EVIDENCE A.

Introduction

Three points to remember: 1. Relevance: most fundamental rule of evidence. Evidence cannot be admitted in a legal proceeding unless it is relevant to some fact that matters in that proceeding. If it doesn t have a bearing on the issues!facts in the case it cannot be admitted. ". Common sense: most rules of evidence are at heart common sense rules. #. $urpose of the rules of evidence: It is to filter information so that onl% the right information gets into the legal process. The rules of evidence filter out bad information and let good information in. I. Irrelevant, Prejudicial & Unreliable Evidence: 3 major criteria for filtering evidence

Irrelevant evidence: evidence that has little to nothing to do &ith issues or facts in 'uestion. $re(udicial Evidence: proffered evidence that has the potential to lead the finder of fact a&a% from rational and logical deliberation and to ma)e decisions on passions and pre(udices. *bad character evidence *inflammator% evidence +nreliable Evidence: evidence that is 'uestionable as to its reliabilit%. *incompetent &itnesses *heresa% evidence II. Public Policy Judgments

,etting in certain evidence might eventuall% lead to more harm than good in future matters. The rules of evidence are: 1. -iltering device ". .ub(ect to specific filtering criteria #. Commonsensical /. The Rule of Relevance 0 -RE 121 * 12"

Evidence is admissible if it is relevant3 evidence is not admissible if it is not relevant. .ometimes relevance is not enough and e4ceptions e4ist. Rule 121 tells us &hat is relevant.

-RE 121: Relevant evidence means evidence having an% tendenc% to ma)e the e4istence of an% fact that is of consequence to the determination of the action more or less probable than it &ould be &ithout the evidence. 5hat 121 sa%s is that: *If a fact that matters to the outcome of the case * is supported or discredited b% a piece of evidence *than it is relevant. 6r: 7as to ma)e a rational person believe that the fact of conse'uence is true in order for it to be relevant. i.e. The fact that a 8 has red hair &ho is accused of raping a &oman and a 'uestion is presented about the possibilit% of penetration9 the fact that the 8 has red hair does not tell that penetration &as more or less probable and therefore is irrelevant in the determination of this 'uestion. /. Relevance

C.

P EJU!I"E

Evidence is deemed pre(udicial if it appeals to emotions and passion rather than to reason or logic or if it triggers intense fear9 feelings of s%mpath%9 or pla%s to or triggers biases in the finder of fact :(ur%;. 6ther e4amples of pre(udicial evidence: *evidence &ith a high propensit% to mislead the (ur% Test for admission of pre(udicial evidence 0 -RE 12# Probative value v. potential for prejudice If potential for pre(udice substantiall% out&eighs its probative value than it should not be admitted.

1.

+NNECE..<RI,= $RE>+DICI<, EVIDENCE ?ENER<,,=

If t&o :"; pieces of evidence are similarl% probative but one is more pre(udicial than the other9 %ou should e4clude the more pre(udicial one. =ou should do this even if the more

pre(udicial one on its o&n can pass the rule 12# balancing test. +nnecessar% pre(udice should be avoided. #ld "$ief v. United %tates. *To determine &hat the probative value actuall% is: the t%pe of evidence must be considered. i.e. narrative evidence is much more probative than stipulations :non*narrative evidence;. The narrative is al&a%s better than the non*narrative. *In most cases a stipulation is not an ade'uate substitute for other )inds of evidence. 8 ma% not stipulate their &a% out of the @full evidentiar% force of the government s caseA. ?enerall% spea)ing9 narrative evidence has greater probative value than non*narrative evidence3 value that mere stipulations don t have. The court finds that (urors e4pect a stor% and ma% be inclined to rule against the government for failing to meet their e4pectations or creating s)epticism or suspicion. ". EVIDENCE 6- $<.T <CCIDENT. >uries tend to disli)e the defendant for past bad acts and overestimate the probabilit% that the instant 'uestion arose from the same circumstances. :a; Accidents occurring under different conditions 5hen accidents occur under different conditions9 it is pre(udicial not probative and should not be admissible. :b; Accidents occurring under similar conditions Evidence of past acts under similar conditions though can be admitted. "ity of &loomington v. 'egg. #. EVIDENCE 6- </.ENCE 6- $<.T <CCIDENT. ?enerall% inadmissible9 but %ou can put on evidence of no accidents if %ou can put it on through someone &ho is genuinel% in a position to )no& if there have been an% past accidents. Jones v. Pa()*or *anufacturing. People in position to know: *Insurance companies if the% monitor if a given product for liabilit% purposes 1. EVIDENCE 6- EB$ERICENT<, RECRE<TI6N 6- T7E <CCIDENT The results of e4perimental recreations are admissible as evidence onl% if the e4periments are done under circumstances similar or appro4imatel% similar to those that e4isted at the time of the incident. "ar+enter v. ,urn. *Spurlin9 held that a human factor &as involved in recreations and specificall% that an e4pert might react differentl% than %our ever%da% person thus resulting in a changed condition and thus being inadmissible.

D.

EVIDENCE 6- EB$ERICENT. C6ND+CTED .ICI,<R T6 T7E EVENT. Evidence of an e4periment conducted under circumstances substantiall% similar to those e4isting at the time of the incident under the court s consideration ma% be admitted &ithin the (udge s discretion. -oster v. Agri)"$em. 1. E4periments done in preparation of litigation are held to a strict standard. ". E4periments done b% a neutral third part% must adhere onl% to a looser substantially similar test.

E.

.T<TI.TIC<, $R6/</I,IT= <. EVIDENCE

:a; To Establish Identity .tatistical probabilit% cannot be used to establish identit% in a criminal proceeding. =ou cannot substitute statistics for the (ur% s (ob9 the finder of fact. Peo+le v. "ollins. :b; To Establish .tatistical evidence ma% be used to rebut a defense or a legal argument. %tate v. Pan(o.. !. "/A A"0E E1I!E2"E ) - E 3435a6

Evidence of a persons character is not admissible for the purpose of proving that the% did a specific act :their conduct;. 1. EVIDENCE 6- <NIC<,. C7<R<CTER Evidence of habitual conduct of an animal is admissible to establish an observer s abilit% to identif% that animal or to prove conduct conforming to the habit. umbaug$ v. *c"ormic( *Character evidence about animals is admissible *5hen the human element is out of the e'uation9 no one doubts that character evidence can be probative. ". EVIDENCE 6- $R6$EN.IT= T6 C6CCIT < CRICE =ou cannot use character evidence to tr% and prove that someone acted in a certain &a%. Cannot sa% that someone is a murderous person and therefore he committed murder here. Peo+le v. 7ac$o.it8 Character evidence is prejudicial in two distinct ways *The (ur% &ill give too much &eight to this evidence and &ill encourage the (ur% to see) retribution against &hom the% perceive to be a bad person.

*Evidence of past bad acts &ill bias the (ur%. #. EVIDENCE 6- C7<R<CTER 57EN IT I. 2#0 C<,,ED INT6 F+E.TI6N In a civil action &here a part% s character is not at issue and the credibilit% of a part% as a &itness is not impeached9 evidence of that part% s character ore reputation must be e4cluded. &eac$ v. ic$tmyer *>ust as evidence of bad character can mislead the (ur% so can evidence of good character9 even in the civil conte4t. *Cannot use character evidence to sho& that someone did or did not do something. *Evidence is no more &elcoming of good character evidence. *There is more than one &a% to put on character evidence. $ut &itnesses on about character in communit% 1. EVIDENCE 6- CI.C6ND+CT T6 .765 /<D C7<R<CTER =ou can t use character evidence to prove conduct9 but %ou can use character evidence to prove someone s character in itself &hen character in itself is an essential element in the charge or case :&hen character is at issue;. %c$afer v. 0ime, Inc. !pecific instances of misconduct are admissible to prove character under "ederal #ule of Evidence $%&'b( in an action when a person)s character is an essential element of a charge* claim* or defense+ Schafer v. Time, Inc. */% virtue of the courts reasoning9 it e'uates character and reputation as being one in the same. *5hat someone s character is at issue as in defamation9 character determines &hether the G &ins or loses. A''#9A&'E *E0/#!% 0# PU0 #2 "/A A"0E E1I!E2"E 5- E 34:6. i. If it is a rare case &here character is admissible %ou can then put it pursuant to rule 12D &ith possibilities including: :a; RE$+T<TI6N or 6$INI6N testimon% 0 12D:a; :b; $<.T /<D <CT. * applies onl% &hen character is an essential element 12D:b;

D. i. ii. iii.

EVIDENCE 6- $<.T /<D <CT. -RE 121:b; 0 N6N C7<R<CTER .o long as those past bad acts are not admitted to sho& character then the% are admissible. There is no rule against putting on evidence of past bad acts even if the% &ere ac'uitted of those past bad acts +nder -RE 121:b; non*character purposes enumerated in the rule allo& for admission of evidence of past bad acts. .ee +... v. Robinson.

Can be used under 121:b; to sho&: 1. Evidence of consciousness of guilt ". Evidence of motive #. more allo&ances not listed :a;. EVIDENCE 6- C6D+. 6$ER<NDI Evidence from one crime should be allo&ed into the trial of another crime if it is used to demonstrate C6 or9 to prove identit% or9 consciousness of guilt and the probative value of the evidence out&eighs the danger of unfair pre(udice. United %tates v. obinson. *The court allo&ed this evidence even though that his flight from the instant ban) robber% reall% didn t sho& a consciousness of guilt &ith respect to a previous ban) robber%. 6nl% need some credible evidence that the bad acts happened in the past to use them as evidence of past bad acts. /uddleston. Doctrine of Chances 0 5hen one person is involved in several highl% unli)el% instances %ou can introduce evidence of those past incidences to sho& ho& unli)el% or li)el% it is that the person involved did cause these incidences. United %tates v. 9oods. *5hen no chance that this happened randoml% then %ou can offer the evidence under this doctrine. This isn t sa%ing that a disposition or character trait e4ists. HHHHHHHHHHHH 5hen %ou can use character evidence to sho& conduct HHHHHHHHHHHHHH :e4ceptions to the general rule;

E;ce+tions to rule of using c$aracter to s$o. conduct

E.

EVIDENCE 6- ?66D C7<R<CTER 6--ERED /= < CRICIN<, 8

Evidence of the good character of a criminal defendant &hich tends to sho& that it is unli)el% that such a defendant committed the crime charged is admissible. Edington v. United %tates. <ccused can put on evidence of a +ertinent trait of character of himself. Edington. *6nl% applies in criminal cases *Does this allo& the accused to put on evidence of an% of his character traitsI No9 onl% a @+ertinentA trait of his character. *.pecial e4ception is onl% for criminal cases so that &e counterbalance the ine'uities in the (ustice s%stem so that the defendant &ill have something to counter the state s resources that are not li)el% available to him. *+nder 121:a;:1; if this t%pe of evidence is put on b% the defendant the prosecution ma% put on evidence to rebut the same :door is no& &ide open;. <. Can %ou assert past good behavior &ithout being cross*e4amined as to prior past bad conductI

No9 in %tate v. enneberg the court held that if a 8 puts his past conduct into issue b% testif%ing as to his o&n past good behavior9 he% ma% be cross e4amined as to specific acts of misconduct unrelated to the crime charged. Tthe rule is limited to testing the credibility of the witnesses and cannot be considered by a jury as evidence that he committed the crime charged+ Testimonial evidence of past bad conduct ma% be admitted onl% to test a &itnesses credibilit% and the (ur% must be instructed that it is no substantive in determining the defendant s guilt. &royles v. "ommon.ealt$

J.

EVIDENCE 6- < VICTIC . C7<R<CTER

121:a;:"; 0 allo&able &hen a pertinent trait of character is relevant <. Is evidence of a victim s character admissible to prove the victim &as the aggressorI

=es9 under -RE 121:a;:"; evidence of a victim s character is admissible to corroborate the defendant s contention that the victim &as the aggressor &hen self*defense is asserted. Evans v. United %tates

*-RE 121:a;:"; the accused can put on evidence of pertinent aspects of the alleged victim s character. $eacefulness e4ception in 121:a;:"; The prosecution can put on evidence of the victim s character even if the defendant did not put on evidence of the victim s character. Ver% rare that the prosecution is allo&ed to first raise character evidence but this is one &a% to do so. *Evidence of a character trait of peacefulness offered b% the prosecution in a homicide case is admissible to rebut the defendant s evidence that the victim &as the aggressor. i.e. if 8 puts on evidence that the victim attac)ed first. R<$E <ND T7E # EBCE$TI6N. 6- -RE 11" /. Is evidence of se4ual reputation and behavior of an alleged rape victim admissible to sho& her state of mindI

No9 evidence of se4ual reputation and opinion evidence of se4ual behavior ma% not be used to sho& an alleged rape victim s state of mind since the% are restricted b% -RE 11" and do not fall &ithin the e4ceptions. !oe v. United %tates $,- . #ape !hield /aws $,- 0 Establishes a general rule against putting on evidence of someone)s se1ual behavior or predisposition * 11" changes the rule regarding evidence of a rape victim s se4ual behavior 0 e4cluding it. The definition of se4ual behavior is broad including having se4ual fantasies9 thoughts or dreams :in advisor% opinion notes in 11"; *11":a;:"; bars an% allegations of a se4ual character to be admitted into evidence. <n%thing that the (ur% might infer a se4ual character &ould be e4cluded9 i.e. dressing provocativel%. 5h% have rape shield la&sI *pre(udicial *not probative as to &hat the instant action might have been *protect the victim s se4 offenses from further harm :privac%; *need to e4clude evidence of se4ual histor% if %ou &ant to catch and convict se4 offenders.

C.

Is evidence of a victim s past se4ual behaviors admissible if offered to sho& the source of in(ur% to the victimI =es9 it is an e4ception to -RE 11" :evidence of specific instances of a rape victim s prior se4ual behavior is admissible if offered upon the issue of &hether the accused &as or &as not the source of semen or in(ur%;. United %tates v. A8ure The e4ception does not appl% here ho&ever as the evidence of her past consensual se4 &ith her friend is irrelevant to the source of her in(uries. In a se4 abuse case9 the defendant can put on evidence &here some of it involves an in(ur% according to A8ure.

D.

To prove consent can a 8 put on evidence that the% had consensual se4 in the pastI =es9 11":b;:1;:b; the defendant can put on this evidence despite 11":a;:1; s prohibition against using evidence of @other se4ual behavior in the pastA

3<=5b65<65c6 says you can +ut on evidence of se;ual $istory if t$e > $as a constitutional rig$t to +resent t$at evidence under: 1. confrontation clause ". due process clause E. 5hen evidence might violate the accused rights to confrontation can it still be e4cludedI No9 under 11":b;:1;:c; the constitutional right of confrontation &as infringed upon &hen evidence of the alleged victim s prior allegation and recantation of a rape accusation &as e4cluded from evidence. edmond v. ,ingston * Evidence of past accusations of se4ual assaults is not protected under man% states rape shield la&s. *=ou have a constitutional right to present evidence of past se4ual histor% &hen there &as an allegation and recantation. -. Do criminal defendants have a due process right to put on inadmissible evidenceI =es9 Criminal defendants have a right under D+E $R6CE.. to present a defense based on evidence that &ould other&ise violate statutor% rules of evidence or rape shield la&s if the evidence &as Khighl% probative9 that it &ill ma)e a difference

in the case9 cannot duplicate the effect &ith evidence that is alread% admissible. "$ambers v. *ississi++i

Revie&
1. ". #.

- E 3<=5b65<6 "riminal "ase e;ce+tions to non)admission of se;ual $istory?be$avior 11":b;:1;:a;* alleged victim engaged in se4ual behavior &ith someone other than the accused to sho& that someone else is the source of semen or ph%sical in(ur%. 11":b;:1;:b;* %ou can put on evidence of instances of se4ual behavior bet&een alleged victim and the accused to sho& consent. 11":b;:1;:c;* %ou have to allo& se4ual histor% evidence if e4clusion &ould violate the constitutional rights of the defendant *it can violate constitutional rights &hen: 1. "onfrontation "lause right to elicit information from a &itness about their se4ual histor% : edmond;. 5hen &itness has a clear motive to lie a defendant in a criminal case has a clear right to cross e4amine them9 #lden. ". !ue Process "lause right to present a defense trumps all other evidentiar% la&s &hen 8 has highl% e4culpator% evidence that can ma)e a difference in the outcome of the case and cannot be duplicated b% an% other evidence. "$ambers. H11":b;:"; civil case counterpart to the rape shield la& e4ceptions

EVIDENCE 6- T7E <CC+.ED . C7<R<CTER IN .EB 6--EN.E C<.E.

A.

- E 3<3 @ Pro+ensity Evidence: can put on evidence of 8 s propensit% to

commit the )ind of crime he is charged &ith no&.

< defendant s prior acts of se4ual misconduct are allo&ed to come into evidence so long as the probative value of the evidence is substantiall% out&eighed b% the danger of unfair pre(udice. U.%. v. 'e*ay *.o long as the pre(udice under -RE 12# does not out&eigh the probative value of the evidence then it can be admitted. The (udge should consider: a. similarit% of the prior acts charged b. closeness in time of prior acts to the acts charged c. fre'uenc% of the prior acts d. presence or lac) of intervening circumstances e. necessit% of evidence be%ond the testimonies alread% offered at trial

*Does not offend -RE 121:a; :using past bad acts to sho& conduct; *111 onl% applies to child molestation cases 5h% open the door on this t%pe of evidenceI *this )ind of evidence is much more probativeI *give prosecutors more ammunition against this t%pe of crime for public polic%I &. -RE 11# 0$<.T <CT. 6- .EB+<, <..<+,T) In a criminal case &here a 8 is accused of se4ual assault9 previous acts of se4ual assault can be offered b% the prosecution into evidence.

EVIDENCE 6- 7</IT <ND 6R?<NIL<TI6N<, R6+TINE <. Evidence of 7abit 0 generall% admissible

- E 34A* evidence of habit is relevant to prove that the conduct of the person &as in conformit% &ith the habit. *7abit is something %ou do regularl% in response to a particular situation. 1. Distinguishing habit from character evidence

Evidence of character is inadmissible to prove the person acted consistentl% there&ith on a particular occasion. eyes v. *issouri Pacific . . "o. *7abit differs from character and is admissible. 7ere the evidence &as offered to prove character and &as thus inadmissible. -actors &hen evaluating evidence of a habit: i. a uniformit% of response to a particular situation. :not nec. 122M uniform; ii. ade'uate sample!fre'uenc% of response :sho& the% ve done it a lot; HThe more comple4 the behavior the less li)el% the la& &ill treat it as a habit.

".

Evidence of /usiness Custom as 7abit Evidence

Evidence of a business custom of e'uipment inspection is admissible as probative of the )ind of inspection that &as received b% a particular piece of e'uipment sub(ect to the business custom. Eaton v. &ass

* The evidence of habit9 or routine practice9 is probative of conduct in conformit% there&ith on a particular occasion9 but does not establish such conduct nor give rise to a legal presumption that such conduct occurred :can t sa% because the evidence is admitted that &hat %ou &ant to eventuall% prove happened9 happened.; Routine business practices can though produce a strong inference in favor of the proponent. *Evidence against organiNations is less personal and less li)el% to be ta)en personall%. *Evidence against organiNations is also needed for the purpose that no one person can in all li)eliness give specific information about a specific item!productK it s (ust not feasible. *,a& is open to evidence of an organiNations routine and scrutiniNes it less closel% than &hen presented &ith evidence of an individuals habit :la& distinguishes business activit% from individual human activit%;. END C7<R<CTER EVIDENCE

$+/,IC $6,IC= ,ICIT. 6N T7E +.E 6- RE,EV<NT EVIDENCE

*.ometimes the la& filters evidence out of the courtroom because of certain public polic% reasons. - E)34B) After an injury or $arm caused by an event t$e evidence of subseCuent 5remedial6 measures is not admissible to +rove negligence or cul+able conduct. *<fter an accident resulting from a dangerous product!situation %ou cannot use someone s remed% of the product!situation to sho& that the% &ere negligent before the remed%. .houldn t be discouraged from ma)ing something better or safer. Rule 12J e4cludes evidence of remedial measures ta)en b% a defendant to prove the culpabilit% of a co*defendant. In re: Air "ras$ !isaster *This t%pe of evidence is not ver% probative. >ust because I learned something from e4perience toda% doesn t mean that I &as foolish %esterda%. *<lso for public polic% 0 &ant safe &orld and &ant incentive for people to ma)e products!situations safer. If people thin) that remedial measures can be used against them later in court the% &ill not ta)e action to remed% defects. *E4clude evidence of subse'uent remedial measures so that people &ill &ant to ma)e the &orld a safer place.

- E 34D* "annot use evidence of someoneEs offer or actual settlement or someoneEs statements or conduct during settlement negotiations as an admission of liability. Rule 12O bars the admission of evidence of settlements bet&een plaintiffs and third*part% (oint tortfeasors and former codefendants. *cInnis v. A*- Inc. *-RE 12O states that %ou cannot use settlements against plaintiffs or defendants *This )ind of evidence is not ver% probative *5ant to encourage settlement. If the% )no& an offer might be used against them it &ill be disincentive to settle. FF9itness !iscrediting E;ce+tion * Can put on evidence of a settlement onl% to sho& that a particular &itness might be biased or pre(udiced in a particular &a% to&ards one of litigants. - E 3<4) Inadmissibility of Pleas, Plea !iscussions and elated %tatements Evidence of the follo&ing is not admissible: 1. plea of guilt% &hich &as later &ithdra&n ". plea of nolo contendere #. an% statement made in the course of an% proceedings under - Rule Crim $ro 11 1. <n% statement made in the course of plea discussions &ith an att% prosecuting &hich do not result in a plea of guilt%. 8 s can &aive the immunities of 112 and the prosecution can use their statements later on to impeach them at trial. U.%. v. *e88anato *$ublic polic% favoring plea bargaining. 5on t happen if 8 is afraid that the% &ill be burned if &hat the% sa% can be used against them. 5ant an environment that encourages free communication and candor9 ma)e it safe for criminal defendants to engage in plea bargaining. 3<4 /y+ot$eticals F. <fter arrest police interrogate him and sa% after information %ou need to give me a good plea bargain. 7e ma)es statements to the police. Case goes to trial9 can the statement he made be used against him at trial or &ill -RE 112 deem it inadmissibleI The discussions have to be discussions &ith a prosecuting att% but if the 8 reasonabl% believes that he is tal)ing to a prosecutor 112 can appl% in most courts and the statements &ill be e4cluded.

<.

F.

8 ma)es statements against someone else during plea bargaining sessions. Does -RE 112 allo& for e4clusion of statements made against third parties in plea bargainingI No9 112 limits its protection to onl% the defendant and not to third parties. Can the government use statements made b% a 8 to rebut evidence the 8 offers at trial that contradicts his statements made during plea negotiationsI =es9 e4ceptions e4ist in t&o limited circumstances either to sho& that a defendant is committing 1. per(ur% :if the plea negotiations &ere s&orn statements; ". &hen another statement is introduced and in fairness the statement made during plea negotiations should be considered contemporaneous &ith it :)ind of li)e the rule of completeness9 lets prosecution fight bac) against incomplete and misleading statements;.

<. F. <.

P I1I'EGE%

- E :4<

- E :4<) Private Privileges @ ig$t to ensure t$at t$ings said in confidence to certain individuals are not e;+osed in t$e courtroom. :4< says t$at t$e courts must decide .$en +rivileges e;ist by loo(ing at t$e common la. in t$e Hlig$t of reason and e;+erience.I 0$is means t$at its u+ to t$e federal courts to determine .$at +rivileges e;ist under t$e - E bby loo(ing at t$e common la. in t$e lig$t of reason and e;+erience. 9$y $ave +rivilegesJ * $rivileges support and bolster social institutions * 5e &ant to protect privac% in and of its self * It is morall% ugl% for one person to betra% another s confidence *arital Privilege < criminal defendant cannot prevent his spouse from voluntaril% giving testimon% against him because the privilege against adverse spousal testimon% belongs onl% to the testif%ing spouse. 0rammel v. United %tates FF %u+reme "ourt left in +lace t$e +rivilege of not being able to testify about confidential communication bet.een s+ouses: $rivilege applies onl% to C6N-IDENTI<, statements9 a reasonable test sho&s &hether or not the communicant intended the statements to be confidential.

*$rivilege does not protect communications &hen the crime committed &as against the other spouse. *The court changed the spousal privilege rule so that the la& &ould not allo& freedom bet&een co*conspirators :husband and &ife; as the% &ere previousl% protected b% the privilege. *6nl% recogniNes the privilege bet&een those &ho are legall% married Attorney "lient Privilege The attorne%*client privilege survives the client s death. %.idler & &erlin v. United %tates *Initial consultation triggers this privilege *Does not appl% to conversations &hen not tal)ing to la&%er as legal advisor *<pplies onl% to genuinel% confidential communications :statements in public or in presence of third parties are not e4pected. Confidential communications are those that %ou have a reasonable belief &ill be heard onl% b% the la&%er. 6nl% la&%ers agents can be protected third parties for privilege purposes.; E4ceptions to <tt% Client $rivilege 1. Crime -raud 0 does not appl% &hen a client as)s att% for best &a% to commit a crime. ". Need of information to prove innocence* &hen due process right to present a defense re'uires confidential information :i.e. &hen someone confesses that the% committed a crime and an innocent man is on trial9 that innocent man can re'uire the information;. 0$era+ist Patient Privilege Confidential communications bet&een a ps%chotherapist!social &or)er and patient in the course of diagnosis and treatment are protected from compelled disclosure under -RE D21. Jaffee v. edmond *$rivilege is an absolute privilege 0 common la& grants such a privilege *Therapists: courts have no set bright line standards of &ho should be considered a @therapistA. Courts &ill loo) to formal training9 ho& much of their &or) is actual therap%9 &as the session therap% or a s%mpathetic earI

!octor Patient Privilege -ederal courts have said that reason does not support such a privilege since much of &hat doctors do is ob(ective observation and patients need not confide in them to get effective care. "lergy Privilege Is a recogniNed privilege in the federal courts9 analogous to Jaffee. N6N*TE.TIC6NI<, -6RC. 6- EVIDENCE 0 5a% to get information to a (ur% I. >udicial Notice 0 -RE "21

>udge tells (ur% that the% must ta)e notice of a specific fact. i.e. time of da% 5hen does (udicial notice need to be givenI < court ma% :but is not re'uired; refuse a re'uest to ta)e (udicial notice of a fact supported b% a ne&spaper e4cerpt that does not identif% the source of that fact. %tate v. "anady >udicial Notice is given &hen a fact is not sub(ect to reasonable dispute: 1. fact must be generall% )no&n &ithin (urisdiction in &hich court sits or: ". fact can be )ind b% sources &hose accurac% cannot reasonabl% be 'uestioned .traightfor&ard scientific facts ma% be cited from a generall% reliable treatise such as an enc%clopedia etcK Right to a (ur% trial is a fre'uentl% cited right as a grounds to contest an order of (udicial notice since that in a criminal case the defendant has a right for each important fact to be decided b% the (ur% not the court. The defendant has the right to put on evidence contesting the (udiciall% noticed fact. -RE "21:g; sa%s that that (ur% does not 7<VE to recogniNe each (udiciall% noticed fact as true but ma% ta)e it as true.

Ca% (urors ta)e (udicial notice of the commonl% accepted meaning of all English &ordsI =es9 (urors ma% ta)e (udicial notice of the commonl% accepted meaning of all English &ords and thus ma% use a dictionar% in recalling such meanings &hen no special or legal significance of its use is involved. Palestroni v. Jacobs *>uries ma% also ta)e their o&n notice b% using a dictionar% as to common &ords &ith no special or legal significance. *>urors ma% ta)e notice of facts that are @too notoriousA to need evidence9 of such common )no&ledge and thus are constantl% noticed. *6ne problem &ith this is that (urors are al&a%s ta)ing notice K the parties might not )no& &hen the% are ta)ing notice of something that might not be correct.

!E*#2%0 A0I1E E1I!E2"E? I''U%0 A0I1E E1I!E2"E 5using a +$ysical object to e;+lain testimony6
5hen demonstrative evidence is used for dramatic effect is it reversible errorI =es9 Court permission to use demonstrative evidence constitutes reversible error onl% if the evidence is used for dramatic effect or emotional appeal rather than to aid the reasoning of the (ur%. %mit$ v. #$io #il "o. $R6$ER -6+ND<TI6N -6R I,,+.TR<TIVE EVIDENCE I.: .ho& the court that the ob(ect helps e4plain the evidence offered

EA' E1I!E2"E ? P/K%I"A' E1I!E2"E

Can a part% introduce evidence of the instrumentalit% alleged to have caused an in(ur%I =es9 but the admission of such evidence must be precipitated upon a foundational sho&ing that the ob(ect is &hat it purports to be and that it is in a condition reasonabl% the same as &hen it allegedl% caused the in(ur%. Gallag$er v. PeCuot %+ring 9ater "o. $R6$ER -6+ND<TI6N -6R RE<, EVIDENCE C<N /E ,<ID /= <N= 6- T7E -6,,65IN?: 1. $art% can testif% that the% recogniNe the item and it is in the same condition it &as in at the time of the incident. *$roblem onl% if the piece is fungible ". #. Car) an other&ise fungible ob(ect to ensure it is later recogniNable Chain of Custod% can be established

P/#0#G AP/I" E1I!E2"E Does the evidence have to be foundationall% sho&n to be related to the actual ob(ect in 'uestionI =es9 the admission of a photograph of9 or an instrumentalit% allegedl% involved in an in(ur% must be predicated upon a foundational sho&ing that the evidence related to the actual ob(ect in 'uestion in substantiall% the same condition as &hen the in(ur% occurred. %emet v. Andorra 2urseries ,<=IN? < -6+ND<TI6N -6R < $76T6?R<$7 1. $hoto depicts the actual ob(ect in the same condition and: ". -airl% and accuratel% represent the ob(ect at the time of the incident Can videotaped reenactments be admitted as evidenceI =es9 Videotaped Reenactments are admissible if the% portra% facts sho&n b% s&orn testimon%. "lar( v. %t. 0$omas /os+ital

Videotape reenactments are illustrative evidence and the foundation for them must onl% be that the% help e4plain some testimon% or other evidence. Videotapes can be .ilent 5itnesses .ilent 5itness* under the circumstances &hich the tape &as made9 the tape sho&s the incident that %ou claim it sho&s. *sho& that the camera &as on and &or)ing properl% *prove the time and date someho& AU0/E20I"A0I#2 #- !#"U*E20% & /A2!9 I0I2G Cust give the court a legitimate basis to conclude that the document offered in court is the document that %ou claim it is. -RE P21 0 If %ou &ant to authenticate something %ou need to provide evidence sufficient to support a finding that the item in 'uestion is in fact &hat its proponent claims it is. 7and&riting evidence

1.

3 9ays to Aut$enticate !ocuments: < hand&riting ma% be authenticated b% a &itness &ho is of familiar &ith it. &uc(ing$am "or+. v. E.ing 'iCuors "o. *-amiliarit% can be if a &itness has seen a signature (ust one time before in some cases :%.eet.ater;. *,a% people can identif% a document based on familiarit% but cannot offer their opinion in a comparison bet&een &riting )no&n and un)no&n. 6nce %ou have one authenticated document then %ou can give other un)no&n documents to the (ur% and let them decide if the same person authored the documents. U.%. v. American adiator & %tandard %anitary "or+. *The trier of fact ma% compare alread% )no&n documents to un)no&n ones to sho& authorship. <uthorship of &ritings ma% be sho&n b% circumstantial evidence. U.%. v. %utton

AU0/E20I"A0I#2 #- P/#2E "#21E %A0I#2% 1. Voice <uthentication

<uthentication of a phone conversation ma% be achieved if the circumstances indicate that it is improbable that an%one other than the purported &as involved. Peo+le v. 'ynes *5hen the court is given reason to believe that the voice &as that of the defendant and probabl% none other9 than it is enough to be admitted into evidence. *7o&ever9 a mere self*serving statement &ithout more corroborating information is not enough. -RE *P21:b;:E; 0+pon calling a number listed under a name of a specific individual %ou can rel% on identification of the voice of that individual if the% identif% themselves upon ans&ering the phone or other identif%ing circumstances. %E'- AU0/E20I"A0I#2 -RE*P2" 0 certain )inds of documents and &riting can self authenticate. .ubsection J provides that trade inscriptions and trademar)s can authenticate themselves.

0/E &E%0 E1I!E2"E U'E) - E <44= 5original documents rule6

2hen trying to prove what a document says you must introduce the original document itself* mere testimony about what the document says is not good enough+ * -RE*122" To prove the content of a &riting9 recording9 or photograph9 the original is re'uired9 e4cept as other&ise provided in the -RE or b% an act of congress. */est evidence rule onl% applies &hen a part% is ma)ing a claim about &hat a document sa%s 7oldingI !aven+ort v. #urisman)*andell "$evrolet, Inc. Testimon% about previousl% given testimon% is not sub(ect to the best evidence rule. The best evidence rule onl% applies &hen a part% is ma)ing a claim about &hat a document sa%s. *eyers v. United %tates N6TE. -R6C REVIE5 C,<..

0$e &asis for 0estimony) - E A4<, A4=, A43, A<=

I. <re there limits on &ho can testif%I

The Compulsor% $rocess Clause of Eth amendment provides that a &itnesses must be allo&ed to give favorable testimon% for a criminal defendant and the state cannot regulate this right under an% circumstances3 even allo&ing even co*conspirators or participants to testif% on their behalf. 9as$ington v. 0e;as *Compulsor% $rocess Clause of Eth amendment sa%s that criminal &itnesses must be allo&ed to testif% and the state cannot regulate this. *?enerall% state cannot bar an% &itness from giving favorable testimon% in a criminal case on the defendant s behalf unless possibl% age or infirmit% &ould prevent accurate testimon%. Exceptions to F E !"#$ %ud&es or %urors involved in the instant case cannot testif' II. /efore giving testimon% must a &itness s&ear or affirm to an oathI

No9 &hen giving testimon% promising to tell the truth is sufficient and s&earing or affirmation is not necessar% as it might offend a &itnesses 1st amendment right to religious freedom. Gordon v. Ida$o *-rom ?ordon the " part test is that the &itness is affirmed if: 1. Impressed &ith dut% to tell the truth ". +nderstands that he can be prosecuted for per(ur% *If someone sa%s that the% &ill state the facts accuratel% as ?ordon did it &ill most li)el% satisf% -RE E2#. ,itigants must be given reasonable latitude to in'uire about bias or pre(udice on cross e4amination. U.%. v. Alford *reaffirms that litigants have the right to cross e4amine the &itnesses against them *cross e4amination is a safeguard against fla&ed testimon% *cross e4amination can be used to bring out bias "ross E;amination as %afeguard against fla.ed or biased testimony Cross E4amination E4amples* Do %ou hate meI /ecause %ou are a racistI *The A'-# ! court said that %ou cannot go so far as to harass or humiliate a &itness

5hat Constitutes < Reasonable Fuestion on Cross E4aminationI *< good basis in fact for the 'uestion that %ou are as)ing. i.e. if %ou have a good basis in fact for the suspicion that the &itness is a racist then %ou can as) about it. *=ou can use e4trinsic evidence to bring out a &itnesses bias *6ther fla&s or infirmities can be brought out during cross :i.e. mental defect; *use e4perts *other &itnesses to testif% as to patterns of behavior "$aracter Im+eac$ment of a .itness - E A4D* can onl% refer to &itness s character to put on evidence that &itness is an untruthful person - E A4L* can cross e4amine a &itness about specific dishonest things that the% have done but cannot put on e4trinsic evidence of past bad acts other than crime :cannot put on other &itnesses to sho& that this &itness has done other bad non*criminal things;. If (itness (as )*T the +ccused: E2P:a;:1;* can put on evidence of &itness s past crimes if &itness &as not the accused and it &as a felon% :&ill pass -RE 12# if it is probative and not too pre(udicial;. +nder E2P:a;:"; a &itness can be impeached b% past crimes if the% involved dishonest% or false statement regardless of the punishment even if it is highl% pre(udicial. :a crime of dishonest' is one that involved an element of deception; If (itness IS the +ccused9 the evidence pass the evidence past the -RE 12# test and be more probative than other evidence. < prosecutor ma% use previous convictions to impeach a defendant s testimon% or 'uestion his veracit%. U.%. v. #rti8 < &itness ma% be impeached b% proof that he &as convicted of a crime that involved deceit. Altobello v. &orden Im+eac$ment .it$ +rior inconsistent statements < &itness s prior inconsistent statements can be used to impeach him since it raises doubts as to his truthfulness during testimon%. "entral *utual Insurance "o. v. 2e.man

*Inconsistencies can sho& that there is fault% memor%9 or another defect not necessaril% deceit. *.ho&s that this is the )ind of &itness that gets things &rong or &ho s stor% changes. *Inconsistent is a fle4ible and broad term. If there is a significant change in a &itness s stor% then %ou can use the inconsistencies to impeach that &itness.

/EA %AK
- E D4<5c6 7earsa% is a statement made b% someone other than the declarant &hile testif%ing at a trial or hearing offered in evidence to prove the truth of the matter asserted. Plain language definition: <n assertion made out of court b% someone other than a &itness on the stand to prove that the facts are true. :out of court statement offered for the truth of the matter asserted; +nless it falls &ithin an e4ception9 hearsa% evidence cannot be relied upon in determining a defendant s innocence or guilt. *oore v. United %tates *6ut of court statements are bad because the three devices of fairness being oath9 cross e4amination and the spea)er being in court are not present. 3 Infirmities of /earsay %tatements @ Its unreliable, canEt c$allenge t$ese if s+ea(er isnEt in court 1. ". #. 1. <mbiguit% 0 sometimes %ou don t )no& &hat spea)er meant Insincerit%* No &a% of )no&ing if spea)er &as l%ing -ault% $erception 0 &hat if spea)er had bad e%esI bad earsI etcK Erroneous Cemor%* &hat if spea)er has bad memor%I becomes unreliable

9$en you mig$t offer somet$ing for a +ur+ose ot$er t$an +roving t$e 0 U0/ of t$e matter asserted: *Identif% @the matter assertedA and decide &hether the evidence see)s to prove the truth of it or is offering it for another purpose. *E.?. If statement had effect on hearer s state of mind it is li)el% not offered for the truth of the matter asserted and thus not hearsa%. *.ituations &here out of court statement is not for truth of matter asserted p. J21

/EA %AK "A%E 'A9

6ut of court statements not offered for their truth are not hearsa%* U.%. v. Gibson (hat Counts +s + Statement, - E D4<5a6 0 .tatements are assertions :declaration that a fact is true;. .tatements can be oral or non*verbal conduct as long as an intentional assertion is present. I. Non*assertive verbal statements are not hearsa%. U.%. v. 7enni

*5hile serving a search &arrant gov. agents ans&ered the phone of a suspected boo)ma)ers residence9 callers gave directions to place bets and the gov. offered this evidence that the callers believed that the place &as used for gambling. .ince the conduct &as non assertive and the statements are not offered for the truth of their &ords but rather their beliefs in a fact sought to be proved the% are not covered b% the hearsa% rule. *+sing evidence to establish an element of the crime is not offering evidence for truth of matter asserted. *Implied assertions are not assertions and thus not statements that need to be e4cluded as hearsa%. HH Verbal <cts Threats9 Defamator% .tatements II. 6ut of court statements must be characteriNed as an assertion of the truth of its contents before the statement &ill be e4cluded as hearsa%. U.%. v. 'ong

+ Statement isn-t an assertion and thus not a statement under the hearsa' rule unless the spea.er intended to declare that some fact is true. F E /"# 7ere a defendant &as convicted partl% on evidence of the police ans&ering his phone and having the caller as) for a @fift%A :bag of crac);9 the statements &ere made b% the declarant &ho did not intend to communicate that the defendant &as not involved in drug dealing. HH Fuestions <s)ing a 'uestion is not an assertion since u do not intend to declare some fact to be true. *7o&ever9 %ou must loo) to the intent of the caller9 if the purpose is to communicate that a fact is true then it is an assertion and sub(ect to the hearsa% rule. E.g. as)ing dominos piNNa if the% deliver. =ou )no& the% deliver and thus it is an assertion.

7enni Q 'ong held that: Directions and Fuestions don t count as statements for purposes of the hearsa% rule because the% are not intentional declarations that a fact is true :assertions;.

Can Silence or Inaction be 0earsa', .ilence or Inaction does not fall under the scope of the hearsa% rule although an implicit assertion might be present. %ilver v. 2e. Kor( "entral . . "o.

EM"EP0I#2% 0# 0/E /EA %AK U'E) - E D43?D43

ule D43 e;ce+tions a++ly .$en s+ea(er is unavailable for court as defined in D435a6 ule D43 e;ce+tions a++ly <. !ying !eclarations @ - E D435b65=6 Statements made on the death bed as d'in& declarations can be exceptions to hearsa' +nder - E D435b65=69 In order for a statement to be a d%ing declaration9 the declarant must have spo)en &ithout hope of recover% and in the face of death. %$e+ard v. United %tates *more reliable than regular hearsa%9 &e aren t an4ious about sincerit% of spea)er &hen the% are about to die since the% don t usuall% have a motive to lie. *must be convinced that &e are about to die ver% soon for statements to be considered d%ing declarations. * ,imited to homicide in criminal cases

=. %tatements Against Interests ) - E D435b6536

(hen statement at time of its ma.in& 1as far from the declarant-s interest that a reasonable person 1ould not ma.e 1ithout believin& it to be true is an exception to hearsa'. - E D435b6536 does not allo& admission of self serving statements even if the% are made &ithin a broader narrative that is generall% not self serving. 9illiamson v. United %tates *.tatements against a spea)er s o&n interest are t%picall% more reliable since the motive to lie is greatl% decreased. *The declarant s statement in this case &ere not reall% against his interest as he &as tr%ing to curr% the favor of la& enforcement and shift responsibilit% to 5illiamson therefore the .upreme Court held here that the statements could not be admitted. *.tatements against interest to e4culpate someone in a criminal case9 &here someone might be l%ing to help the defendant that tend to e4pose declarant to criminal liabilit% are not admissible unless corroborating circumstances sho& that the spea)er s statement is probabl% true since people might &ant to help someone out9 i.e. claiming to have committed the crime that the defendant is charged &ith. 3. Present %ense Im+ression ) - E D435<6 2a' a statement recountin& events of at least an hour prior thereto be admitted to prove the truth of the facts, No9 < statement recounting events must recount events nearl% contemporaneous of the ma)ing of the statement in order to be considered present sense impression hearsa% e4ception. United %tates v. "ain *describing an event contemporaneousl% negates the possibilit% that someone could ta)e the time to fabricate a lie. 3. E;cited Utterances @ - E D435=6 Can the excited utterance exception ever authori3e the admission of a statement b' an anon'mous declarant, =es9 the e4cited utterance e4ception ma% authoriNe the admission of a statement b% an anon%mous declarant since the hearsa% rule offers no absolute right of cross e4amination. *iller v. ,eating *The la& feels that &hen %ou are in a startled state that %ou are more apt to tell the truth *< child can ma)e an e4cited utterance until he or she has a chance to sa% it to someone &ithout a time frame :infinitel% fle4ible time frame;. :. *ental, Emotional or P$ysical "ondition @ - E D43536

Can a defendant admit statements of a victim declarant-s state of mind in a prosecution for homicide b' arson to prove that it ma' have been suicide, =es9 The state of mind e4ception to the hearsa% rule permits the introduction of relevant out of court statements &hich reflect the declarant s state of mind. United %tates v. 1eltman *.tatements of spea)ers then e4isting mental emotional or ph%sical condition are admissible as an e4ception to the hearsa% rule. *.pea)er must be describing something as it happens9 cannot search memor% for past conditions etcK *.ame rational as present sense impression e4ception but here the spea)er is describing something happening to them instead of in front of them. A. %tatements for Pur+ose of *edical !iagnosis of 0reatment @ - E D43536 Statements made b' a rape victim to the doctor examinin& her are admissible under the hearsa' exception for medical dia&nosis and treatment if the doctor should testif' as to 1hat she related to him4her. <n e4ception to the hearsa% rule is created that permits admission of statements made for purposes of medical diagnosis or treatment. United %tates v. Iron %$ell *.tatement has to be reasonabl% pertinent to diagnosis and treatment. *Can include medical histor%9 s%mptoms9 the ph%sical sensations and e4periences and their causesK an%thing so long as it s reasonabl% pertinent to treatment and diagnosis therefore statements that place blame or fault generall% &on t 'ualif%. i.e. .truc) b% a car 0 6R .truc) b% a car driven through a red light 0 N6T 6R )Courts are fle4ible as to determining &hether the statement &as reasonabl% pertinent to treatment or diagnosis. If spea)er s motive &as to get help than in most cases the e4ception &ill appl%.

B.

ecords of egularly "onducted Activity @ - E D435A6

5usiness records that meet the test belo1 ma' be admitted as an exception to the hearsa' rule ,ong Distance Telephone Tic)ets ma% be admitted as business record evidence. #lesen v. /enningsen 0E%0 -# - E D435A6 -or /usiness Records to be considered regularl% conducted activit% the% must: 1. Record of event ". Cade at! or near the time #. /ased on personal )no&ledge :made b% a person &ith personal )no&ledge; 1. Cade in the course of regular business activit% :is it &hat the biN doesI; D. Regular practice to ma)e such records E. Fualified 5itness J. Trust&orth% 5itness *In advisor% notes: Court held that a blac)(ac) dealers tips ledger &as a business record *Includes records of illegal business activit%. Concept of business is broad9 &hat %ou do to ma)e %our living. D. Public ecords and e+orts @ - E D435D6, D435L6, D435<46. Certain public records are admissible despite the fact that the' are hearsa' F E /"67/8 $olice observational reports ma% be admitted because the% are ministerial9 adversarial reports do not fall &ithin the e4ception to the e4ception. United %tates v. Nue8ada *,a& Enforcement E4ception* 6rdinaril% observational records that are compiled b% police officers cannot be admitted in criminal cases due to the adversarial nature of these reports etcK but in the case of the IN. a deportation &arrant is more ob(ective and because the% process over 1 million deportations a %ear it becomes necessar%. There is a presumed unreliabilit% in these situations.

L.

ecorded ecollection @ - E D435:6

Can a statement translated from one lan&ua&e to another be admitted into evidence if the translator has a clear recollection of 1hat 1as said, No9 a translated statement ma% not be admitted into evidence unless the preparer can testif% that he no longer has an independent recollection thereof. United %tates v. -eli;) Jere8

12. -ormer Testimon% 0 -RE O21:b;:1; 11. Catchall or Residual E4ception 0 -RE O2J