EVIDENCE OUTLINE

I. Chapter 1: Relevancy [FRE 401-403] A. FRE 401 (Relevant Evidence)—Evidence is relevant if:

1. (1) It has any tendency to make a fact more or less probable than it would be without the evidence, and

2. (2) The fact is of consequence in determining the action a. “Of Consequence” – fact to be proved may be ultimate, intermediate, or evidentiary

(material)b. Whether an item of evidence possesses sufficient probative value to justify receiving

it in evidencec. The fact to which the evidence is offered to prove does not need to be in disputed. Relevancy exists as a relation between an item of evidence and a what it seeks to

provee. Just because something is relevant does not mean that it is automatically admissible

(refer to Rule 403)B. FRE 402 (General Admissibility of Relevant Evidence): Relevant evidence is admissible unless

any of the following provides otherwise: US Constitution, federal statute, by FRE, or by other rules prescribed by the Supreme Court

1. Evidence that is NOT relevant is NOT admissible2. If probative value is zero, then evidence is NOT admissible UNDER FRE 402

C. FRE 403 (Admissible Evidence Must Satisfy): Although relevant, evidence may be excluded if its probative value is substantially outweighed by: (DCMCWN)

1. Danger of Unfair Prejudicea. An undue tendency to suggest decision on an improper basis, usually, but not always,

an emotional oneb. Consideration should be given to the probable effectiveness or lack of effectiveness

of a limiting instructionc. Unfair surprise can be a ground for exclusion, but it is usually coupled with the

danger of prejudice and confusion of the issues—granting of a continuance is a more appropriate remedy than exclusion

d. It is unfairly prejudicial if it appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case

2. Confusion of the Issuesa. Evidence is excluded if it would tend to distract the jury from the proper issues

3. Misleading the jurya. Often refer to the possibility that the jury might attach undue weight to the evidence

i. If it distorts or misrepresents underlying evidence (demonstratives) b. Considerations of undue delayc. Waste of timed. Needless presentation of cumulative evidence

4. FRE 104(b): Conditional Relevancy—When the relevance of evidence depends whether a fact exists, proof must be introduced sufficient to support the fact does exists. The court may admit the proposed evidence on the condition that the proof be introduced later.

a. Ex: Evidence that the killer owned a red hat with a blue feather. In a murder trial, this evidence would be significant circumstantial evidence, however, the relevance of hat

ownership is only apparent if there is testimony from an eyewitness who saw the killer wear this type of hat

i. If the proponent fails to produce the eyewitness testimony, the judge will tell the jury to disregard evidence that defendant owns the hat

5. Example Cases: a. A person was convicted of stealing tenderloins and defense introduced evidence that a

co-worker threatened him and wanted him to lose his job. Defendant said it was a set up. Evidence is excluded here because the probative vale of the tenderloins being planted was outweighed by the risk of misleading jury (403)

b. Evidence that is offered to limit the field of possible criminals is relevant on the issue of identity, because the test makes it more probable that defendant was guilty of the crime

6. Real Evidence—physical evidence having, or alleged to have, an actual connection to the events that are the subject of the trial, such as a murder weapon, a substance seized from possession of the accused, or a product alleged to have been broken and caused P’s injury

7. Demonstrative Evidence—includes all tangible items presented at trial that did not have a real connection to the events, but are employed to aid the trier to comprehend testimony or other evidence

a. Ex Case: D murdered his wife, but claimed it was an accident. Photos of the deceased wife were admitted into evidence even though they were disturbing. Court held that photographs were properly admitted, because it is only unfair prejudice if the evidence has an undue tendency to suggest decision on an improper basis, such as an emotional one

8. Two possible resolutions of the circumstances where evidence has one permissible use and another impermissible use:

a. Keep the evidence out to guarantee the jury would not make a wrongful use of the material but would also guarantee that the proper, permitted use of the information would not occur

b. Let the material in and give the jury a cautionary “limiting instruction” telling the jurors to consider the information only with respect to the topic for which it is legitimately admitted

9. Ex Case: Plaintiff offered testimony from two other business owners that at least one person falls a day—offered to show that there was a defect in the sidewalk. Defense objected and it was sustained. Court reversed.

a. When a party seeks to introduce evidence of other accidents over an objection on the ground of relevancy, FRE 401 requires the presiding justice to determine the relevancy of the evidence on the basis of whether there is:

i. Substantial similarity in the operative circumstances between the proffer and the case at bar

ii. Whether the evidence is probative on a material issue in the case; andiii. Meets the analysis under FRE 403

b. Legal Theory/Pleadings Matteri. If negligence is the theory, past occurrences could be used to show notice and/or

opportunity, and a weaker similarity is probably requiredii. If strict liability is the theory, notice and opportunity are irrelevant, and a much

stronger similarity is required to show P’s injury really occurred in the way he or she claims and that the product design was hazardous

c. Accidents that would otherwise be inadmissible on account of dissimilarity may become admissible to impeach a witness’s broad assertions concerning safety

10. Ex Case: GM tried to replicate the plaintiff’s car accident and wanted to admit a demonstrative videotape of a driver who was experienced and knew that the malfunction was going to happen. GM argued that the video should be admissible to show general specific principles and the dissimilarities went to weight and not to admissibility

a. Court said for the video to be admissible, evidence must be substantially similar to the other occurrence

b. GM has the foundational burden to prove substantial similarityc. The evidence was demonstrative evidence, but could turn into real and substantial

evidence that could mislead the juryD. Character (FRE 404, 405, 412-415)

1. FRE 404 (a) Character Evidencea. (1) Prohibited Uses: Evidence of a person’s character or character trait is NOT

admissible to prove that on a particular occasion the person acted in accordance with the character or trait

b. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

i. (A) A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

ii. (B) Subject to the limitations in FRE 412 (Sex Offense Cases), a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

1. Offer evidence to rebut it; and2. Offer evidence of the defendant’s same trait; and

iii. (C) In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut the evidence that the victim was the first aggressor

2. FRE 404 (b) Crimes, Wrongs, Other Acts: a. (1) Prohibited Uses. Evidence of other crimes, wrongs, or acts is NOT admissible to

prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

b. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

i. Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

ii. Do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice

c. The list in (b) is not an exhaustive list – These things let a lot of stuff in that otherwise would NOT be admissible

d. Proof of motive is used to get out of court statements ini. Ex: Person owes me money and hasn’t paid, now they are going to pay—

shows admissible motivee. You can introduce evidence of other acts for the listed purposes and other similar

purposes in 404 (b)f. 404 (b) allows you to tell the story when otherwise, prosecution would not be able tog. Ex: Evidence showed D’s feelings towards dead wife (admissible)

h. Ex: Fear was under other purposes from 404(b)—guy knew lady already killed someone

i. Whenever a defendant testifies, he makes his character an issuej. *If the accused person requests (in a criminal trial), the prosecution must provide

reasonable notice, in advance of trial, of the general nature of any such evidence it intends to introduce, OR during trial if the court excuses pretrial notice on good cause shown

k. The determination must be made whether the danger of undue presence outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under FRE 403

3. FRE 405 (Methods of Proving Character): Once the admissibility of character evidence in some form is established under 404, reference must then be made to 405:

a. By Reputation or Opinion: When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

b. By Specific Instances of Conduct: When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

4. FRE 412 Sex Offense Case- Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition (tries to protect the victim): Serves as an absolute bar, unless you can get to con law issue

a. (A) Prohibited Uses. The following evidence is NOT admissible in any civil or criminal proceeding involving sexual misconduct expect as provided in subsections (b) and (c):

i. Evidence offered to prove that a victim engaged in other sexual behavior; ii. Evidence offered to prove a victim’s sexual predisposition

b. (B) Exceptions:i. Criminal Cases- The court may admit the following evidence in a criminal

case (admissible):1. Evidence of specific instances of a victim’s sexual behavior, if

offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;

2. Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

3. Evidence whose exclusion would violate the defendant’s constitutional rights

a. Discretionary call that is evidence is necessary to satisfy the defendant’s 6th Amendment right to confrontation

ii. Civil Cases: The court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

1. Civil= only admissible if placed in controversy by the alleged victim

2. ACN- Ways that 412 differs from 403

a. Shifts the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence

b. More stringent standard—raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers

c. Puts harm to the victim on the scale in addition to prejudice to the parties

3. MUST DO 403 ANALYSIS5. FRE 413 (Evidence of Similar Crimes in Sexual Assault Cases)- against Defendant

a. (A) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

b. (B) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.

c. (C) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

d. (D) Definition of Sexual Assault. 6. FRE 414 (Evidence of Similar Crimes in Child Molestation Cases)- against Defendant

a. In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant

b. In a case in which the government intends to offer evidence under this rule, the attorney for the govt shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the scheduled date of trial or at such later time as the court may allow for good cause

c. This rule shall not be construed to limit the admission or consideration of evidence under any other rule

d. Defines “child”7. FRE 415 (Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child

Molestation)- against Defendanta. (A) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged

sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in FRE 413 and 414.

b. (B) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.

c. (C) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.

8. Evidence Concerning the ACCUSED in a Criminal Case (Examples) a. General Prohibition Against Character Attack in the Case in Chief:

i. Ex: In a case where a man was convicted of transporting a stolen vehicle across state lines, and his stepson was questioned about a variety of similar crimes that the defendant had committed.

1. Here, under Rule 404(b), the evidence of other crimes is NOT admissible to prove the character of a person in order to show that he acted in conformity

2. Only if the defendant utilizes a character witness, may the government cross-examine or rebut the defense’s use of good character

3. The State cannot turn the stepson into a character witness and use those questions asked to bootstrap into the case evidence of the defendant’s prior convictions which it was prohibited from using in the case-in-chief

4. State can only cross-examine to specific instances of conduct AFTER the defendant has put character into issue through a character witness

b. Defensive Use of Character and Prosecution Responsei. Ex: In a case where a defendant was convicted of disposing a firearm to a

convicted felon (his stepbrother who offered to repair it and sold it to an undercover agent), the defendant offered as a witness someone who worked with him for 20 years. The witness offered testimony as to defendant’s good reputation for truthfulness and lawfulness. During cross-examination, State asked witness had he heard that the defendant lied before grand jury and was sentenced to prison.

ii. Under FRE 405(a), when the defendant chooses to offer character evidence of pertinent character evidence or favorable character traits, the Government may challenge the defendant’s character witness by cross-examining them regarding their knowledge of “relevant specific instances” of the defendant’s conduct.

iii. Before Government can utilize “specific act questioning,” it has to meet two requirements:

1. Must demonstrate a good faith factual basis for the incidents raised during cross-examination of the witness

a. Prosecutor must posses a good faith belief that the described events are of a type likely to have become a matter of general knowledge, currency, or reputation in the community

i. Private matters would be prejudicial to defendant and not allowed

2. The incidents inquired about must be relevant to the character traits at issue in the case

iv. Here, the prior indictments were NOT known to the community (testifying to grand jury is not public)

v. Prosecutor can:1. Introduce its own witnesses to testify using reputation or opinion

evidence; or2. Cross-examine and inquire into relevant specific instances of conduct

a. Good faith requirement must be met and must be relevant to character traits at issue

c. Other Crimes, Wrongs, or Acts Admissible for a Non-Character Purpose:

i. Ex: Court allowed introduction of evidence as to the defendant’s drug activities and his former girlfriend’s knowledge of them as well as evidence of prior domestic violence. Defendant had murdered his girlfriend believing that she was working with the police to bust him on his drug activity and tell them about prior physical abuse.

ii. Evidence was admitted but limited to the purpose of establishing both motive and the background of the relationship—events that are not too remote in time to the crimes charged in the indictment

iii. Court believed the probative value of the motive evidence strongly outweighed any unfair prejudicial impact

iv. FRE 404(b) only applies to “extrinsic evidence”:1. Evidence of bad acts is not extrinsic evidence under 404(b) if it is:

a. An uncharged offense which arose out of the same transaction or series of transactions as the charged offense

b. Necessary to complete the story of the crime; orc. Inextricably intertwined with the evidence regarding the charged

offense2. Evidence of other acts is “intrinsic” when:

a. The evidence of the other act and evidence of the crime charged are inextricably intertwined; or

b. Both acts are part of a single criminal episode; orc. The other acts were necessary preliminaries to the crime charged

3. Intrinsic Evidence does not implicate FRE 404(b)v. Ex: Government gave notice that it intended to introduce evidence at trial

indicating that the defendant had been convicted in another state of similar crime (kidnapping and sexually assaulting another girl) 11 days prior to the current kidnapping and murder. Testimony of tape-recorded conversation that the defendant approached him about murdering the girl was also sought to be introduced.

vi. RULE: Extrinsic or prior bad act evidence IS ADMISSIBLE under Rule 404(b) if the evidence is:

1. Relevant to some issue other than character2. Necessary to prove an element of the crime charged; and3. Reliable

vii. When a defendant pleads not guilt, it puts his “intent” at issue and makes relevant evidence of prior criminal conduct as long as it is similar

1. Does not have to be identical, only similar enough to be probative of intent

2. Uncharged crimes: the court simply examines all of the evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence

3. Consciousness of guilt= Evidence of flight or escape may be admissible to prove a defendant’s consciousness of guilt, consistent with 404(b)

viii. Ex: Sate wanted to introduce evidence that defendant used same criminal technique to establish his identity

1. Court did not think that allowing this evidence in for identity purposes created undue prejudice, confused the issues, misled the jury or unfairly surprised the defendant as to require its rejection (403)

ix. RULE: Trial court is required, in order to assure a fair trial, to an accused to carefully consider whether the prejudice of other criminal evidence is so great as compared with its relevancy and the necessity for its admission in the particular case as to require its exclusion

x. The government’s argument was that they wanted to introduce evidence to connect the defendant to the crime b showing a unique mode of operation or “signature handiwork”

1. Method of Operation= may be used to establish identity when such evidence is sufficiently distinctive to earmark the crime as the work of the defendant—requires a high degree of similarity

xi. Ex: In a case where two professors got robbed near the same campus and from behind with the thief saying the same thing, the Court held that the evidence in the record did not support the admission of the testimony as a method of operation (modus operandi)

1. This was a common robbery and nothing unusual about it2. The court said the testimony should have been excluded because its

probative value was outweighed by the potential for prejudiced. Sex Offenses

i. Defendant was charged with sexual abuse of an eleven year old. Government tried to bring in evidence of defendant’s prior uncharged sex offenses against another minor under FRE 414.

1. Court admitted the evidence and held that FRE 413, 414, and 415 are general rules of admissibility in sexual assault and child molestation cases and SUPERSEDE the restrictive aspects of FRE 404(b)

2. Evidence offered under FRE 414 is still subject to the requirements of FRE 403

3. Propensity evidence is allowed here because there is a unique stigma of sexual assault cases, particularly when they involve children, so we embrace propensity evidence to protect children

ii. Ex: Defendant was charged for sexually abusing his daughter. Government sought to introduce evidence of two similar acts against 12 year old (plead guilty) and 16 year old (not charged), which was 10 years prior to this. Defendant pled guilty for a different charge to be dropped.

1. Court admits the prior convictions under FRE 413 and FRE 403, but the uncharged offense was not admissible due to the FRE 403 balancing test

2. Defendant argues that FRE 413 is unconstitutional, because:a. Violates his due process (fairness)

i. Court rejectsb. Violates equal protection clause

i. Court says sex-offense defendants are NOT a suspect class and thus will only be afforded rational basis review

3. Propensity Evidence is admitted, because:a. If it’s not let in, then you have the offender and the child on equal

footing and it becomes whose word over whoseb. Exceptional probative value in a defendant’s alleged sexual

interest in children4. Court tries to draw a line and let prior convictions in but not the

uncharged offenses (403 and 413 analysis)

iii. Ex: In a later case, Court held that evidence of prior uncharged misconduct is INADMISSIBLE for the sole purpose of showing the propensity of the defendant to commit such acts

1. It violates one of the constitutional protections vital to the integrity of justice system

2. Evidence of uncharged crimes violates defendant’s right to be tried for the offense for which he is indicted

3. Need to avoid encouraging the jury to convict the defendant because of his propensity to commit such crimes without regard to whether he is actually guilty of the crime charged

9. Evidence Concerning the VICTIM in a Criminal Case (Examples) a. Homicide and Assault:

i. Ex: During trial, evidence testimony was admitted quoting the victim as saying “I am going to kill you—I be the second one to kill” – making references to a prior killing by the witness. Evidence was admitted under 404(b).

1. Defendant thought he could use proof of the prior conviction to show the victim’s character, but Rule 405(a) limits the nature of evidence permitted for proof of character to opinion and reputation testimony.

2. Defendant also sought to introduce the prior conviction to “demonstrate fear” and “the state of mind” of defendant at the time of the incident

a. Although there is no specific reference in the FRE to admissibility for this purpose, the court says that fear and state of mind sort of look like intent or knowledge

b. RULE : If it can be established that the accused knew at the time of the alleged crime of prior violent acts by the victim, such evidence is relevant as tending to show a reasonable apprehension on the part of the accused – not barred by 404 or 405 because this is not the circumstantial use of character evidence to prove conduct (state of mind is not barred under 404 or 405)

3. Case demonstrates that 404 and 405 must be read together4. Evidence of the victim’s aggressive character may be admissible to

establish that the victim was the aggressor. However, FRE 405 limits the type of character evidence to reputation or opinion evidence unless the character or trait is an essential element of the charge, claim or defense

b. Rape and Sexual Assaulti. Ex: Defendant wants to admit evidence of a victim’s prior similar sexual

experience, which occurred two years before the crime at issue. Defendant offered the evidence to show that the young victim had prior independent knowledge of similar acts, which constituted the basis for the present charge.

1. Court said the evidence was properly admitted under FRE 412 to show knowledge (in 404b);

2. It was not calling into question her character, but rather to dispel an inference which the jury may well draw otherwise from the circumstances that a 6 year old would be unable to describe the occurrences in her testimony unless they had in fact taken place

3. The evidence was offered to show knowledge of such acts rather than lack of chastity

ii. Ex: A thirteen-year-old defendant was charged with knowingly subjecting a mentally defective girl to sexual penetration. Defendant sought to cross-examine victim’s doctor about her past sexual experiences and use of birth control pills, but defendant was not allowed.

1. Defendant was entitled, under the due process and confrontation clauses, to elicit such evidence to show that he did not know he was having sex with a mentally incompetent person (Defendant had to know about it)

2. Court said Defendant’s purpose was not to attack the victim’s character but to explore whether the victim had a basic understanding of the physiological elements and medical consequences of sexual activity (could lead to consent defense)

3. Policy Reasons for FRE 412’s General Exclusion of character and past sexual behavior of a victim of sexual assault

a. Little or no relevance on the issues of the consent and credibilityb. Tends to be misleading and time consuming c. General admissibility of this evidence has deterred significant

numbers of sexual assault victims from reporting or from prosecuting these crimes

10. Civil Cases (Example) a. Ex: Defendant sought to call character witnesses at trial in a civil action

i. Court said the plain meaning of FRE 404(a)(1)’s language limits the exception to criminal cases, making it unavailable in this civil case

ii. Court acknowledged that a small number of courts outside their circuit allow the 404(a)(1) exception to apply in civil cases, but it did not find it persuasive

iii. FRE 404(a)(1) and (2) were amended to clarify that they apply only in criminal cases, and that FRE 404(a)(2) is limited by FRE 412 – you can only make character evidence in a criminal case (not in a civil case)

iv. The plaintiff’s motion to exclude the character witness evidence is granted (because it is NOT to be used in civil cases)

b. When Character is in Issuei. In cases where character evidence is admissible, a party may offer reputation or

opinion testimony in the issue of a person’s character (405(a))ii. Only in cases in which a person’s character is an essential element of a charge,

claim, or defense may a party offer evidence of specific instances of conduct (405(b))

1. Can have specific instances, if litigating character or reputation itselfE. Habit and Routine Practice (FRE 406)

1. FRE 406 (Habit; Routine Practice)—Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice. The Court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

a. Corroboration of the evidence goes to weight of the evidence rather than admissibilityb. The method of proof of habit and routine practice is left to the courts to deal with on a

case by case basis2. Difference between Character and Habit

a. Character: general trait of character (honesty, law abiding, etc.)- Prohibited unless under an exception

b. Habit: consistent method or manner of responding to a particular stimulusi. Semi-automatic

ii. Determined to be more reliable than character, so it IS ADMISSIBLE3. Ex: Man died unexpectedly at age 54 and his treating physicians could not explain the cause of

his death. Autopsy and subsequent investigation into man’s allergist, Doctor, revealed that for more than 20 years, Doctor regularly prescribed the man medication which he was lead to believe were antihistamines but were in fact steroids. Evidence revealed that over 4 year time span, the Doctor purchased 1.7 million tablets containing steroids but told other patients they were antihistamines and labeled the boxes antihistamines. Plaintiff sought to introduce testimony of 5 of Doctor’s former patients under FRE 406.

a. Rule: Before the former patient evidence could be properly admitted as habit evidence, the witnesses must have some knowledge of the practice and must demonstrate this knowledge prior to giving testimony concerning routine practices

b. Here, the 5 witnesses had never seen the Doctor with another patient—they could not testify as to the doctor’s method of treating others, but rather they were testifying to isolated events (each patient may have had different symptoms)

c. One of the concerns over the reliability of habit testimony is that the conduct at issue may not have occurred with sufficient regularity making it more probable than not that it would be carried out in every instance or in most instances

d. The burden of establishing the habitual nature of the evidence rests on the proponent of the evidence

F. Subsequent Remedial Measures (FRE 407)1. FRE 407 (Subsequent Remedial Measures): When measures are taken that would have made

an earlier injury or harm less likely to occur, evidence of the subsequent measures is NOT ADMISSIBLE to prove:

a. Negligenceb. Culpable Conductc. A defect in a product or its design; ord. A need for a warning or instruction

2. Evidence of the measures IS ADMISSIBLE to prove (other purposes):a. Impeachmentb. Ownershipc. Controld. Feasibility of precautionary measures (if controverted—“could not have made it any

safer”)3. Main reason for excluding the evidence rests on social policy of encouraging people to take, or

at least not discouraging them from taking, steps in furtherance of added safety4. Evidence of measures taken by the defendant prior to the event causing injury or harm do NOT

fall within the exclusionary scope or FRE 407, even if they occurred after the manufacture or design of the product

a. Subsequent refers to the time of the accident or injury to the plaintiff5. Evidence of subsequent measures that are not barred by FRE 407 may still be barred/excluded

based on FRE 403 (when the dangers of prejudice or confusion substantially outweigh the probative value of the evidence)

6. Ex: Woman was raped in a hotel room while alone. At trial, she argued that security measures were insufficient. Defendant argued that they did everything in their control to make hotel secure (did not have peepholes or safety chains—hotel said it would provide a false sense of

security). Woman wants to introduce evidence that, after the incident, the defendant installed peepholes and safety chains on all the hotel doors.

a. Because the testimony regarding the installation of security devices controverted the feasibility of the devices, evidence of the subsequent remedial measures was admissible to rebut the testimony that the defendants did everything they could to provide security (Not to prove liability)

G. Compromise and Offers to Compromise (FRE 408-410)1. FRE 408 (Compromise Offers and Negotiations):

a. (A) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

i. Furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and

ii. Conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority

b. (B) Exceptions. Evidence of the following is admissible (for another purpose):i. Proving a witness’s bias or prejudice

ii. Negating a contention of undue delayiii. Proving an effort to obstruct a criminal investigation or prosecution

c. ACN- Two grounds for this rule:i. Evidence is irrelevant since the offer may be motivated by a desire for peace

rather than from any concession of weakness of positionii. Promotion of the public policy favoring the compromise and settlement of

disputesd. Ex: Defendant leased premises from plaintiff and after the term, a letter was sent to

defendant, which presented an itemized list of damages said to have been caused by defendant. Defendant’s response accepted responsibility for some but refused responsibility for others.

i. Court found this response in no way suggested that it was an offer to compromise; Instead, it was an admission of liability with respect to some items and a disclaimer of liability with respect to others, which actually shows its unwillingness to compromise

ii. Three Alternative Theories to 408—for the exclusion of evidence related to settlement negotiations:

1. Privilege—grounded in privilege as protecting as confidential ALL overtures of settlement made to the opposing party—distinct admissions are NOT admissible

a. Extrajudicial statements are to be encouraged and that privacy of communication is necessary to encourage them

2. Relevancy—offer for compromise expresses merely a desire for peace, not a concession of wrongdoing (Distinct Admission Rule)

a. If an express admission is made, it is receivable, even though it forms part of an offer to compromise

b. If a clear, unequivocal admission is made without qualifying it as a hypothetical admission for purposes of compromise, and it

cannot be inferred that the admission is inextricably connected to an offer to compromise, it is admissible

3. Contract Notion—express reservation of secrecy assimilates the offer to a contractual offer so if the terms are not accepted the offer is null and can have no evidential effect

iii. Under FRE 408, ALL evidence would be inadmissible (keep confidential)2. FRE 409 (Offers to Pay Medical and Similar Expenses): Evidence of furnishing, promising

to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury

a. Such payment is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person

b. Contrary to FRE 408, FRE 409 DOES NOT extend to conduct or statements that are not a part of the act of furnishing or offering or promising to pay

i. This is because factual statements may be expected to be incidental in nature3. FRE 410 (Please, Plea Discussions, and Related Statements)

a. (A) Prohibited Uses. In a civil or criminal case, evidence of the following is NOT ADMISSIBLE against the defendant who made the plea or participated in the pleas discussions:

i. A guilty plea that was later withdrawnii. A nolo contendere plea

iii. A statement made during a proceeding on either of those pleas under FRCP or a comparable state procedure; or

iv. A statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea

b. (B) Exceptions. The court may admit a statement:i. In a proceeding in which another statement made during the same plea or plea

discussions has been introduced, if in fairness the statements ought to be considered together; or

ii. In a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present

c. Plea Discussions include:i. Offers of immunity

ii. Dismissal of all chargesiii. No prosecutioniv. Offers to allow pleas to a lesser or related offenses

4. Ex: Defendant’s house was searched and he made certain statements to a DEA agent at the time of the initial search and argued that those statements were made in the course of plea negotiations and should be excluded under FRE 410(4).

a. Court held that the DEA agent had NO actual or apparent authority to negotiate so the statements were admissible as evidence

b. If the statements were made by a prosecutor, they would NOT have been admissiblec. If to a police offer, then the statements would be admissibled. Actual authority may be either express or implied—if the officer had made an affirmative

statement that he is an agent of the prosecutor, then the statements would have been inadmissible

H. Liability Insurance (FRE 411)

1. FRE 411 (Liability Insurance): Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted:

a. Negligently or otherwise wrongfully2. Evidence is admissible to prove another purpose such as:

a. Proving a witness’s bias or prejudice b. Agencyc. Ownership or Control

3. Basically, whether someone has insurance is irrelevant to whether they are negligent or not4. Knowledge of the presence or absence of liability insurance would induce juries to decide cases

on improper grounds5. Ex: Someone denies ownership of a car, then evidence that the person is insured on the car is

relevant to prove ownership 6. As an aspect of the Collateral Source rule, evidence that the plaintiff was covered by health,

disability, or accident insurance is also normally inadmissible 7. Ex: Plaintiff was hit by a truck while working on the highway and was hospitalized under the

care of defendant. Defendant performed surgery but severe complications arose. Plaintiff’s expert witness said the cause of the complications were due to defendant’s negligence. Defendant offered an attorney, who was employed in part by the same liability carrier who represents the defendant in this action, to rebut this testimony by saying that Plaintiff’s expert witness had a bad reputation for truth and veracity in the area.

a. FRE 411 DOES NOT require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, control, or bias or prejudice of a witness

b. We reject evidence of liability insurance to prove fault/liability i. Bias in the case above

c. Evidence that the defendant’s insurer employed the expert witness was clearly admissible to show possible bias of the witness

d. Court said the probative value of the evidence far outweighs any danger of unfair prejudice (FRE 403)

II. Chapter 2: Hearsay [FRE Article VIII] A. Definition (FRE 801(a)-(c))

1. Factors to be considered in evaluating the testimony of a witness are:a. Perception- you don’t get a good picture of the actual witness’ perceptionb. Memory- no way of finding out how good the declarant’s memory isc. Narration- the more complicated the original testimony the more it gets screwed upd. Sincerity- can’t question the sincerity of the declarant

2. Common law general rule is to exclude hearsay evidence, with exceptions3. FRE 801. Definitions; Exclusions from Hearsay

a. (a) Statement. Statement means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion

i. Nothing is an assertion unless it is intended to be oneii. Some nonverbal conduct, such as the act of pointing to identify a suspect in a

lineup, is clearly the equivalent of words, asserting in nature, and to be regarded as a statement

b. (b) Declarant. Declarant means the person who made the statementc. (c) Hearsay. Hearsay means a statement that:

i. The declarant does not make while testifying at the current trial or hearing; and

ii. A party offers in evidence to prove the truth of the matter asserted in the statement

B. FRE 801(d) Statements that are NOT Hearsay must meet the following conditions:1. A Declarant-Witness’s Prior Statement (FRE 801(d)(1))—The declarant testifies and is

subject to cross-examination about a prior statement, and the statement:a. Is inconsistent with the declarant’s testimony and was given under penalty of perjury at a

trial, hearing, or other proceeding or in a depositionb. Is consistent with the declarant’s testimony and is offered to rebut an express or implied

charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

c. Identifies a person as someone the declarant perceived earlier2. An Opposing Party’s Statement (FRE 801(d)(2))—The statement is offered against an

opposing party and is:a. The party’s own statement, in either an individual or representative capacityb. A statement of which the party has manifested an adoption or belief in its truthc. A statement by a person authorized by the party to make a statement concerning the

subjectd. A statement by the party’s agent or employee concerning the matter within the scope of

agency or employment made during the existence of the relationshipe. A statement by a co-conspirator of a party during the course and in furtherance of the

conspiracyi. The statement must be considered but does not by itself establish the declarant’s

authority under (c), the existence or scope of the relationship under (d), or the existence of the conspiracy or participation in it under (e).

3. Ex: Only issue of substance at trial for robbery and conspiracy was identification. At trial, detective testified that while interrogating out-of-court co-conspirator, he made a statement and as a result of that statement he arrested Defendant.

a. Court says this is hearsay, even though the out-of-court declarant was not quoted directly. Hearsay can be something indirect as well.

b. “Indirect hearsay” = a statement of what someone not in court had told the witness—still hearsay!

c. Cross-examination could not test the basis of the statement made by out of court declarant or to uncover any motive he might have had to lie about defendant’s involvement, because he was not available at trial

d. The detective’s testimony had no relevance except to show that the out of court declarant had told the detective that the defendant was involved in the robbery

4. VERBAL ACTS a. Ex: Under the terms of a lease, Plaintiff was to be given 2/5 of the corn, but the bank

auctioned off the farm and the Plaintiff is now arguing that his corn was converted. Plaintiff sought to introduce evidence of an out-of-court conversation where the Defendant pointed to the corn and said that certain portion of the corn belonged to the Plaintiff.

i. Court admitted the out-of-court evidence, because if the issue lies solely in the question of whether the statement was made, it is NOT meant to prove the truth of the matter asserted (ultimate liability) and falls outside the scope of hearsay.

ii. In order to show conversion, the Plaintiff had to show that he owned the corn, and the statement was necessary to show that he did in fact own the corn

iii. “Verbal parts of an act” = Admitted to show that these words were indeed spoken and they aid in giving legal significance to the conduct of the parties – The act was the division of corn, and the statements were verbal parts of the act!

iv. Gifts, oral contracts, libel – are convenient examples of what a verbal act is!v. Liability and other substantive issues must still be proven – this just shows that a

statement was indeed made5. EFFECT ON STATE OF MIND OF LISTENER OR READER

a. Ex: Defendant was convicted of murdering his wife and wanted to introduce as evidence statements that had been made to him regarding his wife’s infidelities immediately prior to the killing. Defendant was going to testify as to what the third party told him, hoping to prove he was in an excited mental state, in order to bring the charge down to manslaughter.

i. Whenever an utterance is offered to show the state of mind, which ensued, in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned

ii. Was not being offered to prove the truth of the matter asserted, but rather to show knowledge/state of mind

iii.  Notes demonstrate that evidence can be brought in to show:1. Notice or knowledge2. Good faith or bad faith3. Motive

6. IMPLIED ASSERTIONS (are NOT hearsay)a. Ex: While conducting a search of Defendant’s home, government agents answered the

telephone several times. Callers stated directions for placing bets on various sporting events. The government sought to introduce this evidence to show that the callers believed that the premises were used in betting operations.

i. Court admits the evidence, holding that the bet placing was non-assertive conduct; it was simply saying that bets could be placed here and not attesting to any criminal activity.

b. FRE 801— implied assertions are NOT hearsay:i. One of the main reasons hearsay is excluded is because the veracity cannot be

tested by cross-examination—however, with respect to non-verbal assertions, the declarant’s sincerity is not involved

ii. The underlying belief is some cases is self-verifying: There is frequently a guarantee of trustworthiness of the inference to be drawn because the actor has based his actions on the correctness of his belief (his actions speak louder than his words)

1. Ex: Miner that eats lunch in a mine is only saying that he is hungry or wants to eat lunch, etc. He is not saying anything about the safety of the mine.

a. Wright would have said that this act was going to the safety of the mine—he was eating there because it was safe

2. Hypo: An inspector at an airport security station runs a metal detector over a passenger and says, “Go on through.” In the absence of the inspector, would testimony of this event be objectionable hearsay, if offered for the proposition that the passenger did not have a gun on him at that time?

a.  If it was an assertion, then hearsay would apply and it would be excluded.

b. If it was an implied assertion, hearsay would not exclude it (would be admissible)

3. When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended.

a. The burden is on the party claiming that the intention existed.c. Silence of a person will normally be non-hearsay under Rule 801 since silence is non-

verbal conduct and silence would not normally be intended as a substitute for verbal expression

7. CIRCUMSTANTIAL EVIDENCE OF DECLARANT’S STATE OF MIND a. Ex: Defendant charged with sexual assault of a 7-year-old girl. Testimony from the

victim where she described matters and features of the exterior and surrounding of the house in which the act occurred as well as the room and various articles and the location of those articles. A month after allegations, everything in Defendant’s apartment is consistent with the testimony given by the girl.

i. Court said the statements were admissible in so far as the fact that she made the statements and had knowledge as to articles and descriptive features which, as proven by other evidence, were in fact in or about the house.

b. Testimony could NOT be used to show that the girl was in fact at the Defendant’s house and this Defendant was the one who abused her

c. Ex: A reference by a supervisor to “Crowley’s little stalker,” when offered to show management’s awareness of a co-worker’s behavior, and not to show that the co-worker was actually a stalker, was NOT hearsay

8. PRIOR STATEMENT BY WITNESS – FRE 801(d)(1)a. If the witness admits on the stand that he made the statement and that it was true, he

adopts the statement and there is no hearsay problemi. The problem arises when the witness on the stand denies having made the

statement or admits having made it but denies its truthb. All sections of 801(d)(1) require that the witness-declarant testify at the trial or hearing

and be subject to cross-examination concerning the prior statementc. INCONSISTENT STATEMENTS – FRE 801(d)(1)(A)

i. Rationale : In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less like to be influenced by the controversy that gave rise to the litigation

ii. Under the rule, prior inconsistent statements are admissible as substantive evidence and for impeachment purposes

1. Statements not qualifying as substantive evidence may be admitted for impeachment purposes, but a limiting instruction must be given upon request, “to explain to the jury that the impeachment evidence is only to reflect on the witness’ credibility and is not to be used to establish facts”

iii. A party may not call a witness for the primary purpose of impeaching the witness with prior statements that would be otherwise inadmissible!

iv. Ex: Defendant convicted of transporting 11 illegal immigrants. Shortly after being arrested, the immigrants admitted the scheme to an Agent. However, at trial

each of the immigrants exculpated Defendant stating that he did not know they were hiding in the car.

1. Evidence of the prior inconsistent statements was properly admitted because an interview by an immigration officer, given under oath and reduced to writing, constitutes an “other proceeding” for purposes of 801(d)(1)(A)

v. Statements given at a police station interrogation would not qualify as statements given at a prior hearing, proceeding, etc. -- could only be used for impeachment

d. CONSISTENT STATEMENTS – FRE 801(d)(1)(B)i. Ex: Tome was charged with sexually abusing his 4-year-old daughter.

Government said that Tome committed the sexual acts while the child was in his custody, then later revealed while the child was spending vacation time with her mother. Tome argued that the allegations were made up so the child would not be returned to him. Government produced 6 witnesses who testified about statements made by the child describing the sexual assaults, which were offered into evidence. The testimony of these 6 people is consistent with the declarant’s testimony!

1. When a statement is offered under 801(d)(1)(B)- that statement is admissible only when made BEFORE the charge of recent fabrication or improper motive arose.

ii. Common law rule = any statements made after the alleged fabrication were inadmissible

e. IDENTIFICATION OF A PERSON – FRE 801(d)(1)(C)i. Ex: Sharpe identified Defendant from a display of photographs prior to trial. At

trial, she was unable to identify the Defendant in the courtroom. When she was shown the photograph display, she testified that she had previously identified one of the bank robbers from the group of pictures and then picked out the photo that she had selected (Defendant) and it was admitted into evidence. Agent who prepared the photo spread then testified as to the way in which he prepared the spread and confirmed that Sharpe had identified Defendant’s picture shortly after the bank robbery.

1. 801(d)(1)(C) DOES apply to identification by photograph2. It seems clear from the text and the legislative history of the Rule

that testimony concerning extra-judicial identifications is admissible regardless of whether there has been an accurate in-court identification

ii. Ex: Foster was brutally beaten with a metal pipe, fracturing his skull and hospitalizing him for a month. Although his memory was impaired, Foster improved and was able to describe the attack as well as name the Defendant and clearly identify him in photographs. At trial, Foster testified about the attack and that he clearly remembered identifying Defendant. On cross-examination, however, he admitted that he was unable to remember if any of the numerous hospital visitors had suggested to him that Defendant was the assailant. Defendant claims that he is being denied his right to cross-examination.

1. The Confrontation Clause of the 6th Amendment or Rule 802 does NOT bar testimony concerning a prior, out of court identification when the identifying witness is unable, because of memory loss, to explain the basis for the identification

2.  Memory loss goes to the WEIGHT of evidence, not admissibility3. Court said the 6th Amendment guarantees the opportunity to cross-

examine, not the best cross-examination or even a successful one9. ADMISSION BY PARTY-OPPONENT – FRE 801(d)(2)

a. INDIVIDUAL – 801(d)(2)(A) – Not hearsay if it is the party’s own statement, in either an individual or representative capacity

i. Ex: Plaintiff and husband were driving and got hit by a train. Husband died and child was injured so family brought suit. After the accident, but prior to trial, the 6-year-old child said that her mom and dad were fighting and when she told them a train was coming they told her to be quiet.

ii. Statements were admissible under 801(d)(2)(A) because they were sufficiently against the child’s interest (injuries caused by RR negligence) at the time of the trial. It does not have to be shown that the statement is against interest when made.

iii. Court said that the admissibility of statements of a party-opponent is grounded not in the presumed trustworthiness of the statements, but on a kind of estoppel or waiver theory, that a party should be entitled to rely on his opponent’s statements -- result of the adversary system

iv. Difference between 801 “Admissions” and 804 “Statements Against Interest”:1. Admissions = non-hearsay and do not have to be made against interest

when made2. Statements against interest = under 804, when the declarant is

unavailable and are hearsay; must be against interest when madeb. ADOPTIVE ADMISSIONS – FRE 801(d)(2)(B) – Not hearsay if it is a statement of

which the party has manifested an adoption or belief in its truth- The government (police) can adopt/manifest its belief, and then can be admitted into evidence as an admission.

i. Adoption or acquiescence may be manifested in any appropriate mannerii. When silence is relied upon, the theory is that the person would, under the

circumstances, protest the statement made in his presence, if untrueiii. Ex: Government provides information given by an informant to get a search

warrant and says their informant is reliable in a sworn affidavit to the US Magistrate. Defendant is charged with drug offenses and wants to prove that Timmy was an occupant at the same residence and sold drugs as well to take some of the liability away from him. Defendant proffered evidence of this fact the statements made by the informant to a detective that is contained in the affidavit supporting the search warrant. The trial judge excluded this evidence on grounds that it was irrelevant and was hearsay.

1. The government adopted informant’s statements that were made for the search warrant; the informant’s statements thus became admissions of the government. (Evidence is admissible)

2. Cannot adopt statements as your own for one purpose, then disavow them for another purpose with no connection to the parties

iv. Ex: Defendant hired a person to kill Moore, who had fathered Defendant’s wife’s child. Witness heard Defendant’s wife say to Defendant “I’m not afraid of you just because you shot Moore.” Defendant knew that at the time of this conversation the wife had a gun and Defendant did not say anything

1. Party offering the statement can produce evidence to support the factual conclusions that defendant heard and understood the

statement, had knowledge of the contents thereof, and was free from any emotional or physical impediment which would inhibit an immediate response

2. Here, the wife was holding a gun at the Defendant so the court said he was certainly not free from impediment

3. His silence, at best a neutral factor, must be weighed against the uncontroverted facts that he knew his wife had a gun, that a heated domestic dispute over another woman was in progress, and that his wife had threatened him with violence minutes before 

c. AUTHORIZED – FRE 801(d)(2)(C) – Person authorized by the party to make a statement concerning the subject

i. Ex: Raymark offered expert witness that argues some stuff about asbestos. Kirk then reveals to the jury that this expert witness in a previous case voiced a different and contradictory opinion.

1. Rule 801(d)(2)(C) requires that the declarant be an agent of the party-opponent against whom the admission is offered, and this precludes the admission of the prior testimony of an expert witness where, as normally will be the case, the expert has not agreed to be subject to the client’s control in giving his or her testimony

ii. Since the expert is not subject to the control of the party opponent with respect to consultation and testimony he or she is hired to give, the expert witness cannot be deemed an agent

iii. When you have an expert that looks more like an employee than they are probably more likely to be an agent of the party-opponent and the testimony would fall under 801(d)(2)(C)

d. AGENT OR SERVANT – FRE 801(d)(2)(D) – 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 – So look for an employee, and if it was within the scope of his employment!

i. Ex: Child was bitten/scratched by a wolf after being pulled under a fence. Plaintiff seeks to admit three statements into evidence:

1. Written note by Mr. Poos to his boss about the wolf biting the childa. Admissible against Poos and Wild Canid because it was against

his interest and made in the scope of employment2. Oral statement by Poos to his boss

a. Admissible against Poos and Wild Canid because it was made against his interest and made in the scope of employment

3. Statements contained in the minutes of a corporate meetinga. Admissible against Wild Canid onlyb. Poos had no knowledge of this and did not participate in the

meeting and the corporation was not his agentc. Did not really need this evidence anyway; already had the same

stuff in the two above forms; repetitive and low probative valueii. Again, if an issue is presented whether the declarant was in fact an agent of

employee of the party against whom the statement is offered, or whether the statement concerned a matter within the scope of the agency or employment, the issue is for the court under Rule 104(a), with proponent having the burden of proof

e. COCONSPIRATOR – FRE 801(d)(2)(E) – Statement by a co-conspirator of a party during the course and in furtherance of the conspiracy

i. Coconspirator statements are a firmly rooted exception to the hearsay rule (Possess adequate reliability)

ii. A statement of one coconspirator is admissible against another member who joined after the statement was made

iii. Ex: Defendant convicted of drug sale/conspiracy. Government sought to introduce the statements of an informant who was working for the FBI. The court established 2 propositions:

1. A court shall consider the contents of a co-conspirator’s statement in determining the existence of the conspiracy and the participation of the declarant and the party against whom the statement is offered

a. Rule 104(a) requires these preliminary questions to be established by a preponderance of the evidence

2. The contents of the declarant’s statements alone do not suffice to establish a conspiracy in which the declarant and the defendant participated

a. The court must consider in addition the circumstances surrounding the statement, such as:

i. Identity of the speakerii. Context in which the statement was made

iii. Evidence corroborating the contents of the statement in making its determination as to each preliminary questions

iv. Here, the conversation was corroborated by independent evidence (friend was there in the car, cocaine was placed in the car, significant amount of money found in the car) to allow the trial court to conclude a conspiracy existed and Defendant participated in it

C. 803 Hearsay Exceptions: The following are not excluded as hearsay, regardless the declarant is available as a witness or not:

1. Present Sense Impression (FRE 803(1)): A statement describing or explaining an event or condition made while or immediately after the declarant perceived it (is admissible)

a. It is restricted considering the time the statement needs to be made (you have to say it almost immediately to bring it in under this exception!).

b. Time : Must be made “immediately thereafter” & permits only a “slight lapse” of time.c. Ex: As a car sped by, Cooper said, “They are going so fast, they must be drunk…we will

probably see them in an accident in a little bit.” i. Statement should have been admitted as a present sense impression because

such impressions have such exceptional reliability as to warrant their inclusion within the hearsay exception of 803(1)

ii. 3 safeguards pertaining to this type of evidence:1. Safe from any error from defect of memory of the declarant2. Little or no time for calculated misstatement3. Statement will usually be made to another (the witness who reports it)

who has equal opportunities to observe and hence check a misstatementiii. Declarant must have personal knowledge of the matter the statement is offered to

prove; BUT the witness’s personal knowledge is immaterial!!!!

iv. Court may redact the portion about being drunk because she did not observe them being drunk

2. Excited Utterance (FRE 803(2)): A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused (is admissible)

a. Circumstances may produce a condition of excitement, which temporarily stills the capacity of reflection

b. Time : Measured by the duration of the state of excitementi. The character of the transition or event will largely determine the significance of

the time factorc. Statement need only “relate” to the startling event or condition, thus affording a broader

scope of subject matter coverage than present sense impressionsd. Ex: Children are struck by a vehicle and an unknown declarant stated to a witness that

she told the city two days ago about a missing stop sign in that locationi. Three conditions must be present for admission of an excited utterance:

1. A startling occasion2. Statement made before time to fabricate3. Statement relating to the circumstances of the occurrence

ii. The only requirement concerning time with respect to admission of excited utterances is the necessity that the statement be made while in a state of excitement caused by the startling event – factors to consider whether the event is sufficiently startling:

1. Lapse of time between the event and the declarations2. The age of the declarant3. The physical and mental state of the declarant4. The characteristics of the event5. The subject matter of the statements

3. Then Existing Mental, Emotional, or Physical Condition (FRE 803(3)): A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will (is admissible).

a. Essentially a specialized application of Present Sense Impressionsb. When people say what they think about something or say how they feel physically or

emotionally, there are no perception or memory problems likely to diminish the accuracy of what they say

c. Statements of past feelings or plans are not admissiblei. Ex: “I am going to NYC to meet Joe because he owes me $50”

1. “I am going to NYC is admissible” but the second part is not because it involves some past memory/debt stemming from past events

d. THEN EXISTING PHYSICAL CONDITION i. Ex: Two doctors testifying for insurance carrier said that accident victim was not

seriously injured and suffered little or no pain except for a short period of time after the injury. Victim called three people to counter this evidence by having them testify that he complained of present existing pain at various times after his injury.

1. Statements were admissible because they demonstrated his physical condition at the time he made the statement

2. The declarations of a party himself, to whomsoever made, are competent evidence, when confined strictly to such complaints, expressions, and exclamations as furnish evidence of a present, existing pain or malady, to prove his condition, ills, pains, and symptoms, whether arising from sickness, or from an injury by accident or violence

e. STATE OF MIND “IN ISSUE” i. Ex: Husband is suing his wife’s lover (Defendant) for “alienation.” Plaintiff

wants to testify to what he was told by his wife: Defendant giving her flowers, taking her out to dinner, etc. Defendant objects to the statements, arguing that they are being offered for the truth of the matter asserted: to show what the Defendant has done to alienate her affections

1. Court said the statements are admissible to prove the wife’s feelings, but they are NOT admissible to prove the Defendant’s actions

2. The admissibility of such evidence, admissible as to one point, is not destroyed by its incompetency as to other points which it yet logically tends to prove

a. Limiting instruction to jury to consider the evidence only as proof of one point and not considered for others generally suffices

3. Must be statement of declarant’s, not another’s, state of mind -- does not authorize receipt of a statement by one person as proof of another’s state of mind

4. Must refer to “then existing” state of mind – a statement recalling a previous state of mind is NOT admissible under this exception

f. STATE OF MIND TO PROVE CONDUCT; STATEMENTS OF MEMORY OR BELIEF (intent to act is admissible)

i. Ex: Victim is in restaurant and says that he is going to the parking lot of a restaurant to pick up some free marijuana and to meet the Defendant. Victim never returned to his friends in the restaurant and was never seen again. Government argued that Victim’s statements can be used to prove that the meeting did occur.

1. Hillmon Doctrine -- case involved 2 letters that said “I expect to leave Wichita, Kansas with Hillmon for Colorado.” Walter’s body was later found in at Crooked Creek

2. The Court found that the letters could not be used to prove that Walter did go to Colorado with Hillmon, but they could be used to show that Walter intended to go to Colorado with Hillmon

3. The state of mind of the declarant can be used inferentially to prove other matters that are in issue -- let in the entire thing, even though it is showing the future intention of a third person’s conduct

a. When performance of a particular act by an individual is an issue in a case, his intention to perform that act may be shown – from that intention, the fact finder may draw the inference that the person carried out his intention and performed the act

b. Basically, if a person says they are going to do an act, then that statement is relevant evidence that can be used to help prove that they actually did the act

4. In this case, we have the Victim’s present state of mind -- Defendant’s state of mind -- Defendant’s conduct

5. Although the matter remains controversial, most courts admit a statement of A that he or she intends to do an act with B as evidence of both A’s and B’s subsequent conduct

6. Need corroborating evidence!7. Criticism = Hillmon doctrine allows the testimony of the declarant’s

intention to directly incriminate the Defendantii. Ex: Norton shot and killed two men at his business. Norton appealing on the

ground that the trial court admitted testimony by Victim’s widow: (1) Victim intended to go to Norton’s shop, and (2) Victim was going there because Norton had called and asked him to come in. – “I just talked to Norton” is inadmissible as a fact remembered. “I’m going to the tire store” – admissible as statement of a declarant’s intent to do something.

1. (1) Admissible for the limited purpose to show that he intended to go to the shop and help Norton

a. Hillmon doctrine -- no problems with memory, sincerity, trustworthiness because the person has no reason to lie about what they plan to do

2. (2) Fact remembered = communicated that Victim was going there because Norton had called and asked him to come -- not within the hearsay exception

a. Declarant’s statements based upon memory do NOT show declarant’s state of mind

3. Widow has knowledge, not because she heard it, but because Victim told her about it

4. There is no way to test her on cross-examination because all she would keep saying when asked how she knows is, “Because he told me…”

g. WILLS : Federal Rules allow a witness to testify as to what the declarant/testator said about the execution, revocation, or terms of a will and such testimony is NOT limited to present statements by the testator, but rather can include statements as to a past state of mind

i. Wills are unique because we are talking about the expressions of someone who is now dead and, thus, there is an implied sense of necessity

ii. Ex: Testator’s statement regarding why he is or isn’t including people is admissible to show why he acted the way he did in preparing the will

4. Statements for Purposes of Medical Diagnosis or Treatment (FRE 803(4))- A statement that (is admissible):

a. Is Made for and is reasonably pertinent to medical diagnosis or treatment; andb. Describes medical history; past or present symptoms or sensations; their inception;

or their general causei. Statement made does not have to be made to a physician—includes statements to

hospital attendants, ambulance drivers, or even members of the familyii. People concerned enough to seek out medical treatment are going to be honest

with the health care provider in order to get the relief they neediii. Third party statements are admissible:

1. Mom: “Johnny says that his leg hurts” -- admissible even though Johnny did not make the statement directly to the doctor

c. Ex: Defendant charged with aggravated murder of his wife and mother-in-law. Government arguing that the Defendant killed the wife during a domestic dispute and then killed his mother in law when she became involved in the dispute. Doctor testified that he had treated the mother-in-law, who had complained of depression since her daughter and Defendant had moved into her home and feared that Defendant might kill them both.

i. Statements were admissible because they met the test for 803(4):1. Made for the purpose of medical diagnosis or treatment2. Described or related medical history or past or present symptoms,

pain, or sensations, or the inception or general character of the cause for external source

3. Were reasonably pertinent to diagnosis or treatmentd. Ex: 11 year old was sexually abused by her stepfather and doctor testified as to

statements of the victim made during an examination that identified her father as the abuser

i. Statements by a child abuse victim to a physician during an examination that the abuser is a member of the victim’s immediate household are reasonably pertinent to treatment

ii. Court said unique situation of treating child abuse where the abuser is a member of the victim’s household is a sufficiently different case and should not fall under the general rule

5. Recorded Recollection (FRE 803(5)) A record that (is admissible):i. Is on a matter the witness once knew about but now cannot recall well

enough to testify fully and accurately;ii. Was made or adopted by the witness when the matter was fresh in the

witness’s memory; andiii. Accurately reflects the witness’s knowledge.

a. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

b. Reliability inherent in the record that was made when the events were fresh in the witness’s mind

c. Ex: Before a grand jury McKay testified that Defendant told him that 10 months prior certain stolen forklifts were obtained from a man in CA. Now at Defendant’s trial, McKay testified that he cannot remember the Defendant telling him about the source or legality of the forklifts. After the prosecutor tried to refresh McKay’s memory with a transcript of his grand jury testimony, the trial judge allowed the pertinent part of the testimony to be read into the record as a past recorded recollection. Defendant argued that it should not come in because it was not “fresh” in the witness’s mind and there is no proof that the statements made to the grand jury were an accurate reflection at the time.

i. It was well within the discretion of the trial judge to determine, under all of the circumstances, that the conversation had been fresh in McKay’s mind when he appeared before the grand jury – “trial judges have a lot of discretion to make rulings that go either way and not be reversed”

ii. Rule extends to a memo or record “adopted” by a witness, such as where the witness orally recounted a matter to another who reduced the account to a written statement which the witness then verified

2. Records of Regularly Conducted Activity (FRE 803(6), (7))

a. FRE 803(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis is admissible if:

i. The record was made at or near the time by, or from information transmitted by, someone with knowledge

ii. The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit

iii. Making the record was a regular practice of that activityiv. All these conditions are shown by the testimony of the custodian or another

qualified witness, or by a certification that complies with FRE 902(11 or 12) or with a statute permitting certification; and

1. Other Qualified Witness= someone who can credibly testify that the records satisfy the requirements of the exception, but personal knowledge of the contents of the particular entry or circumstances in which it was made is not required

v. Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness

b. Reliability established by systematic checking, by regularity and continuity, which produce habits of precision, but actual experience of business in relying upon them

c. A document prepared by a 3rd party may qualify as a business record under 803(6) if the business integrated the document into its records and relied upon it, provided that circumstances support the trustworthiness of the document

d. Ex: The IRS is claiming that Keogh underreported his tips. Whitlock worked with Keogh and kept a diary where he reported his daily income, which would be the same for Keogh since they split tips evenly. IRS sought to introduce a photocopy of Whitlock’s diary and testimony by Whitlock’s former wife that she saw Whitlock and only Whitlock make entries in the diary, that he usually made them each night after his shift, and when he made no entries for a few days he would copy entries from a record kept in his wallet, and he made no entries on days off.

i. Court found the evidence, even though personal to him, showed every indication of being kept “in the course of” his own business activity, occupation, and calling.

ii. The reliability usually found in records by business concerns may be established in personal business records if they are systematically checked and regularly and continually maintained

iii. Availability of Whitlock is immaterial under 803 Rules— his wife was considered to be an “other qualified witness”

e. FRE 803(7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) is admissible if:

i. The evidence is admitted to prove that the matter did not occur or exist;ii. A record was regularly kept for a matter of that kind; and

iii. Neither the possible source of the information nor other circumstances indicate a lack of trustworthiness

1. Permits proof of the nonoccurrence or nonexistence of a matter by showing that no record of it is found in regularly kept records that would be expected to have recorded it if it did occur or exist

f. Ex: “hearsay within hearsay” – Defendant was indicted for selling treasury checks to undercover US Secret Service Agent. Each of the intended payees of the checks completed Form 1133 and answered that they had not received their check and that no

one else had been authorized to receive it. These completed forms were admitted into evidence for the purpose of proving that the payees submitted claim forms.

i. Court holds the forms inadmissible under 803(6) because the people that filled out the forms were not acting within the normal course of business.

1. If relevant, the forms could be admitted to show that they were in fact filed, but not to prove that the payees did not receive their checks

ii. Double hearsay = when a business record is prepared by one employee from information supplied by another employee

1. If both the source and the recorder of the information, as well as every other participant in the chain producing the record, are acting in the regular course of business, the multiple hearsay is excused by Rule 803(6)

2. If the source of the information is an outsider, Rule 803(6) does not, by itself, permit the admission of the business record—the outsider’s statement must fall within another hearsay exception to be admissible because it does not have the presumption of accuracy that statements made during the regular course of business have

iii. In the present case, the intended payees were not acting in the regular course of business, and their statements do not fall within any other hearsay exception – inadmissible

g. Ex: Scheerer slipped and fell in the parking lot and is suing based on the idea that the surface of the parking lot was slippery due to a combination of water and oil. Arguing that Hardee’s had failed to warn its customers. Hardee’s incident report from the slip and fall contained a description of the accident conditions as “dry.”

i. The incident report was inadmissible for two reasons:1. The source of the information contained in the report was never

identified at trial, and2. The incident report lacks the reliability or trustworthiness because

it was not made in the ordinary course of business but instead with the knowledge that the incident could result in litigation (in anticipation of litigation)

a. Potential for bias and slanting facts in favor of the businessii. Litigants cannot evade the trustworthiness requirement of Rule 803(6) by simply

hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business

3. Public Records and Reports (FRE 803(8-10))a. FRE 803(8) Public Records. A record or statement of a public office is admissible if it

sets out:i. The office’s activities

ii. A matter observed while under a legal duty to report, but not including, in a criminal case, a mater observed by law-enforcement personnel; or

iii. In a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

iv. Neither the source of information nor other circumstances indicate a lack of trustworthiness

b. FRE 803(9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.

c. FRE 803(10) Absence of a Public Record. Testimony, or a certification under 902, that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: the record or statement does not exist or a matter did not occur or exist, if a public office regularly kept a record/statement for a matter of that kind

d. Ex: Quezada was previously deported pursuant to Form I-205, warrant of deportation and 7 months later was arrested by a Border Patrol officer. Indicted by the grand jury for illegally reentering the country. Government wanted to introduce Form I-205, which contains virtually all of the information proving Quezada’s prior arrest and deportation.

i. Court admitted the evidence under 803(8)(B) based largely on the lack of motivation on the part of the recording official to do other than mechanically register an unambiguous factual matter, so such records are inherently reliable.

1. Court draws a distinction in 803(8)(B) between law enforcement reports prepared in a routine, non-adversarial setting, and those resulting from the more subjective endeavor of investigating a crime and evaluating the results of that investigation

2. Non-adversarial = ministerial, objective observations that have none of the subjective features of reports made in an adversarial setting, such as investigation of a crime scene—admissible

ii. If a public record is inadmissible against an accused in a criminal case under Rule 803(8) because of the limitations imposed in (B) or (C), the record or report generally cannot be admitted under Rule 803(6) even though it might otherwise meet all the requirements

e. Ex: Crash during Navy aircraft training that resulted in both pilots being killed. Surviving spouses brought suit against the plane’s manufacturer and service, alleging the crash had been caused by a loss of engine power due to a defect in the aircraft’s fuel control system. Defendants argue that the crash was caused by pilot error and introduce “JAG Report” completed 6 weeks after the accident. “Report” was organized into sections labeled “Finding of Fact, Opinions, and Recommendations.”

i. Report is admissible under 803(8)(C) because portions of investigatory reports otherwise admissible under this Rule are not inadmissible merely because they state a conclusion or opinion- as long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report

ii. Supreme Court adopts an approach that we are going to assume admissibility, but then are going to look to the reliability in terms of trustworthiness

iii. If they wanted to keep the JAG Report out, they would concede that there is no difference between “facts” and “conclusions” then challenge the trustworthiness of the report itself; judge would look at following factors to determine admissibility of the report in this instance:

1. Timeliness of the investigation2. Skill of investigator’s experience3. Whether or not a hearing was held

iv. Legal conclusions- inadmissible because the jury would have no way of knowing whether the preparer of the report was cognizant of the requirements underlying the legal conclusion and, if not, whether the preparer might have a higher or lower standard than the law requires

4. Learned Treatises (FRE 803(18))a. FRE 803(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A

statement contained in a treatises, periodical, or pamphlet is admissible if:i. The statement is called to the attention of an expert witness on cross-examination

or relied on by the expert on direct examination; andii. The publication is established as a reliable authority by the expert’s admission or

testimony, by another expert’s testimony, or by judicial notice1. If admitted, statement may be read into evidence but not received as an

exhibitiii. You cannot cross-examine the expert witness using a learned treatise unless the

witness first acknowledges the learned treatise is reliable authorityiv. Ex: Zwack appealing alleged error that trial court did not permit his counsel to

read portions of a book on psychiatry. After having the expert identify the book as authoritative, Zwack wanted to have it read to the jury.

1. A learned treatise may not be read as substantive evidence; they are to be used only in conjunction with testimony by an expert witness, either on direct or cross-examination, even though the authority of the publication is otherwise established.

2. When statements in a publication are admitted under 803(18) on cross-examination, they become substantive evidence rather than merely impeachment evidence, but the publication may not be received as an exhibit taken into the jury room

B. 804 Hearsay Exceptions are only available when the declarant IS (must be) UNAVAILABLE: 1. FRE 804(a) Criteria for Declarant Being UNAVAILABLE: A declarant of an out-of-court

statement is shown to be unavailable if the declarant:a. Has a privilege that permits the declarant to refuse to reveal a communicationb. Refuses to testify about the subject matter of the statement despite court orderc. Cannot remember the subject matterd. Cannot attend because of death, physical or mental illness; ore. Is absent from the hearing and proponent of the statement has been unable to procure the

declarant’s attendance by process or other reasonable means2. The Exceptions. The following are admissible if the declarant is unavailable as a witness:

a. FRE 804(b)(1) Former Testimony. Testimony that:i. Was given as a witness at a trial, hearing, or lawful deposition, whether

given during the current proceeding or a different one; andii. Is now offered against a party who had (or in a civil case whose

predecessor in interest had) an opportunity and similar motive to develop it by direct, cross, or redirect examination

iii. Ex: Barbara and Donald murdered John, Barbara’s former husband. Donald tried first and was convicted on the charge. During Barbara’s separate trial, Donald was called as a witness but he refused to testify. Barbara is arguing that because the murder weapon and confession have been suppressed, her defense has changed so she did not have a similar motive and opportunity to develop testimony in the previous cases.

1. “Opportunity and similar motive” test = It is unfair to hold a party to the former examination if no reasonable attorney would be expected to have elicited the now-relevant facts; but if the

circumstances were such that those facts could have been brought out if they were available, the present opponent can be fairly held

2. Court said the trial judge could have concluded that she had a similar motive and opportunity because that co-defendant in the prior trial was implicating her and her guilt or innocence was an identical issue at both trials

iv. Ex: (civil case, so predecessor in interest applicable) Plaintiffs wanted to use deposition of dead doctor who used to work for Defendant. Doctor gave deposition in a similar case. Defendant arguing deposition is inadmissible because they had no motive or prior opportunity to question him in the prior proceedings.

1. Predecessor in interest = if it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party

2. Court satisfied that Defendants in the prior case had a similar motive in confronting the doctor’s testimony

v. Must always look at the prior action and the current action and see what the evidence is coming in for

b. FRE 804(b)(2) Statement Under Belief of Impending Death: Hearsay rule does NOT exclude a statement if:

i. It was offered in a homicide case OR in a civil case;ii. It was made by a person who believed death was imminent; and

iii. The statement was about the facts of her death1. Declarant must believe death is impending

iv. Ex: Quintana is on trial for murder. Lopez gave deathbed statement about the circumstances of his death, although he was not able to identify who shot him. Lopez was never told that he was going to die, but Lopez told the attorney who elicited the statement that he knew he was very seriously injured and he knew that there was a strong possibility of dying.

1. In determining “impending death,” one is to look to the state of mind of the victim. Fear or even the belief that the illness will end in death is not enough for a dying declaration. There must be a settled hopeless expectation that death is near.

2. If it can be inferred from the state of the wound or the state of the illness that the dying person was aware of his danger, then the requirement is met

3. Court looked to the statements and the surrounding circumstances, which were enough to believe that the statements should be considered “dying declarations” and admitted

c. FRE 804(b)(3) Statement Against Interest. A statement that:i. A reasonable person in the declarant’s position would have made only if the

person believed it to be true, because when statement was made:1. It was so contrary to the declarant’s proprietary or pecuniary interest; or2. Had so great a tendency to invalidate the declarant’s claim against

someone else; or3. To expose the declarant to civil or criminal liability; and

4. Is supported by corroborating circumstances that clearly indicate its trustworthiness

ii. CIVIL CASES 1. Ex: Jerry and his wife, Margaret were using a company car when they

got in an accident. Margaret was rendered a paraplegic. Couple divorced and Jerry is nowhere to be found. In order to receive benefits, Margaret has to prove that Jerry was driving the car. To do so, she wants to admit: (1) a notice of injury report filed by Jerry with the Industrial Accident Board and (2) inculpating statements made by Jerry to Margaret.

a. Both forms of evidence, which are against Jerry’s pecuniary, penal, and social interest, should have been admitted.

b. Admissibility requires a weighing and balancing of these 3 interests; Jerry subjected himself to all 3:

i. Pecuniary -- liability for negligenceii. Penal -- accident itself and lying to recover worker’s

comp.iii. Social -- announced that he rendered his wife a

paraplegic iii. CRIMINAL CASES iv. Offered by the Prosecution:

1. Ex: Harris was arrested for possession of 19 kilograms of cocaine and told the DEA agent that the cocaine belonged to Williamson and that it was to be delivered that night to a certain location. Williamson was eventually convicted of possessing cocaine, but Harris refused to testify at the trial, even though offered immunity. Court then allowed DEA agent to testify as to what Harris had said to him; Williamson claims that this violates his 6th Amendment right to Confrontation.

a. Court did not resolve whether the statements were also made inadmissible by the CC:

i. Did not decide whether the hearsay exception for statements against interest is “firmly rooted”

ii. Crawford v. Washington later holds that statements such as the ones introduced in Williamson, made by a non-testifying co-perpetrator to investigators, are flatly barred by the Confrontation Clause

2. Justices took differing approaches as to what is sufficiently self-inculpatory:

a. O’Connor (Rule): Took a narrow approach and says 804(b)(3) does NOT allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory

i. ONLY self-inculpatory statements are admissibleii. She wants the declarant to actually face some type of

criminal consequenceb. Ginsburg: None of Harris’s statements are admissible

i. Contextual approach -- Harris’s arguably inculpatory statements are too closely intertwined with his self-serving declarations to be trustworthy

c. Scalia: Inquiry should be into whether the specific remark at issue, and not an extended narrative, meets the criteria to be admissible

d. Kennedy: Took a line-drawing approach -- can draw lines to distinguish collateral self-serving statements (inadmissible) and collateral neutral statements (admissible)

3. Crawford v. Washington later holds that statements such as the ones introduced in Williamson, made by a non-testifying co-perpetrator to investigators, are flatly barred by the Confrontation Clause

v. Offered by the Accused : 1. Ex: Paguio and his wife were convicted of making false statements to a

bank to influence action on a loan application. However, it really was Paguio’s dad’s doing and he told Paguio’s lawyer that his son “had nothing to do with it.” When the case was retried, the father was a fugitive, so Paguio sought to admit the evidence under 803(b)(3).

a. Statements should have been admitted because a reasonable person in the father’s position would have believed that preparing false tax returns and engineering an admittedly fraudulent loan application would subject him to criminal liability

b. To get a statement against penal interest into evidence under 804(b)(3), the proponent must prove:

i. The declarant is unavailable as a witness,ii. The statement so far tended to subject the declarant to

criminal liability that a reasonable person in the declarant’s position would not have made the statement unless he believed it to be true, and

iii. Corroborating circumstances clearly indicate the trustworthiness of the statement

c. Court noted that certainly there is a potential for bias here that cuts against the trustworthiness because the statements exculpated his son – but the court found sufficient corroborating evidence to determine the statement was reliable and the entire statement should have been admitted

d. FRE 804(b)(6) Forfeiture by Wrongdoing: If you procure the unavailability of the witness, the court is NOT going to listen to hearsay objections or Confrontation Clause claims

i. Ex: Albino entered into a plea agreement and was cooperating with the Government. He was going to testify against the Defendant, but after receiving threatening letters from the Defendant, he no longer wants to cooperate and becomes “unavailable” to testify.

1. Defendant procured the unavailability and thereby waived his confrontation rights and hearsay objection.

2. Declarant’s statement still must be relevant and pass the 403 balancing test

3. Rule 104(a) preponderance of the evidence standard applies to the preliminary determination whether a party has engaged in conduct justifying a forfeiture under the rule

C. FRE 807 Residual Exception. Catch-all provision that applies to hearsay statements not covered by a specific exception, but have some indicia of reliability based upon the circumstances under which they were made – look at circumstances surrounding the making of the statement

a. Statement has equivalent circumstantial guarantees of trustworthinessb. It is offered as evidence of a material factc. It is more probative on the point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts; andd. Admitting it will best serve the purposes of these rules and the interests of justice

1. Ex: Defendant’s charged with lewd conduct of a minor. The victim was deemed unable by the court to communicate to the jury. She had been examined by a Doctor who found conditions strongly suggestive of sexual abuse with vaginal contact, and this testimony was admitted.

a. Statements not admissible because they lacked particularized guarantees of trustworthiness necessary to satisfy the requirements of the Confrontation Clause

i. Not recorded on videotape, leading questions were used in the child’s interrogation, etc.

b. Ohio v. Roberts- still has some doctrinal function when looking at non-testimonial statements: 

i. (1) Does it fall under a firmly rooted hearsay exception? If so, then inherently reliable

1. Residual exception is not firmly rootedii. (2) If not, are there particularized guarantees of trustworthiness?

1. Must be shown from the totality of the circumstances- those circumstances that actually surround the making of the statement; not by reference to other evidence at trial (part of the Confrontation Clause doctrine, not Rule 807)

2. Factors to consider in reliability:a. Spontaneity, consistent repetition, mental state of the child at the

time of the statementc. Unavailability analysis is necessary as part of the Confrontation Clause inquiry only

when the challenged out-of-court statements were made in the course of a prior judicial proceeding

B. Hearsay and Confrontation 1. Firmly Rooted Exceptions:

a. Excited Utterancesb. Statements made for Medical Treatmentc. Co-Conspirator Statementsd. Adoptive Admissionse. Statements against Interests are NOT

2. Ex: Crawford charged with assault and attempted murder. Crawford asserted self-defense. At trial, Crawford’s wife is not going to testify due to the state’s marital privilege, but the State wants to admit the wife’s statements given to police that will help negate Crawford’s self-defense claim. After Miranda warnings were given and Crawford said he thought the victim had a weapon, Mrs. Crawford said separately that she had seen the attack and that Lee was not holding a weapon.

a. In a criminal case, if a “testimonial” statement is coming in against the Defendant and the declarant is unavailable, the Defendant must have had a prior opportunity to cross-examine the unavailable declarant

b. Court said the 6th Amendment uses the language “witness” -- one who bears testimonyc. “Testimonial” = solemn declaration or affirmation made for the purpose of establishing

or proving some fact; formalizedi. Scalia characterized it as “statements made under circumstances which would

lead an objective witness reasonably to believe that the statement would be available for use at a later trial” – what Scalia thinks is “testimonial”

ii. Kennedy (in a dissent) = rejects the concept of testimonial statements altogether and instead proposes that the Clause refers to a “conventional witness” meaning someone who actually witnesses/perceives an event that gives him or her personal knowledge of some aspect of the Defendant’s guilt

iii. Applies at a minimum to:1. Prior testimony at a preliminary hearing2. Before a grand jury3. Former trial4. Police interrogations

iv. If the statement is considered “non-testimonial” then the Ohio v. Roberts test still applies:

1. (1) Firmly rooted exception?2. (2) If not, particularized guarantees of trustworthiness?

3. Ex: There are really 2 cases involved here; at both trials the witnesses did NOT appear but the prosecutors attempted to introduce their statements that had been made to the police:

a. Davis – girlfriend made 9-11 call in which she stated that Davis had assaulted her and just fled the scene

i. SC said it was not “interrogation” and the statements were not “testimonial”ii. She was describing things as they were happening and the purpose was to resolve

the ongoing emergencyiii. Conversation was to resolve present emergency, not to learn past factsiv. The 911 call, McCottry was giving frantic answers in an unsafe environment (not

acting as a witness nor testifying)b. Hammon v. Indiana – when police responded to a reported domestic disturbance,

Hammon’s wife said nothing was wrong, but let them in. After entering, police separated the wife from Hammon and interviewed her, and in response to their questions, she said Hammon assaulted her, and she also swore to an affidavit to the same effect

i. SC said it was “interrogation” and the statements were “testimonial”c. Testimonial = when the circumstances objectively indicate that there is NO ongoing

emergency and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution

d. Non-testimonial: when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency

e. ***A conversation which begins as an interrogation to determine the need for emergency assistance may evolve into testimonial statements

4. Ex: Bullcoming was arrested on charges of driving while intoxicated. Evidence against him was a forensic lab report certifying that Bullcoming’s blood-alcohol concentration was well above the threshold for aggravated DWI.

a. Hearsay Unavailability Problem- At trial, the prosecution did not call as a witness the analyst who signed the certification lab report

b. Instead, they called another analyst who was familiar with the lab’s testing procedures, but neither participated in nor observed the test on Bullcoming’s blood sample

i. This is considered testimonial and should be kept out (Melendez-Diaz case)c. Here:

i. The state never asserted that the analyst (Caylor) was unavailable; ANDii. Bullcoming did not have an opportunity to cross-examine Caylor (could not

question his reliability, credibility—strange that he was on unpaid leave)d. Dist. Ct

i. Surrogate testimony does not come in; it is subject to 6th Amendmente. Why is this different when business records with corporations can come in?

i. Business records and public records are inherently non-testimonial because they are regular in the course of business and not created in preparation or anticipation of litigation

ii. Lab reports are testimonial reports and that is why the 6th Amendment repliesf. A substitute does not provide a fair enough opportunity for cross-examinationg. The State had the option to retest blood with different analyst h. The new analyst would then have personal knowledge (not on what someone else told

him- classic hearsay) and could then be cross-examined by the defendant

II. Chapter 3: Procedures for Admitting and Excluding Evidence [FRE Article 1] A. FRE 103(a)(1) Objections and Motions to Strike

1. (A) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

a. (1) If the ruling admits evidence, a party, on the record:i. Timely objects or moves to strike; and

1. Gives the court a chance to correct itii. States the specific ground, unless it was apparent from the context

1. Preserves the error for appeal2. TIMELINESS 103(a)(1)(i)

a. Ex: Archibald appealing rape conviction. At trial, Victim’s mother testified that she knew Archibald because he fathered the child of her other daughter, Tasha. At the time of trial Tasha was 15 and the baby was 6 months old – this revealed that Archibald had engaged in sexual intercourse with Tasha when she was 13 or 14 years old, which under the law was 3rd degree rape. Immediately following this response, a side bar conference took place where it was acknowledged that evidence of a prior crime had been elicited. Archibald’s counsel thereafter objected to the admission of the testimony, but the court disregarded the objection.

i. *In order for “opening the door” to apply, the one side has to open the door by getting in inadmissible evidence, and nothing Williams said at that point was inadmissible.

ii. The objection should have been sustained – the appropriate time to raise an objection is as soon as the party knows or reasonably should know of the grounds for objection, unless postponement is desirable for a special reason and not unfair to the opposition.

iii. Counsel for Archibald reasonably could not have anticipated that the mother would offer evidence of a prior crime in response to the question “How do you

happen to know Archibald” until after the mother responded to the question – the rather brief postponement of the objection neither prejudiced the government nor in any way impaired the court’s ability to remedy the asserted error -- thus, it was timely

iv. Court held that the Error was not harmless -- not highly probable that the evidence did not contribute to the jury’s conviction

1. Factors that guide courts in their determination of whether error is harmless error:

a. Whether erroneously admitted evidence was the primary evidence relied upon,

b. Whether the aggrieved party was nonetheless able to present the substance of its claim,

c. The existence and usefulness of curative jury instruction,d. The extent of jury argument based on tainted evidence,e. Whether erroneously admitted evidence was merely cumulative,

andf. Whether other evidence was overwhelming

2. 4 prerequisites for plain error:a. An error,b. That is clear and obvious under current law,c. That affects the defendant’s substantial rights, andd. That would seriously affect the fairness, integrity or public

reputation of judicial proceedings if left uncorrectedv. “Connecting Up” -- Where an objection is conditionally overruled upon the

proponent’s representation that required connecting or foundation evidence will be presented later, and the proponent fails to present the required connection or foundation proof, a waiver occurs unless the objector renews the earlier objection by a motion to strike at an appropriate time, usually the close of the proponent’s case

b. SPECIFICITY 103(a)(1)(ii) i. Ex: McEwen sought damages for his wife’s injuries after she fell off of a train.

During the trial, Defendant’s counsel asked the wife, “Aren’t you rather fond of playing bridge?” McEwen’s counsel objected – “We object to that. I do not think that is material.” Wife was found contributory negligent, damages were reduced, and they are now appealing and one of the grounds is based on the above exchange—arguing it was immaterial, not pertinent, and prejudicial.

1. A general objection to evidence—one which does not definitely and specifically state the grounds on which it is based so that the court may intelligently rule on it—is, as a general rule, insufficient

2. Exceptions:a. Where the ground is so manifest that the trial court could not

fail to understand it,b. When the evidence offered is clearly irrelevant and

incompetent, orc. When the evidence is inadmissible for any purpose

3. Here, the objection was a general one and did not come within any of the exceptions so it will not be considered on appeal

ii. If the proper ground of objection is a relevancy problem under Rule 401, 402, or 403, however, an objection on that ground may suffice, if its meaning is clear

iii. Ex: objection that photo is irrelevant and that its probative value is outweighed by its prejudicial effect and citing Rule 403 was sufficient to preserve error

B. Offers of Proof (FRE (103(a)(2), (b))1. FRE 103(a)(2): If the ruling is one excluding evidence, the substance of the evidence must be

made known to the court by offer or must have been apparent from the context within which questions were asked

a. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal

2. FRE 103(b) Not Needing to Renew an Objection or Offer of Proof. The court may add another or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

3. Ex: Plaintiff objected to certain testimony and Defendant wanted to then play a tape recorded statement. Court said the proper way, however, is to refer to the transcript. Defendant said a transcript was never made and the Court sustained the Plaintiff’s objection. Defendant is now asserting on appeal that it was error not to admit the tape-recorded statement.

a. The error was not properly preserved for appeal because the requirements of 103(a)(2) were not met

b. After the court sustained the objection, no further reference to the issue was made in the form of an offer of proof or otherwise

C. Preliminary Questions (FRE 104)1. (a) In General. The court (trial judge) must decide whether evidence is admissible. The judge

rules based on every possible objection to admission. There is only one specific type of objection that is left for the jury to rule on, “conditional relevance,” which is covered in (b)

2. (b) Relevance that Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

a. If the party seeking to introduce an item of evidence agrees that it is not relevant by itself but states that it will be relevant when some other fact is established that provides a context for it, the situation is defined as “relevancy conditioned on fact.” In this situation, the evidence is required to be admitted. The jury will hear it. If the proponent then fails to produce information about the supporting context that is required to make the challenged evidence relevant, the jury can be depended on to notice that the challenged evidence has no relevancy to the case. The jury will thus disregard it easily, since there will be no temptation to use a non-relevant item of evidence in deliberations.

3. (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury is away and cannot hear it if:

a. The hearing involves the admissibility of a confessionb. The defendant in a criminal case is a witness and so requests; or c. Justice requires its

4. (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

5. (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce evidence before the jury that is relevant to the weight & credibility of other evidence

a. Ex: Judge determines if a witness is credible to testify, but opponent may still introduce evidence before the jury as to the witness’s lack of credibility

D. Limited Admissibility (FRE 105)1. FRE 105 Limiting Evidence that is Not Admissible against other parties or for Other

Purposes. If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly

a. If the danger of unfair prejudice substantially outweighs the probative value of the evidence for its admissible purpose, taking into consideration the probability effectiveness of a limiting instruction, the evidence should be excluded under 403

E. Remainder of or Related Writings or Recorded Statements (FRE 106)1. FRE 106 Remainder of or Related Writings or Recorded Statements. If a party introduces

all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time

a. When a writing or recording is introduced, any other parts of it or any related statements selected by the opposing party must be admitted if the judge thinks they provide a fair context for understanding the portions already submitted

b. Ex: Sweiss was convicted of conspiring to destroy a competing grocery store. Sweiss is arguing that earlier taped conversations should have been admitted to fully ascertain the truth of later statements that were admitted by competitor.

i. Because the excluded conversation, although perhaps useful to the jury, was not necessary to explain evidence already admitted, Rule 106 was not implicated and the trial court did not abuse its discretion in denying its admission

ii. To lay a sufficient foundation at trial for a rule of completeness claim, the offeror need only specify the portion of the testimony that is relevant to the issue at trial and that qualifies or explains portions already admitted

iii. Here, counsel did not argue that the prior tape was admissible under the rule of completeness, nor did he even hint at this; did not explain what portions of the tape explained the later tape; did not mention Rule 106, nor did he state any of the substance of the Rule

iv. Rule 106 only applies to writings or recorded statements—may not invoke 106 when a witness testifies to only part of an unrecorded conversation

F. Curative Admissibility (“Opening the Door”) and Rule of Completeness1. Ex: During cross-examination, defense counsel asked Williams whether she had ever seen

Archibald and Latoya alone and whether she ever overheard any conversations between them. Williams answered in the negative to both questions. On redirect examination, Williams testified over objection that Tasha had told Williams that Archibald and Latoya were kissing while dancing at a party (clearly hearsay).

a. The doctrine of “opening the door,” sometimes referred to as “curative admissibility,” provides that when one party introduces inadmissible evidence, the opposing party thereafter may introduce otherwise inadmissible evidence to rebut or explain the prior evidence

i. However, Williams’s testimony on cross-examination was inadmissible (hearsay) so her testimony did not open the door to the admission of hearsay on redirect examination

b. The rule of “completeness”—when a witness testifies on cross-examination as to part of a conversation, statement, or transaction or occurrence, the rule of completeness allows the party calling the witness to elicit on redirect examination the whole thereof, to the extent it relates to the same subject matter and concerns the specific matter opened up

i. Does not apply here because Williams’ testimony on redirect examination proved a subject never raised during cross-examination: what Tasha told Williams about Archibald and Latoya

III. Chapter 4: Witnesses [FRE Article VI] A. Competency (FRE 601-606)

1. FRE 601 Competency to Testify in General. Every person is presumed competent to be a witness unless these rules. In a civil case, state law governs the witness’s competency.

a. Ex: Odom was involved in an absentee voting scheme in which defendants cast votes in the name of residents of an elderly home. Odom is asserting that the court erred in permitting unsworn and “incompetent” witnesses to testify for the prosecution (elderly residents). Odom argued that the judge should have ruled on the witness’s competency in an in camera hearing (made this motion during the government’s case in chief). The most important factual issue in the case was the competency of the residents to exercise a choice.

i. Under 601, every witness is presumed to be competent and neither feeble-mindedness nor insanity renders a witness incompetent or disqualified. The only grounds for disqualifying a party as a witness under 601 are that the witness does not have knowledge of the matters which he is to testify—that he does not have the capacity to recall.

ii. In camera hearing was not appropriate—it was compelling that the jury be permitted to see the residents and to hear their responses and to judge for themselves first-hand the competency of the residents (but judge rules on that)

b. CHILDREN i. Ex: Capps was indicted for first-degree sodomy by engaging in deviate sexual

intercourse with Cook, who was 5 years old. Capps contends that the court abused its discretion in permitting the child victim to testify.

1. The judge, having found her in a voir dire examination to be competent, sufficiently intelligent, and able to recognize her obligation to tell the truth, enabled the jury to weigh her testimony as it would the testimony of any other witness

2. It was not the prerogative of the trial judge to weigh the effectiveness of the testimony; that was for the jury

c. DEAD MAN’S STATUTES i. Ex: Farley was involved in a motorcycle accident, which killed Dan. Farley

brought action for damages resulting from the collision—against Collins as administrator of the estate. Farley offered testimony as to the movements of his bike immediately prior to the collision and as to the movements of his bike and Dan’s automobile during the collision. Collins objected to the testimony on the ground that it related to a “transaction” between Farley and a party deceased at the time of the trial.

1. At common law, no party or person to a transaction interest in the results of litigation was permitted to testify

2. Now, however, it has been concluded that this would create injustices and testimony of interested parties is generally admissible

3. Dead Man’s Statute—prevents witnesses from testifying about transactions with a person involved in the litigated claim if the person has died prior to trial

a. Only applies to “transactions” = requiring something in the nature of a negotiation or a course of conduct or a mutuality of responsibility resulting from the voluntary conduct of opposite parties

b. A few states take a broader approach that an automobile collision is a transaction

4. Court determines the collision here was NOT a “transaction” and thus was properly admitted

5. Credibility of the testifying survivor who is under oath may be evaluated by the jury and tested by cross-examination

2. FRE 602 Need for Personal Knowledge. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

a. Evidence to prove personal knowledge may consist of the witness’s own testimony.b. Ex: Prisoner accused prison guard of confiscating his epilepsy medication. Prosecution’s

theory is that Prisoner failed to pick up his medication from the prison infirmary—offered Maness, a licensed nurse at the prison center to testify to this. On cross-examination, Maness stated that she was not on duty the days that Prisoner failed to obtain his medication, but that her knowledge of the subject matter came from the medical charts someone else had prepared.

i. The nurse should not have been allowed to testify because she had no personal knowledge as required by Rule 602.

1. Instead, she was testifying as to entries made by others, which is actually hearsay because it was being offered for the truth of the matter asserted

2. If the evidence would have come in as a business record she would have been able to testify as to its contents without having personal knowledge

ii. A lay witness may state an opinion or inference only if it is “rationally based on the perception of the witness”

3. FRE 603 Oath or Affirmation to Testify Truthfully. Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

a. The requirement of an oath or affirmation to tell the truth must be understood in the context of FRE 610, which prohibits references to religion if relevant only to attack or bolster a witness’s credibility

4. FRE 604 Interpreter. An interpreter must be qualified and must give an oath or affirmation to make a true translation.

5. FRE 605 Judge’s Competency as a Witness. The presiding judge may not testify as a witness at the trial.

6. FRE 606 Juror’s Competency as a Witness.

a. (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

b. (b) During an Inquiry into the Validity of a Verdict or Indictment. Jurors may not testify nor may affidavits from jurors be accepted on the subject of any juror’s mental processes, statements, or anything else concerning how the jury reached its conclusion, except that testimony and affidavits are allowed about extraneous prejudicial information, outside influences, and mistakes on the verdict form

c. Ex: Wilson is suing for injuries caused by a wood stove. The jury returned a verdict for Defendant, Vermont Castings, although the jury found that the stove was defective, it found that the defect was not a substantial factor in causing Wilson’s injuries. After the trial, it was revealed that a juror owned a Vermont Castings stove and told the other jurors of her personal experience with the stove, including the fact that she had to leave the door open to start a fire and she also read the manual and informed the jury peers of the warnings.

i. The court may inquire only into the existence of the extraneous information. Once the existence of the extraneous information has been established, the court may NOT inquire into the subjective effect of such information on the particular jurors. Instead, the court MUST make an objective assessment of how the information would affect the hypothetical average juror.

ii. Even where there is evidence of juror misconduct, the verdict will stand unless the party has been prejudiced by the misconduct

iii. Own conduct = not extraneous information and therefore Rule 606(b) precluded further inquiry

1. Her statement was an opinion as to the effect of the extraneous information on her views -- if the court would have considered her statement, it would have been the equivalent of inquiring into the effect of extraneous information on a juror, which is prohibited by 606(b) -- can only consider the effect on the average juror, and the effect on the average juror would have gone to defect only

iv. Manual = did not prejudice Wilson because the warnings in the manual went to the issue of defect, not to the relevant issue of causation (Wilson had already prevailed on the issue of defect at trial)

v. Extraneous information = information about the case not presented into evidence, such as a juror reading a newspaper article, obtaining information from another person, conducting an investigation, or visiting the scene of events.

B. Impeachment (FRE 607-610, 613)1. A party may not introduce extrinsic evidence to contradict a witness on a collateral matter

solely for purposes of impeachment 2. The credibility of a witness may not be supported until it has been attacked—offering evidence

to enhance a witness’s credibility when there has been no impeachment is referred to as “bolstering”

3. FRE 607 Who May Impeach a Witness. Any party, including the party that called the witness, may attack the witness’s credibility.

a. Ex: Impeachment by prior inconsistent statements may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible

i. Important that it was done in good faith here:

1. Before the witness was called to the stand, the offering party asked the judge to allow her to examine him outside the presence of the jury, because she didn’t know what he would say -- Defendant objected to this so it did not happen

4. FRE 608 A Witness’s Character for Truthfulness or Untruthfulness.a. (a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or

supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible ONLY after the witness’s character for truthfulness has been attacked.

i. Ex: Lollar convicted for interstate transportation of stolen property. After Lollar testified at trial, the Government recalled one of its witnesses and asked him whether he would believe Lollar under oath, and the witness (former employer) answered in the negative.

1. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but may refer only to character for truthfulness or untruthfulness

2. Since his character has been attacked, Lollar could now rebut by offering reputation or opinion evidence to prove truthfulness

ii. Ex: Brown and his company were convicted of filing false claims to obtain Medicare payments. On direct, the government brought up prior convictions of a witness, Russell. On cross, those issues were “attacked” with sharp questions about the prior convictions. After cross, the Government provided testimony to bolster the credibility of Russell.

1. When the tenor of the direct examination does not suggest an “attack” on veracity, and when cross-examination can be characterized as such an attack, the trial judge should retain the discretion to permit the use of character witness.

b. CAPACITY i. Ex: Defendants appealing on the basis that the district court improperly placed

limitations on their questioning of the government’s chief witness relating to her prior psychiatric treatment and confinement. The court denied them access to medical records suggesting that the government’s witness suffered from psychiatric illnesses, including delusions. Defendants are trying to show this witness had a vendetta against them because she had not received a promised percentage of Bay Therapy when the business was sold.

1. Court said FRE 608 was not controlling—the credibility of a witness can always be attacked by showing that his capacity to observe, remember or narrate is impaired

2. The purpose of the psychiatric examination was not to determine whether, in the opinion of the psychiatrist, the witness is telling the truth in the case but to determine whether or not the emotional or mental condition of the witness may affect his ability to tell the truth

a. Jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment- jury to determine the weight of the evidence

3. Credibility = for the jury

a. Moral inducement for truth telling (608)4. Competency (capacity) = for the judge

a. Mental capacity for truth tellingc. CONTRADICTION

i. Ex: Kellensworth was convicted and sentenced to 10 years for rape and 3 years for burglary. Kellensworth’s mother was allowed to testify at trial that Kellensworth “worshipped” his former wife. Former wife was then able to rebut by testifying that Kellensworth pulled a gun on her various times and tried to run her off the road.

1. Worship is not a pertinent character trait, but if the defense puts worship into issue, the prosecution can respond in two ways (here, prosecution failed to use either):

a. Cross-examine into relevant instances of specific conductb. Show proof by testimony of reputation or opinion evidence

2. A witness cannot be impeached on a collateral matter by calling another witness to contradict the testimony of the first witness.

a. Such a tactic would only distract the jury from the main issue, waste time, and prejudice the defendant

d. (b) Specific Instances of Conduct. Except for a criminal conviction under 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

i. The witness; orii. Another witness whose character the witness being cross-examined has testified

about1. By testifying on another matter, a witness does not waive any privilege

against self-incrimination for testimony that relates only to the witness’s character for truthfulness

2. Basically, the rule bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting his credibility. Two Exceptions:

a. Specific instances are provable when they have been the subject of criminal conviction; and

b. Specific instances may be inquired into on cross-examination of the principal witness or of a witness giving an opinion of his character for truthfulness

iii. Ex: Gu convicted of burglary, attempted theft, and soliciting capital murder. When Gu took the stand, he was asked on cross-examination about certain prior bad acts: possessing stolen material and a car he knew to be stolen. Judge forced Gu to answer the questions about the prior bad acts.

1. The questions must be concerning misconduct which relates to truthfulness or untruthfulness—that is, one element of the offense alleged must be an act of dishonest

2. Court found that theft does involve dishonesty3. 3 conditions to the use of such information:

a. Question must be asked in good faith

i. Court may require evidence of good faith—that the questioner has knowledge that the offense has been committed, not just information based on rumor or speculation

b. Court should decide if the probative value of the question outweighs the prejudicial effect of such a question

i. Rule 403c. The misconduct must relate to truthfulness or untruthfulness and

that character traitiv. Ex: Smith was convicted of rape, statutory rape, child molestation and cruelty to

children. Outside the presence of the jury, Smith offered testimony that the victim had made similar allegations against “ten or twelve” people and had recanted at least some of these accusations. The court did not admit this evidence because it found that the rape-shield laws barred its admission. The court did allow several defense witnesses, however, to testify regarding the victim’s poor reputation for truthfulness.

1. Evidence should have been admitted because it was coming in to prove she was untruthful, not to prove that she was a corner-street hoe

2. **When there is a conflict between Rule 412 and the Sixth Amendment, the Sixth Amendment must prevail

5. FRE 609 Impeachment by Evidence of a Criminal Convictiona. (a) In General. The following rules apply to attacking a witness’s character for

truthfulness by evidence of a criminal conviction:i. (1) For a crime that, in the convicting jurisdiction, was punishable by death or by

imprisonment for more than one year, the evidence:1. Must be admitted in a civil case or in a criminal case in which the

witness is not a defendant unless its probative value of the witness’s credibility is substantially outweighed by the risk of prejudicial effect on the defendant; and

2. Must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant

ii. (2) If any witness has been convicted of a crime involving dishonesty or false statements, such as perjury, evidence of the conviction shall be admitted with no balancing of probative and prejudicial impact

b. Ex: Tse was convicted of distributing cocaine and tried to impeach the government’s main witness on cross-examination. Government relied heavily on Williams’ testimony to describe the events of the transaction. Tried to impeach Williams by offering evidence that he had used and sold drugs in the past, received compensation for his work as a DEA informant, and a prior conviction for assault and battery against a police officer.

i. When the witness is someone other than the accused, evidence of prior convictions shall be admitted subject to Rule 403—may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence

1. Higher standard than that for an accused witness because there is a greater risk that the jury will use the prior conviction against the accused to draw an impermissible propensity inference

ii. By not admitting evidence of the prior conviction the court committed harmless error because the jury already heard all of the other impeachment evidence against Williams

c. Test for whether the probative value of a prior conviction outweighs its prejudicial effect:

i. The impeachment value of the prior crimeii. The point in time of the conviction and the witness’s subsequent history

iii. The similarity between the past crime and the charged crimeiv. The importance of the defendant’s testimonyv. The centrality of the credibility issue

d. Ex: Brackeen plead guilty to two instances of unarmed bank robberies. Brackeen then went to trial on a count of aiding and abetting Moore in the armed bank robbery, claiming that he did not know Moore had a gun. On cross-examination, Brackeen was impeached with his prior convictions of unarmed robbery. Issue is whether bank robbery is a crime of “dishonesty” under Rule 609(a)(2).

i. Dishonesty - must be in the nature of crimen falsi = crimes in the nature of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness, or falsification bearing on witness’ propensity to testify truthfully

ii. Bank robbery does not fit within this narrow definition of “dishonesty” because it is a crime of violent, not deceitful, taking

6. FRE 610 Religious Beliefs or Opinions. Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.

7. FRE 613 Witness’s Prior Statementa. (a) Showing or Disclosing the Statement During Examination. When examining a

witness about his prior statement, a party need not show it or disclose its contents to the witness. BUT the party must, if requested, show it or disclose its contents to an adverse party’s attorney.

b. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to question the witness about it.

c. Ex: Hines was convicted by jury of illegal possession of marijuana and is appealing on the basis of improper cross-examination of his chief alibi witness. Prosecution tried to establish that much of her testimony was fabricated -- he repeatedly called her attention to a prior interview he had with her and things she had not told him. Also brought up what she had told him prior to the interview about the vehicle Hines was driving. Hines arguing they were not inconsistent, and even if they were, the prosecutor should not have been allowed to impeach because he laid an improper foundation, and finally that no extrinsic evidence was introduced of the omissions.

i. A prior omission will constitute an inconsistency only where it was made under circumstances rendering it incumbent upon the witness to, or be likely to, state such a fact

1. A failure to assert a fact, when it would have been natural to assert it, amounts in effect to assertion of the non-existence of the fact

ii. In examining a witness concerning a prior inconsistent statement, the statement need not be shown nor its contents disclosed to him at that time, unless requested, then it must be shown to opposing counsel

1. Here, the transcript of the relevant interview was made available to defense counsel at her request

iii. Impeachment by insinuation = occurs when the cross-examiner asks questions for which there is no basis in fact -- may not impeach a witness by implying the existence or non-existence of statements or facts which he is not prepared to prove

1. Witness admitted that she had previously been asked about the events and at that time had failed to say anything about certain events—no further proof was necessary

iv. ****Evidence was being used for impeachment purposes only, not as substantive evidence—requirements for substantive use from 801(d)(1)(A):

1. Given under oath2. Subject to prosecution for perjury3. Given in a trial, hearing, or other proceeding

d. BIAS OR INTEREST i. Not collateral matters -- extrinsic evidence can be used to prove them

ii. Ex: Defendant is on trial for robbing a bank. The sole identification witness, Martin, had known the Defendant for a while. On cross-examination, defense counsel questioned Martin on whether she ever had any trouble with Defendant over the years, and specifically whether she had accused Defendant of fathering her child and then failing to support this child. Martin denied these charges and denied that she stated she would “take revenge” on the Defendant for not owning up to the child. After this, Defendant attempted to introduce testimony of his mother who would have testified that Martin accused Harvey of fathering the child, but the court denied its admission.

1. Bias of a witness is NOT a collateral issue and extrinsic evidence is admissible to prove that a witness has a motive to testify falsely. The cross-examiner may proffer extrinsic evidence, including testimony of other witnesses, to prove the facts showing bias in favor of or against the party

2. Foundation -- prior to the proffer of extrinsic evidence, a witness must be provided an opportunity to explain the circumstances suggesting bias

3. On at least three occasions during cross-examination, counsel gave Martin sufficient opportunity to explain or deny

4. Court said the error was a significant part of the trial and prejudicial to Defendant’s right to a fair trial—reversed and remanded

C. FRE 611 Mode and Order of Examining Witnesses and Presenting Evidence1. (a) Control by the Court; Purposes. The court should exercise reasonable control over the

mode and order of examining witnesses and presenting evidence so as to:a. Make those procedures effective to determine the truthb. Avoid wasting time; andc. Protect witnesses from harassment or undue embarrassment

2. Judge has a great deal of discretion in making sure the trial runs smoothly; judge is not a mere moderator, but instead must exercise substantial control over the proceedings

3. Protecting Child Victim Witnesses:a. Ex: Defendant indicted on four counts of aggravated sexual abuse of a 11 yr old child.

Prior to trial, Government made a motion to allow the minor Victim to testify via two way closed circuit television. Two experts testified that it was likely that testifying in person would emotionally traumatize Victim and closed circuit TV would lessen the trauma. Defendant now argues on appeal that his 6th Amendment right to confrontation were violated because sufficient findings were not presented to justify closed circuit TV.

i. Prior to using such a special procedure, the State must make an adequate showing of necessity. In determining necessity, the inquiry must be case-specific: the trial court must determine:

1. The procedure is necessary to protect the welfare of the particular child witness who seeks to testify

2. The child witness would be traumatized by the Defendant’s presence, not by the courtroom in general

3. The emotional distress suffered by the child witness in the Defendant’s presence rises to a level that is more than de minimis

4. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

a. Ex: 4-month-old child was taken to the ER with breathing problems where Dr. Allen made a tentative diagnosis of diabetes and injected 15 units of regular insulin. This diagnosis was erroneous and the child had seizures and now is brain damaged and mentally retarded. Defense presented 9 expert witnesses testifying that seizures by the child and resulting disorder were not the result of the insulin injection but rather the result of a pre-existing medical condition. Child presented expert of his own to detail child’s development and stay at the hospital. During cross-examination, child objected that examination was exceeding the scope of direct examination and the court stated that it was going to allow inquiry in this case beyond the scope of the direct and judge said he does it in every case “unless it causes confusion.”

i. Rule 611(b) does not give a judge the right to allow inquiry beyond the scope of the direct in every case. Rather, the Rule permits the judge to “use discretion”

1. The judge here did not exercise discretion; rather he used no discretion whatsoever

ii. Rule 611(b) limits cross-examination to credibility and to matters testified to on direct examination, unless the judge permits more, in which event the cross-examiner must proceed as if on direct examination.

iii. Court, however, did not reverse the case because appellants did not persuade the court that they were faced with prejudice as to entitle them a new trial

iv. In the future, it may be that a showing of prejudice will NOT be necessary to obtain relief where it is demonstrated that the trial court has failed to heed to congressional command

5. (c) Leading Questions. Leading questions should NOT be used on direct examination EXCEPT as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

a. On cross-examination; and

b. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party

c. Ex: Defendants jointly indicted and tried on charge of felony theft. On appeal they contend that the trial court erred in allowing the State to ask its principal witness a leading question that was highly prejudicial to the Defendant. On direct examination, counsel asked, “Did you buy some metal from anyone?” followed by, “Did you buy approximately 1190 pounds at that time?” Court gave curative instruction to the jury that they were not to consider the question for any purpose. Counsel then asked “Do you recall how much of this virgin nickel you bought?” The witness answered, “1190 pounds.” Defense counsel again objected, but it was overruled.

i. A case will NOT be reversed in the absence of a showing of an abuse of the trial court’s discretion in allowing a leading question, and where a question has been improperly put, counsel may propound a proper question free from the defects in the former question.

1. Appropriate relief was given to Defendants when the court instructed the jury not to consider the leading question for any purpose.

2. Objections were directed to the quantity purchased and not to whether a purchase was actually made

ii. Sanctions for a leading question:1. Striking the improper question and permitting a proper one2. Admonishment at the bench or before the jury3. Striking the improper questions and refusing to allow counsel to re-ask4. Contempt5. Mistrial

iii. Leading is commonly permitted on direct where the witness is a child, has a mental disability, has language difficulties, suffers a lapse of memory, or has emotional difficulty

D. Writing Used to Refresh Memory (FRE 612)1. When a witness uses a document/writing to refresh his recollection and then testifies from

“present recollection refreshed,” the opposing party is entitled to see the document, cross-examine the witness about it, and introduce parts of it that are relevant to the testimony.

a. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court SHALL examine the writing in camera, delete any portions not related, and order delivery of the remainder to the adverse party

2. Ex: Defendant charged with stealing numerous household articles. Victim had made notes cataloguing her items years prior. Government wanted to call her and use her notes to refresh her recollection of the items taken. Defendant objected to this, but she was allowed to testify and the list was not offered into evidence. Expert also testified that, in his professional capacity as a dealer in antiques, he had visited Plaintiff’s house and was very familiar with the items. Expert was shown the same list, which Plaintiff had used, and with their aid, testified that he could recall the items individually, and could state where in the house he had seen the items and could give an opinion as to their value.

a. Judge properly determined that both the Plaintiff and the expert testified from present recollection

i. Both knew the chattels and could identify themii. Court suggested that an alternative approach to achieve the same result could

have been to ask the witnesses leading questions

b. Past Recollection Recorded = the witness has no present recollection of the matter contained in the writing; substitute for his memory and is offered for the truth of its contents

c. Present Recollection Revived = witness relates his present recollection, and under oath and subject to cross-examination asserts that it is true; his capacities for memory and perception may be attacked and tested; lack of memory undermine the probative worth of his testimony

i. Defense has available all of the opportunities to test the witness’s credibility3. Ex: Case involves a contract dispute. Defendant moves to compel production of a handwritten

memo authored by the president of Plaintiff. President of Plaintiff used this memo to refresh his memory prior to testifying. Defendant seeks production of the entire document pursuant to 612, but President asserts attorney-client privilege protects the notes from disclosure because they were communication from him to his lawyer. Also work-product grounds because they were prepared in anticipation of litigation.

a. By referring to the notes during deposition, president waived the attorney-client privileges and work-product protection as to the portions of the notes to which reference was made, but the bulk of the notes are still protected from disclosure

b. Court interprets “testimony” to mean only testimony, which was refreshed by the writingc.  In camera inspection of the entire memo, then it will order disclosure of all portions to

which president referred to as established by the notesd. POWELL: To avoid the waiver in this case they should have used a separate document

that you don’t mind getting looked into—take the 24 page document and line it up against all of the other relevant documents that the parties have (contract, etc.) and then prepare the witness before trial so that he would not have to testify from notes at trial

E. Calling and Interrogation of Witnesses by Court (FRE 614)1. FRE 614. Court’s Calling or Examining a Witness

a. (a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

i. Ex: During the second trial, the Government conceded that it had no case against the Defendant without the testimony of co-defendant, Cassidy and Cassidy’s wife. But, because the witnesses made previously conflicting statements and withheld information, the Government chose not to call them as witnesses. The court then called them both as its own witnesses under Rule 614 and permitted both sides to cross-examine the witnesses. Defendant was convicted.

1. Although the trial judge has the authority, if not the duty, to call witnesses who possess relevant information affecting the outcome of the issues when the parties decline to call them, the Due Process Clause requires that a court be impartial.

2. The impartiality is destroyed when the court assumes the role of prosecutor and undertakes to produce evidence essential to overcome the Defendant’s presumption of innocence, which the Government has declined to present

3. Further problem in this case that the jury was never told why the witnesses were called as court witnesses and the jury was not instructed that these witnesses were entitled to no greater credibility because they had been called by the court- court should make this clear

4. Under the circumstances of this case, if the Government called the witnesses, the court should afford wide latitude to the Government to lead, to cross-examine, and partially to impeach such witnesses (607)

b. (b) Examining. The court may examine a witness regardless of who calls the witness.c. (c) Objections. A party may object to the court’s calling or examining a witness either at

that time or at the next opportunity when the jury is not present.i. Ex: Defendant is on trial for drug trafficking. During cross-examination of the

Defendant, the Judge actively questioned him, interrupting testimony and questioning, which really only served to discredit the Defendant by challenging the Defendant’s theory and bolstered the Government’s case.

1. Trial judge's duty to see the law correctly administered cannot be properly discharged if judge remains inert; instead, trial court may actively participate and give its own impressions of evidence or question witnesses, as an aid to jury, so long as it does not step across line and become advocate for one side

2. Since defense counsel did not object to the trial court’s questioning of the Defendant, the only argument available on appeal is that such questioning constituted plain error

a. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court -- this was plain error -- reversed and remanded

3. The court can call a witness and allow both parties to cross-examine, but the judge CANNOT question the veracity/credibility of a witness

ii. QUESTIONS BY JURORS iii. Ex: Throughout trial, jurors submitted one or more questions for a witness. The

court reviewed the questions with the lawyers at a sidebar conference in order to hear, discuss and rule on objections. Court then addressed those questions that were permitted to the witness. Mid-trial, Defendant objected to any future questions by the jury, arguing that the questions demonstrated that the jurors were becoming adversarial and engaging in premature deliberation. Court asked a total of 23 questions over a 6-week trial—no questions were asked of the Defendant.

1. In determining whether to allow juror questioning, the trial court should weigh the potential benefit to the jurors against the potential harm to the parties, especially when one of those parties is a criminal defendant.

2. Questions should be permitted to clarify factual issues when necessary—however, questions should NOT be used to test legal theories, to fill in perceived gaps in the case, or occur so repeatedly that they usurp the function of the lawyer or judge, or go beyond the jurors’ role as fact finder

a. Ultimately this is a fact-intensive inquiry3. In holding the questions permissible, the court considered:

a. Court employed all of the recommended measures, requiring written submissions, providing counsel with the opportunity to object privately, and exercising discretion in selectively choosing which questions were permissible

b. Several times the court instructed the jury as to the limited purpose of the questions, the proper use of the procedure, and

cautioned them about the danger or reaching conclusions before all of the evidence had been received

F. Exclusion of Witnesses (FRE 615)1. FRE 615 Excluding Witnesses. At a party’s request, the court must order witnesses excluded

so that they cannot hear other witness’s testimony. Or the court may do so on its own. But a court cannot exclude a witness who is:

a. A party who is a natural person (the actual party)b. An officer or employee of a party that is not a natural person, after being designated as

the party’s representative by its attorney (attorney assistant)c. A person whose presence a party shows to be essential to presenting the party’s claim or

defense; ord. A person authorized by statute to be present

2. Upon a party’s request for witness sequestration, Rule 615 requires the court to exclude witnesses so that one witness cannot hear the testimony of another. The Rule is designed to discourage and expose fabrication, inaccuracy, and collusion.

3. Ex: Defendant was accused of stealing property. Claiming that his wife brought it home after saying she purchased the items. Defendant wanted his dad and sister to testify to the same, but they were in the courtroom and heard him testify, which violated the sequestration order. Learned later that the two were in the courtroom because an agent of the DA office asked them to enter the courtroom and did so because of his request.

a. Sanction of exclusion of testimony of two defense witnesses who had entered courtroom in violation of sequestration order was an abuse of discretion, absent evidence that they did so with knowledge or consent of defendant or his counsel, and in light of allegation that agent for county attorney's office had induced their presence.

b. Rule does NOT apply to depositionsc. POWELL: Thinks it is better to just allow the testimony and then challenge it through

cross-examination—such a severe sanction should be used to preserve the integrity of the trial, but there is no evidence that they entered the courtroom with the consent of Defendant or his counsel—this evidence was important because it was corroborating evidence that was important to establish the truthfulness of the Defendant’s testimony

IV. Chapter 5: Opinions and Expert Testimony [FRE Article VII] A. Opinion Testimony by Lay Witnesses (FRE 701)

1. FRE 701 Opinion Testimony by Lay Witness. If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

a. Rationally based on the witness’s perception (personal knowledge)b. Helpful to clearly understanding the witness’s testimony or determination of a fact in

issue; andc. Not based on scientific, technical, or other specialized knowledge (expert witness)

2. Ex: Knight was beating Miller in the head with his gun. The weapon discharged, killing Miller. Knight admitted beating Miller, but claimed that the gun went off accidentally. At trial, the Trial Judge allowed the defense to present eyewitness testimony that Knight never pointed the gun at Miller, and never threatened to shoot him. However, the judge did not allow the eyewitness or the investigating police officer from offering their opinions that firing the gun was unintentional.

a. Although the court should not have excluded this opinion, exclusion of the opinion was harmless error because it did not prejudice Knight

i. In this case, only a bit of evidence was necessary to prove the accident theory because the prosecution barely disputed that the shooting was an accident—in fact, they all but conceded this point -- harmless error

b. POWELL: Under 701, you cannot have hearsay forming the basis of the rational perception—even if it is hearsay, you could probably get it under a hearsay exception, but there might be a Confrontation Clause issue

c. When the witness has not identified the objective bases for his opinion, the proffered opinion obviously fails completely to meet the requirements of Rule 701

B. Testimony by Experts (FRE 702)1. FRE 702 Testimony by Expert Witnesses. A witness who is qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a. The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b. The testimony is based on sufficient facts or data;c. The testimony is the product of reliable principles and methods; andd. The expert has reliably applied the principles and methods to the facts of the case

2. PROPER SUBJECTS; QUALIFICATION OF WITNESSES a. Ex: Defendant was caught traveling with drugs in luggage that was checked in someone

else’s name. Court allowed the testimony of a DEA agent that drug traffickers typically use different names. Defendant is arguing that the court erred in admitting testimony under 702 because it concerned a subject within an average juror’s understanding

i. Test for determining when experts may be used is common sense inquiry -- whether the untrained layman would be qualified to determine intelligently and to the best degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute

1. Expert testimony on a subject that is well within the bounds of a jury’s ordinary experience generally has little probative value

2. Expert testimony that airline drug smugglers often check their bags and buy their tickets under false names to avoid detection was not required to allow average juror to intelligently assess whether inference of guilt could be drawn from defendant's traveling under assumed name, but admission of the testimony, although possibly improper, did NOT amount to plain error

3. Court said using 702 and 403 this was probably beyond what is admissible, but these grounds were not raised as objections below

b. Ex: Defendant convicted of extortion and contended that the court abused its discretion in admitting expert testimony from a “document examiner” who compared handwriting on a note to Defendant’s handwriting samples and concluded that Defendant was the author of both. Expert had been full time examiner for 30 years, member of professional handwriting organizations, lectured and taught in the field, and trained new examiners. Court did not allow Defendant’s expert, a law professor, who was providing rebuttal testimony.

i. Handwriting expert's testimony that defendant wrote extortion note was not more prejudicial than probative, notwithstanding defendant's argument that jury would have believed that testimony was scientific when it was not; jury was free to make its own comparison between extortion note and defendant's writing samples after expert identified points of comparison, and expert acknowledged on

cross-examination that no licensing board existed for questioned documents examiners.

ii. Court did not abuse its discretion in excluding law professor's testimony critical of field of handwriting analysis from extortion trial under expert testimony rule; although professor had authored article critical of handwriting analysis, he had no skill, experience, training, or education in that field

3. RELIABILITY, RELEVANCY, AND GATEKEEPING: DAUBERTa. Ex: Daubert and Schuller were born with birth defects. They claimed that the problems

were caused by their mothers' use of a drug called Bendectin, made by Dow. At trial, Dow made a motion for summary judgment, claiming that Daubert was unable to come up with any admissible evidence that Bendectin causes birth defects. Dow offered an affidavit by an epidemiologist that claimed that there was no link between Bendectin and birth defects. In response, Daubert offered affidavits from eight experts, all claiming that there was a link. Daubert's experts based their findings on pharmacological studies of the chemical structure of Bendectin, not on epidemiological data. Basically, they said that the chemical structure of Bendectin was similar to the structure of other chemicals known to cause birth defects, so there was a good chance Bendectin caused birth defects too.

i. Under Daubert, a court must determine the admissibility of scientific evidence by evaluating the validity of two separate aspects of the evidence:

1. (1) Its scientific method (must be valid and the information must be reliable), and

2. (2) The application of that method to the factual inquiry under consideration

a. Fit requirement – The evidence must FIT the case; connection between evidence and the point to be proved

3. The Court noted that under FRE 702, the trial judge has an obligation to ensure that all scientific evidence was not only relevant, but also reliable.  The Court suggests several factors that a trial judge can look at to determine if the science should be admitted:

a. Can it be tested, and if it can be tested, has that testing taken place?

b. Has it been described in scientific publications subject to peer review?

c. What are its known or potential error rates?d. Are there standards that can control its operation, and if so,

were they used in developing the expert’s testimony?e. Has it achieved some degree of acceptance in the relevant

community?ii. The above factors are illustrative rather than exhaustive and each of them are not

equally applicable (or applicable at all) in every caseiii. *One very significant fact to be considered is whether the experts are proposing

to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying

iv. Test under Daubert is not the correctness of the expert’s conclusions but the soundness of his methodology

b. Ex: The Respondents sued the Petitioners alleging that a tire defect caused the blowout, which led to an accident- killing one and injuring others. A significant portion of the case rested on the depositions of a tire failure analyst, Mr. Carlson. Mr. Carlson intended to testify that in his expert opinion a defect in the tire’s manufacture or design caused the blow out. His opinion was based on a visual and tactile inspection of the tire, and upon a theory that this sort of tire failure was the result of a defect, and not tire abuse.

i. Court held that Daubert applies to ALL expert testimony, not just “scientific” testimony.

ii. Court has broad discretion in determining the factors that can be used to determine reliability

C. Forms and Bases of Expert Testimony (FRE 703, 705)1. FRE 703 Bases of an Expert’s Opinion Testimony. An expert can base his testimony on

anything he heard at trial. The testimony can be based on anything else experts in the field reasonably rely on, such as hearsay, whether or not that material is admissible. The expert can reveal otherwise inadmissible information that was the basis of his or her testimony only if the judge concludes that its probative value substantially outweighs any prejudicial effect

2. FRE 705 Disclosing the Facts or Data Underlying an Expert’s Opinion. An expert’s testimony does not have to include the basis for the opinion he states, but that basis must be given on cross-examination if it is requested.

3. Ex: Expert witness wanted to testify that he had consulted with numerous poultry experts in reaching his conclusion. The expert did not want to get into what people had said, but wanted to show the steps he took in order to reach the opinion that he did. The court determined this to be hearsay, because it was based on what people had told him—this would lend weight to his conclusion and bring in testimony of experts when they were not present.

a. It is well settled that an expert may base his opinion on facts learned from others despite there being hearsay. When an expert’s testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion, but rather presents a jury question as to the weight, which should be assigned the opinion.

b. Expert’s method of gathering data he used in formulating his opinion should have been explained in order for the jury to weigh his opinion.

c. Admission of expert testimony does not depend on the relative certainty of the subject matter of testimony, but rather on the assistance given by the expert testimony to the trier of fact in understanding the evidence or determining a fact in issue

d. Burden is put upon the opponent of the calling party to demonstrate that the conclusion of the expert lacks adequate support in order for testimony to be subject to being stricken by the trial court

D. Opinion on Ultimate Issue (FRE 704)1. FRE 704 Opinion on an Ultimate Issue

a. (a) Not Automatically Objectionable. Testimony may contain conclusions on issues that the trier of fact must decide; An opinion is not objectionable just because it embraces an ultimate issue

b. (b) Exception. Experts in criminal cases are prohibited from expressing an opinion on the specific issue of a defendant’s possession of a mental state that is the element of a crime. This matter is for the trier of fact alone.

2. Ex: In an employment discrimination case, an expert was permitted to testify that she did not believe the Plaintiff had been discriminated against because of national origin. Question was “It

is true that you did not believe Plaintiff had been discriminated against because of her national origin in that interview process?”

a. Although the testimony was rationally based on the expert’s perceptions, and the opinion was couched as a legal conclusion, it was not helpful to the jury and should not have been admitted

i. Although trial judges have a wide degree of discretion in admitting or excluding testimony which arguably contains a legal conclusion, that discretion is NOT unlimited

b. Here, the question tracked almost verbatim the language of the applicable statute, Title VII and the term “discrimination” has a precise term in the law, which is much less precise in lay use

c. A more carefully phrased question could have elicited similar information and avoided the problems of testimony containing a legal conclusion -- could have asked whether she believed Plaintiff’s national origin “motivated” the hiring decision, which would have directly addressed the factual issue of intent without implicating any legal terminology

3. Ex: Defendant charged with lying about his criminal background when he purchased certain pistols. Defendant’s sole defense was insanity. At trial, 11 psychiatrists diagnosed Defendant as schizophrenic. Government then brought in experts to testify as to Defendant’s ability to appreciate the nature of wrongfulness of his actions.

a. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or a defense thereto

b. Here, the court found that the questions asked of the expert were in general terms about the impact of schizophrenia, not about the Defendant specifically -- 704(b) was not violated

c. Rule 704(b) does not bar an explanation of the disease and its typical effect on a person’s mental state

i. Ex: can ask witness about effects/impact of mental illness, but cannot ask about this particular defendant

V. Chapter 6: Authentication and Identification (FRE IX) A. Real Evidence

1. FRE 901 Authenticating or Identifying Evidencea. 901(a)- To satisfy the requirement of authenticating or identifying an item of evidence,

the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

b. 901(b)- Gives a list of examples of authentication or identification evidence that satisfies the requirement

i. Testimony of a Witness with Knowledge; Nonexpert Opinion about Handwriting; Comparison by an Expert Witness or Trier of Fact; Distinctive Characteristics and the Like; Opinion about a Voice; Evidence about a Telephone Conversation, Public Records, Ancient Documents or Data Compilations, Process or System, and Methods Provided by a Statute or Rule

2. FRE 902 Evidence that is Self-Authenticatinga. The following items of evidence are self-authenticating and do not require extrinsic

evidence of authenticity in order to be admitted:

i. Domestic Public Documents that are Sealed and Signed; Domestic Public Documents that are not Sealed but are Signed and Certified; Foreign Public Documents; Certified Copies of Public Records; Official Publications; Newspapers and Periodicals; Trade Inscriptions; Acknowledged Documents (notarized); Commercial Paper and Related Documents; Presumptions Under a Fed Statute; Certified Domestic/Foreign Records of a Regularly Conducted Activity

3. FRE 903 Subscribing Witness’s Testimony. A subscribing witness’s testimony is not necessary to authenticate a writing unless required by the law of the jurisdiction that governs its validity

4. Ex: Johnson was convicted of assault. At trial, the Victim identified an ax that had been offered into evidence as the weapon that was used in the assault. Defendant thinks the Victim’s testimony regarding the ax was insufficient as authentication, because he failed to state specifically how it was that he could distinguish the ax from any other ax. Defendant argued that Victim did not identify specific characteristics of the ax, which would tie it to the accident.

a. Based on the Victim’s testimony regarding the ax, a reasonable jury could have concluded that this was indeed the ax that was used in the assault—the inability to state specific features about the ax goes to the weight of the evidence, not admissibility

i. Victim was “pretty sure” this was the ax, had used the ax in the past, and stated that he saw the ax in Defendant’s hand

5. Ex: Defendant was convicted of murder. Bullets and cartridge cases taken from the body of the witness at the crime scene matched a pistol that was seized from Defendant’s mother’s house. Defendant appealing based on the chain of custody of the evidence. The bullets and fragments from the Victim’s body were brought in sealed containers to the Crime Laboratory where FBI Agent unsealed each contained and wrapped the items in cotton for shipping to the FBI Laboratory. Agent that did this is now dead.

a. An uninterrupted chain of custody is not a prerequisite to admissibility. Gaps in the chain go to the weight of the evidence, not its admissibility. If the trial judge is satisfied that in reasonable probability the evidence has not been altered in material respect, he may allow its introduction.

b. Defendant presented no affirmative evidence of altering or tampering with the evidencec. Where items have been in official custody and there is no affirmative evidence of

tampering, a presumption of regularity attends official acts of public officers and the courts presume that their official duties have been discharged property

B. Writings1. FRE 901(b)(4). Authentication can occur by appearance, contents, substance, internal patterns,

or other distinctive characteristics, taken in conjunction with circumstances2. Ex: Defendant was involved in a tax fraud scheme, which involved preparing tax returns after

obtaining names and Social Security numbers of taxpayers. The returns were sent to false addresses in rooming houses and hotels and then deposited into fake bank accounts. Government’s hand writing expert compared two fraudulent returns and forms in the Defendant’s personnel file—both were written in unique block capitals. No witness testified that these were indeed written by Defendant, but the judge permitted them to be used as exemplars.

a. One way to prove that the matter in question is what its proponent claims are distinctive characteristics and the like, such as appearance, contents, substance,

internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

i. Exemplars were admitted—judge found the requirement of authorization was satisfied

b. Under 901(b)(2), a lay witness is not competent to give an opinion on handwriting if his familiarity with the putative author’s hand writing was acquired for purposes of the litigation

3. Introduction of a document involves the following steps generally:a.  Having it marked by the reporter for identification,b. Authenticating the document by the testimony of the witness (unless it has a certificate or

other self-authenticating characteristics),c. Offering the document in evidence,d. Permitting adverse counsel to examine the documente. Adverse counsel’s objecting, if he so chooses,f. Submitting the document to the court for examination if the court so desires,g. The court’s ruling on its admission,h. If it is admitted in evidence, presenting it to the jury by reading, passing it among them,

or other meansC. Voices and Telephone Conversations

1. FRE 901(b)(5) Opinion About a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

2. Ex: Defendant charged with distributing a controlled substance. Officer Z spoke to Defendant on the phone and arranged a drug deal at a participating parking lot. One hour later, Defendant, who matched the physical description given in the phone call, met Officer Z in the parking lot and sold him the drugs. Defendant is arguing that Officer Z should not have been able to give evidence about the phone conversations because proper foundation was not laid.

a. Rule 901(b)(5) permits voice identification based upon familiarity acquired at “any time,” including in anticipation of litigation. The requisite familiarity may be acquired either before or after the particular speaking which is the subject of identification

i. Officer Z had spoken with Defendant personally on two occasions and could identify her voice

b. *Further, identity may be proven by circumstantial evidencei. Defendant’s presence in the parking lot, matching the physical description given

on the phone, and riding in the car described on the phone is strong evidence that Defendant is the party with whom Officer Z spoke

3. Incoming vs. Outgoing Calls:a. Outgoing calls require less for authenticity

i. “Yellow Page” notion = this is the number so this is who it is going to beii. Fact that person says who they are can be used as one of the circumstances that

gives identity to the callD. Photographic Evidence

1. Ex: Defendant and two daughters were caught on videotape stealing from a store. In a hearing on the evidence, store manager testified that he had positioned the camera on a tripod, loaded the tape, started it, and checked to make sure that it was operating properly prior to the time he left the store. When he left the store no one else was present. He also changed the tape approximately two hours later and that he had continuous custody of the tapes since the date of

the theft. Defendant argues that the court erred in admitting the videotape into evidence because no witness testified that the photographic evidence was a fair and accurate representation of the subject matter.

a. The admissibility of photographic evidence is based on two different theories:i. Pictorial testimony = photographic evidence is merely illustrative of a witness’

testimony and only becomes admissible when a sponsoring witness can testify that it is a fair and accurate representation of the subject matter, based on that witness’ personal observation

1. Cannot apply in this case— no person could verify that the videotape accurately represented what occurred at the store based on personal observation

ii. Silent Witness Theory = photographic evidence is a silent witness which speaks for itself and is substantive evidence of what it portrays independent of a sponsoring witness

1. Adequate foundation facts must be presented to the trial court so that it can determine that the trier of fact can reasonable infer that the subject matter is what its proponent claims

2. Ex: x-rays—no one can testify that the film is a fair and accurate representation of the subject matter based on personal observation

b. Photographic evidence is the best available means of preserving the appearance of a scene at a given time—it is superior to eyewitness testimony in certain respects

i. Eye witness testimony is subject to errors in perception, memory lapse, and a witness’ problem of adequately expressing what he observed in language so that the trier of fact can understand

E. Demonstrative (Illustrative) Evidence1. Ex: Smith suffered injuries when his truck was hit by an Ohio Oil truck. Ohio Oil is appealing

to Smith’s use of an expert witness providing a plastic model of the human skeleton to assist with explanations of the injury. Argues that it was only used to arouse emotion rather than for explanation

a. With respect to an item used demonstratively or illustratively, the foundation must establish that the item depicts relevant information that is or will be proven by other, substantive evidence; that it is accurate; and that it will probably aid the trier of fact in understanding the evidence –perfect accuracy is not required, so long as, on balance, the item is helpful

b. Court concluded that the explanation was relevant, legitimate, and helpful, and contained nothing emotional or dramatic in character

VI. Chapter 7: Contents of Writings, Recordings, and Photographs (“Best Evidence Rule”) [FRE Article X]

A. Introduction; Definition of Writing (FRE 1001(1))1. FRE 1001(1) – “Writings” and “recordings” consist of letters, words, or numbers, or their

equivalent, set down by handwriting, typewriting, printing, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation

a. In proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent

2. When does the Best Evidence Rule apply?

a. The writing is the ultimate object of proof, orb. A party choses to prove the matter by using a writing as evidence

3. Ex: Duffy was convicted of transporting a car from FL to CA knowing that it was stolen. At trial, the court admitted testimony that a shirt imprinted with a laundry mark reading “DUF” was found in the trunk of the car. Defendant argues that admission of this evidence violated the Best Evidence Rule (BER) because this constituted a writing, thus the government should have to produce the shirt.

a. When the disputed evidence is an object bearing a mark or inscription, and is a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing— in reaching his decision, the judge should consider the policy-considerations behind the BER:

i. Precision in presenting the exact words of the writingii. Substantial hazard of inaccuracy by making a hard copy

iii. Error in giving oral testimony from memoryb. Writing here, “DUF,” was simple so there was little danger that the witness would

inaccurately remember the terms of the writingc. The terms on the shirt were also not central to the case against Duffy—he was not

charged with possession of the article, where failure to produce the article might prejudice him

B. Requirement of Original; To Prove its Content (FRE 1002)1. FRE 1002 – The requirement of the original applies only when the proponent seeks to prove

the contents of the writing, recording, or photograph. a. A party may provide evidence of a fact without regard to the original writing rule if the

proof does not depend on a showing that a writing, recording, or photograph shows that the fact is true. If a party’s technique for establishing a fact is to demonstrate that a writing, recording, or photograph contains evidence of the fact, then the rule applies.

2. Ex: Defendants were convicted of importing and distributing heroin. At trial, testimony was admitted in the form of tape-recorded conversations the Defendants had with informants. Defendants argue that the tapes should have been played—this was the BE.

a. BER only applies when one seeks to prove the contents of documents or recordings—if the ultimate inquiry had been to discover what sounds were embedded on the tapes in question the tapes themselves would have been the best evidence

i. The content of the tapes itself were not a factual issue relevant to the case—the inquiry concerned the content of the conversations

3. A transcript offered to prove the content of an available sound recording would be objectionable on best evidence grounds, being neither the original nor a duplicate of the recording

C. Originals and Duplicates (FRE 1001(3), (4); 1003)1. FRE 1001(3) – An “original” of a writing or recording is the writing or recording itself or any

counterpart intended to have the same effect by a person executing it or issuing it. An “original” of a photograph includes the negative or any print therefrom. If date are stored in a computer or similar device, any printout or other output readable by sight, shown the reflect the data accurately, is an “original”

2. FRE 1001(4) – “Duplicate” = counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original

3. FRE 1003 – Despite the existence of this original writing rule, a duplicate is almost always as acceptable as the ostensibly required original, UNLESS:

a. A genuine question is raised as to the authenticity of the original, orb. In the circumstances it would be unfair to admit the duplicate in lieu of the original

4. Ex: Defendant worked for the EPA. He submitted lodging expenses for reimbursement from three trips. He attached photocopies of the “Customer’s Copy” of Master Charge sales slips to each. Defendant then obtained the corresponding merchant copies from the hotels. Defendant’s copies showed greater expenses than the merchant copies. On appeal Defendant challenges the admissibility of the forms and photocopies that we submitted into evidence.

a. Photocopies were admissible because the Government was seeking to prove the content of the photocopies that Defendant attached, not the original. Even if the photocopies were considered to be duplicates, as Xerox copies may be, they would also be admissible, since Rangel did not raise a genuine issue concerning their authenticity.

D. Admissibility of Other Evidence of Contents (FRE 1004)1. FRE 1004 – The original is NOT required, and other evidence of the contents is admissible IF:

a. All originals are lost or have been destroyed , unless the proponent lost or destroyed them in bad faith,

b. No original can be obtained by any available judicial process or procedure,c. At a time when an original was under the control of the party against whom offered, that

party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing, or

d. The writing, recording, or photograph is not closely related to a controlling issue (collateral issue)

2. Ex: Cook was convicted for negligence and breach of warranty. At trial, the court allowed Neville to testify as to the contents of a Cook brochure describing the characteristics of its insulation. The brochure was destroyed in a fire so Neville tried to admit a copy of the brochure. Cook argues that the copy is not the BE to prove the contents of the brochure.

a. When the original is not obtainable because it was lost or destroyed, Rule 1004 allows such testimony to be admitted

b. POWELL: there are no degrees of secondary evidence when the original is unavailable3. Ex: Defendant’s convicted of armed bank robbery and assault with a dangerous weapon. When

their home was searched, Detective found several bills and recorded their serial numbers and later found that two of them matched serial numbers of bills on the bank’s list of bills that had been taken in the robbery. When the Detective came back to get the bills, they were no longer there. At trial, Detective and an expert witness testified regarding these two bills.

a. Evidence of the bills could have been admissible under 1004(1), (2), or (3):i. (1) = All originals were lost or destroyed

ii. (2) = No original can be obtained by available judicial process or procedure1. Even a subpoena probably would not have got them to produce the

originals which would have completed the Government’s caseiii. (3) = Originals in possession of opponent and they were on notice

1. Legitimate argument can be made that they were put on notice that the serial numbers would be a subject of proof at the trial, and if they were not produced at trial, they could not object to the admission

b. Proof that the original is lost normally consists of testimony describing a fruitless diligent search

4. Ex: The BER would only apply if the issue of title or ownership is directly involved, not when it is merely a collateral matter

a. The question of title was only a collateral matter involved in the case—zoning was the main issue involved and decision of the case would not conclusively determine whether plaintiffs were the owners of the properties

E. Public Records (FRE 1005)1. FRE 1005 – Contents of an official record, or of a document authorized to be recorded or filed

and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by exercise of reasonable diligence, then other evidence of the contents may be given

2. Ex: After serving time for a DWI and on probation, Defendant charged with DWI in another country. At the hearing, the State introduced a fax of a certified copy of the judgment of the second DWI.

a. Majority concluded that the certified copy of the judgment was an “original” under 1001(3) and the fax was a duplicate under 1001(4)--this was a certified copy so Rule 1005 was satisfied

b. Concurring: fax was admissible as a duplicate—also believed the fax was admissible as an “original” certified copy under 1001 and 1002 because it was a counterpart intended by the Clerk to be received as a certified copy

F. Summaries (FRE 1006)1. FRE 1006 – The contents of voluminous writings, recordings, or photographs, which cannot

conveniently be examined in court, may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time at place. The court may order that they be produced in court

2. Ex: Defendant was convicted of fraud and conspiracy. Government offered testimony of an FBI agent who reviewed over 200 hours of Defendant’s TV show. Agent had edited down portions where Defendant was soliciting memberships to his partnership programs, which he oversold and were the underlying reason for his conviction.

a. The purpose of Rule 1006, to provide a practicable means of summarizing voluminous information, was well served in this case since viewing all of the original broadcast tapes would have taken over 200 hours

b. The Rule does not require the original voluminous information to be introduced into evidence; rather it simply requires that the material be made available to the other party before trial

i. The underlying materials must be admissible!1. Summary evidence is admissible under 1006 only if the underlying

materials are admissibleii. The underlying materials need not be introduced into evidence, and the rule

provides that whether to require that they be produced in court is a matter of the court’s discretion

G. Testimony or Written Admission of Party (FRE 1007)1. FRE 1007. If a party against whom information about the contents of a writing, recording, or

photograph is sought to be introduced gives testimony about the contents, the original writing rule DOES NOT apply

H. Functions of Court and Jury (FRE 1008)

1. FRE 1008 – Where questions of fact are involved in deciding whether Rule 1004’s provisions about other evidence of the contents of a writing, recording, or photograph may be admitted, the trial judge decides most of these questions as Rule 104(a) would require. Certain specified issues related to the rule are left to the jury, however:

a. Whether a particular writing ever existed,b. Whether an item at trial is an original, andc. Whether other evidence of contents is accurate

2. Ex: Seiler was a graphic artist who alleged copyright infringement against Lucas Film—argued that he created a certain character before Lucas created Star Wars in 1980. Seiler did not get his copyright until 1981. Seiler wants to compare his character with Lucas’ character using blown up images in court—several drawings made in 1985. Seiler claims his original drawings were lost or destroyed and believes the jury should decide whether he engaged in bad faith.

a. Rule 1008 states that when the admissibility of evidence other than the originals depends upon the fulfillment of a condition of fact, the trial judge generally makes the determination of that condition of fact

b. The condition of fact Seiler needed to prove was that the originals were NOT lost or destroyed in bad faith—had he done this, the reconstructions would have been admissible and their accuracy would have been a question for the jury

VII. Chapter 8: Privileges [FRE Article V] A. FRE 501 Privilege In General

1. The common law governs a claim of privilege unless the US Constitution, a federal statute, or rules prescribed by Supreme Court provides otherwise.

2. In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision

3. Not designed to enhance the reliability of the fact finding processa. Impedes the search for truth by excluding probative evidenceb. Not designed to further litigation of efficiency c. Holder of privilege has the power to assert or waive the privilege d. Applies at all stages of the proceedings

4. Want to encourage the free flow of information/protect privacya. Witnesses should not be compelled to be his own accuser

5. Search for truth is not paramount to all other interests6. Instrumental Rationale: Clients or patients will not communicate freely unless they knew

privilege would protect their communications a. Importance of the relationship

i. Relationship cannot function without candor and protected privacyb. Whether community values would be undermined by government intrusion into the

privacy of the relationship c. Societal traditions and professional standards

i. Whether these cerate a reasonable expectation of confidentialityii. Should the person expect the communications to be privileged based on societal

traditions and professional standardsd. Scope

i. What type of relationship?ii. Does the relationship require full and open communication

e. Purpose

i. Would the purpose of the relationship be impeded by the non-recognition of the privilege?

f. Cost of loss of evidence?B. Spousal

1. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person

2. Any party or witness in any proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between himself and his spouse

3. Promote marital harmony but at the same time have to promote government’s legitimate search for evidence

C. Lawyer-Client1. Attorney-Client privilege means the protection that applicable law provides for confidential

attorney-client communications; and2. Work-product protection means the protection that applicable law provides for tangible

material (or its intangible equivalent) prepared in anticipation of litigation or for trialD. Psychotherapist-Patient and Physician-Patient

VIII. Chapter 9: Presumptions [FRE Article III] A. Civil Cases (FRE 301, 302)

1. FRE 301 Presumptions in Civil Cases Generally. In a civil case, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally.

2. A presumption is a procedural device involving a relationship between a specific “basic” fact and a “presumed” fact. Under the federal rules, when a party introduces evidence that could support a finding that a basic fact is true, the consequences vary according to how the opponent responds:

a. If the opponent introduces NO evidence about the presumed fact, the jury will be instructed to treat the presumed fact as true if it believes that the basic fact is true

b. If the opponent introduces evidence about the presumed fact that is too weak to support a conclusion that the presumed fact is not true, the result will be the same as if the opponent had introduced no evidence about the presumed fact

c. If the opponent introduces evidence strong enough to support a finding that the presumed fact is not true, then the trier of fact will decide about the existence of the presumed fact in the same way it decides about the existence of any other fact without regard to presumptions

3. Under 301, the burden of persuasion does NOT shift, it remains throughout the trial on the party to whom it was originally cast -- “bursting the bubble approach”

4. Three types of presumptions :a. Presumption of law -- you are entitled to the benefit if no counter-proof is offeredb. Presumption of fact -- permissive presumption/inferencec. Conclusive presumption -- irrebutable presumption/substantive rule of law

5. 301 only applies to presumptions in civil cases “not otherwise provided for by Act of Congress or by these rules”

a. Thus, a statutory presumption may provide for an effect other than that provided for in Rule 301

6. FRE 302 Applying State Law to Presumptions in Civil Cases. In a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision.

7. Ex: Patent application was required to arrive at the office by March 6. The application was mailed out on March 1. The application was date stamped March 8 by the office—process at the office is that things are date stamped as they are received, which is the basic presumption of the patent office. The general presumption as to mail is that it should take 2 days to arrive, assuming that it is properly addressed.

a. The presumption is merely to invoke a rule of law compelling the trier of fact to reach a conclusion in the absence of evidence to the contrary. If the opponent does offer evidence to the contrary, the presumption disappears and the case goes to the fact finder free of any rules

b. The presumptions here cancelled each other out and the jury takes the issue as a question of fact (“bursting the bubble”)

8. Ex: A will is being offered into probate. The surrogate court is being asked to disburse the contents in accordance with the wishes of the testate. A group of people contest the will claiming undue influence. At trial, evidence is presented showing that there was undue influence and then they rest their case. At this point, their stance was that they had made a prima facie showing if no other evidence was provided to the contrary, and the burden of proof should now switch to the other party.

a. Court held that in a will contest, the burden of proof or the risk of non-persuasion on the issue of undue influence is on the contestant and remains there throughout the trial

b. Court also found that the “presumption of undue influence” was not truly a presumption, but instead a permissive inference -- allows the trier of fact to find the inferred fact from the basic fact, but it does not require this finding

B. Criminal Cases 1. Permissive – constitutional

a. Permits the jury to find the presumed facts, but neither compels the acceptance of such facts nor allocates a burden of persuasion to the Defendant with regard to those facts

2. Mandatory – unconstitutionala. Shifts the burden of persuasion to the Defendant

3. Ex: NY statute says that a firearm in a vehicle is presumed to be illegally possessed by all persons occupying the vehicle. 3 adult males and a 16 year-old girl were in a car where multiple guns were found in a bag on the floor in front of the girl and heroin was discovered in the trunk. 3 adults say that the firearms were in possession of the 16 year old.

a. Permissive inferences -- as-appliedi. Affects application of the “beyond a reasonable doubt” standard only if,

under the facts of the case, there is no rational way the trier could make the connection permitted by the inference

ii. Analyzing the effect of the inference on the jury—what do you think a reasonable jury would conclude about the presumption/instruction?

b. Mandatory inference – faciali. More problematic because it not only effects the strength of the “no reasonably

doubt” burden but also the placement of that burdenc. Court here finds the presumption to be a permissive one and should have been analyzed

in terms of its effect on the jury

d. Court found the statute to be constitutional because the jury could have reasonably rejected the suggestion advanced by the adult defendants that the hand guns were solely in the possession of the 16 year old

4. Ex: Franklin, a prisoner, was on a visit to the dentist when he escaped, stole a gun, stole a car, and shot a 72 year old man. Jury instructions were given that “(1) the acts of a person of sound mind and secretion are presumed to be the product of a person’s will, but the presumption may be rebutted, and (2) a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted.”

a. Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, the jury instructions were unconstitutional

b. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relives the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding

i. Still unconstitutional

IX. Chapter 10: Judicial Notice (FRE Article II) A. Kinds of Facts (FRE 201(b))

1. FACTS GENERALLY KNOWN a. FRE 201(b)(1) – A judicially noticed fact must be one not subject to reasonable dispute

that is either: (1) generally known within the territorial jurisdiction of the trial court or…(2) below

b. Ex: Child killed in car accident. Trial judge instructed the jury that if they found that the Defendant was running the automobile at the time of the accident at a greater speed than 15 miles per hour, he was violating the city ordinance and MVA and was per se negligent. Judge then read MVA which made it illegal to go more than 15 over in a “business district.” Court then told the jury that where the accident took was place in fact a “business district.”

i. The probabilities are that every person in the courtroom at the trial knew perfectly well what the character of the location was

1. The fact was indisputable beyond question AND a matter of common knowledge throughout the jurisdiction in and for which the court is sitting

ii. If the jury would have found that the location for some reason was not a business district, it would have been the duty of the court to set aside the verdict

iii. Why take judicial notice?1. Strengthens the analysis2. Judicial efficiency3. Helps in terms of proof

2. VERIFIABLE FACTS 3. FRE 201(b)(2)– A judicially noticed fact must be one not subject to reasonable dispute that is

either: (1) generally known within the trial court’s territorial jurisdiction, or (2) capable of

accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

4. Ex: Judicial notice was given of the fact that working around asbestos causes mesothelioma.a. There is a valid question of fact, so the court should not instruct the jury on an issue

when there is proof to the contrary. Whenever you have conflicting expert testimony, the court is usually precluded from taking judicial notice.

b. Mesothelioma can be caused by more than asbestos so there is no reasonably certainty amongst the medical community as to what the cause is

B. Legislative Facts (FRE 201(a))1. FRE 201(a) – The scope of the rule governs only judicial notice of adjudicative facts, not a

legislative fact:a. “Adjudicative facts” are facts that are specific to a particular litigation, such as whether a

certain street is in a business or residential districtb. “Legislative facts” refer to more general facts about society and human nature that are

not available for judicial notice, such as whether business districts usually have more pedestrian traffic than residential districts do

2. Ex: Statute governs Schedule II drugs. Court took judicial notice that it is illegal to possess the derivatives of cocoa leaves and further instructed the jury that a judicially noticed fact should be taken as conclusive.

a. Because this was a legislative fact, the judge can instruct the jury that a fact is binding upon them. Rule 201 only covers adjudicative facts.

C. Reasoning Facts; Jury Notice; Procedural Matters (FRE 201(c)-(f))1. FRE 201(c) Taking Notice. The court:

a. May take judicial notice, whether requested or notb. Must take judicial notice if requested by a party and supplied with the necessary

information2. FRE 201(d) Timing. The court may take judicial notice at any stage of the proceeding.3. FRE 201(e) Opportunity to be Heard. On a timely request, a party is entitled to an

opportunity to be heard as to the propriety of taking notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party may request and is still entitled to be heard

4. FRE 201(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

5. Ex: Defendant was convicted by a district court jury of illegally intercepting telephone conversations and using the contents of the intercepted communications in violation of federal law. Defendant moved for a new trial and the United States District Court found that the Government had failed to prove an essential element of the crime charged and entered a judgment of acquittal.

a. Even in criminal cases, matters falling within the common fund of information supposed to be possessed by jurors need not be proved, the jury may properly rely on its own knowledge and experience in evaluating evidence and drawing inferences from that evidence; however, there must be sufficient record evidence to permit the jury to consult its general knowledge in deciding the existence of the facts

6. In the absence of any proof that the telephone company, which furnished and installed the tapped telephone, was at the time a “person engaged as a common carrier” in providing facilities for the transmission of interstate communications, defendant's conviction could not stand.