evidence outline.docx

Evidence- George Spring 2013Zackary Gibbons

General Principles of Relevance

1. Introductiona. Law of Evidence is almost entirely the FRE [101]

2. Preliminary Question of Admissibility [104]a. Relevance of a fact depends on proof of a separate factb. Preliminary Question when Depends on a Fact

i. Judge alone determines qualifications of witness, privilege, and admissibility of evidence [104(a)]

1. “NOT bound by the rules of evidence except those with respect to privileges” when ruling on admissibility

a. May consider affidavits and other hearsay informationb. When determining whether privilege attaches may consider in

camera alleged privileged evidenceii. Conditional Relevancy

1. Judge screens but does not decide whether sufficient evidence of condition [104(b)]

a. Not determining credibility of the evidence, merely that reasonable jury could find that it is credible based on information given

3. Limiting Evidence that is Not Admissible Against Other Parties or For Other Purposes [105]a. Judge may issue limiting instruction to the jury, stating that evidence is to be only

considered for a specific party or for a limited purposeb. Debatable as to whether these are effective

i. Supreme Court has assumed they are but most commentators disagreec. Evidence may be excluded under 403 if believe that limiting instructions will be

ineffective4. Relevancy Rules (Threshold issue for all evidence. If it is not relevant it is inadmissible)

a. Requirement [402]i. Necessary but not sufficient condition of admissibility

1. If relevant it is admissible absent a rule of exclusionii. Irrelevant evidence is always inadmissible

b. Rationalei. Efficiency, accuracy, full information to jury

c. Definition [401]i. Probativeness (relationship between evidence and proposition for which it is

offered to proved)1. “any tendency” or change in apparent probability (James)

ii. Materiality (“fact that is of consequence to the determination of the action”)1. Based on substantive law (elements of charged crime, elements of

cause of action, elements of affirmative defense, damages in civil cases)

d. Evidence need to be in dispute to be admissible

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5. Limits on Admissibility of Relevant Evidencea. Balancing Rule [403]

i. Judge may exclude relevant evidence if risk of unfair prejudice substantially outweighs the probative value

ii. Unfair means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one (evidence which inflames the emotions) Advisory Committee Notes

1. Examples a. State v. Bocharski b. US v. (Ernestive) James dissent

i. Prejudice against victim may lead to “he served it” based on prior acts

ii. Deference to trial judge decisioniii. Additional “dangers”

1. Confusing the issues2. Misleading the jury

iv. Additional “considerations”1. Undue delay, wasting time or needlessly presenting cumulative

evidencev. Substantially makes biased in favor of admissibility

vi. Analysis 1. When making balancing determination, judge must consider:

a. Effect of 105 jury instructionb. Availability of alternative proofc. Possibility of stipulation to reduce unfair prejudice

b. Recurring Issuesi. Flight

1. Behavior clearly demonstrates that reaction is in response to police presence Innocent individual will not run Consciousness of guilt (of this particular crime) Guilty

a. More time that has passed between act and flight more concerned with flight being in reaction to something that occurred between

2. Judges relatively accepting of evidence of flight but want limiting instructions [105]

ii. NO Flight1. Judges almost always refuse to allow evidence that defendant did not

flee to show that lacked guilty mind

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iii. Probability (Rule) Evidence (People v. Collins)1. Little probative value (typical)

a. Lack of empirical basis for estimatesb. Violation of formula assumption (independent factors)c. Ignores probability of witness error

2. Unfair prejudicea. Risk of juror deference to statisticsb. Defense counsel and jury unable to understand/respondc. Conflation of “odds” testimony with burden of proof

requirement3. Argument can be made that prior occurrences would sow notice or a

dangerous condition, thus more likely to take care in the futurea. i.e., bath tub drownings and cleaning gun problems

iv. Stipulations (Old Chief)1. Party may stipulate to prevent admission of harmful evidence

a. Stipulation does not defeat FRE 401 relevance2. Play role in weighing probative value under FRE 403 (Discounts

probative value)a. Ask if there is another way to establish this fact that is equally

or more probative, then Court should be more concerned with risk of challenged evidence

3. Party should be able to prove its case in the manner it chooses for listed reasons

a. Right of prosecution to tell storyb. Standard is “abuse of discretion”

4. Application of 403 to Stipulations a. Discounted probative value of evidence attempting to be

introduced (since ∆ is willing to stipulate to it in order to keep out) weighed against right to prove case in chosen manner

i. Unfair prejudice1. Evidence (while relevant) is meant to lure fact

finder into declaring guilt on ground different from proof specific to offense charged

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The Specialized Relevance Rules [407-411]1. Rationale

a. Internali. Risk of unfair prejudice substantially outweighs probative value

b. Externali. Admission discourages beneficial activity (and other public policy

concerns)c. Text may compete with rationales

i. Hybrid between committee and Congress2. Exclusionary effect is limited except for 410

a. Prohibit only certain uses of the evidence they govern, while permitting all other uses

i. FRE 407-409 and 411: Everything is permitted excepted that which is specifically forbidden

ii. FRE 410: Everything is forbidden except that which is specifically permitted

3. Subsequent Remedial Measures (Defective product, etc.) [407]a. Rationale

i. Encourage people to take, or at least not discourage them form taking, steps in furtherance of added safety (ACN)

ii. Is remedial measure is not really probative of negligence or are other motivations involved?

b. Includes repair, redesign, warnings, instructions, recall, employee discipline and closing facility

c. Evidence of subsequent remedial measures is inadmissible to prove:i. Negligence

ii. Culpable conductiii. Product or design defectiv. Need for warning

d. But is admissible for “another purposes, such as”i. Impeachment

ii. If disputed : ownership, control or feasibilityiii. Or anything other than the prohibited purposes

e. ENSURE THAT SUBSEQUENT to accident or incident being litigatedi. Prior remediation is not covered by text of 407

1. Motivation is to prevent future litigation, therefore encourages effective remediation that prevents future injuries

f. IF successful in limine motin to exclude but subsequent statements by defense which would be impeachable by evidence then ruling may be altered

i. Cannot hide behind successful ruling at beginning of trialg. Does not apply to 3rd party remedial measure (relevance is doubtful though)h. Applies even when remedial measure is required by regulation and in strict

liability casesi. Strict liability cases

i. Specifically prohibited in rules

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4. Offers of Compromise and Negotiations [408]a. Rationale (effective based on control anchor test)

i. Encourage settlement (open discourse without fear will be used against)ii. Statements of regret (humane statements) are not strong evidence of guilt

but can prejudice a juryb. Covers compromise offers and statements during settlement negotiations (party’s

own and 3rd party)i. NOT applicable to offers made prior to a “claim” being made or to

evidence from outside of negotiationc. Only applies if:

i. Claim (CIVIL) which is disputed1. Litigation is not required but must identify time at which dispute

aroseii. There is an actual attempt at compromise

d. Inadmissible : [408(a)]i. To prove/disprove validity or amount

ii. To impeache. Admissible : [408(b)]

i. Witness biasii. Rebut claim of undue delay

iii. Rebut claim or obstructioniv. Negotiation with gov’t introduced at criminal trialv. Other purposes

f. Common Event or Same Transaction Principlei. Some courts have held bars “attempted use of a completed compromise of

a claim arising out of the same transaction between a third person and a party to the suit being litigated”

5. Offer to Pay or Payment of Medical Expenses [409]a. Rationale

i. Offer is made from humane impulse not from admission of liability1. Holding otherwise would discourage assistance (ACN)

b. Protects fact that offered to payi. Does not cover other statements made in conjunction with offers to pay

(i.e., humane statements) or fact of paymentc. Inadmissible

i. To prove liability

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6. Withdrawn and Nolo Contendre Pleas [410]a. Fundamentally different and more stringent

i. Everything is forbidden except that which is specifically permittedb. Rationale

i. Want to encourage compromise and plea dealings, necessary that ∆ feel free to speak during plea discussion

c. Inadmissiblei. Withdrawn guilty plea

ii. Nolo contender pleaiii. Statement made during proceeding under FRCrP 11iv. Statement made to prosecuting attorney during plea discussions if did not

result in guilty plea or resulted in later-withdrawn plead. Admissible

i. Another statement made in conjunction with evidence that was introduced should be allowed due to fairness (Rule of Completeness) [106]

1. Place in proper contextii. Perjury trial

iii. To impeache. ONLY available to defendants based upon text, not the prosecution

7. Liability Insurance [411]a. Rationale

i. Encourage the act of insuringii. Worry about windfalls for those who are irresponsible and do not purchase

insuranceb. Inadmissible

i. To prove liability for injury (fault)c. If not inadmissible then admissible (…may admit this evidence for another

purpose…)i. Prove bias or prejudice of witness

ii. Prove agency, ownership or control d. Covers carrying or failing to carrye. No differentiation between plaintiff and ∆

i. Rationale and rule conflict since if ∆ could use insurance to show that not liable would increase likelihood that people would be insured

f. Criminal defendant’s have greater rights than civil defendants, thus can argue right to fair trial to allow fact that ∆ was insured to be introduced

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Character Evidence [404-406]

1. Character Propensity Rulea. Basics [404]

i. Bars character propensity evidenceii. Covers opinion or reputation testimony AND other acts evidence

iii. Applies in all casesiv. Prohibition extends to any person’s characterv. Does not apply to evidence:

1. introduced for a different purpose2. to prove character when it is in issue [405(b)]

b. Rationalei. Relative probative value is less than 1) unfair prejudice and 2) mini-trial

based on character (wasting time)ii. Prevent conviction of ∆ for crime not charged or for charged crime despite

guilt based on other evidence1. Convict for who he is not what he has done

iii. External reason1. Must make criminal case (not case against the man)2. Must prove things happened because of the facts (direct evidence)

2. Propensity Box [404(b)] (applies criminal and civil)a. Evidence is not admissible

i. To prove characterii. To show action in conformity therewith

b. Other Acts Evidence [404(b)]i. May introduce if find route around the box:

1. Listeda. Motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake o lack of accident2. Others

a. M.O., narrative integrity, common plan or schemeii. Under 404(b)(2) prosecutor must give notice within reasonable time

(preferably before trial)1. Provides opportunity for discussion of evidence outside of

presence of juryiii. Standard of Proof for 404(b) Evidence

1. Could a reasonable jury so find (sufficient evidence to support conclusion)

2. FRE 104(b)a. Preliminary question when relevancy depends on a fact

3. Judge screens buts does not decide whether sufficient

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iv. Proof of Knowledge 1. Objection based upon 404(a), attempting to show past act and

acting in accordance with herea. Response, goes to knowledge of how to do something

(specialized)2. 403 objection due to risk or unfair prejudice

a. Response highly probative if very small pool of suspects3. FRE 105 limiting instruction

v. Identity 1. M.O and Signature Crimes

a. “This could not be anyone else’s crime”2. Similarities must be so distinctive that the inference that nobody

else could have committed this crime overcomes the jury’s temptation to engage in propensity reasoning (US v. Trenkler)

a. Prerequisite to admission, showing that there exists a high degree of similarity between the other act and the charged crime

i. Commonality of distinguishing features sufficient to earmark them as the handiwork of the same individual

b. An exact match is not necessary, test focuses on “totality of the comparison”

i. Conjunction of several identifying characteristics or the presence of some highly distinctive quality

vi. Reverse 404(b) 1. Argument by the ∆ that someone else has committed the crime

a. Seeks to introduce other acts evidence (M.O. of previous crime same as ones here thus person that committed those committed this one)

i. Cannot use propensity reasoning (barred by 404(a))ii. If non-propensity basis (e.g., similarity, plan,

motive), 403 prejudice risk is lowvii. Absence of Accident

1. Someone who previously had an accident would take steps in the future to prevent it from occurring again, thus a future accident would be far less likely

viii. Doctrine of Chances 1. Does not make sense in the world of evidence (sequential)

a. Look at events after they have occurred not prior therefore the product rule of probability does not apply (the chance of occurrence of something is the same each time it happens)

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ix. Huddleston Standard ([104(b)]1. Evidence of a person's prior actions that might adversely reflect on

the actor's character is generally forbiddena. BUT evidence that might relate to a relevant issue in the

case, such as motive, opportunity, or knowledge, is admissible.

2. Court does not make a preliminary finding of “other acts” by the preponderance of the evidence

a. Similar acts evidence would be admitted if there is sufficient evidence to support a finding by the jury that the ∆ committed the similar act

c. Propensity Evidence in Sexual Assault Cases [413-415]i. In sexual offense cases, the prosecution (plaintiff) may offer evidence of

the accused’s character (prior commission of crime) for:1. Sexual assault [413]2. Child molestation [414]

a. Under the age of 143. Civil cases involving sexual assault and child molestation [415]

ii. Must disclose to ∆ evidence intends to offer1. i.e. witness statements or summary of expected testimony

c. Proof of Defendant and the Victim’s Characteri. State may not introduce in it’s case in chief [404(a)]

1. Cannot anticipateii. Criminal Case ONLY

1. Accused may introduce relevant evidence of own good character [404(a)(2)(A)]

a. Relevant traits onlyb. Opinion or reputation testimony only [405(a)]

i. Witness’s ownii. “Community” (hearsay)

1. MUST ASK “Do you know other people who know him?” then “What is his reputation?”

c. State may rebut byi. Cross-examining character witness (most powerful)

1. May ask about specific instances to test their qualifications [405(a)]

a. Good faith basis for acts inquiry (would reasonable fact finder believe)

ii. Offering rebuttal opinion or reputation witness [405(a)]d. ∆ can control past events by:

i. Limiting witnesses to those who it would be improper to ask

ii. Introduce past event (i.e., previous arrest) himself to remove sting and demonstrate nothing to hide

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2. Accused may introduce relevant evidence of victim’s “pertinent” character trait [404(a)(2)(B) BUT see 412]

a. Typically ∆ is asserting self defense and wishes to show victim was violent

b. By opinion or reputation NOT specific instancesc. Prosecution may respond by:

i. Cross examinationii. Offering opinion or reputation witness as to victim’s

trait AND/OR ∆’s same trait3. Prosecution may introduce evidence of victim’s peacefulness in self-

defense homicide [404(a)(2)(C)]a. Elements

i. Criminal Caseii. Homicide Charge

iii. ∆ assert’s self-defenseiv. Prosecution rebut through use of character witness

(must wait for self-defense to be asserted)b. Justification

i. Victim not around to testify

iii. Character as an Essential Element (“Character in Issue”)1. FRE 404(a) does not prohibit character evidence to prove character

(rather than action in conformity therewith)2. FRE 405(b) allow proof through specific acts (must be element of

offense)a. Limited Applications

i. Entrapmentii. Defamation

1. Truth as defenseiii. Parental Fitness (Custody)iv. Crimes in which prior conviction is an element

b. E.g., felon in possession of a firearm [922(g)(1)]

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d. Evidence of Habit [406]i. Basics

1. Allows evidence of habit (or organizations “routine practice”) to prove consistent action in particular instance

a. Not withstanding 404 prohibition, habit is elevated beyond character propensity

i. Invariable regulatory, certainty, predictability thus greater probative value

2. Introduction of Witnessa. Must be able to prove a sufficient number of instances of the

conduct in questioni. Preferable that be able to generally state times and

place of occurrence3. Cannot use to establish bait of violence or of drinking

a. ACN indicate meant to extend to innocuous behaviorii. Definition

1. Repetitive pattern of conduct such that it is both predictable AND predictive

a. Relevant Factorsi. Regularity (repetition and duration)

ii. Response is both specific and narrowiii. Subject is mundane or routineiv. Semi-automatic nature

e. Witness’s character is relevant to credibility in all cases [404(a)(3); see 607, 608, 609]

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Impeachment and Character for Truthfulness

1. Definitiona. Any effort to discredit a witness

i. Issues arise only after someone has testified as a witness1. No anticipatory impeachment

2. Generala. Either party may impeach [607]

i. Unnecessary to establish that they are hostileb. Rehabilitation

i. Any effort to support a witnessii. May only be offered after witness’s credibility has been attacked

3. “A trial judge should rarely, if ever, permit the Gov’t to ‘impeach’ its own witness by presenting what would otherwise be inadmissible hearsay [of] alleged confession [by] defendant.” (US v. Ince)

4. Theories of Impeachmenta. Non-Character (must only be permissible under 401, 402, 403)

i. Recollection, ability to perceive of the ability to explain1. Any may amount to attack on witness’s character raising 404/608

concernsii. Witness is lying on the stand

1. Distinguished from the witness being a liar in general and therefore is lying now

iii. Modes:1. Contend that there is some shortcoming of perception or capacity

(sensory or mental defect)a. E.g., questions about lighting (how dark, moon out,

streetlights), other things that happened at the scene, was scene drinking prior to occurrence

b. Test vision in court room or extrinsic evidence of previous eye exam failure

2. Prior inconsistent statement [613] (see also Hearsay)a. Seek to introduce statement made previously that conflictsb. Can ask about prior statement but do not have to give it to

witness or give the contexti. Must:

1. Give it if opposing council asks2. Have good faith belief

ii. If offer as extrinsic evidence must allow witness to view

3. Contradicting Evidence (specific contradiction)a. Does not require we reach any conclusion about witness

character merely that wrong in this instanceb. Possible to reach point where weight of evidence causes

jury to reach conclusion that person has character trait of being a liar

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4. Showing Bias or Interest (i.e., motive to lie)a. Relationship between a party and a witness which might

lead the witness to slant testimony in favor of or against a party

i. Not only like, dislike or fear but also self-interest in preferring one outcome in the suit over another

b. Seek through testimony or extrinsic evidencei. Typically lay ground work on cross before

introducing extrinsic evidence

b. Dishonest Character i. Witness is an untruthful person and thus is lying on the stand

ii. Impeachment by Opinion, Reputation and Cross Examination About Past Lies [608]

1. Opinion & Reputation Evidence [608(a)]a. Either party may offer to show witness’s dishonest

characteri. Must establish ground work that character witness

is acquainted with the principal witness’s reputation in the community

ii. Must lay groundwork of personal relationship with principal witness prior to opinon

b. Evidence of honesty limited to rebuttal2. Specific Acts Evidence (non-conviction) [608(b)]

a. Not allowed on direct nor by extrinsic evidence (e.g., other witnesses)

b. May ask on cross if the acts are probative of truthfulness or untruthfulness

i. Must have good faith basis for the inquiry

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5. Impeachment with Past Conviction [609]a. More lenient approach in 609 than 608b. Only applies to convictions

i. Not arrests and indictmentsc. FIVE Subst. Sections

i. Conviction in generalii. Stale convictions

iii. Pardoned convictioniv. Juvenile convictionsv. Appealed convictions

d. FOUR Themesi. Crimen Falsi v. Other

1. Much more probative, as crimes whose elements contain dishonest actions

ii. Criminal ∆ Witness v. Other1. Has more rights than any other party

iii. Rehabilitation Likely v. Not1. Old or juvenile convictions, pardon, it is more likely that person no

longer has traitiv. Balancing Probativeness & Prejudice in FOUR Different Tests

e. Analysis i. Did the crime require establishing a false statement was made or

dishonesty to prove that it occurred?1. CRIMEN FALSI, come in if not stale (regardless of punishment

length)ii. If not crimen falsi, was it punishable by more than 1-year imprisonment

(felony)?1. If felony, what standard applies depends on who is testifying

a. Witness is accused more probative than prejudicialb. Anyone else 403 standard

iii. Juvenile and timing considerationsf. 609 Standards

i. 403 prob. < prej.ii. 609(a)(1)(B) prob. > prej.

iii. 609(b) prob. > prej.iv. 609(d) fairly determine guilt or innocent

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g. GENERAL [609(a)]i. Written in terms of available penalty not that assessed

ii. Subsection 1- crime punishable by death or imprisonment of more than one year

1. Requirement means that in most jurisdictions a felony offense2. Test

a. Not ∆ or civil case Rule 403 [609(a)(1)(A)]i. Burden is on objective party

ii. Difficult (but not impossible) to satisfyiii. Prejudice to opposing party (not to witness)iv. Pretty easy in this situation to be admissible

b. ∆ is witness probative outweighs prejudice [609(a)(1)(B)]

i. Flips standard 403 wordingii. Not a backdoor to evidence that would be prevented

by 404, thus higher standard 1. Prevent the issues that came up in the past

where would use cross to introduce past convictions to impeach but actually meant as character propensity

iii. Only if more probative than prejudicial (Brewer Application)- Factors (Gordon)

1. Nature of the Crimea. Violence generally has little or no

bearing on honesty and veracity2. Time of Conviction and the Witness’s

Subseq. Historya. Conduct following release less than

would be expected of a rehab indiv.3. Similarity between Past Crime and Crime

Chargeda. Greater prejudicial effect if similar

crimes, as more likely juror will believe “if he did it before he probably did so this time

4. Importance of the ∆’s testimonya. More critical to the case, more

hesitant a trial court should be to admit (significant prejudice if deterred from testifying)

5. Centrality of the Credibility Issueiv. Can admit while withholding from jurors nature of

the conviction1. Typically permit jurors to learn as different

crimes have different probative power in showing untruthful character

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iii. Subsection 2- regardless of punishment, crime that requires element of “dishonest act or false statement” be proved

1. All crimes of dishonest and false statement are admissible to impeach (and must be admitted)

a. Limited by (apply to any conviction used for impeachment)i. Time

ii. Pardonsiii. Juvenile adjudication

b. Not limited byi. FRE 403

1. Only FRE to escape this test, thus highly confident in it

ii. Judicial discretionh. AFTER 10 YEARS [609(b)]

i. Ten years since conviction or release from confinement (whichever is later), admissible only if:

1. Probative value substantially outweighs prejudicial effect2. Give written notice

ii. Rebuttable presumption against admissioniii. Look at whether concurrent or consecutive

1. Concurrent sentences (running at the same time)a. i.e., Sentenced with a 3 and a 10, 14 years later could only

use 10 year crime as it has been 11 years since released for 3 year crime

i. Only can use 3 year crime if 2. Consecutively

a. Stack in way that is most disadvantageous to the defendant, thus longest at the beginning shortest at the end, keeps the most offenses available

i. 3 10, 14 years later couldn’t get the 3 year in (been 11 years since that term of incarceration ended)

ii. 10 3, 14 years later could get both in iv. Limit applies to all of 609(a) impeachment

1. Clock begins at date of conviction or date of release (whichever is later)

a. Use date of release on parole unless there is a parole violation (thus get out permanently)

i. Re-confinement pursuant to a parole violation is confinement imposed for the original conviction

b. Conviction outside of time limit can be admitted but very rarely and only in exception circumstances

i. “Probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect

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i. PARDONS [Rule 609(c)]i. Not admissible unless commit another crime punishable by death or

imprisonment of more than one yearj. JUVENILE [Rule 609(d)]

i. Only if:1. Criminal case 2. Witness other than ∆3. Adult’s conviction for that offense would be admissible to attack

credibility [meets 609(a) & (b)]4. Necessary to fairly determine guilt or innocence

a. VERY RARELY METk. APPEAL PENDING [Rule 609(e)]

i. If satisfies 609 requirement admissible even if appeal is pendingl. FRE 609 on Appeal

i. To challenge in limine ruling of admissibility of a criminal conviction to impeach:

1. Witness (including ∆) must testify (Luce)2. Impeaching party must have offered 609 evidence (Ohler)

a. The objecting party may not do so preemptively on direct (to “remove the sting”) as this amount to a waiver of the objection

6. Rehabilitation a. When may a party repair or support a witness?

i. Only in response to an attack on the witnesses character for truthfulness [FRE 608(a)(2)]

1. May not repair before an attack2. Impeachment must constitute and attack

ii. What constitutes an “attack”?1. Yes

a. 609(a), 608(b), 608(a)2. No

a. Bias or interest3. Maybe

a. Contradiction (if so great begins to appear that a liar in general can shift from non-character to character impeachment)

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The Rape Shield

1. Historic Treatment of Evidence of Sexual Assault Victim’s Sexual Historya. Admissible under common law and FRE before 1978 on 2 character theories:

i. Character Evidence Rule Exception for Victim [cf. 404(a)(2)(B)]1. Pertinent trait (propensity to consent)

ii. Impeachment exception for witness’s character for truthfulnessb. Form of Evidence

i. Opinion or Reputation Evidence [cf. 405(a), 608(a)]]ii. Specific Acts

iii. Extrinsic Evidence2. Modern Approach - Rape Shield Laws

a. Passed in states in 19780 and federally in 1978i. Exist in all states, DC, military and federal, but in slightly different forms

b. Purposei. Protect victims from unwarranted violations of privacy and dignity

ii. Encourage reportingiii. Avoid distraction and delay from trying victim

3. FRE 412a. Exclusionary form (like 410- “Germanic”)b. Evidence in inadmissible to prove other sexual behavior [412(a)(1)] and sexual

predisposition [412(a)(2)]i. Broadly constructed

c. Bars sexual reputation evidence in all cases except civil where victim puts in issued. Allows specific acts evidence in limited circumstances

i. Criminal Cases 1. “Source of evidence” [412(b)(1)(A)]

a. i.e., prove that origin of semen, pregnancy, or other physical evidence was someone other than accused

2. Relationship with ∆ [412(b)(1)(B)]a. i.e., past sexual activity between accused and victim

3. Constitutionally required [412(b)(1)(C)]a. 6th Amendment Confrontation Clause- Legislative intent is

to ensure that ∆’s could give an alternative theory of the evidence

ii. Civil Cases1. Probative value substantially outweighs danger of harm to victim

and of unfair prejudice to either party [412(b)(2)]

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Competency of Witness [601-603, 610]

1. No group is generally excluded [601]a. Ever person is competent to be a witness unless rules provide otherwise

i. Even jurors are only barred in certain contexts and about certain topics [606(b)]

b. Witness must be able to be tested by cross-examination to testifyi. Age, incapacity, or defect may lead to exclusion

2. Witness must have basis for testimony [602]a. Sufficient evidence must be introduced to show personal knowledge

i. May consist of witness’s own testimonyb. Judge determines whether sufficient evidence to support a finding (specialized

application of 104(b))3. Must give oath or affirmation to testify truthfully prior to testifying [603]4. Evidence of religious beliefs or opinions is not admissible to attack or support credibility

[610]

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Hearsay [801-807]

1. Rationale a. Want to be able to cross examine the declarant to test capacityb. Prohibition is about reliability

2. Definition a. A prior statement out of court statement (not made while testifying at the current

trial or hearing) that a party offers in evidence to prove the truth of the matter asserted by the declarant [801(c)]

3. Declarant…a. “person who makes a statement” [801(b)]

4. Statement… a. Oral or written assertion or non-verbal conduct intended as an assertion (to

communicate) [801(a)]i. Made by a person

ii. May be implied or indirect (i.e., question)1. Communicate in a second order

iii. May be non-verbal conductiv. Only assertive if intended to be [801(a) ACN]

1. Non-assertive conduct is “freed from … mendacity. A man does not lie to himself.”

2. Look at whether audience or intent to communicate something of which he is aware

a. i.e., boat captain bringing family on board after inspecting not an assertion of boats safety if unaware anyone saw or intended anyone to see

i. contra, bringing family to nuclear testing site after questioned by media about safety, knowing people would be listening and watching

b. i.e., cop after being shot firing gun in direction of individual (most likely impulsive, not meant to convey that that who is shot him)

c. i.e., calling bookie to place bet but police answer phone (require conclusion that telling answerer of phone, you are a gambling establishment)

b. Examplesi. Affidavit

ii. Gesture meant to convey meaning (i.e., rubbing fingers together to indicate money)

iii. Witness quoting herself (within an exception as it does not meet rationale)iv. Toxicology Results?

1. Question is PERSON the source of the information or did the machine generate it on its own?

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5. Offered to prove the truth of the matter asserted… a. Statements that are NOT

i. To prove effect on hearer or reader1. Ask if it matters whether it is true or merely if it was a fact

believed by ∆ (demonstrate knowledge, good faith or reasonableness)

a. i.e., victims boasts of past acts of violence placing the ∆ in reasonable fear justifying use of force (self-defense)

i. Does not matter if the boasts are true or not, merely that ∆ believed they were

b. i.e., Lack of knowledge of act’s illicit nature (not aware goods were stolen)

ii. Verbal acts1. Uttering or words with independent legal significance under

substantive law (contract, libel, slander, threats, etc.)2. Only care that words were said not whether true

6. Distinguishing Hearsay from Non-Hearsay (Questions to Ask)a. Should the opposing party be able to cross-examine the declarant to test

evidence’s credibility?i. Is declarant’s belief in truth of statement required for the statement’s

relevance?ii. Does evidentiary value depend upon declarant’s testimonial capacities

(perception, memory, narrative, powers, sincerity)?b. When close call the judge will find in favor of not hearsay over being hearsay and

allow admission7. Rule Against Hearsay [802]

a. “Hearsay is not admissible unless any of the following provides otherwise:i. A federal statute;

ii. These rules; or1. 30 Specific [801(d), 803, 804 (declarant unavailable)]2. Residual Catchall that Should Create Exception [807]

iii. Other rules prescribed by the Supreme Court.”b. Double Hearsay

i. Multiple levels (hearsay within hearsay) both statements must fall within an exception for it to be admissible [805]

8. Hearsay Declarant is a witness and generally may be impeached and rehabilitated in the same manner as trial witness [806]

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9. Hearsay Exceptionsa. Categories of hearsay which may be admissible

i. Prior statements of Witnesses [801(d)(1)]ii. Opposing Party’s Statement [801(d)(2)]

iii. 23 “inherently” reliable statements [803]1. Apply whether or not the declarant is available

iv. Declarant unavailable as witness [804]1. Types of unavailability are specifically defined [804(a)]

v. Highly probative, material & unique evidence [807]1. Catchall provision

b. Exclusions versus Exceptions to the Rulei. Under 801(d) technically not exceptions as they are stated to not be

hearsay1. Must first determine it is hearsay before 801(d) applies, therefore

act as exceptionsc. Rationale

i. Circumstantial guarantee of trustworthiness that warrants admissibility notwithstanding lack of cross-examination, oath and personal appearance

ii. Necessity or practical convenience

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Hearsay Exceptions

1. Prior Statements of Declarant-Witness [801(d)(1)]a. A testifying witness prior out of court statements are hearsay if they meet the

801(c) definition and are offered substantivelyb. Rationale

i. Desire for consistency in hearsay rule1. Require testing of ability to make statement currently

ii. Recognize that witness on stand can effectively not be cross-examined due to lack of memory or because saying something inconsistent

c. Exceptions i. Substantively (To prove the truth of the matter asserted)

1. A statement that meets the following conditions is not hearsay: Declarant testifies and is subject to cross examination (US v. Owens- “Ordinarily a witness is regarded as ‘subject to cross examination’ when he is placed on the stand, under oath, and responds willingly to questions . . .”) about a prior statement, and the statement:

a. Is inconsistent with declarant’s testimony and was given under penalty of perjury in a proceeding [801(d)(1)(A)]

i. “Other proceeding” must be something similar to a trial or a hearing

1. Look to ACNb. Is consistent with declarants testimony and offered to

rebut charge of fabrication [801(d)(1)(B)]i. Comes in only if used to bolster witness statement

(not to respond to impeachment based on memory, perception, narrative or character)

ii. Must occur before alleged motive to fabricate arose (Tome v. US)

c. Identifies a person as someone the declarant perceived earlier [801(d)(1)(C)]

i. i.e., Statement to police identifying assailant (lineup, show up, photo display, etc.)

ii. Rationale 1. Memory of appearance fades more quickly

thus these earlier statements are more reliable

2. Appearance changes over time3. Eyewitness identification in court room is

less reliable (pros. prep and ∆ is easily identifiable)

d. Recorded recollection [803(5)]i. See later section

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ii. Impeachment ONLY (Fail 801 thus cannot be for statement’s truth)1. Witness is lying on stand (Barett) [613]

a. Procedural Requirementsi. Witness has opportunity to explain or deny

ii. Opposing party has opportunity to interrogate witness (does not have to actually do it, just be possible)

2. To refresh witness’s memory [612]2. Opposing Party’s Statements [801(d)(2)]

a. “Admissions” need not be about wrongdoing or stated to 3rd partyb. Rationale

i. This is war, no holds barredii. ∆ is declarant and can take stand, thus no issue with inability to cross-

examinec. Party may introduce statements:

i. Made by opposing party 1. Affirmatively [A]; or 2. Effectively by adoption [B]

a. Four preconditions to inferring adoption by silence:i. Client heard and understood the statement

ii. Was at liberty to respondiii. Circumstances naturally called for a response; andiv. Failed to respond (or did not rebut, deny or demur)

ii. Made by someone acting for (or with) an opposing party, if:1. Granted such authority [C]

a. Agents with speaking authorityb. In house statements included

2. Agent or employee, within scope of authority [D]a. Can use any evidence to establish

i. i.e., Bootstrapping + circumstantial evidence [104(a)]

b. In-house statements included3. Co-conspirator acting within scope of conspiracy [E]

a. Statement is admissible if:i. Conspiracy existed at time of statement

ii. Declarant & non-proffering party were part of conspiracy

iii. Was in furtherance of the conspiracyb. Judge decides under 104(a) by a preponderance of the

evidence whether elements have been met (Bourjaily)c. FRE does not apply to evidence considered by judge to

meet 104(a) standardi. Can consider any non-privileged evidence even if

not admissible (“not bound by the rules of evidence except those with respect to privileges)

d. Bootstrapping allowed

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d. Considerations i. Neither the requirement of first hand knowledge [602] or limit on opinion

testimony [701] appliesii. ∆ counsel cannot use to get in ∆ comment as must be opposing party

iii. An admission to police of a co-conspirator is almost never “in furtherance of”

1. Confession likely will terminate the conspiracyiv. Must be offered against

3. Declarant Unavailable [804]a. Two types of Declarant Unavailability [804(a)]

i. Declarant Present But Not Answering Questions1. Asserts privilege [804(a)(1)]

a. Most common will be 5th Amendment Self-Incrimination2. Refuses to answer despite court order [804(a)(2)]3. Cannot remember [804(a)(3)]

a. Judge may choose to disbelieve declarant testimony about lack of memory

ii. Declarant Absent1. Unable to be present [804(a)(4)]

a. Death or illness2. AWOL and: [804(a)(5)]

a. Unable to secure presence for (b)(1) and (b)(6); or,b. Testimony for (b)(2)-(4)

b. Five Categories of Statements [804(b)]i. Former Testimony [(1)]

1. At a trial, hearing or depositiona. i.e., with neutral present, under oath and with opportunity

by opposing to question2. Opposing party (or in a civil only “predecessor in interest”) was

able and similarly motivated to examine [804(b)(1)(B)]a. Close factual inquiry

i. i.e., Suppression hearing not the same as trial, one deals with circumstances other with substance (US v. Duenas)

b. Legal and factual issues “substantially similar” (Geiger)i. Circuit split on degree of specify required

c. Only requires that had “opportunity” not that actual examination took place

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ii. Dying Declaration [(2)]1. Rationale

a. Circumstantial guarantee of trustworthinessi. People would not want to die with lie upon their lips

(want clean slate when going to judgment) 2. DECLARANT’S STATE OF MIND: “In articulo mortis”- “while

believing . . . death to be imminent” a. “declarant must have spoken without hope of recovery and

in the shadow of impending death”i. Subjective standard informed by objective evidence

b. Declarant does not have to die, may recoveri. All that matters that at time thought would not

recover3. Subject Matter Requirement

a. Only statements regarding causes or circumstances of what declarant believes led to or could have led to death

4. Available in civil cases and criminal trials for homicide5. DECLARANT’S PERSONAL KNOWLEDGE

a. Declarant is a witness [602]b. Declarant may be impeached (806 607, 608, 609, 613)

i. May undermine force of admitted hearsay, but cannot substantively rebut

iii. Statement [(3)]1. AGAINST financial, property or legal INTEREST

a. “Statement” is a single declaration or remark (not a narrative or report)

i. Only statements that are against interest come in, others made in conjunction with it do not (Williamson)

1. Strong motivation to implicate someone else and exonerate themselves

ii. Question is whether the statement was sufficiently against the declarant’s penal interest “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true,”

1. Can only be answered in light of all the surrounding circumstances

2. Focus on declarant’s situation and motive at the time the statement was made when determining if against interest

3. If offered to show declarant, not accused, is guilty , circumstances showing trustworthiness required

a. If statement exposes declarant to criminal liability must corroborate [804(3)(b)]

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iv. Personal or Family History [(4)]1. Statement about:

a. Declarant’s birth, adoption, ancestry, etc. even though declarant had no way of acquiring personal knowledge about fact; or

b. Another person concerning these facts if declarant (1) was related to person by blood, adoption or marriage or (2) was so intimately associated with family that information likely to be accurate

v. Forfeiture (of Hearsay Objection) by Wrongdoing [(6)]1. “The district court must find, by the preponderance of the

evidence, that:a. The [party against whom the statement is offered] engaged

or acquiesced in wrongdoingb. Was intended to render the declarant unavailable as a

witness; andc. Did, in fact, render the declarant unavailable as a witness.”

2. The intended unavailability need not be for the trial in which the evidence is offered or any specific proceeding

a. The exception is not limited by the subject matter of the suit

3. Any wrongful effort to prevent the declarant from being available is covered

a. i.e., told that had no requirement to testify or killing a witness

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4. Declarant Availability Immaterial [803]a. Basic

i. Allows the admission of 25 categories of hearsay regardless of availability1. Types

a. Reflexive, sensoryi. No time or reason to come up with lie

b. Record, publicationi. Maintained for truth

c. Reputationd. Governmental

ii. Reflects history, experience and/or reasoned judgmentb. Present Sense Impression [803(1)]

i. Describing or explain an event or condition1. As it is being perceived or immediately after

ii. Extremely relevant since the advent of cell phones (someone describing situation to another)

c. Excited Utterance [803(2)]i. Startling event or condition that causes stress of excitement made while

under stress that is causedd. Comparison of PSI and EU

i. Timing v. State of Mind1. More time that passes less likely PSI

a. If extremely stressed EU can last a whileii. Description of Event v. Related to Event

1. PSI only covers description where as EI can be any surrounding circumstances, including cause

iii. Any Event v. Startling Eventse. Statements of Then-Existing Condition [803(3)]

i. Statement of declarant’s state of mind or emotional, sensory, or physical condition

1. Not statements of memory or belief to prove fact remembered or believed (Unless relating to will)

ii. Rationale 1. Evidence proves declarants belief2. Statements about a present beliefs as to feelings or plan is

trustworthy as to that belief (Even if later proven wrong)iii. Covered Statements

1. How declarant currently feels (mental or physical)a. “I am tired” or “I am scared”

2. What declarant currently plans to do in the future a. “I am going home to take a nap” or “I am buying a gun

tomorrow”b. AND that subsequently acted in accordance with that state

of mind (Hillmon)3. But not declarant’s memories or past acts

a. “I didn’t sleep at all last night” or “Jason threatened me”

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f. Statements of Medical Diagnosis [803(4)]i. Rule

1. Made for (and reasonably pertinent) to medical diagnosis or treatment; and

2. Describes medical history; past or present symptom or sensation; inception or general cause of

ii. Rationale (Iron Shell)1. Patient’s strong motive to tell truth because diagnosis and or

treatment will depend in part on it2. Reliable enough to serve a basis for diagnosis and treatment3. Victim may feel more comfortable speaking to doctor than to

Courtiii. Covered Statements

1. By or on behalf of ill or injured person2. For purpose of seeking medical treatment or diagnosis

a. Allows for statements made to physician solely for purpose of presenting expert testimony at trial

3. Covers symptoms and causes pertinent to treatment or diagnosis4. Includes statements to non-physicians

iv. Application (Iron Shell)1. Is the declarant’s motive consistent with the purpose of rule?

a. But see scope includes statements to testifying expert2. Is it reasonable for doctor to rely on information?

v. Considerations1. Child abuse

a. No age limitation but must consider that child does not understand treatment depends on truth telling

i. Alt. argument is that more likely to tell truth with someone like a doctor

b. Did doctor’s treatment change when heard information or did continue with same treatment?

c. Most courts treat Iron Shell as OR i. Find satisfied if prong two is satisfied

2. Statements of fault are specifically excluded by ACN3. Courts are mixed on whether doctor’s statement come in

a. Most likely can get in under 803(7)

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g. Recorded Recollection [803(5)]i. Rule

1. Witness once knew about (first-hand knowledge) but now cannot recall

a. Must be unable to testify fully and accurately2. Was made or adopted by witness when matter was fresh in

memory3. Accurately reflect witness’s knowledge

ii. Examples1. Write down license plate number of car involved in hit and run

iii. If admitted may be read into evidence but only received as exhibit if offered by adverse party

iv. Comparison to other FRE 1. 612 and 613 allow use inter alia to refresh or impeach but not

substantively2. 801(d)(1)(A) & (B) allow use inter alia substantively if

inconsistent or court to fabrication3. 804(a)(3) allow dying decl. and statements against interest

substantively where may also be recorded under 803(5) [ACN]v. Laying foundation when Examining Witness

1. Did you have knowledge of event recorded?2. Was statement made while memory fresh?3. You cannot now recall, correct?

a. Should first try to refresh under 612 to prove this4. Is the statement accurate?

a. Not based on memory of event recorded but based on memory of making statements and/or form of statement (signature or method) and/or honesty

vi. Recanting Witness 1. 803(5) will only work if witness will cooperate enough to confirm

statement must have been accurate when given2. Options if risk of recantation

a. Call before grand jury [801(d)(1)(A)]i. Requires inconsistent

b. Call to preliminary hearing [804(b)(1)]i. Requires witness started as cooperative

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h. Business Records [803(6)]i. Prereq .

1. At or near time by, or from information transmitted by, someone with knowledge

a. Knowledge must be ownb. Cannot be based on statement by other

2. Kept in course of regularly conducted activity of business, etc.3. Regular practice of that activity4. Conditions shown satisfied by qualified witness5. Neither source or method or preparation indicate lack of

trustworthiness (judicial safeguard) ii. Rationale

1. Necessitya. Many layers of hearsay due to multiple people being

involved (impractical to call all to stand)2. Reliability

a. “circumstantial guaranty of trustworthiness”i. Made for business’ own activities, thus will tell

itself the truth, to ensure its health and well-being (like medical diagnosis)

ii. Not created in anticipation of litigation or disputeb. Records kept for the systematic conduct of the enterprise

are created for and relied upon by those businesses for their decisions

i. Public Records and Vital Statistics [803(8) & (9)]i. Covered

1. Records and reports setting forth activities (payroll, etc.) [(A)(i)]a. Routine, non adversarial matters akin to business records

2. Duty to report (weather conditions, court reporter transcripts, etc.) [(A)(ii)]

a. Criminal case exception for law enforcement officials3. Investigation’s factual findings (accident reports, safety reports,

etc.) [(A)(iii)]a. Except for gov’t use in criminal case (may be used against

prosecution but not by prosecution)4. Record of birth, death or marriage if reported to public office in

accordance with legal dutyii. Court may excluded due to trustworthiness concerns [(B)]

iii. Rationale 1. Gov’t officials are trustworthy2. Legal duty (and monitoring) incentivizes care and accuracy3. Unrealistic to expect public officials to remember specifics

iv. Typically self-authenticating [902]

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j. Absence of Records [803(7) & (10)]i. Regularly Conducted Activity

1. Evidence that missing in 803(6) if:a. Admitted to prove that matter did not occur or exist [(A)]b. Record was regularly kept for a matter of that kind [(B)];

and,c. Neither possible source of info nor other circumstances

indicate lack of trustworthiness [(C)]ii. Public Record

1. Testimony (or certification under FRE 902) that diligent search failed to disclose record or statement if admitted to prove that:

a. Record or statement does not exist [(A)]; orb. A matter did not occur or exist (if public office regularly

keeps for matter of that kind)[(B)]

5. Residual Exception [807]a. Reflects a compromise

i. Open ended exception will create too much uncertainty (House)ii. Lack of an open-ended exception will damage enumerated exceptions

(Senate)b. Intent is for the exception to be “very rarely” used

i. Last recourse, thus location at the endc. Crucial inquiry: “equivalent circumstantial guarantees of trustworthiness”

[803/804 similarity analysis]i. “ Close enough” analysis

1. Must be very near to one of the delineated exceptionsd. “ . . . Material Fact . . . “

i. Must be very importante. More probative on the point than any other evidence that could be introduced

i. To the facts at this casef. Admitting it will best serve the purpose of these rules and the interest of justice

i. Complete judicial discretion

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Confrontation Clause1. Hearsay exceptions may deprive criminal defendant of 6th Amendment right to confront

witnessesa. “In all criminal pros., the accused shall enjoy the right . . . to be confronted with

the witnesses against him.”2. Key Points

a. Const. protection extends only to criminal ∆’sb. Evidence must survive both FRE 802 and Confrontationc. Confrontation Clause and hearsay rule often support same conclusion on

admissibilityd. Supreme Court recently and dramatically simplified the doctrine in Crawforde. Confrontation clause applies only to TESTIMONIAL STATEMENTS (Crawford

and Davis)f. Testimonial statements are excluded unless

i. Declarant is available at trial for cross-examinationii. Declarant in unavailable but ∆ had an earlier opportunity to cross examine

declarantg. Confrontation Clause is an absolute bar to covered evidence unless ∆ forfeits right

through wrongdoing intended to prevent declarant from testifying (identical to 803(b)(6) analysis

3. Analysis a. Evidence is hearsay as defined by 801(c)b. Evidence fits within an exception or exclusion (hence admissible)c. Offered against ∆ in a criminal case (raises Conf. Clause question)

i. Not a violation if:1. Declarant appears for cross-examination at trial (Calif. v. Green)2. Declarant is unavailable to testify an ∆ had past chance to cross

examine (Green)3. State is not “testimonial” (Whorton v. Bockling)4. ∆ forfeited confrontation right by wrongdoing aimed at keeping

declarant from testifying (Giles)5. (Perhaps) statement is dying declaration

ii. Otherwise Confrontation Clause violation and inadmissible

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4. Crawford v. Washingtona. Prior the test for admissibility was that statement must bear an “adequate ‘indicia

of reliability’ ”i. Either fall within:

1. “Firmly rooted hearsay exception,” or,a. i.e., in the eyes of the Founders

2. Bears “particularized guarantees of trustworthiness” b. New test

i. Is the hearsay “testimonial”? (non-testimonial is not covered by Confrontation Clause, possibly Due Process)

1. Is the declarant unavailable?a. Did the ∆ have a prior opportunity to cross-examine?

2. If have the ability to cross-examine (available and thus current, or unavailable and previously have) then it is admissible

c. “Testimonial”i. No clear delineated definition, and it has never previously been used in

this contextii. Aspects

1. Ex parte examination2. Statements

a. Made in furtherance of an investigation or in anticipation of testifying

3. To law enforcement party or bodya. Police, adjudicative personal

4. Testimonya. Grand jury, prelim. hearing, prior trials

5. Formal or structured6. NOT

a. Casual comments; statements to friends/family; emergencies

iii. Examples 1. Police interrogation2. Grand jury testimony3. Lab report4. Jail house snitch or CI to police

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Lay Opinion and Testimony of Expert Witness

1. Opinion Testimony by Non-Expert [701]a. If a witness is not testifying as an expert, testimony in the form of an opinion is

limited to one that is:i. Rationally based on the witness’s perception [(a)];

1. First hand knowledge [602]a. Lay individual can testify to appearance of narcotics if have

some background knowledgeii. Helpful to clearly understating the witness’s testimony or to determining a

fact in issue [(b)]; and1. Relevant

iii. Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 [(c)] (2000 amendment)

1. Inferences that resist reduction to fundamental “facts”a. 2000 Amendment ACN

i. Examples1. Appearance of persons or things2. Manner of conduct3. Degrees of light or darkness4. Sound, size, weight, distance, etc.

b. Fail to be able to put into words the sensory observations that underlay an opinion

i. “Free to speak in ordinary language unbewildered by admonition from the judge to testify to facts”

2. Opinions that can be Reduced to More Fundamental Facts but Still Gain from the Inference

a. Might be required to lay the foundation but after doing so can make an inference, such as individual was drunk

i. i.e., had bloodshot eyes, was swaying, smelled of alcohol, then could state that was drunk

3. Not expert testimony4. Cannot be used to avoid reporting requirements under FRCrP or

FRCP

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2. Expert Witness [702]a. Qualifying as an Expert

i. When is expert testimony permissible?1. Subject matter is “so distinctly related to some science, profession,

business or occupation as to be beyond knowledge of average layman” (Johnson)

ii. Who can serve as an expert?1. Witness “qualified by knowledge, skill, experience, training or

education” specific to opinion offered (Johnson)2. Expertise is likely to aid trier of fact

a. In making the inference3. A party or fact witness may also qualify as an expert

iii. How is a witness qualified?1. Direct examination laying foundation (with opportunity for voir

dire if objection)b. Four requirement for expert testimony

i. Qualifications1. By knowledge, skill, experience, training, or education

ii. Topic of Opinion1. Concern a topic that is beyond the ken of jurors

iii. Sufficient Basis1. Adequate factual basis for opinion

iv. Relevant and Reliable Methodsv. Must meet FRE 403 weighing test

c. The Helpfulness Standard and Topics of Common Knowledgei. Expert testimony must “assist the trier of fact to understand the evidence

or to determine a fact in issue”d. Proper Topics [703]

i. Expert’s opinion may be based on:1. Facts perceived before trial

a. Firsthand knowledge2. Facts learned at trial

a. Attorney may ask hypotheticals (assume these facts are true, what is your opinion)

i. Assumed facts must be adduced through other evidence in record

b. Attorney may ask assuming what you heard in trial is truei. Less likely as would be expensive to keep expert at

trial day in and out until testified3. Facts learned from others outside of court

a. If otherwise inadmissible, then reliance on these facts must be reasonable (reasonable expert stnd.)

b. What is relied on cannot be told to the jury unless helps the jury understand the testimony

i. Then cannot be taken substantively

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e. Considerations i. Expert Testimony cannot communicate a legal standard (explicit or

implicit) to the jury or make decision for them (conclusion of guilt)1. Not qualified to compete with the judge in the function of

instructing the jury (Hygh)2. “Ultimate” Issues [704]

a. Opinion not objectionable just because it embraces an ultimate issue [(a)]

b. Exception [(b)]i. In criminal case an expert witness must not state an

opinion about where ∆ did or did not have a mental state or condition that constitutes an element of crime charged or of a defense (for jury alone)

ii. Jury need not accept the expert’s testimony, ∆ may introduce own expert to challenge

1. Conflict presented to jury, “consider expert opinion received in this case and give it such weight as you think it deserves.”

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Authentication and Identification1. Types of Evidence

a. (Live) Testimonyb. Non-testimonial evidence, including:

i. Real evidence (e.g., murder weapons, drugs)ii. Demonstrative or Illustrative Evidence (e.g., explanatory aid, chart,

drawing)1. Created for purposes of litigation, typically to supplement a

witnessiii. Documentary Evidence

1. Physical, relevant documentsiv. Photographic, video or audio recordingv. Phone conversation

vi. Recordsvii. Data

viii. Results of a process or system (e.g., X-Ray, DNA test)2. Introducing Non-testimonial Evidence

a. To include evidence other than testimony, the “proponent must produce evidence sufficient to support a finding that the time is what the proponent claims it is” [901(a)]

i. AUTHENTICATION & IDENTIFICATION1. This is an issue of conditional relevance [104(b)]

b. Other evidentiary rules still apply (including hearsay)c. When making showing that real evidence is what it is claimed important to focus

on the chain of custody (especially when something like white powder/cocaine that does not have identifying serial number like a gun)

i. Fact of a missing link does not prevent the admission of real evidence, so long as there is sufficient proof that it is what purported

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3. Non-exhaustive list of evidence that satisfies requirement [901(b)]a. Testimony of a witness with knowledgeb. Non-expert opinion about handwriting

i. Based on sufficient familiarly with it that was not acquired for current litigation

c. Comparison by an Expert Witness or the Trier of Fact (with authentic specimen)d. Distinctive Characteristics (taken with all other circumstances)e. Opinion About a Voice

i. Identifying a person’s voice based on hearing it previously connecting it to person identified

f. Evidence about Telephone Conversationi. Call made to number assigned at time to:

1. Person, if circumstances (accent, etc.), including self-identification, show person answering was one called; or

2. Business, if made to business and call related to business reasonably transacted over phone

g. Evidence about Public Recordsi. Recorded or filed in public office as authorized by law

ii. Purported record is from office where items of kind are kepth. Evidence about Ancient Documents

i. Older than 20 yearsii. In a condition that creates no suspicion about its authenticity

iii. Located in a place where if authentic would be expected to beiv. Have an expert testify about the documents as will not find a lay person

with first hand knowledge typically (Stelmokas)i. Evidence about a Process or System (showing produces accurate result)j. Methods provided by Statute or Rule

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2. Authentication of Photograph a. Pictorial Communication

i. Not necessary for witness to have been photographer (Simms)ii. Just must have personal knowledge of facts represented (picture matches

event) b. Silent Witness (Wagner)

i. No photographer/person with knowledge thus process that produced is authenticated (x-rays, surveillance tapes, ATM photographs)

1. Evidence establishing the time and date of the photographic2. Any evidence of editing or tampering3. Operating condition and capability of the equipment producing the

photographic evidence a. Accuracy and reliability

4. Procedure employed a. Preparation, testing, and security of equipment

5. Testimony identifying the relevant participants depicted6. Authentication of Phone Call

c. Produce “direct and circumstantial evidence which reasonably identified the ∆ as a party to a telephone conversation” (Small)

i. Improbable that caller could be anyone other than the person the proponent claims to be based upon:

1. Contents of the conversation2. Characteristics of the speech itself; or3. Circumstances of the call4. Authentication of Handwriting

d. Strict understanding of “acquired for current litigation” regarding non-expertsi. i.e., postal inspector who became familiar with handwriting while

investigating crime found to not have acquired it for current litigation1. Computer Animations & Simulations

e. Moving series of drawingsi. Distinguish between illustrative and recreation, higher burden on the latter

than fair-and-adequate portrayal f. Scientific evidence

i. Mathematical models used to predict and reconstruct event1. Self-Authenticating [902]

g. Certain non-testimonial evidence is “self authenticating”i. Sealed & signed domestic public documents

ii. Signed & certified domestic public documentsiii. “Certified” foreign public documentsiv. Certified copies of public recordsv. Official publications of public authorities

vi. Newspapers or periodicalsvii. Trade inspections

1. i.e., instructions that come with a product in the box

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viii. Authorized (notarized)

Best Evidence Rule

1. Modern Rulea. Best evidence rarely required

i. But, litigants typically use best available evidenceb. Rule survives only “to prove … content” of a “writing, recording, or photograph.”

[1002]i. Original is required (duplicates are equivalent [1003])

1. Aims to bar litigants from presenting human recollections of the content in place of the physical item itself

2. Rule not much concerned with the distinction between an “original” and a mechanical reproduction of the original

ii. Unless unavailable or secondary evidence is otherwise allowed by rule or statute [1004]

1. Originals are lost/destroyed and not in bad faitha. Expands from bad faith in failing to retain, to bad faith in

claiming existed in the first place (lack of evidence)2. Original cannot be obtained by any available judicial process3. Party against whom original would be offered had control of

originala. Put on notice would be subject of proof at trial and fails to

produce4. Not closely related to controlling issue

iii. If original is required , secondary evidence is excludec. Proof of Content

i. Rule applies in two contexts (ADC)1. Where the writing, recording, or photograph is itself an issue in the

litigation (item controlling or element)a. e.g., copyright infringement, libel, privacy infringement,

child pornographyi. Plaintiff or prosecutor must prove the content of the

writing or photograph to make out case2. Independent Probative Value

a. Party uses item to prove a relevant point even though use of item is not required by substantive law

i. e.g., surveillance tape of crime (proving event by proving content of the tape, not shown to bolster witness testimony)

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2. Definition [1001]a. “Writing” and “Recording”

i. Consists of letters, words, numbers or their equivalent1. Equivalent is a broad use of language which is meant to open

coverage beyond letters, words and numbers thus includes things such as drawings

b. “Original”i. Writing or recording itself or any counterpart intended to have same effect

by person who executed or issued itii. For electronically stored information, means any printout our other output

readable by site if accurately reflectsiii. For photographs includes negative or print

c. “Duplicate”i. Counterpart produced by mechanical, photographic, chemical, electronic

or other equivalent process or techniqueii. MUST accurately reproduce the original without human input (mechanical

reproduction)1. i.e., hand drawn reproductions would fail in text and in reason, as

the individual may intentionally or unintentionally alter based on bias (Seiler v. Lucasfilm)

3. Rationalea. Writings, recordings and photographs are far more detailed an nuanced than many

other forms of evidenceb. Differences in fine details of language often sway the outcome of a casec. Proving such details with the needed precision is particularly hard because

susceptible to forgeryd. When forgery and fraud are not issues, human memory simply fails in the task of

reproducing with the precision of the thing itself4. Considerations

a. Application is limited and often arises because we suspect there is some potential problem keeping the party from proffering the best

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Privileges

1. FRE 501 governs all privilege questionsa. General statement that abdicates to the Court authority to define new privileges

following the principles of common lawb. Proposed rules 501-513 that would have codified may be looked to be the court

when determining possible privileges 2. Application

a. If Fed civil Q or fed criminal Fed. Common Law of Privilegeb. If Diversity State Common Law of Privilege

3. Court determine whether to recognize a privilege based upon “reason and experience” (Jaffee)

a. Experiencei. Comparison to accepted privileges

b. Reasoni. Should be in favor to not allow exclusion

1. “Fundamental maxim that the public…has a right to every man’s evidence”

ii. May be justified by a “public good transcending the normally predominant principle of utilizing all rational means for ascertain the truth”

4. Privilege Under Fed. Common Lawa. May be asserted by its holder to prevent involuntary disclosure of covered

evidenceb. May be waived by the holder through disclosure or consent thereto

5. What is protected is the communication not the factsa. Therefore it is not what you can prove but how you can prove it

i. Cannot work back and say that because facts had been repeated/disclosed to another group that in turn removes the privilege between individuals

6. Judge cannot consider privileged evidence when making a determination about admissibility under 104(a)

a. If question is “whether evidence is privileged” may consider in camera the allegedly privileged information (Zolin)

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7. Federally Recognized Privileges a. Attorney-Clientb. Work Productc. Maritald. Psychotherapist-patient

i. Effective psychotherapy, by contrast [to doctor patient], depends upon an atmosphere of confidence and trust” (Jaffee)

e. Governmentali. State secrets, required report, informants, executive

f. Constitutioni. Self-incrimination

g. NOT (yet) Recognized by Fed. but by some statesi. Physician-patient

1. “Treatment by a physician for physical ailments can often proceed successfully on the basis of a physical examination, objective information supplied by the patient, and the results of diagnostic tests.” (Jaffee)

ii. Priest-penitentiii. Reporter-sourceiv. Accountant-clientv. Parent-child

vi. Counselor-patient8. Federal Common Law Professional Privileges

a. Categoriesi. Psychotherapist-patient

ii. Clergy-penitent1. 1st Amendment and History2. Confusing doctrine

iii. Attorney-client1. Oldest, most important and most comprehensive2. Federal and state common law3. 6th Amendment and Necessity

b. Characteristicsi. Privilege is only for confidential communications

ii. Privilege’s scope is defined by service providediii. Non-professional holds the privilege

c. May have obligation to disclose statement (i.e., attorney and Rule 1.6) but that does not mean the privilege is waived

i. IF professional states they will have an obligation to tell someone if the individual continues to speak about this then they are on notice that the communication is no longer confidential (thus no privilege if continue to talk)

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9. Attorney Client Privilege [502]a. Scope of the Privilege

i. Common law privilege1. Communication between client and attorney, 2. For purposes of seeking legal advice or assistance,

a. i.e., does not cover consolation of friend or business advisor

3. In confidential setting,a. Presence of non-privileged 3rd party thus defeatsb. Must have belief that no one else is listening

4. That has not been waivedii. Absolute privilege (i.e., opposing party’s need irrelevant)

1. Extends only to communications, not to facts themselvesa. Can’t tell attorney a fact to avoid being able to be asked

about it2. Prevents consideration of evidence under 104(a)

b. Rationalei. Permit clients to receive informed legal advice and effective

representation1. Depends on “full and frank communication between attorneys and

their clients”c. Holder of the privilege is the client, not the attorney

i. Attorney may, however, claim the privilege on behalf of the clientd. What constitutes a communication between client and attorney?

i. General Rule1. Neither the manner of payment nor the client’s identity is

privileged.a. Even if a client tells a lawyer her name in confidence, the

law generally does not regard the disclosure as a confidential communication

i. Most people do not regard their names as secretsii. Law regards disclosure of one’s identity to be a step

in forming the lawyer-client relationship, not something that occurs in the course of that relationship

b. SCOTUS: noting that a lawyer could not treat as privileged a person’s status as his client

i. “The fact [of representation] is preliminary, in its own nature, and establishes only the existence of the relation of client and counsel, and therefore, might not necessarily involve the disclosure of any communication arising from that relation, after it was created. (Chirac v. Reinicker)

ii. Exception1. Privileged Identity : “A client’s identity may be privileged if in the

circumstances of the case disclosure of the identity of the client is

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in substance a disclosure of the confidential communication in the professional relationship between the client and the attorney” (In re Osterhoudt:)

a. i.e., Attorney transmitted check to IRS for back due taxes which gov’t was unaware of, disclosure of names would have allowed the gov’t to discover sources of income and failure to pay taxes, effectively disclosing confidential communications

e. Waiveri. Who may waive?

1. Only the clientii. When is a privilege waived?

1. When it has ceased to be confidential/has been discloseda. Analysis [502(b), Williams]

i. Was disclosure inadvertent?ii. Did holder take reasonable precautions to prevent?i. After learning, did holder take reasonable steps to

rectify error? Including (if applicable) following FRCP 26(b)(5)(B)?

1. Important to assert the privilege immediately once you know that there has been an inadvertent disclosure!

iii. Intent of the client matters as to whether confidentiality is preserved/intended

1. Look to circumstances (potential limitations) and knowledge of client

f. Clawback Provision [502]i. Attorney client privilege is waived when communication is disclosed

ii. 502 allows a party to restore privilege1. (d) by asking for a court order

a. Typically second step after agreementb. Minimizes litigation thus courts are very receptive

2. (e) through parties’ agreementiii. Known as “clawbacks”

g. Durationi. What is the effect of passage of time?

1. Does not grow staleii. What is the effect of death of the client? (Swidler)

1. Survives the passing of the client (must ask if reason and experience justify it)

a. Effect of testamentary exception?i. If heirs are disputing who is in fact in power to act

on behalf of estate, then exception is madeii. Question is who is the holder of the deceased right

b. Justification of posthumous absolute privilege?2. Understood and influenced by confidentiality

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h. Crime Fraud Exceptioni. Exception to attorney-client privilege for communications in furtherance

of future illegal conductii. Proposed FRE 503(d)(1)

1. (d) Exceptions. There is no privilege under this rule:a. (1) Furtherance of crime or fraud. If the services of the

lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud

iii. Zolin: May judge consider allegedly privileged evidence when considering whether the crime-fraud exception is available?

1. Yes.2. “Before a district court may engage in in camera review at the

request of the party opposing the privilege, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception’s applicability.”

3. “The threshold showing to obtain in camera review may be met by using any relevant evidence, lawfully obtained, that has not been adjudicated to be privileged.”

i. Arguments For and Against Attorney-Client Privilegei. Con: Admit Relevant Evidence

1. Undermines truth-seeking function of the courts2. The public has a right to every man’s evidence (Wigmore)3. Otherwise a guilty person may seek legal advice on a false defense

(Bentham)ii. Pro: Right to Counsel

1. Encourage full and frank communication between attorneys and clients (Jaffe)

2. Allows for effective representation and dispute resolutionj. Lawyers as witnesses against clients

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10. Marital Privilege [Proposed 503]a. Two independent privileges may exist

i. Adverse testimony in a criminal case against a spouse1. Right to refuse to testify against partner when partner is criminal ∆

ii. Confidential marital communications1. Certain communications between sources

b. Both are available only to spousesi. Marriage is defined by state law

1. But, DOMA limits to heterosexual couples in federal courta. Even if state recognizes same sex marriage

ii. Only marriage no other unioniii. Only familial relationship recognized by fed.

1. Some states recognize parent-childc. Spousal Testimonial Privilege

i. Right to refuse to testify against partner when partner is criminal ∆ii. Applicability: Criminal, Civil, or Both?

1. Federal: applies in criminal cases only2. Some States: applies in both criminal and civil cases

iii. Who may assert the privilege?1. Federal: Witness-spouse2. Some States: Defendant-spouse

iv. Does privilege survive marriage?1. No, must be valid marriage at time of testimony (and covers events

predating the marriage)v. Does privilege apply to in-person testimony?

1. Yesvi. Rationale for privilege

1. Marital harmonyd. Marital Confidences Privilege

i. Privilege to protect confidential marital communications in both civil and criminal cases (statement in front of young child still covered)

ii. Applicability: Criminal, Civil, or Both?1. Both

iii. Who may assert the privilege?1. Both spouses

iv. Does privilege survive marriage?1. Yes, only covers those communications which took place during

marraigev. Does privilege apply to in-person testimony?

1. Yesvi. Rationale for privilege

1. Similar to attorney-cliente. Exceptions

i. If charged offense involves crime against other spouse or their children, typically does not apply

ii. “Joint participant” in crime

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evidence outline.docx

Documents

law of evidence

rules of evidence

irrelevant evidence

evidence george spring

judge screens

trial judge decisioniii

elements of cause

risk of unfair prejudice