthy because those statements occur pre-motive to lie and thus rebut the opposing party’s clam that the witness is saying something because s/he is being forced or being influenced.
      • How does the use of prior consistent statements play out?

Table part28



*** This flow chart is the SAME flow chart that appears for prior consistent statements under hearsay. The analysis here is exactly the same.

  • Answer – introduction of character/credibility evidence.
  1. How does this play out? – Review of character –
    1. Firstask what sort of evidence you are trying to offer?
      1. If it is reputation/opinion, then the rules are more liberal and you are more likely to get the evidence in.
      2. If it is specific conduct, then the rules are less liberal and you are less likely to get that evidence in.
    2. Secondif reputation or opinion, what are you trying to prove?
      1. Specific trait?
        • If it is an essential issuethen it is okay (405(b)) (e.g. a custody case) (‘essential issue’ is rare).
        • If not an essential issue but instead to infer that the person committed a specific actthen the evidence is inadmissible (404(a)) (this is the prove character to prove action in conformity with character) (don’t want the jury to say this guy is a bad man and thus must have done the crime)
          • This does not mean you could never get this evidence in.
          • Accused can offer evidence of his/her character. If Δ offers character evidence of himself/herself, then prosecution can rebut (404(a)(1)).
          • Accused offers negative character evidence about the victim. The prosecutor can rebut either by defending the victim’s character OR by attacking the defendant’s character (404(a)(2)).
        • Can always offer opinion/reputation evidence that a witness is not truthful (404(a)(3) & 608(a)).
      2. Trait of truthfulness?
        • Trait of truthfulness cannot be submitted UNLESS
          • Credibility has been attacked (608(a)). What constitutes attack?
            • Negative reputation/opinion evidence
            • Conviction under Rule 609
            • Bias – if corrupt behavior, deliberate distortion
            • Contradiction if it suggest lying
            • Prior inconsistent statement – if it suggests lying
  1. Third, if conduct, what are you trying to prove?
    1. Specific Trait?
      • If it is an essential issuethen it is okay (405(b)) (e.g. a custody case) (‘essential issue’ is rare).
      • If not an essential issue but instead to infer that the person committed a specific actthen the evidence is inadmissible (404(a)) (cannot offer evidence of bad character to prove action in conformity with the character) UNLESS
        • Cross-examining a character witness (405(a)) – can then ask character witness about specific conduct about the person they are testifying on behalf of.
        • It is a sex crime (Rules 413414415).
  1. Not trying to prove a character trait but trying to prove MIMIKCOPthen it is okay(404(b)).
    • Motive
    • Identity
    • (Absence of) Mistake or accident
    • Intent
    • Knowledge
    • Common scheme or plan
    • Opportunity OR
    • Preparation
  2. If it demonstrates habitthen it is okay (406).
  3. If trait of truthfulness/untruthfulness of a witness through conductthen not admissible (608(b))
    • UNLESS
      • Cross-examining the witness or character witness at the court’s discretion (608(b)OR
      • Conviction of a crime (after working through the chart of crimes) (609) to prove truthfulness.
    • Specific element of credibility (e.g. bias) is admissible.
  4. Lay and Expert Witness
    1. Lay Opinion –
      1. Opinion testimony by law witnesses – Rule 701 – If the witness is not testifying as an expert, the witness’ testimony in the form of opinion or inferences is limited to those opinions or inferences which are (a)rationally based on the perception of the witness AND (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
        1. Rule – if the witness is not an expert, opinions or inferences must be rationally based on the perception of the witness and help to the jury.
          • (c) The requirements of 702 cannot be avoided by offering expert testimony as lay testimony.
        2. Facts versus opinions
          1. What’s the difference –
            • It is more opinion when it is more subjective, more based on the person and his/her inferences.
            • Immediate sensory input (fact) vs. interpretation of input in light of knowledge (opinion)
            • Fact is more specific vs. opinion is more general
            • Fact is more certain (objective) vs. opinion is less certain (more subjective).
          2. Why prefer one over the other?
            • Prefer facts –
              • Facts are more objective, more likely to be correct
              • This starts to invade the province of the jury
            • Prefer opinion –
              • More efficient
              • Some facts are difficult to describe (e.g. looking at facial expression)
  1. Result – compromise – allow lay opinion as long as they are (a) rationally based on the perception of the witness and (b) helpful to the jury.
    • Why is this approach objectionable?
      • No personal knowledge
      • No foundation
      • Requires speculation
  1. What is allowable as lay opinion?
    • It was James
    • This is James’s signature
    • James weighs about 240 pounds
    • James was going 90 miles per hour
    • James was angry
    • James was high
    • I got the impression James knew there was dope insider. MAYBE.
  2. Expert Opinion –
    1. Testimony by experts – Rule 702 – If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,
      1. Rule – Expert testimony (based on scientific, technical, or specialized knowledge) is admissible IF it
        • (a) will assist the jury,
        • (b) if the witness is qualified as an expert by knowledgeskillexperiencetraining or educationAND
        • (c) if the testimony based
          • (1) upon reliable data;
          • (2) is the product of reliable principles of methods AND
          • (3) the witness reliably applied the principles and methods.
  1. Testimony of opinions – Rule 702 – Note that the rule allows the expert to testify in the form of an opinion or otherwise.
    • Rule – expert witnesses may state opinions.
  2. Assist the jury?
    • Rule – would the untrained layman be able to determine the issue to the best possible degree without the expert’s testimony.
    • This is a very liberal rule – the expert can tell the jury something they know, but if the expert helps them understand or explain the nuisances, then that justifies the expert testimony.
  3. What are the requirements for qualification?
    • Does it have to be a specialist?
      • No, could allow a doctor to testify even if not a specialist.
      • Could cross-examine on lack of specialty; the adversarial system will expose those issues
    • Does the expert need to be renowned?
      • No, would still be allowed to testify.
    • Does the expert need to have experience (just education)?
      • No, can still testify even without experience.
    • What if the witness only has experience (no education)?
      • Still allowed to testify.
    • Keep in mind, there might be a problem if all of these deficiencies exist.
  4. Bases for Expert opinion –
    1. Bases of Opinion – Rule 703 – 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.
      • Rule – expert witness’ need not have personal knowledge of the facts upon which they base their opinion. Expert witness’ can base opinions upon inadmissible evidence IF that evidence is reasonably relied upon by experts in the same field on the same subject.
        • The lawyer can tell the expert what the facts are and the expert can still testify.
        • The lawyer doesn’t even need to be limited to admissible evidence.
          • This makes sense, because the expert is often conveying hearsay 9e.g. studies that say that his form of leukemia is not curable).
  1. When experts use inadmissible evidence – Rule 703 – If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. | Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference UNLESS the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
    • Rule 703 –
      • When the expert bases her testimony on inadmissible evidence, the jury can hear about that evidence ONLY to assess the expert’s opinion
        • Analogous to evidence used for impeachment but not for substantive evidence.
      • … and if that evidence is offered by the proponent of the testimony (party trying to sneak it in), ONLY IF probative value for assessing expert’s testimony outweighs prejudicial impact.
  1. What are acceptable sources of information for experts
    • Personal observation – YES
      • could help to have an expert talk to the person they are testifying about
    • expert can come to court and watch people testify – YES
      • witnesses cannot hang out at a trial, but experts can
    • hypothetical questions – YES
      • can ask experts hypothetical questions to challenge their conclusions
    • information gather outside the court – YES
      • what objection would introduction of this information raise? Answer – hearsay.
        • Experts can rely on hearsay.
  1. What are the potential limits on expert reliance on out of court tatements
  1. Opinions on ultimate issues
    1. Opinion on Ultimate Issues – Rule 704 – (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did not have the mental state or condition constituting an element of crime charged or defense thereto.
      1. Rule – Under 704(a), testimony may embrace ultimate issues if otherwise admissible. Under 704(b), experts may NOT testify whether a criminal defendant had the mental state or condition constituting an element of the crime or a defense.
        • So, defense expert witness cannot say that the Δ is legally insane, but the defense witness can…
          • Diagnose the Δ
          • Discuss motivations (this comes close to the “ultimate issue”
  1. What is an ultimate issue?
    • An issue that can make or break the case.
    • g. whether the defendant had the requisite mental state to commit the crime (Hinckley case, did Hinckley have the mental state for attempted murder when shooting Reagan)
  2. What was wrong with ultimate opinions?
    • Invades the province of the jury
      • ACN rejects as ‘empty rhetoric’; the jury can reject the opinion.
    • Can still exclude under 403 (prejudice) if the jury will give the evidence too much weight.
    • If the ultimate opinion is baseless, groundless, or doesn’t assist the jury, the evidence can be excluded under 701 & 702 as not being “helpful to the jury”
  3. Potential limits – what statements might be excluded?
    • Legal opinions (e.g. whether a defendant accused of tax evasion had a plausible deduction). This invades the judge’s province.
      • If the expert is telling the jury something which they will hear in the judge’s instructions, then it is excluded.
      • Legal opinion by the expert gets special treatment.
    • Credibility judgments – (e.g. whether an alleged victim is telling the truth). This is not allowed because it is the fact finder’s province to determine credibility.
      • When it is a credibility judgment by the expert, it gets special treatment.
  1. Disclosure of Bases for Opinion –
    1. Disclosure of facts or data underlying expert opinion – Rule 705 – he 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 in any event may be required to disclose the underlying facts or data on cross-examination.
      1. Rule – Experts can give opinions without first testifying to underlying data. | Experts can be cross-examined about the underlying date for their opinions.
    2. Interpreting 702 – DaubertJoiner, and Kumho –
      1. Daubert v. Merrell-Dow –
        1. Facts – millions of women were taking Benedictine to reduce nausea during pregnancy. It turns out there was a risk of causing increased birth defects.
          • Berkeley statistician took all of the studies (which individually showed nothing) but together showed harm.
          • Defendant had been winning these cases at the summary judgment phase before trial. After the statistician’s work, the defendants were forced to settle to avoid this getting to a jury.
        2. Issue – Did the Frye test for admissibility of novel scientific evidence survive the FRE?
          • Frye Rule – generally accepted – in order to admit evidence deduced from a sceitntific theory, that theory must have gained general acceptance in the particular field to which it belongs (D.C. Circuit, 1923).
            • This is still used in CA state courts.
  1. Holding – the Supreme Court found that the Frye test did NOT survive FRE. Why
    • Rule 402 – liberal standard for relevance.
    • Rules 701-705 – relax traditional barriers to opinion testimony
    • Rule 702 – nothing in 702 “establishes general acceptance as an absolute prerequisite”
    • Drafting history makes NO mention of Frye.
  2. What, then, is required under 702 and Daubert?
    • Rule 702 – only requires – (a) assist the jury and (b) witness is qualified.
      • However, Blackmun talks about “scientific validity.” He gets that from looking at the rule (If scientific, technical or other specialized knowledgewill assist…). Because of the language “scientific” and “knowledge”, Blackmun comes up with the following test.
    • Rule 702 + Daubert – Expert testimony based on purportedly scientific knowledge is admissible IF
      • It is scientific knowledge;
        • Factors to consider
          • Is the theory testable? Falsifiable?
            • Has it been tested?
          • Has the theory been subjected to peer review and publication
          • What is the rate of error?
          • Are there standards for the technique’s use?
          • Is the theory generally accepted (this is the original Frye rule)
        • It will assist the jury AND
          • When does expert testimony assist the jury?
            • Fit – Is the testimony sufficiently tied to the facts of the case
            • Does the testimony tell the jury something that it didn’t already know
          • The witness is qualified.
        • So, Frye is no longer the rule, but Frye-like analysis is still relevant in these cases.
  1. Questions that remain after Daubert
    • Can courts consider other factors besides those mentioned (e.g. whether theory was in anticipation of litigation)? Some circuits consider as many as 11 factors
    • Can courts use 403 (prejudice) to exclude expert testimony
    • Does Daubert apply to expert testimony that is not scientific (i.e. technical or specialized expert testimony)
  • Privileges
    1. General rule –
      1. Common law rules – Rule 501 – Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common lawas they may be interpreted by the courts of the United States in the light of reason and experience.
        1. Rule – privileges decided per common law in the light of reason and experience.
      2. State law rules – Rule 501 – 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 e determined in accordance with State law.
        1. Rule – state law – when state law determines claim or defense, state rules of privilege apply.
      3. Attorney-Client –
        1. What is a client?
          1. Proposed but rejected Rule 503 defined a client as someone who is rendered professional legal service by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.
          2. Rule – a client either received legal services or consulted a lawyer about receiving legal services.
        2. What are legal services?
          1. Telling client time and place of trial? Answer – NO (this is just a notice function).
            • Notice the language of the rule says “legal services” which is distinct from “legal advice”
          2. Accounting work? Answer – NO.
            • BUT, if there is something legal advisory about it, than it could be (e.g. if the client has the accountant talk to the lawyer on the lawyer’s request).
          3. Business agent? Answer – NO.
          4. Preparation of tax returns? Answer – Maybe.
        3. What is a lawyer?
          1. Proposed but rejected Rule 503 defined “lawyer” as a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
            • Rule – someone the client reasonably believes is authorized to practice law somewhere.
              • Notice this means the person doesn’t have to be actually be a lawyer.
  1. What is protected?
    1. Proposed but rejected Rule 503 allowed clients to refuse to disclose (and to prevent others from disclosing): confidential communications made for the purpose of facilitating the rendition of professional legal services.
      • Rule – confidential communications made for the purpose of facilitating professional legal services (e.g. secret things you tell a lawyer to make them do law things for you)
    2. What is a confidential communication?
      1. Proposed but rejected Rule 503 defined a confidential communication as: a communication if it was not intended to be disclosed by outsiders.
        • This is not really how the common law handles this.
      2. Unintended disclosure – Suburban Sew ‘N Sweep – pg. 777 –
        • Facts – π found letters from defendant to their attorney in the trash.
        • Holding – this information is NOT privileged.
          • Court’s advice – buy a shredder.
        • Rule –
          • Voluntary disclosure to third arties is NOT privileged.
          • Involuntary disclosure (disclosure that occurs despite all possible precautions) IS privileged.
        • Application – in this case the court found it was an inadvertent disclosure, it was not intended to be a disclosure, YET the information was inadequately safeguarded and thus it was not privileged.
          • This is where the common law and the Proposed but rejected Rule 503 differ.
        • Justification – we want to protect clients but we also are trying to protect privilege; if sloppy people are able to keep evidence out that everyone knows about, it undermines the perception of privilege.
      3. Client’s identity – In re Grand Jury Investigation –
        • Facts – Δ stole checks addressed to IBM and opened the International Business Machines Company and deposited money.
          • Δ ended up writing a check to the attorney and the government calls the lawyer into a grand jury to as him who his client is.
          • Attorney says it is privileged and refuses to reveal the client’s identity.
        • What are the possible approaches?
          • Legal advice standard – disclosure would implicate client in matter for which client sought legal help. The client came to the lawyer to remain anonymous. It undermines the basis of the relationship to disclose the identity.
            • The purpose of the representation is to keep the client’s information secret.
            • g. the attorney that sends tax money in for his client because his client is engaged in illegal enterprise.
          • Confidential communication – revealing identity would effectively disclose confidential communication. You have revealed some information but revealing the client’s name on top of that would be problematic.
            • g. hit and run driver that admits to lawyer that he did it, but if the lawyer reveals the identity, it reveals the confidential information.
          • Last link – disclosure would provide last link in existing chain of evidence.
            • Court REJECTS this approach.
          • Holding – the court accepts the first two approaches BUT finds them inapplicable in this case. The client did not seek legal advice AND revealing the identity is NOT a disclosure of confidential information.
  1. Disclosure to outsiders?
    1. Proposed but rejected Rule 503 defined a communication as confidential IF: it was not intended to be disclosed to outsiders.
      • Rule – confidential communication is communication NOT intended to be disclosed to outsiders.
    2. Who are insiders?
      • Includes –
        • Clients
        • Client’s representatives
        • Attorneys
        • Attorney’s representatives
        • Facilitators – anyone to whom disclosure furthers legal service
          • Accountants within the firm
          • Social workers helping out at the domestic violence clinic
        • Communicators –
          • Anyone necessary for transmission.
        • Accountant working at the firm? – Kovel – pg. 772 –
          • Facts – Client, Hopps, charged with income tax violations. Lawyer’s representative Kovel, former IRS agent with accounting skills.
          • Issue – were communications between Hopps and Kovel privileged?
          • Holding – YES – Kovel was a facilitator because he not only translates and communicates, but also facilitates legal services.
          • Rule – as long as the communications made in confidence for the purpose of obtaining legal advice from the lawyer, the communications are privileged.
            • It is not sufficient that the law firm hired an accountant. If the lawyer tells the client to talk to the accountant, that is sufficient because it allows the accountant to fill the role of communicator/facilitator.
          • Joint client? Problem 12-E (pg. 775) –
            • Rule – joint clients enjoy the same privileges, including versus each other.
              • A joint client can stop another client from revealing information that you (as a client) could keep privileged.
            • Who owns the privilege?
              • Answer – the client cannot reveal information of the other joint client UNLESS they subsequently sue each other, statements made to the attorney representing both are not privileged.
              • What happens if the two joint clients end up getting prosecuted? One wants to testify to the other’s statements at a meeting. Can s/he? Answer – NO, its privileged.
              • What happens if they sue each other? Answer – then the statements made to the attorney are no longer privileged.
  1. What about real evidence?
    1. Meredith – pg. 766 –
      • Facts – Defendant Frank Earl Scott. Victim Davide Wade. Δ told his attorney (Schenk) that Wade’s wallet was in trash behind Scotts house. The lawyer had P.I. find wallet and then turn it over to the police.
      • What’s privileged and what isn’t?
        • Statement to legal counsel about the location of the wallet? Answer – privileged.
        • Statement by lawyer to P.I. regarding the location of the wallet? Answer – privileged; communication between an attorney and a facilitation.
        • The P.I. (Frank) seeing the wallet? Answer – privileged; information acquired as a direct result of confidential communication is privileged.
      • Two things about this case –
        • Lawyer turned over the evidence. Why? Answer – because there is an ethical rule that requires that evidence must be turned over to police.
        • Frank (PI) was required to reveal the location of the wallet before it was moved. Why? Answer – Frank took the wallet and thus destroyed evidence. He took the wallet, thus interfering with the prosecutor’s opportunity to obtain it.
          • Rule – location/condition NOT PRIVILEGED when defense removes or alters evidence.
        • What was still privileged?
          • The source of the information (how the lawyer and PI knew where the wallet was)
          • When Frank testified, he was not identified as a defense investigator.
        • What would have happened IF the lawyer had taken the wallet and the prosecutor wanted to call him to testify?
          • Answer – to avoid prejudice and avoid revealing confidential information, the defendant could stipulate to location.
        • What if the Δ had just given the evidence to the lawyer? Answer – the source of the evidence and the location of the evidence before it was given to the lawyer remain privileged. This is strange, though, because it creates an incentive for a lawyer to tell the client to go get the evidence (and destroy evidence: location) rather than telling the lawyer where the evidence is and having the lawyer get it because in that case, the lawyer has to reveal the location.
        • Why isn’t the wallet confidential? Because the wallet would still exist “but for” the communication. Evidence cannot become privileged solely because it was conveyed in privilege to an attorney. CANNOT make evidence privileged by giving it to an attorney (i.e. Rule 408 – statements made for the purpose of settling a civil suit are excluded, but you cannot make something privileged by bringing it up in the course of a settlement discussion).
  1. Who is the client when talking about a corporation – Upjohn – pg. 782 –
    1. Facts – investigation by lawyer for Upjohn, investigating allegations of bribes by foreign employees.
      • Questionnaire prepared by attorney to be (a) completed at the direction of superior, (b) covering matters within the scope of employment and (c) employees understood that this was for the purpose of obtaining legal advice.
    2. Issue – IRS requested the data from the questionnaires. Was that information privileged?
    3. Who’s the client? Possible approaches.
      • Any officer or employee?
        • Too big – imagine the room with all the lawyers and representatives for all those people.
        • At the very least, the actions of the officer or employee must represent the corporation (kind of like agent-employee hearsay).
      • Nobody (corporation isn’t a person, so shouldn’t get attorney-client protection)
        • Too small – doesn’t provide enough protection.
      • Control group – managers, board of directors,
      • Employees acting under the direction of their superior for the purpose of obtaining legal advice.
      • Holding – combine the last two – the client is both the control group AND the people acting under direction of superiors for the purpose of obtaining legal advice.
        • Application – the surveys were filled out by the employees acting under direction of superior for legal advice, so it was privileged.
        • NOTICE – this does not mean that the IRS could not have gone out and interviewed those people on its own. Just because the employees told the lawyer this information, does not mean that it is now privileged and undiscoverable.
  1. Lawyer-Client Privilege Exceptions –
    1. Breach of duty – Proposed but rejected Rule 503(d) Exceptions – There is no privilege under this rule when… (3) breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer.
      • Rule – no privilege when the communication is relevant to a breach of duty by the client or attorney to the other
        • g. collection of bills (if the lawyer is bringing a suit to get money form client)
        • g. if the client sues for malpractice, attorney can defense himself/herself by violating privilege.
  1. Crime fraud exception – Proposed but rejected Rule 503(d) Exceptions – There is no privilege under this rule when… (1) furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
    • Rule – the privileges doesn’t apply when you wanted the attorney’s advice so that could plan (or commit) what you knew (or reasonably shouldn’t have known) was a crime.
  2. Psychotherapist & Spouses –
    1. Who is a patient –Proposed but rejected Rule 504(a)(1) – a “patient” is a person who consults or is examined or interviewed by a psychotherapist.
      1. Rule – a patient is anyone who consults with or is questioned by a psychotherapist.
      2. (notice you don’t have to employ them; could decide not to use them)
    2. Who is a pyschotherapist –Proposed but rejected Rule 504(a)(2) – a “psychotherapist: is (a) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or (b) a person licensed or certified as a psychologist under the laws or ay state or nation, while similarly engaged.
      1. Rule – a psychotherapist includes someone you reasonably believe is a medical doctor or a psychologist providing mental diagnosis or treatment (see Jaffee, it changes this).
    3. What’s protected –Proposed but rejected Rule 504(b) – General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnoses or treatment of his mental or emotional condition, including trust treatment…
      1. Rule – patients can refuse to disclose and prevent others from disclosing confidential communication made for the purpose of mental diagnosis and treatment.
      2. Is a confidential communication something that is actually secret OR is it something that treasonable efforts are made to protect itProposed but rejected Rule 504(a)(3) – A communication is confidential if not intended to be disclosed to third persons.
    4. Who are insiders and who are outsiders?
      1. Patient
      2. Therapist
      3. Persons present to further interest
        • Guardian
        • Spouse (if she was just telling the doctor what was wrong with you)
        • Kind of like facilitator
      4. Communicators –
        • Persons reasonably necessary for translation of information
        • (e.g. secretary that puts you through)
      5. participants
        • couple therapy
      6. Psychotherapist-Patient Privilege Exceptions –Proposed but rejected Rule 504 – (1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in needed hospitalization. (2) Examination by order of judge. If the judge orders an examination of the mental or emotional condition of the patient, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered UNLESS the judge orders otherwise.
        1. Exceptions –
          • Commitment proceedings;
            • If the doctor decides you need to be committed for 72 hours, can
          • Court-ordered examinations with respect to the purpose for which the examination is ordered;
            • g. the court sends the guy to a shrink to see if he is capable of standing trial.
              • Can’t be used against defendant at trial or at sentencing (it can only be used for the limited purpose of determining competency to stand trial)
            • When patient relies on his mental condition as an element of claim or defense (or patient is dead and another relies on patient’s mental condition).
              • If you claim the insanity defense, then the competency evaluation could be used later
              • Emotional damage claims also opens the door to the other side assessing your records on mental health
            • Jaffee v. Redmond –
              • Facts – π is the estate of Ricky Allen (Jaffee). Δ is Mary Lu Redmond, police offer that shot Ricky. Evidence in issue –notes taken by Beyer, clinical social worker, during 50 counseling sessions with Redmond.
              • Does a clinical social worker constitute a psychologist or medical doctor? Answer – NO.
              • Holding – using the common law, the Court finds the communication protected.
              • What’s the rationale? Want to foster relationships with clinical social workers – Privilege only justified when it satisfies a public good and that public good has to do with relationships we want to foster. That public good must outweigh truth-seeking.
              • Rule – privilege only justified when a public good is satisfied that outweighs truth-seeking.
                • Application – how does the privilege advance this good? Effective psychotherapy depends on an atmosphere of confidence and trust (need to think they will keep your secrets).
              • SO, Jaffee extends privilege to licensed social workers whose clients include those too poor to see a psychologist or psychiatrist.
            • Future crimes exception? – What about in situations where disclosure is the only way of averting serious threat of harm to patients or others? In California, there is Tarasoff.
              • How could this be squared with privilege? Duty to warn but that doesn’t eviscerate privilege for trials. (the circuits are split on this approach).
  1. Spousal privilege –
    1. Two types of privilege
      1. Testimonial – testimony can be barred
      2. Confidence – confidential communications can be barred in a nontestimonial setting.
    2. Husband-Wife privilege – Proposed but rejected Rule 504 – (a) General rule of privilege. An accused in a criminal proceeding has a privilege to prevent is spouse from testifying against him. (b) Who may claim the privilege. The privilege may be claimed by the accused or by the spouse on his behalf.
      1. BUT see Trammel.
    3. spousal privilege – Trammel v. United States –
      1. Facts – Δ (Otis Trammel), charged with importing heroin. Witness: Elizabeth Trammel (his wife), who agreed to testify against Otis under the promise of leniency. Otis wishes to prove her from testifying.
      2. Rule – testifying spouse holds the testimonial privilege—not the defendant. However, the defendant can assert his right to block confidential communications.
      3. How do we decide if something is privileged?
        • Do the benefits to society outweigh the costs.
        • Public good – there is a public good in the sanctity of marriage (fostering the harmony and sanctity of the marriage relationship).
        • The court reasons that it will do more harm to the harmony of the marriage than good to allow the Δ-spouse to prevent his wife from testifying.
      4. How does spousal privilege play out after Trammel?
        1. Includes only confidential communication?
          • Testimonial spousal privilege – NO.
          • Confidential spousal privilege – YES.
        2. Must be married when communication occurred?
          • Testimonial spousal privilege – NO.
          • Confidential spousal privilege – YES.
            • So the communication must occur at the time the two are married.
  1. Do you have to be married when the privilege is asserted?
    • Testimonial spousal privilege – YES.
      • This can be overridden if it is proven the marriage is a sham and just for the sake of privilege.
    • Confidential spousal privilege – NO.
      • So confidential spousal privilege survives divorce.
  1. Only the witness holds the privilege?
    • Testimonial spousal privilege – YES.
      • So witness can waive spousal privilege.
    • Confidential spousal privilege – NO.
      • Only the Δ can waive spousal privilege.
  1. Applies in civil cases?
    • Testimonial spousal privilege – NO.
    • Confidential spousal privilege – YES.
  2. Applies to spouse versus spouse crime
    • Testimonial spousal privilege – NO.
    • Confidential spousal privilege – NO.
  3. Applies to spouse versus child of spouse crime
    • Testimonial spousal privilege – NO.
    • Confidential spousal privilege – NO.
  4. Applies to joint participants in crime
    • Testimonial spousal privilege – NO.
      • The witness still has her testimonial privilege because she still has a 5thamendment protection against self-incrimination.
    • Confidential spousal privilege – NO.
      • If the crime is over and he now shows her the proceeds from the crime, she is not liable for the communication and the communication is confidential.
      • HOWEVER, she is now a suspect for accomplice and anything that happens after that point is part of a joint participation in crime.
  1. How does this play out?
    1. Problem 12h – child molester –
      • Facts – Δ is Rodney. Victims are Stacey (Rodney’s step daughter) and Rhona (friend of Stacey’s). Charge is child molestation.
        • Witness – Trish (Rodney’s wife) and Stacey’s mother.
        • Her testimony –
          • Before the marriage –
            • Rodney was alone with the girls, experimented with handcuffs, handcuffed the girls for discipline.
          • After the marriage
            • Rodney confesses to the molestation.
          • What is admissible?
            • Testimonial privilege – Information from before the marriage? (admissible)
              • Privilege does not apply when it is her child.
              • Only witness can assert testimonial privilege
            • Testimonial privilege – information from during marriage
              • Privilege does not apply when it is his child
              • Only witness can assert testimonial privilege
            • Confidential spousal privilege – before marriage
              • Spousal privilege only applies to communications made DURING marriage
              • Spousal privilege does not apply to witness’s child
            • Confidential spousal privilege – during marriage
              • Spousal privilege DOES apply BUT…
              • No spousal privilege to spouse-witness’s child (so wife can still testify to Rodney’s abuse of her daughter—just not the other girl).
            • Best Evidence Rule
              1. Best evidence compared to double hearsay –
                1. Document says “matter asserted”
                2. Witness testifies “document says ‘matter asserted’”.
                  1. Is this double hearsay?
                    • Answer – NO. The witness testifying to what a document says is NOT double hearsay; it does not add another layer of hearsay to have the witness say what a document says because the witness has knowledge of the document. So, in this situation, you do NOT have a hearsay declarant quoting another declarant.
                  2. However, even though this isn’t double hearsay and doesn’t add a layer of hearsay, shouldn’t we still be concerned about a witness quoting a document rather than introducing the document itself? YES, and that is where we get the best evidence rule.
                3. What is the best evidence rule –
                  1. Requirement of original – Rule 1002 – 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. Rule – you must introduce the original of a writingrecordingorphotograph if you are proving content.
                    2. What are writings, recordings, and photographs?
                      • 1002(1) – writings and records are letters, words, or numbers, or their equivalent in some physical form.
                      • 1002(2) – photographs are still photographs, x-rays, films,, videotapes, and motion pictures.
                        • sculpture (probably not)
                        • music written out (probably)
                        • recording of live music (probably)
                      • What about writing that is on something – Duffy –
                        1. Facts – FBI agent testifies that suitcase found in stolen car had shirt imprinted with DUF. Duffy (the Δ) objected on best evidence grounds – his argument is that the agent is testifying to the content of the writing and thus the writing needs to be introduced.
                        2. Holding – court says you don’t have to introduce the shirt. Why?
  •  Rule – when the item is both a writing and a chattel, the court has discretion to treat it as either.
  • What is a chattel? Answer – basically anything (anything that isn’t a writing, recording, or photograph)
  • The idea here is that the shirt was a writing+.
  •  Other factors considered in this case
  • There is little doubt what the content of the statement was because (short writing, easy to remember, low risk of mistake, etc).
  1. What is the original?
    • Rule 1001(3) – defines an original as the writing itself or any counterpart intended to have the same effect by a person executing or issuing it.
      • Photographs – original includes the negative or any print wherefrom.
      • Computer data – any accurate printout.
    • Copies “intended to have the same effect”
      • Problem 14(b) – doctor gives a child a photocopy of adoption papers naming her birth mother, despite promise to keep information confidential.
        • Evidence offered – the photocopy of the adoption papers.
        • Issue – is there a best evidence problem?
          • Clearly the doctor didn’t issue or execute the actual document. However…
          • The photocopy is the original or intended as such by the person issuing or executing it.
        • Examples of acceptable copies that are intended to have the same effect
          • Copy of contract executed in duplicate;
          • Copy of a sales receipt given to customer;
          • Copy of receipts submitted to employer for reimbursement.
            • Interesting – you get a food receipt and make a copy of it and give the copy of the receipt to your employer for reimbursement.
              • In a dispute with the restaurant, the receipt is the original.
              • In a dispute with your employer, the copy of the receipt is good enough because you resented it to your employer as having the same effect as the original.
  1. When are you proving content?
    • Answer – when you rely on the writing. If you are not relying on the writing because the person has knowledge of the writing, then you are not proving content.
      • So, you are NOT proving content when the witness has personally observed an event that has been recorded.
    • Example – Myers – prosecutor offers the testimony of a witness who heard the Δ testify in order to prove perjury.
      • Holding – it is okay to prove through a witness and not through the trial transcript BECAUSE you are not proving the “content” of the message because the witness has personal knowledge.
    • Example – silence – Problem 14j –
      • By definition – you are not proving content when the witness testifies that writing do NOT contain some information.
      • g. unreported burglary – custodian testifies that police records contain no burglary report to prove that π in insurance case failed to report.
        • This seems like a best evidence problem but it is not. Why?
        • Answer – it is okay to testify (rather than submit documents) to prove that the writings do not contain some information.
        • Rationale for this approach? Practicality – it would be impossible to produce all the records that would possibly have the information on them. So, rather than produce all the documents, just have someone testify that has personal knowledge.
      • So, when you have independent personal knowledge of some event, you do not have to produce the writing, recording, or photograph.
    • When are you proving content – some examples
      • Informant testifies to recorded conversation? –
        • NO; there is no best evidence problem because witness has personal knowledge (witnessed the conversation).
      • Officer testifies to obscenity of movies? –
        • YES; there is a best evidence problem. The movies must be introduced. The officer learned the information from the writing or viewing, so s/he does not have personal knowledge and thus the tape must be introduced.
      • Bank officer testifies to ATM surveillance video? –
        • YES; there is a best evidence problem IF the bank officer did NOT personally observe the scene.
        • Interesting issue – what if it is an automatic camera recording and the security officer is watching on a monitor? Hmm, unclear; probably don’t need to offer the video.
      • Doctor testifies to x-ray findings? –
        • YES, there is a best evidence problem. The doctor is unable to actually see what the x-ray shows (doctor doesn’t have personal knowledge of what is insider the patient).
        • HOWEVER, Rule 703 – expert testimony – allows the doctor to testify to things that are not admissible.
  1. Duplicates –
    1. Admissibility of duplicates – Rule 1003 – 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.
      • Rule – duplicates are as good as originals UNLESS (1) there is a genuine issue as to the original’s authenticity or (2) it would be unfair to admit the duplicate.
    2. What is a duplicate?
      • 1001(4) – duplicates include photocopies and other accurate reproduction techniques.
      • What isn’t a duplicate? A copy that is NOT a trustworthy copy (e.g. a copy produced manually)
    3. When doesn’t an original have to be produced?
      • Lost or destroyed (1004(1))
        • Unless destroyed in bad faith by propnent
      • Unobtainable (1004(2))
      • Control of opponent (1004(3))
      • Public record (and certified correct copy produced) (1005)
      • Original is voluminous (and summaries offered) (1006)
      • Opponent admits(in writing or testimony) (1007)
    4. Rationales for the best evidence rule
      1. risk of error – when a witness is quoting in testimony, the witness’s testimony is subject to error. In written documents, though, even the slightest variation in wording can make a legal difference; that is why it is written down.
      2. manual copying (by scribes) is often inaccurate.

Table part29
1. Are you really proving content?
• If no, then no best evidence problem.
o This occurs if the writing is incidental (witness has personal knowledge)
2. If yes (you are proving content), are you offing the original?
• If yes, then admissible (Rule 1002).
3. If no, are you offering a copy (duplicate, manual copy, etc.—not oral testimony)?
• If no, back to the chart…
• If yes, was it a print from an original negative OR was it an accurate computer print out OR was it intended to have the equal effect of the original?
o If yes, then it is an original for purposes of best evidence rule and is admitted (Rule 1001(3)).
o If no (the copies do not qualify as an original), then is it a duplicate (non-manual, authentic, original, fair (e.g. whole document, relevant portion of the document))?
 If yes, then admissible (Rule 1001(3)).
 If no, back to chart…
4. Was the original lost or destroyed (not in bad faith by party propend)?
• If yes, then admissible (1004(1)).
5. If no, is the original impossible to get?
• If yes, then admissible (1004(2) and 1005).
6. If no, does the opponent have it and were they put on notice?
• If yes, then admissible (1004(3)).
7. If no, does the opponent admit in writing or testimony (stipulate)?
• If yes, then admissible (1007).
8. If no, is it a collateral issue (not closely related to a controlling issue)?
• If yes, then admissible (1004(1)).

  1. Couple of concluding notes on best evidence rule –
    1. If someone wrote the document themselves, they have personal knowledge and they can testify to the documents contentsIf someone actually writes the document, they can testify to what they actually wrote; they personally witnessed the creation of the document.
    2. No “second best evidence” rule – if you can prove the original is lost or destroyed or cannot get the original or opponent admits or collateral issues, et. then there is no second best evidence rule. Anything is okay (copy, oral description, testimony, etc.). Once the original is tainted, it’s fair game.
    3. What is the standard of proof? This is a prerequisite to admissibility and the judge has to decide whether the evidence is admissible. The judge can consider inadmissible evidence and the judg should admit the evidence IF it is proven by the preponderance of the evidence.
      1. Practically, judges are likely to apply a conditional relevance analysis and admit if “a reasonable juror could find…” BUT technically, the standard is preponderance of the evidence.
    4. Issue spotter decision tree
      1. What are you trying to prove
        1. Substance
        2. Hearsay – “truth of the matter asserted”
        3. Character evidence
        4. Best evidence
        5. Does it violate a categorical rule of exclusion
      2. Is it relevant?
        1. Don’t spend too long on this; is it relevant and move on.
        2. Material?
        3. Logically relevant?
        4. Conditionally relevant?
          1. If it depends on the existence of some fact; some precondition has to be met for logical relevance to be obtained (e.g. authentication)
          2. Authentication
            • Any time you see a document consider:
              • Authentication
              • Best evidence
              • Hearsay
            • This is not necessarily limited just to documents, though.
          3. Does the witness has personal knowledge
            1. This doesn’t really involve much analysis BUT it leads you toward questions that uncover other issues.
              1. Lack of personal knowledge helps you to recognize indirect or hidden hearsay.
            2. only really need to mention this if it is violated
          4. Is it hearsay
            1. hearsay exceptions
            2. use the hearsay flow chart
          5. Is it an opinion (Lay/Expert)
            1. Is it a witness’s opinion?
            2. consider differing rules for lay and expert witnesses
          6. Does it concern character/credibility
            1. Anytime you are using prior acts or character to prove action in conformity with that character, you have a character issue
            2. Character and credibility? (sometimes this is obvious, sometimes not so much)
              1. opinion about a person
              2. evidence about a person that is not an element of the crime
              3. prior bad acts
            3. sometimes not so obvious
              1. how has a person behaved previously
            4. Likes to bury these in exam questions.
          7. Is it quoting something (best evidence)
            1. Are they quoting a writing, recording, or photograph?
            2. notice – everything through best evidence is about reliability, trustworthiness, trust in evidence, etc. Past this point, we are looking at fairness and policy.
          8. Is it privileged/excluded for policy reasons (privilege, categorical rules of exclusion)
            1. Is it a privileged/excluded for policy reasons (non-truth seeking reasons)
            2. g. Categorical rules of exclusion (settlements, medical payments, plea bargains, insurance)
          9. Does the prejudicial effect outweigh?
            1. Does the prejudicial effect outweigh the probative value of the evidence
            2. This applies in all cases (403 prejudice considerationsmisleadingwaste of time)
            3. THE ONLY TIME that prejudice doesn’t matter(admissible and don’t apply any prejudice test)?
              1. Impeachment in prior crime that shows dishonestly.
              2. Even in previous sex crime history, still apply a prejudice test, even if it isn’t 403.

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