I.

RELEVENCY AND CIRCUMSTANTIAL EVIDENCE

- INTRODUCTION: RELEVENCE TO WHAT? o RULE: 401: Definition of Relevent Evidence o RULE 402:Relevent evidence admissible, Irrelevent Inadmissible o RULE 403: Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time
o

JUDGMENT OF SOLOMON:2 mothers gave birth at same time, one baby died each mother claimed live baby was hers. King said cut baby in half and give to to each. One mother said no, other mother said yes. RULE:THE MOTHER WHO DECIDED NOT TO SLAIN CHILD WAS THE REAL/BETTER MOTHER. UNION PAINT v DEAN: buyer sueing seller for purchase of paint. Buyer claims he will not pay for 2nd can of paint bc first can was defective. He wants to bring in the first can into evidence as proof that second can is also defective and he shouldnt have to pay. RULE: THE 2nd BATCH OF PAINT CAME FROM A WHOLE DIFFERENT DRUM, THERE IS NO CONNECTION

2 possible issues is 1). Co. makes bad paint or 2). 2nd batch is defective bc 1st was. Showing first batch being defective is irrelevant

OJ SIMPSON: prosec wants to offer evidence that simpson beat wife in past. Defense argued that the probability of spousal abuse to murder is . 001.IRRELEVENT

o What about a love letter written to a woman by D and D killed her husband? Alone the love letter is not legally sufficient.

o DIRECT EVIDENCE v CIRCUMSTANTIAL EVIDENCE DIRECT: directly proves the case Ex: eyewitness, videotape etc.

CIRCUMSTANTIAL: logical gaps in the proof, no direct proof Resp Ipsa Loquitor is a remedy

Crim case resting on circumstantial evidence MUST meet a much more stringent standard IN NY, for CIRC. EVIDENCE to be legally sufficient they MUST exclude any reasonable explanation
o

Ex: cops called in at 4am for burglary at restaurant. Police see 2 men, one breaking a lock and the other man near him. First man throws thing in pocket, 2nd man runs. D#2 is being charged as accomplice. Need to infer they were working together. In fed court he would prob be guilty. EVIDENCE OF FLT CAN INFER THERE IS SOMETHING TO HIDE

o EX: cops parked near well lit car lot. One man walks back and forth a few times. Another man is seen going inside little office. Police arrest both man in house and guy walking. The man walkings arrest is based solely on circumstantial evidence, an inference that he is the lookout. A reasonable explanation for innocence is he was looking to buy a car. NOT GUILTY.
o

KNAPP v STATE: Ds defesne to a charge of murder is self defense. Testified that he was told the victim had killed another man. The prosecution was allowed to prove the victim did not cause the other death.RULE: The determination of the relevancy of a particular item of evidence rests on whether proof of that evidence would reasonably tend to help resolve the primary issue on trial. To show that there was no basis in fact for the statement heard follows that it is less probable that his testimony on this point was true. Since the facts from the prosecution discredit Dand the D cant prove where he heard this from, the testimony by the state remndered his claim as less probably. This claim made by D is relevant to proving self defense bc it goes to his mens rea of whether his belief was REASONABLE RULE 401 : def of relevant evidence, MAKES SELF DEFENSE MORE PROBABLE D claims cant remember who gave him the info Prosec. Proved that he did not die of a slaying by decedent but by booze 2 Possibilities

o 1) IF THE OLD MAN DID NOT DIE FROM BEATING IT IS LESS LIKELY SOMEONE WOULD REPORT THAT (infer knapp never heard it) o 2). KNAPP IS LYING EX: D indicted for murdering wife, face death penalty. Testifies that he killed her bc she said she was seeing another man and she was pregnant. If jury believes, could be manslaughter bc heat of passion Prosec asks to exume body of wife o RELEVANT BC IF SHE ISNT PREG IT IS MORE LIKELY SHE DID NOT TELL HIM THAT o THIS IS 401 RELEVANCE: BASIC THRESHOLD RULE FOR JUDGE TO DECIDE WHAT IS RELEVENT. o RULE 403 CIRCLE: IN THIS CIRCLE JUDGE CAN INCLUDE OR EXCLUDE EVIDENCE BASED ON ITS PROBATIVE VALUE COMPARED TO ITS PREJUDICIAL VALUE If in this circle, the evidence already passed 401 (LOGICALLY RELEVANT AND NOT EXCLUDED FOR CONSTL CONCERNS) If logically relevant (401) it has probative value. JUDGE MAY USE HIS DISCRETION TO EXCLUDE EVIDENCE UNDER 403 IF IT UNFAIRLY PREJUDICES D. IF ITS PREJUDICE OUTWEIGHS ITS PROBATIVE VALUE UNDER 403 EVIDENCE IS UNFAIRLY PREJUDICE IF CONFUSES OR MISLEADS JURY UNDUE DELAY, WASTE OF TIME, NEEDLESS PRESENTATION OF CUMULATIVE EVIDENCE

UNFAIR EVIDENCE LEADS A JURY TO MAKE DECISIONS BASED ON EMOTIONAL GROUNDS, NOT RATIONAL BALANCING TEST OF PROBATIVE v PREJUDICIAL VALUE THE PREJUDICE HAS TO SUBSTANIALLY** OUTWEIGH THE PROBATIVE VALUE

Ex: Probative value 48% and Prejudicial 52%....evidence will prob stay

o PROBATIVE VALUE VS. PREJUDICIAL EFFECT

Ballou v Henri Studios: D challenged the trial courts exclusion of

evidence showing P was intoxicated when struck by a vehicle (contrib. neg), contending its relevance outweighed its prejudicial impact.RULE: Under 403, when a court endeavors to balance the probative value of evidence against its prejudicial effect it must give the evidence that amount of probative value it would have if the evidence is believed, not the extent to which the court finds it believable. 403 does not permit exclusion of evidence bc judge does not find it credible Measuring probative against prejudicial value under 403 means probative value with respect to MATERIAL fact if the evidence is BELIEVED, NOT THE DEGREE THE COURTS FIND IT BELIEVEABLE The Blood alc test are HIGHLY relevant to show the Ps contrib. neg and prejudice is slight 403 unfair prejudice IS NOT ADVERSE TESTIMONY, or else all evidence would be prejudicial MUST BE UNFAIR UNDER 403:
o

an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily an emotional one

Way it usually goes is judge will hold evidentiary hearing before trial (gives lawyers knowledge on what they can and cant prove) P here called a nurse who testified that she saw P before accident and did NOT smell like booze JUDGE WANTED TO SUPPRESS BAT EVIDENCE BC THOUGHT IT WAS TOO PREJUDICIAL (after 403 balancing) o Judge gave subst credibility to nurse and less on BAT o JUDGE SHOULD HAVE: consider evidence at MOST probative value and give to jury to decide. Under 403 need to give evidence MAXIMUM value and then decide if evidence outweighs probative value

Court should acknowledge that intoxication evidence has proper value in the case and can be relevant

403 BALANCING (Probative v Prejudicial) happens in every case with evidence that may be misleading or distracting A JUDGE HAS TO GIVE EVIDENCE THE VALUE A JURY COULD GIVE AND THEN DECIDE IF IT SHOULD BE EXCLUDED UNDER 403 Ex: Same case, P wants to offer pics of scene of accident, very gruesome, prob for emotional value. What should judge do under 401 and 403? o 401: could show result of accident, where body was etc this would be ok bc it is ANY tendency to show the accident. Court may say only b&w photos or limit the number o 403: Need to look at the probative value and determine whether te danger of unfair prejudice outweighs it, need to determine if IT MISLEADS TE JURY.

o THE BURDEN OF PROOF AND PRESUMPTIONS: CIVIL CASES

SMITH v RAPID CITY TRANSIT: although unable to find wich bus company owned the vehicle that forced P off road, P sued D on the theory that the bus was most probably owned by them. RULE: A proposition is proved by a preponderance of the evidence if it is made to appear more likely or probably in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal NOT withstanding any doubts that may still linger there. Mathematical evidence MAY NOT be introduced wo some supporting direct evidence. Private busses could still be driving down the street, this bus could have been owned by a private co Sargent V Mass: not enough that mathematically the chances somewhat favor a proposition to be proved RELYING ON PROBABILITY ALONE IS NOT ENOUGH TO GET YOU TO THE JURY

Ex: DNA evidence shows conclusive match to Indict D, is that enough to indict? YES, but this is still probability evidence (even if 1 billion to one) Probability evidence is useful. eX: lawsuit brought by recording artist against co that produced album, argued they didnt use best efforst to promote record and showed the probability that an album in top 100 would move to top 40..THIS IS A STATISTICAL PROBABILITY BUT IT NEEDS A GOOD BASIS AND WILL NOT REST WITHOUT EVIDENCE THE PROBLEM WITH SMITH IS THE LAWYER PROB DID NOT DO ENOUGHdidnt intrvw enough etc.

o HYPO PG 94

1). SINCE LIABILITY WAS ALREADY ADMITTED, UNLESS SEEKING PUNITIVE DAMAGES, THIS EVIDENCE HAS NO TENDENCY FOR COMPENSATORY DAMAGES. Under 401 he already admitted liability, now just need to asses damages. The force of impact has no tendency to prove how much loss P suffered. RELEVENT FOR PUNITIVE DAMAGES 2). If law was increased money for Gore knowledge, THEN YES admissible. If looking for pain and suffering then it is relevant, But not on survivors emotional distress if survivor was unconcosous. If did not want photos to come to evidence (stipulate = agreement) but P does not have to accept. 3). 401 relevence the judge would probably have to admit this evidence and let te jury decide how much weight to give it 4). IRRELEVENT I was in a fight with 12 guys next to a lamppost and to prove it theres the lamppost Prosecutor would prob not allow 5). THIS EVIDENCE PROVES THAT HE DID DO THE CRIME, it has NO relevancy under 401. This shows restitution has no tendency to prove or disprove anything in the case once the crime is complete.

o NOTES: NY HAS NO CODIFIED RULES, MAINLY COMMON LAW In a diversity case, use substantive law of JDX, in procedure use FRCP and FED RULES OF EVIDENCE 1) RELEVENCY: 400 rules

2). EXAMINATION OF WITNESS: 600 Rules 3). EXPERTS AND OPINIONS: 700 RULES 4). THE HEARSAY RULE: (800 RULES) WHAT STANDARDS DOES THE APPELLATE COURT USE WHEN LOOKING AT JUDGES RULING? Abuse of Discretion Abuse of discretion is LEGAL ERROR o Reversal likely

ADMISSIBILITY of EVIDENCE vs. SUFFICIENCY of EVIDENCE Admissibility = admitted (once admitted up to jury to decide weight) Sufficiency = APPLIES TO THE CASE o Differ from admissibility

RELEVENCY IS VALUE: Ask these questions for relevence

1).what is te purpose of the lawyer offering this piece of evidence? 2). What is the purpose for using this evidence? 3). What is the issue this piece of evidence is being used to prove? 4). Is the issue PROPERLY PROVABLE in the case? o Need to know substantive law governing lawsuit o Hypo: D charged w murder, wants jury to know person he killed was drug dealer.NOT RELEVENT

5). Does this evidence help, does it have any value to what you are trying to prove? o RULE 401 relevant evidence having any tendency any fact that is of consequence to the determination of the action answers DOES THIS EVIDENCE HELP? o Does it prove the point you are trying to prove? o Does it make it more or less probable?

o IF EVIDENCE HAS A PROPER PURPOSES AND HAS THE PROB OF MAKING YOUR CLAIM MORE PROBABLE OR THEIR CLAIM LESS PROBABLE, THEN 401 is met HYPO: workmans comp, p injured on job, hand caught in machine. Sueing for workmans comp. Owner seeks to offer evidence tat te P was drunk and NOT looking when arm was caught in machine. IS IT RELEVENT? YES, bc it would prove worker at fault o Ask under substantive law of workers comp, is fault of the employee relevant with workers comp action or is it no fault? If NO FAULT the proof is irrelevant

Hypo cont: owner has hired an investigator to follow P, notice P playing bball at gym, is this proof relevant? YES o If can prove NO injury or actual damages

HYPO: Criminal prosec of D for statutory Rape. D seeks to prove that the victim told him that she was 21 and well above age os consent.DOES NOT MATTER, MISTAKE AS TO AGE IS NOT A DEFENSE SO THAT PROOF IS EXCLUDED o Irrelevent o CONT: D wants to prove that the young woman pleaded with him to take her to her HS prom, he said no, is that relevant? Maybe, bc it may give her a motive to lie bc she was embarrassed? MOTIVE IS HUGELY RELEVENT

o RULE 401 Evidence as to relevant, evidence has to be provable, evidence as to have a tendency to make it more provable LOW THRESHOLD HYPO: Politician on trial for bribery, can the prosec show that has a Mercedes? Maybe, the relevance is she takes bribes to support her lifestyle.

HYPO: Series of rapes over 2 yrs. D arrested and accused. Trial 1 yr later. Prosec wants to intro evidence tat since D was arrested the rapes have STOPPED. Permissible? Yes, can show they got the right guy Defense may claim that actual rapist will lay low

Judge admits evidence as legal decision and jury decides how much weight to give it WEGHT OF EVIDENCE IS FUNCTION OF JURY

o RULE 403 (circle) in this circle already 401 admitted, just can include or exclude evidence Already passed 401 IF LOGICALLY RELEVENT IT HAS PROBATIVE VALUE Under 403: Judge can use his discretion to exclude if Evidence is unfairly prejudice Confuse mislead jury Undue delya, waste of time, needless presentation of cumulative evidence

UNFAIR PREJUDICIAL EVIDENCE LEADS JURY TO MAKE DECISION ON EMOTIONAL RATHER THAN RATIONAL GROUNDS Judge Balance PROBATIVE v PREJUDICIAL

- AUTHENTICATION o RULE 901 & 902

o Need to always show that evidence is what it purports to be EYEWITNESSES NEED TO SHOW THAT THEY WERE IN POSITION TO TALK ABOUT THE EVENT

o FOUNDATION: ALL EVIDENCE REQUIRES SOME FOUNDATION If lawyer wants to introduce evidence, need to lay foundation for the evidence Ex: accident in front of school, want to admit photo into evidence

o Need to authenticate photo How? Get someone to authenticate it (student) THIS WOULD BE PROPER Need to show evidence is what it purports to be Need to show photo is a fair and accurate representation of school

EX: handwritten note by D in murder case. o NEED TO FIRST AUTHENTICATE o How? Get D to say he wrote it Get handwriting expert Call witness familiar with the handwriting

EVIDENCE NEEDS A SPONSOR OR A LAY OF FOUNDATION NEED WITNESS TO SAY THIS EVIDENCE IS WHAT IT PURPORTS TO BE

- CHARACTER o RULE 404: Character Evidence Not admissible to prove Conduct, Exceptions, Other Crimes o RULE 405: Methods of Proving Character o RULE 105 : Limited Admissibility o RULE 104 : Preliminary Questions
Six Categories where Character Evidence is admissible
-

Issue 405(b) where character or trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. Defendant in Criminal Case 404(a)(1) defendant has a right to open door in a criminal case, by putting on the stand, character witnesses. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2). Rule 405(a) allows the character witness to testify not

only of reputation, but also of opinion. Character witnesses are not allowed in civil lawsuits. Once character witnessed as testified, the prosecution can do several things (can call negative character witnesses), to rebut the character witnesses testimony. The prosecution can attack character witness by attacking qualifications, or knowledge of witness.
-

Victim in Criminal Case 404(a)(2) in a criminal case and subject to the limitations impose by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of the a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor Other Crimes -404(b), X-Examination of Witnesses 404(a)(3) allowed to bring out bad character of witness for untruthfulness, Rules 607-609 Sex Crimes 413, 414, 415 prior sexual offenses are admissible to show propensity for defendant to act in such offenses.

o CHARACTER IN ISSUE

Cleghorn v New York Central: D was in accident caused by carelessness of Ds switchman (train). Evidence of switchmans intemperate habits were admitted. RULE: Evidence of a persons intemperate habits is admissibile in an actiona against the persons employer for the purpose of proving that the employer knew of his intemperate habits and to support a claim for exemplary damages. The evidence of intemperate habits had no bearing upon the question of negligence at the time since prev intoxication does not estab an omission to give the switch. This case sought to prove Switchmans intoxication AND 2). He was a man of intemperate habits known by the company having the power to fire him o EVIDENCE IS COMPETENT o Could have asked witnesses if he smelled like booze that day Under RULE 404 (a): cannot prove a person has a propensity to engage in conduct that is similar to conduct at issue.

evidence of a persons character or trait is not admissible for the purpose of proving action in conformity therwith of a particular occasion CANT PROVE SWITCHMAN WAS DRUNK IN PAST TO PROVE HE WAS DRUNK THIS TIME Ex: person charged w argument at bar and smashing bottle over someones head. He denies it, howver, past 18 mos he beat someone in bars on 5 occasions. ALTOUGH THIS WOULD BE LOGICAL TO SHOW HE DID IT, IT CANNOT BE ADMITTED UNDER 404 (a) BC JURY MAY CONVICT ON BAD CHARACTER AND NOT THE ISSUE Prejudice the D CANT PROVE GUILT BASED ON CHARACTER Too prejudicial, jury may convict bc they dont like him

BC OF RISK THAT JURY MAY MISUSE EVIDENCE, CHAR. EVIDENCE IS NOT ADMISSIBLE 404 (a). Cant prove a person did something wrong just cuz did it in past THEREFORE CANT PROVE SWITCHMAN IS INTOXICATED TODAY BY SHOWING HE WAS INTOXICATED IN PAST

o THE PROSECUTION WAS ALLOWED TO SHOW HE WAS DRUNK IN THE PAST BC IT WENT WITH AN ELEMENT OF PROVING PUNITIVE DAMAGES AGAINST COMPANY Punitive Damages : need to prove 1). Past acts of intoxication 2). Knowledge by company The SWITCHMANS PRIOR INTOXICATION IS AN ELEMENT FOR PUNITIVE DAMAGES

o NOT FOR NEGLIGENCE, NOT FOR K, ONLY PUNITIVE. o Character is NEVER an element inc rimes, (exceptions : defamation) Ex: prof is lousy prof, in tat lawsuit MUST prove NOT a lousy prof, so character is an essential element. Ex: Loaning a car to someone who they know is recklessis character an issue? Yes bc in order to prove case MUST show that he is reckless and lender knew Character of driver as reckless IS an element of the suit. NEED TO PROVE

o IF CHARACTER IS ELEMENT OF CRIM THEN NEED TO PROVE IT o In Cleghorn, need to show D was prev drunk on train and company knew it in order to get punitive damages 2 SEPARATE ISSUES 1). Negligent today bc drunk o Prev intoxication MAY NOT BE USED TO SOW DRUNK TODAY 2). Punitive damages based on theory company knew he was drunk many times before o Prev intoxication MAY be used here TO DO THIS WILL USE RULE 105: LIMITED ADMISSIBILITY

o UNDER RULE 404 NO CHARACTER EVIDENCE BC TOO PREJUDICIAL o WHAT KIND OF PROOF COULD BE USED WHERE CHARACTER IS AN ISSUE? 405 (b)

WHERE CHARACTER IS AN ISSUE (defamation) CAN PROVE THAT CHARACTER CAN LEAD TOWARD SPECIFIC INSTANCES OF CONDUCT 3 Ways to prove conduct Specific instances (cleghorn) Opinion Reputation

RULE 105 : Limited Admissibility

Some evidence may be used to prove 1 issue and not the other, LIMITING INSTRUCTION, trying to limit the way the jury uses the evidence
o

the evidence you are about to hear is admissible on PUNITIVE DAMAGES to determine if the company was liable for hiring a drunk, NOT on the issue of whether D was drunk that dayTHIS EVIDENCE IS NOT ADMISSIBLE TO DECIDE WHETHER OR NOT HE WAS DRUNK Judicial fiction

HYPO pg 96 YES bc she claims they were in a happy and affectionate marital relationship and so the defense can show, 405 (b) that this may not have been the case. (GET FROM SOMEONE ELSE)

o CHARACTER AS CIRCUMSTANTIAL EVIDENCE

MICHELSON v US: D claimed he was entrapped by official he allegedly bribed. He introduced witness testimony as to his Good Reputation. RULE: WHEN A D PUTS HIS CHARACTER AT ISSUE THROUGH THE INTRODUCTION OF REPUTATION EVIDENCE, THE PROSECUTION MAY ASK THESE WITNESSES IF THEY HAVE HEARD OF SPECIFIC ACTS OF BAD CONDUCT RELATING TO THE D. A witness may not TESTIFY WITH SPECIFIC INSTANCES AND ACTS The witness relationship MUST be intimateto show his failure to hear anything may show that there were no rumors

AFTER D INTRODUCES BENEFICIAL WITNESS TESTIMONY, THE PROSECUTION MAY PURSUE WITH CONTRADICTORY WITNESSES WITH TESTIMONY OF DAMAGING RUMORS AND OWN WITNESSES ARE SUBJECT TO CROSS EXAMINATION A character witness may be cross examined as to an arrest whether or not it culminated in a conviction, THIS ALLOWS THE PROSECUTOR TO TEST THE QUALIFICATION OF THE WITNESS Since D sougt to estab good character of honesty and truthfulness and law abiding it was proper for the prosec to cross examine bc reports of his arrest for stolen goods would weaken the assertion that he is honest and law abididng. 2 INSTANCES WHEN CHARACTER EVIDENCE CAN BE USED 405 (b) o 1). CHARACTER IN ISSUE o 2). DEFENDANT 404 (a)(1): PROSEC. Cant attack Ds character, the D may open the door to his character by introducing evidence of his good character, usually by calling witnesses.

Under 404 (a)(1) D may call a character witness o IN A CRIMINAL CASE, CHARACTER EVIDENCE ONLY APPLIES TO CRIM CASES, NOT CIVIL

D has so much to lose in Crim cases, not worth it to

put in civil trial

Limited TO REPUTATION AND OPINION NOT SPECIFIC INCIDENTS THIS IS AN EXCEPTION TO THE HEARSAY RULE (803 EXCEPTION 21) THIS CASE SHOWS WHAT A PROSECUTOR CAN DO UNDER CROSS EXAMINATION o CANT ASK ABOUT MERE ARRESTS ANYMORE (like prosec did here) BC IT DID NOT END IN CONVICTION
o

did you hear D was convicted of rape 10 yrs ago

If yes, weakens credibility on cross examination of witness bc said he was GREAT GUY IF NO, shows a lacking of intimacy, that witness didnt know D at all. WITH ALL THIS JUDGE WOULD NEED TO GIVE INSTRUCTIONS.

MCCORMICKS HANDBOOK ON THE LAW OF EVIDENCE 190 BAD CHARACTER AS EVIDENCE OF CRIM CONDUCT The PERMISSIBLE PURPOSES OF ALLOWING PAST CRIMINAL ACTS IN EVIDENCE ARE o 1). To Complete the Story of the Crime on Trial by placing it in the context of nearby and nearly contemporaneous happenings 2). To prove the existence of a larger plan, scheme, or conspiracy of which the crime on trial is apart of 3). To prove other crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused 4). To show, by similar acts or indcidents, that te act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge 5). To establish motive 6). To establish opportunity, in the sense of access to or presence at the scene of crime or in the sense of possessing distinctive or unuals skills or abilities employed in the commission of the crime charged. 7). To show wo considering motive, that defendant acted with malice, deliberation or the requisite specific intent 8). To prove identity 9). To sow a passion or propensity for unusual and abnormal sexual relations 10). To impeach an accused who takes the witness stand by introducing past convictions

o o

o o

o o o o

US v CARILLO: D contends tat the court erred in admitting evidence of extrinsic acts. D alleged heroin dealer, undercover cop allegedly bought a

balloon of heroin from D. D claimed alibi and mistaken identity. 2 people testified 1). Said he made undercover purchase 3 yrs earlier 2). Said he saw the D selling to many people and pregger woman 2 yrs earlier, also selling balloons. TESTIMONY WAS ADMITTED IN ORDER TO PROVE MODUS OPERANDII (handiwork) OF D. RULE: ALTHOUGH 404 (b) PROHIBITS EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS TO PROVE CHARACTER OF A PERSON, EXTRINSIC ACTS MAY BE ADMISSIBLE FOR OTHER PURPOSES, SUCH AS IDENTITY, IF EXTRINSIC ACTS BEAR A HIGH DEGREE OF SIMILARITY TO MARK THEM AS HANDIWORK OF ACCUSED.

Evidence is reviewed under ABUSE OF DISCRETION STANDARD PAST CRIMES ARE NOT ADMISSIBLE FOR ANYTHING OTHER THAN KIPPOMIA UNDER 404 (b) Here the reason is Identity (handiwork) (OTHER CRIMES 404 (b) balloon heroin is not such a high degree to make it Ds handiwork SIMILARITY IS NOT ENOUGH, NEEDS TO BEAR SUCH A HIGH MARK OF SIMILARITY AS TO MARK IT AS HANDIWORK OF ACCUSED THE EXTRINSIC EVIDENCE OF SELLING HEROIN DOES NOT SATISFY THE MODUS OPERANDII REQUIREMENT SINCE THESE ARE NOT SUFFICIENT TO MARK AS THE HANDIWORK OF D, THEY ARE NOT ADMISSIBLE UNDER THE MODUS OPERANDI METHOD. o Judge needs to determine in pretrial hearing 1). Wether the acts occurred 2). Whether admissible/401 3). Whether the probative value is not outweighed by prej/403

Balloons are common in hereoin 404 b exceptions NEED TO APPLY TO NARROW ISSUE

o Ex: Person is kidnapped and was going to be govt witness in a high profile narcotics prosecution. IS THAT KIDNAPPIN MOTIVE? YES BC 404 (b) can show motive and the kidnapping shows motive, this trial was to try narcotics.

o ALWAYS ASK IS IT RELEVENT?

o Ex: bad figt and threatened to throw wife off building and later stabbed her. Are prior beatings admissibile? 1). Is there a proper purpose to bring this in? To show intent? NOT NEC. BC HE STABBED HER, intent IS NOT IN ISSUE, its obvious..NEED REAL PURPOSE CANT JUST SHOW A PROPENSITY TOWARDS VIOLENCE o o Maybe a plan?

Ex: woman murdered in aptm. Before killed dropped off by bfriend. Called him and said some guy knocked on her door saying his wife was rapedbfriend told the man to goto police. Called back 15 mins later and no pickup, rushes to apatmt, she is killed. Lingerie is taking out of her aptmt. NEED TO PROVE IDENTITY. PROSECUTION LEARNS OVER 18 MOS HE HAS BEEN CHARGED WITH 6 RAPES IN AREA, TIED DOWN W LINGRIE AND D ACCOSTED WOMEN WITH STORY THAT WIFE WAS RAPED ON EVERY CASE. PROSECUTION CALLS THESE 6 WITNESSES AND IT IS ADMISSIBLE UNDER 404 (b). EVEN THOUGH EXTREMELY PREJUDICIAL, THE PROBATIVE VALUE WAS HUGE AND THERE WAS A PROPER PURPOSE..IDENTITY

TUCKER v STATE: D woke up to find Evans dead on Ds couch. A situation that was quite similar to an event which had happened to D six years earlier.RULE: EVIDENCE OF A PRIOR CRIME FOR WHICH THE CRIMINAL DEFENDANT WAS NEVER CONVICTED IS INADMISSIBLE D MUST HAVE COMMITTED THE INDEP CRIME SOUGHT TO BE INTRODUCED, NOTHING IN RECORDE TO SHOW D COMMITTED FIRST CRIME, IT WAS ANNONYMOUS AND

SO IS IRRELEVENT WHEN DECIDING WHETHER D COMITTED THE CRIME BEFORE EVIDENCE OF COLLATERAL OFFENSE IS ADMISSIBLE FOR ANY PURPOSE, THE PROSECUTION MUST FIRST ESTAB BY PLAIN CLEAR AND CONVINCING EVIDENCE THAT THE D COMITTED THAT OFFENSE MUST BE CLEAR AND CONVINCING EVIDENCE TAT D DID OTHER ACT AND OTHER ACT IS RELEVENT TO A PROPER PURPOSE (KIPPOMIA)FOR JUDGE TO ADMIT PRIOR CRIM ACT If not using CLEAR AND CONVINCING, under federal rules may have come out little different if occurrences are so bizarre that the fact they occurred could convince fact finder.

RULE 104: Preliminary Questions

Huddleston v US: D indicted on charges of buying and selling stolen goods. At trial the prosecution sought to intro evidence of prior similar transactions by d. Court, wo making any preliminary findins that the alleged prior acts had occurred admitted the evidence based on 404 (b), which permits the intro of evidence of prior acts to show motive or knowledge. RULE: A COURT NEED NOT MAKE, PRIOR TO ADMITTING PAST ACTS INTRODUCED TO SHOW MOTIVE OR KNOWLEDGE, A PRELIMINARY FINDING THAT THE ACTS OCCURRED. D claims he did not know the goods were stolen o 2 other crimes 1). stolen appliances to undercover agent: INTENDED TO PROVE KNOWLEDGE RULE 104 (a): prelim questions, judges determination whether evidence is admissible or not WHAT ANALYSIS WOULD JUDGE MAKE? WE Know appliances were stolen and know D was apart of it

THIS IS 404 (b) crime: ANALYSIS o 1). 404 (b) CRIME IS SHOWN THAT D WAS INVOLVED o 2). THIS CRIME IS BEING OFFERED FOR A PROPER PURPOSE (knowledge, motive) o 3). 403 determination, THE PROBATIVE VALUE IS NOT SUBSTANTIALLY OUTWEIGHED BY PREJUDICE o 4). JUDGE MAY HAVE TO GIVE LIMITING INSTRUCTIONS Only in respect to guilty knowledge of tapes

2). B&w tvs PROBLEM IS o Dont know they were stolen, SO CANT USE 404 (b) BC ONLY DEALS WITH PRIOR CRIMES, AND DONT KNOW IF THESE ARE CRIMES CAN USE 104 (b) RELEVENCY CONDITIONED ON FACT: Conditional fact is tvs are stolen THIS IS IMP bc we dont know if dealing with a 404(b), bc dont know if they are stolen

THIS IS EVIDENCE CONDITIONED ON FACT o HOW DOES JUDGE DEAL?

o Look at Suspiscous Circs: $28, NO RCPT, NO DOCUMENTATION (conditional fact is TVs are stolen) TO SHOW D HAS GUILTY KNOWLEDGE TVS ARE STOLEN

In Huddleston, the court held that 404 b only requires the evidence of the other crim (Ds knowing purchase of stolen tv sets from X,) be strong enough that the jury could REASONABLY FIND that the other crime was committed. o The low prive of the tvs, the large quantity D had for dale, Ds inability to produce bill of sale, coupled with Ds involvement in other purchases of stolen goods form X, were enough to allow a REASONBLE jury to conclude that D knew te tv sets were stolen and therefore enough to let the jury consider this OTHER CRIMES evidence.

Hypo: Case where there is a large scale conspiracy, 12 Ds (statements made by any member is admissible against anyone as long as made in furtherance of conspiracy) HYPO: D goes into liquor store, hold it up, steals money, kills clerk in NY. Month later theres a holdup in NJ and D steals money, shoots and doesnt kill clerk. Escapes, cops find abandoned car, gun in car ballistics match gun used in NY. Trial in NY, felony murder, (was surviving witness to prove some identity). Prosec wants to intro NJ holdup as IDENTITY, but if proof identity is made by 5 witnesses DONT NEED NJ HOLDUP, BUT SINCE IDENTITY IS SO CONTESTED, THE NJ EveNT IS ARGUABLY ADMISSIBLE. DONT NEED TO PROVE NJ HOLDUP, JUST THAT GUN WAS IN CAR.

HYPO PG117 1). YES this is admitted IF IT IS USE TO SHOW KNOWLEDGE since D used a no KNOWLEDGE DEFENSE. Since D is injecting Knowledge into the trial , UNDER 404 (b) the PRIOR sale (KIPPOMIA) CAN PROVE KNOWLEDGE. ITS ADMISSIBLE ON THE ISSUE OF KNOWLEDGE ON WHAT POT LOOKS LIKE, not to show he is a drug person 2). Possibly to show habit or motive, KIPPOMIA 3). This may be admissible under 404 (b) to show Motive or intent or Plan o Always ask 1). Is this character evidence? Yes, then 2). Is there a KIPPOMIA purpose for introduction? 4). 1).Is this Character Evidence ? YES, 2). Is there a KIPPOMIA purpose under 404 (b)? YES identity 3). Does its probative value outweigh its prejudicial value (403 balancing) 5).Maybe to show Opportunity (since not at halfway house had opp to do it) or Identitythe judge would have to eliminate the prejudice had to be somewhere NOT a child molester halfway house thing. DO NOT NEED TO SAY CONVICTED SEX OFFENDER. 6).Prob inadmissible, not unique, not handiwork, not common scheme or plan, just robs bankNEED MORE.

PG 139 1). T 404 (a)(2) evidence about victim 2). F under 405 (a) can only prove by rep or opinion, NOT specific circs 3). T 1). Character evidence 2). KIPPOMIA purpose = motive, it is proper to use to show motive under 404 (b) evidence 4). T Knapp v State, whether the belief that he was in imminent danger is reasonable. Self defense is reasonable, reasonable fear is relevant piece of proof. THIS IS 401 RELEVENT ON RSNBLNSS OF FEAR. IT IS NOT USED TO SHOW VICTIMS CARACTER, IT IS USED TO SHOW OWN RSNBL FEAR 5). True, RULE 404 (a)(1).

Hypo pg 145-146 1).D charged with the crime, D brings character witness (opinion or rep) here it is opinion. There may be a problem that he only knows him for a month, the foundation may not be enough to allow him to testify to his opinion. Judge needs to make preliminary determination tat this guy is credible JUDGE WILL PROB ALLOW THIS IN (RULE 104) 2). THE purposes are INTENT , PREMEDITATION, MOTIVE. These are proper purposes, this proof is very prejudicial BUT it does show a motive. 90/100 judges would prob let this proof in. Admisisble under 403 and 404. This 404 evidence goes directly to Premeditation. 3). Admissible under 404 (b), proper purpose is modus operandii, handiwork. Signature unique 4). No issue of identity, need to find proper kippomia purpose, IF CANT SHOW PROPER PURPOSE, THEN JUST SHOW THIS PERSIN IS A VIOLENT AND DANGEROUS MAN against 404 (a)(1), NO PROPER PURPOSE UNDER 404 (b). 5) THIS IS HABIT NOT CHARACTER EVIDENCE.

o CHARACTER EVIDENCE CONTAINS THE MOST RULE Need to know that it is a problem that deals with character evidence Next need to see what context the character proof is being used Many situations where it is an issue (Michelson, clegorn, cross exam of witness, case where one party wants to prove other party committed crimes, wrong that is relevant on proving the issue rather than propensity for doing bad things MOST PREJUDICIAL EVIDENCE WILL BE LIMITED EXCEPT IN SITUS WHERE NECESSARY 404 b shows tension courts have to face in balancing the proabtive value of the proof IT IS A JUDGES CALL AN CAN BE LOOKED AT AS ABUSED OF DISCRETION

404 b mostly used in crim cases, but may be used in civ cases also

Ex: D claims didnt sign promissory note and signature wasnt his, claimed it was a forgery. They were able to into prev forgeries to prove he signed the note

NYS 404 (b) COMMON LAW EQUIVELANT PEOPLE v MOLINEUX o Charge against D for poisionin victim via pkg in mail that looked like seltzer, laced w poision. Prosec wanted to use proof that in past D used pkg in mail w cyanide o Was the proof of prior posion used to show anything other than bad person? MOTIVE? No Intent: not an issue Plan: no connection ID: not enough handiwork, like a robbing a bunch of banks COURT CONCLUDES IT SHOULD NOT HAVE BEEN ADMITTED TIMING o When is the prosec allowed to intro evidence? Ex: D charged in drug sale, undercover officer testifies that he goes up to D on corner, asks for Coke. D says down to end of street, get from that guy. Officer does and arrests person who sold and steered. Govt has proof that this D on 2 prior occasions sold drugs or acted as accomplice. Can the govt IN ITS CASE IN CHIEF intro 2 prior acts of steering? NO BC DOES NOT MEET KIPPOMIA 404 (b). NO PURPOSE, JUST SHOWS HE IS A DRUG PERSON Only able to use to show D was dangerous crim type to poison so NOT ADMISSIBLE

D CAN NOW PROVE HIS CASE o 2 theories: o 1). Yes I remember Narc coming up to me and asking where can I get drugs, I said somewhere down there. GOVT CAN INTRODUCE NOW BC IT CAN REFUTE MISTAKE under KIPPOMIA

o 2). THIS NARC IS LYING, I DONT KNOW ANYTHING ABOUT THIS could the sales then be used just for a denial NO,bc no kippomia purpose under 404 (b), total denial would not give the prosecutor ANY proper basis for proving the drug crimes oter than involved w drugs, UNDER 404 (a) CANNOT USE NEED TO KNOW WHAT DEFENSE IS

o STEPS

1). Is it Character Evidence? Yes

2). Does it Fall under 404 b? WHAT IS ITS KIPPOMIA PURPOSE? Is probative value substantially outweighed by prejudice? 403

o EVEN WHEN EVIDENCE IS LOGICALLY RELEVANT IT STILL CAN BE PREJUDICIAL

- HABIT

o o

RULE 406: HABIT;ROUTINE PRACTICE

PERRIN v ANDERSON:Ps sues D (cop) for compensatory and punitive damages in a
civil rights action arising from death of Ps son. P alleged that D and another hwy patrolman deprived his son of his civil rights when they shot and killed him while attempting to obtain info about a traffic accident which he was involved. Cops claiming self defense and want to prove Ps sons charcter for violence. RULE: WHEN CHARACTER EVIDENCE IS USED CIRCUMSTANTIALLY, ONLY REPUTATION AND OPINION ARE ACCEPTABLE FORMS OF PROOF NOT SPECIFIC EXAMPLES

Character evid in a D or victim isnt allowed in civil cases, therefore cant be used here (crim only) The cops here show specific (5 specific) instances of charcter AND THEY CANT TO PROVE CHARACTER WITH SPECIFIC INSTANCE But they can PROVE HABIT Did Ps son have HABIT for acting violent with cops? o The 5 instances would suggest he DOES have a habit for acting violent with cops (gersh thinks 5 is not enough to lay foundation for habit) o But there was more than 5, and courts only allowed 4 to minimize prejudiceappellate court said judge used discretion properly

Ex: Can a witness that was not on bus at time of accident come in and testify that this bus driver reg and habitually does NOT stop at stop sign? Not dealing w character here, dealing with habit. HABIT PROOF: propensity to do a particular action, only way to prove habit is specific instances, need to have enough to convince judge you are dealing with a habit

HABIT MUST STILL BE RELEVANT UNDER 401 relevance NEED TO USE 104 (a) and a judge needs to make a prelim determ that the evidence proves habit, needs to find a foundation, and the foundation has to be a finding by the judge that the actor has done it so much that it constitutes habit HABIT: ONES REG RESPONES TO A REPEATED SITUATION, REG/ROUTINE PRACTICE TO A SITUATION. INVARIABLE REGULARITY. Need to estab a reg, routine

practice UNDER RULE 406.doesnt need to be corroborated and doesnt need to be an eyewitness COMMON LAW COURTS ARE WARY TO LET HABIT COME IN EVIDENCE Ex: person struck by car crossing streetwants to testify that everytime crosses street looks bot wayssomeone will testify that everytime he stops he looks both waysBUT DOESNT TAKE DIFFER VARIABLES INTO ACCOUNT

MAJORITY OF COURTS WOULD NOT GO THE WAY THIS COURT DID 1). Most courts would not allow character evidence in civil case 2) most courts wouldnt consider this a habit

RELIGIOUS HABITS (I couldnt have commited the robbery bc I was home reading scriptures) NO GOOD

HALLORAN v VA CHEMS: Trial judge refused to allow D to intro evidence that P had previously used an immersion heating coil (which is how he was injured) to heat cans of refrigerant to show that he was acting in such a negligent fashion when one of the cans blew up and injured him. Chem company wants to show that these cans dont just blow up and that P did something to cause it RULE: At least where the oissue involves proof of a deliberate and repetitive practices, a party should be able to intro evidence of habit or reg usage to allow the inference of its persistence, and hence negligence, on a particular occasion Many people claim P used immersion techs to heat cansto the courts this is admissibl P tries to compare his case to one that didnt allow habit evidence people jumping on carscourt said its different bc hereP was in complete control, not as many variablesJUMPING ON CARS SO MANY INDEP VARIABLES WE CAN CALL IT A HABIT Need to know when habit evidence may or may not be allowed (too many variables NOT allowed Ex: Med malp against dentist for impaction of wisdom tooth, P suffers a diseas bc of it and sues, Dentist will say e performed te procedure hundreds of times, require informed consent and show video. If P says dont remember this ten D coul show proof from

hist testimony and assistants that every time they do procedure they show video = HABIT Richie v Goldman: sueing lawyer for malp claim lawyer did not advise wha the consequences are of pleading guilty etcnow lawyer can show abit of adivising every clientTHIS IS HABIT PROOF

CANT BE A FEW INCIDIENTS FOR 401 RELEVENCe, NEEDS TO BE MANY Ex: D charged w robbing banl, witness sees the perp runnin out of bank, cant accurate id im but remembers long hair and pony tail. If a witness said the D 6 mos before robbery wore hair in pony tail NOT ADMISSIBLE AS HABIT BC NO RELEVENCE, but if can get mult witnesses to say he habitually wore pony tais then MAYBE. NEED JUDGE TO SAY HABIT, o 403 always comes into play

IF CAN ESTAB A ROUTINE PRACTICE THEN CAN ESTAB HABIT UNDER 406 AND THEN JUDGE CAN FIND IT ADMISSIBLE UNDER 403 Can show it happened that way today bc it happened that way 100 times in the past.

- SIMILAR HAPPENINGS
o

SIMON v KENNEBUNKPORT: P sued D contending she slipped and fell while on public sidewalk. At trial she was precluded from offering evidence of prior similar accidents at same location. VDCT for town. RULE: EVIDENCE of other similar accidents or occurrences that is relevant circumstantially to show a defective or dangerous condition, notice thereof or causation on the occasion in question is admissible. P has testimony form others that say they see people fall at least once a day NECESSARY FOUNDATION NEEDED FOR PROOF OF SIMILAR HAPPENINGS TO BE ADMISSIBLE IS THAT OTHER PEOPLE WERE INJURED AT THAT SPECIFIC LOCATIONIF YOU ARE P, TO SHOW PRIOR OCCURENCES NEED TO SHOW TAT THE CIRCS ARE SUBSTANTIALLY SIMILAR (location, weather time of day etc) Ex: fell during snow, NEED SUBST SIM CIRCS FOR RELEVENCY

EX: young grl injured on rollr coaster, struck and hurt badly by overhanging branch and sues County. Country want sto offer proof that in 5 years NO ONE HAS BEEN INJURED o Is absence of prior similar happenings relevant? YES ? o THE COMMON LAW ALLOWS PROOF OF PRIOR SIM HAPPENINGS TO PROVE CAUSATION AND AND DEFECT IN CONDIT

DERIVATIVE RULE: how do you rpove value of properties? Comparable sales Ex: sueing co for damages from gas leakshow the prob happened to other homes, it can happen to you alsocontinuing condition Ex: car accident hits student, traveling fats, Want to prove several minutes earlier witness in diner saw same car flying down N bway. Is it admissible? Could be continuing condition= connected to suggest the happening was continued in a similar fashion

NO FED RULE OF EVIDENCE FOR SIMIL HAPPENINGS NOT HABIT, ITS OCCURENSE Doesnt have to do with actor, has to do with conditions

o HYPO pg 169: Q. person slips and falls on newly paved walkway at xntry club wearing golf shoes. Sues club. Club seeks to show tat for the whole year no one has slipped out there. Can they? A. THE ABSENCE OF PRIOR SIMILAR HAPPENINGS ARE RELEVANT BC THEY GOTO SOW SOMEHTING ABOUT TE CONDITION Judge will have to find, under 401 that conduits are similar (rain, sun etc) o Golf shoes have spike,s thousands of people wear them, many people cross al day and dont get hurt. o THE ABSENCE OF PRIOR HAPPENINGS ARE RELEVENT AND ADMISSIBLE o Logical probative value

o This is circumstantial evidence to prove that veranda is NOT inherently dangerous

- SUBSEQUENT PRECAUTIONS
o o

RULE 407: SUBSEQUENT REMEDIAL MEASURES

TUER v MCDONALD: Ps hub went into cardiac arrest and died bc it was policy of the hospital at time to discontinue the use of hefrin prior to surgery. She alleges that evidence should have been admitted at trial showing the hospital changed its policy following her hubbys death, RULE: EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES ARE NOT ADMISSIBLE TO PROVE CULPABILITY This exclusionary provision is designed to encourage remedial measures Ex: guy falls in hotel shower and later hotel puts guard rails up Hotel is NOT admitting negligence by installing guard rails, just trying to make things safer POLICY IS NOT TO PENALIZE OR DETER FROM IMPROVING THEIR PLACE THIS IS EXCLUDED UNDER 407

WHAT DOES 407 mean BY FEASIBILITY? When doc saying couldnt restart heprin he means it was feasible, BUT DANGEROUS AND INNAPROP in their best judgment.

ANDERSON v MALLOY: suit against motel, young couple hubby went to buy sandwhiches and wife was raped while he was gone bc motel did not have locks. Ps want to show unsafe layout and proof that after she was raped, owner installed new locks and peepholes. NOT ADMISSIBLE UNDER 407, but motel owner testified he thougt if put peepholes in it would provide false sense of security, claiming woman CONTRIB NEG.by saying installing peephole gives false sense of security is controverting feasibility. The motel suggested it was NOT a good idea,,,,but then did it after the rapeso court held it admissible. This is a feasibility claim allowing admissibility. FEASIBILITY DOES NOT MEAN POSSIBLE, IT IS A QUESTION OF THE WAY WE DID IT AT THE TIME, NOT THE WAY WE DO IT

IF DR SAID it is unsafe to restart heprin then proof of change of policy would have been allowed.but Dr. said at that time it was in my best judgment to have been unsafe TENSE IS IMPORTANT o Judge may have been able to alow anyway

FEASIBILITY IN 407 WHEN ARGUING CANT CHANGE SOMETHING, TOO COMPLICATED etcTHAT IS FEASIBILITY. NEED TO ALLUDE THAT IT CANT BE DONE, NOT SAFEST WAY TO DO IT ETC. Try to say not feasible bc not safe or helpful. IF SAY THAT THEN ARE CONTROVERTING FEASIBILITY AND THEN SHOW DID IT ANYWAY,

o HYPO 178-179 1). DOES NOT FIT UNDER EXCEPTIONS, DOES NOT SHOW ANY IMPEACHMENT OF MANAGER, DOES NOT CLAIM FEASIBILITY. CANT BE IMPEACHED BC HE SAYS IN HIS OPINION TAPE WAS SAFE. BARRED UNDER 407JUST SAID HIS OPINION 2).This testimony is now subj to impeachment POSSIBLY bc the inference is that he is NOT telling the truth. May be an example of the impeachment exception. Here he said his opinion also, but he was the one who ordered the stairs improved so impeachment may be allowed 3).TRICK QUESTION: yes this is under discovery and can get these during discovery. The whole purpose of discovery is to learn about admissible evidence. The report may not be admissibl, but you can still discove it and look at it.ALL DISCOVERABLE

- OFFERS IN COMPROMISE o RULE 408: COMPROMISE AND OFFERS TO COMPROMISE o RULE 409: PAYMENT OF MEDICAL AND SIMILAR EXPENSES o RULE 411 : LIABILITY INSURANCE o RULE 410: GUILTY PLEA
o

DAVIDSON v PRINCE: D driving truck on hwy and negligently flipped it causing steers to get loos. P was gored. P wrte letter to truck co and state he was

10 feet from steer. In deposition he claimed 40 feet. The letter which stated 10 feet supported Ds position of contrib. neg.and was brought into evidence. Court held P contrib. neg. P claims letter should not have been brought in. RULE:Offers to compromise made in the course of settlement negotiations are NOT admissible to prove liability for or invalidity of the claim or its amount This was not a compromise letter, it was just a fact rvwing letter of the event that occurred to the trucking co, NOT AN OFFER TO COMPROMISE AND SO IT WAS ADMISSIBLE, IN FACT P SAID IN LETTER HE WILL NOT COMPROMISE Under 408 Compromise and offers to compromise are NOT admissible NEED TO MAKE SURE THING IN QUESTION IS AN ACTUAL COMPROMISE LETTER, not just a notice of suit At common law the offer to settle is not admissible BUT admissions made during the settlement negotiations aRE admissible Ex: if in settle discussion in order to protect admission in common law, need to use off the record wo prejudice hypothetically. THIS WILL PROTECT YOU IN SETTLEMENT CONFERENCE

EXCEPTIONS = 408 (a)(2) SEC confessions can be used in crim prosecution. When with GOVT AGENCY AND WANT TO PROTECT YOURSELF NEED THEM TO SIGN STIPULATIONS THAT CANT RELEASE ANYTHING.

Since this letter is just a letter and NOT an offer to compromiseit is not admissible under 408 INCONSISTENT STATEMENTs UNDER 408 CANT BE USED FOR IMPEACHMENT EXCEPTIONS: o 1). Proving a witnesses biases or prejudice, to show interst or bias o 2).Negativing a contention of undue delay: we want to get this case disposed of but the other side is dragging Other side can come back and say the reason for the delay is you have been trying to settle the case

o 3) EFFORT TO ONSTRUCT CRIM INVESTIGATION: ex: accident, lawyer of D goes to injured P and says im gonna give you money, I wanna settle on condition that you will not be a witness with the DA. I want to settle case w a civil P trying to buy witness. THIS IS ADMISSIBLE TO SHOW SCREWING UP INVESTIGATION o HYPO: pg 182 1).This would be admissible and prob NOT a 408 case. Does not seem to be any settlement negotiations, the context is not what the rule is about. The rules says there needs to be a dispute, and here there is no dispute. There is no dispute or discussion of settlement. Not even a lawsuit yet. If not a 408 negotiation, statement that are admissions of liability and fault ARE admissible. 2). 1). Is this a compromise? Why would they want to intro this? Bc it shows bad faith of insur co. EVEN THOUG 408 would exclude compromiseTHIS IS NOT A LETTER OF COMPROMISE. ALWAYS ASK WHAT THE PURPOSE OF THE LETTER IS. This letter is a tort.

- PRIOR SEXUAL CONDUCT o RULE: 412: Sex Offense Cases, relevance of victims past o RULE 413: Evidence of Similar Crimes in Sexual Assault Cases o RULE 414: Evidence of Similar Crimes in Child Molestation Cases o RULE 415: Evidence of similar acts in civil cases regarding child molestation
o

STATE v CASSIDY: D alleged raped woman and contended that evidence of the womans prior secual relations with another man should be admitted to prove a pattern of conduct and that not admitting the evidence was error.RULE: Evidence of a rape victims prior sexual conduct other than that btwn the victim and D, is inadmissible D claims consent and that V had prior rape charge that was fabricated. Wants that to be admitted NO Rape Shield Law RULE 412 stops D from shoing victims past sexual conduct

ONE SIMILAR INSTANCE IS NOT SUFFCIEICENT TO PROVE A PATTERN OF CONDUCT AND NO OTHER INSTANCES WERE OFFERED NO PATTERN OF THE SAME TYPE EITHER THIS EXCLUSION WAS NOT IMPROPER BC NOT A PATTERN, ONE PRIOR ENCOUNTER DOES NOT ESTAB TE KIND OF PATTERN (3,4,5) (413)

OLDEN v KY: P white female raped by D, black. D wanted to cross examin that P was involved in relationship wit another man and that why she is claiming rape. The court would not allow the evidence claiming that it would too prejudciail against P (since the relationship was w black guy). D was convcite. RULE: THE CONFRONTATION CLAUSE MANDATES THAT A D BE PERMITTED TO CROSS EXAMINE A WITNESS ON ANY RELEVENT MATTER Any subject matter that tends to demonstrate and improper motive or bias by te witness is a proper subj of cross examination. Cant be repretitive or unduly harassin and not on marginal matters.

REVIEW OF RELEVENCY o LAST RVW LIKE THIS

o
o o Need to be able to tell habit evidence Prior Similar Happenings No special fed rule, but the common law authorized proof of prior similar occurense as long as judge is able to find, as foundational matter, that the circs are substantially similar Hypo: lil girl on roller coaster struck by tree branch and hurt badly, parents sue for negligence. The D (owner) offers proof that people have been riding for the last 2 years and no one has been hurt. THE ABSENCE OF ACCIDENTS IS ADMISSIBLE IN ORDER TO PROVE SAFETY OR LACK OF DANGER. (THE ONLY PROBLEM IS THAT TREES GROW, SO THIS MAY BE APROBLEM) therefore the conditions may NOT be substantially similar. Hypo: golf shoes walking and slipping. D CAN SHOW PROOF OF ABSENCE OF PRIOR ACCIDENTS.

RULE 407 SITUATIONS Subsequent Remedial Measures

Ex: parking lot has kids getting mugged, pace installs new lighting in the lot and video cameras. A student who ha sbeen mugged wants tot show proof that after the occurrence the school put light into lot. NOT ADMISSIBE BC 1). Not and admission of liability, just cuz wanna make it better 2). The policy of encouraging measures that make situations safer , dont want it to be deterred. EXCEPTIONS: o 1). Where claiming lack of ownership or control of situation, can come back and say but you took remedial steps and you say you dont have control Ex: Pace Univ says we ave no controlits run by good counsel If this is one of Paces arguments, the judge may allow proof to show lighting and cameras to rebut that proof, and it suggests that they do manage it. Probably give limited instructions. FOR PURPOSE OF OWNERHSIP AND CONTROL THIS EVIDENCE IS ADMISSIBLE. If one side wants to take certain affirmative steps, the other side can respond in kind..THESE DEFENSES INVITE THE PROSECUTION RULE 106: ex of common law rule of completeness: if one side wants to intro a PORTION of a document. IF ENTER PORTIONS THAT HEL YOU, YOU NEED TO BE READY FOR THE PROSECUTION TO PUT IN PORTIONS THAT HURT YOU.

RULE 408 COMPROMISE AND OFFERS TO COMPROMISE FACT: in civil and crim litigation 90% or more are settled out of court.

Settlements etcwhats the reason why offers to settle cases is excluded? Ex: 100,000 lawsuit, want to settle for 3,000. o o Does this proof of settlement seem admissible? NO What if settle for 80,000? NO bc can be looked at as an admission of liability

THE REAL REASON IS TO ENCOURAGE SETTLEMENTS, IF WE KNEW THAT IT COULD BE HELD AGAINST YOU NO ONE WOULD ATTEMPT TO SETTLE

In order to encourage settlements need to tell parties it will NOT be used against them to prove liability. Want to encourage (like 407) to improve the judicial system and hurry things along.

OFFERS TO SETTLE ARE NOT ADMISSIBLE TO PROVE LIABILITY EXCEPTIONS: NEED TO MAKE SURE THIS IS A CASE GOVERNED BY 408

RULE 410 A plea of guilty is a conviction, at least 90% of all cases A guilty plea is also an admission Ex:I was standing on corner, grabbed a persons bag and ran away Those statements are an admission and may be admissible o Ex: in traffic accident driving a motorcycle and hit someone, go into traffic court and get summons for failing to signal before making a u turn. Summons is for failing to stop, send in ticket and ceck off guilty. Now if in accident and person is sueing for negligence operating bike and resulted in injury. At trial P wants to intro ticket as GUILTY. The idea is failure to signal was proximate cause and the ticket admission is proof. YOUR STATEMENT IN PLEADING GUILTY ON TICKET IS AN ADMISSION OF FACT THAT DID NOT SIGNAL .

A PLEA OF GUILTY THAT IS WITHDRAWN IS NOT ADMISSIBLE o Very unlikely to withdraw

OFFERS TO PLEAD GUILTY ARE OUT, PLEAS OF NO LO CONTENDRE INADMISSIBLE, Ex: sitting with prosecutor and make certain offer to plea guilty cannot be used. Say to prosec ok I was with them, I was there. Assume later at trial you say I wasnt there can a prosec use statements you made earlier to impeach? o o 410 (3) any statements made are INADMISSIBLE to impeach. PROSECUTOR WILL NOT USUALLY TALK WITH YOU UNLESS SIGN A WAIVER WAIVING THE USE OF STATEMENTS YOU MAKE

4/12/09

RVW Hypo: P sues D, for injuries arising out of car accident. At trial D calls witness who was in Ds car at time of accident and brought separate action against D. witness testifies for D and that he was operating veicle safely and accident was all fault of P. P cross examines W and P wants to elicit that witness bought lawsuit against D and settled. Is it admissible? 408 WOULD BE THE ONE TO BAR IT (evidence of settlements) It seems that you are asking about a settlement? im not asking to bring out questions of substantive issues, my purpose is for purposes of eliciting bias on the witnesshe settled a case and is now testifying in a way that helps D win the lawsuit. o o This witness has a reason to lie and is lying ONE OF THE EXCEPTIONS TO 408 IS BIAS

Rule 410 =Guilty please, 408 Civil Settlements Guilty plea may be admissible to show that someone as been convicted, statements parties make in crim are admissible 410 deals with gulty pleas that are withdrawn not guilty and dismissed are NOT admissible No lo contender are not admissible (not in NY) Negotiations w prosec over a plea of guilty, that do not end in a plea of guilty SHOULD NOT be used bc we want to encourage the possibility of a plea wo the fear that those statements will NOT be used against you Statements made in prosec office that try to bring a plea but DONT result in a plea are NOT ADMISSIBLE. What possibility? Prosec says to lawyer ill talk to you, but know that anyting that is said in this office WILL be used against youare you willing to waive any protection under 410? 410 keeps out statements made to prosec where negotiation does NOT result in a plea. Want to write down and sign that ANYTHING CAN BE ELD AGAINST U US v MENZANATO: whether 410 is waivable? YES, everything is waivable

 o RULE 409

TAKE ICN

Hypo: car accident, operator of one car crash and goes to other and says im sorry it was my fault, I didnt see stop signcan I take you to hospital and help you w expenses? IS THIS ADMISSIBLE? NO NOT UNDER 409 Different from 408 bc 408 INCLUDES OMISSIONS MADE IN COURSE OF SETTLEMENT NEGOTIATIONS, 409 doesnt say that. COULD SEPARATE THE STATEMENTS OF LIABILITY AND STATEMENTS OF PAYING MED EXPENSES o Admitting liability IS ADMISSIBLE, Paying Med EXPENSES NOT ADMISSIBLE. Sometimes may be too interwoven, but 409 WILL NOT EXCLUDE ADMISSIONS OF LIABILITY FROM STATEMENTS OF WILLINGNESS TO PAY EXPENSE

RULE 411 Reference of evidence to insurance are INADMISSIBLE Can always bring up insurance policies life, bc can show MOTIVE TRADE USAGE Hypo: assault on student in pace parking lot, pace after decides to install cameras and lights. At a trial by student against Pace, student wants to sow that no cameras, no lighting, no phone boxesarguing that it is a NEGLIGENT system to protect safety of studentsviolating duty of care. How do you prove it? o Lawyer for P is shown tat many campuses ave cameras, boxes, video cameras and the other universities do it this way, they have the setups needed to reduce incidents of possib of assault. Want to bring it into evidence to show Pace is defective. JUST BC SOME PLACES DO IT BETTER DOES NOT MEAN YOU DO IT DEFICIENTLY

HYPO: Rupert brewery, former employee comes in to see friend, goes to batroom and teres a lot of saw dust and slips and falls and sues brwry for damages. Wants to offer proof that tere are oter breweries that maintaint VERY clean batrooms wo crap on floor. IS IT ADMISSIBLE?

o o o

THIS IS FOUNDATION 104 Should te judge admit proof that other breweries maintain cleaner wasrooms? What does judge have to find? THE STANDARD IN BREWERY BUSINESS FOR MAINTENANCE OF WASHROOMS, STANDARD IN INDUSTRY, CUSTOM, THE FACT THAT SOME DO DOES NOT ESTAB A STANDARD

Ex: Anderson v Molloy: peepholes, wanted to show other hotels and motels have installed safety locks and peep holes. HERE THE FOUNDATIONAL FACT NEEDED TO FIND WSAS THAT THE HOTELS IN THE AREA WERE SUBST SIMILAR AND WHETHER THE USE OF LOCKS ESTAB A CUSTOM IN THE HOTEL MOTEL INDUST.COURT HELD OTHER HOTELS WERE RELEVANT! Need to supply judge w info to try to inform judge of approp standard IF CAN ESTAB A STANDARD THEN CAN INTRO PROOF THAT THE other BREWERIES DO IT A CERTAIN WAY.

Ex: diaz v hospital: woman goes into hospital for sonogram, in room w technician. Technician rapes her, motion for sum jdgmt against hospital P submits an affidavit (question is is it negligent for hospital to have a sonogram performed w male technician in room unaccompanied?)from radiologist who gives an opinon that hospital deviated from stndrd of care by NOT instituting policy requiring female staff person there. She sighted guidelines from organizations that recommend a woman be present.Is the evidence of these guidelines sufficient to estab the policy the P is trying to prove having a female tech in room during sonogram procedures? Is it admissible? They are just guidelines advocating,,,they are not sufficient to estab a standard or policyits NOT RELEVANT bc does not prove anythingits speculationnot proof. No factual basis that the guidleines are reflective are what is common in hospitals. NOT PROOF THAT THEY WERE EVER ACCEPTED OR IMPLEMENTED.

The idea of prior similar conduct sometimes has evidentiary value.

Ex: D convicted of murder, victims fam is now bringing a wrongful death action against the D who killed wifes lover. Wat is the evidentiary value in the wrongful death lawsuit? Is it admissible? Need to prove D was proximate cause of victims deathneed to prove in civil by PREP of EVIDENCe This issue was already decided BARD that D intentionally caused the death. Now bringing wrongful death. THIS WAS ALREADY PROVED BARD ADMISSIBLE, already proven BARd

Ex: rich guy kills bookie, family of bookie bring wrongful death. Judge says to P PROVE YOUR CASE I offer evidence cert of conviction of D thats my case, certified record of trial, conviction for killing brother of my client. I rest. THIS IS ADMISSIBLEif convicted of murder that IS PRIMA FACIE EVIDENCE OF WRONGFUL DEATH. Issue has already been litigate BARD

EX: oj simpson, aquitted, want to prove in civil trial for wrongful death. Is the acquittal admissible in the civil wrongful death lawsuit? Relevance Aquittal =doubt, maybe just liked him The fact that they aquitted him, does that have any bearingno bc the standard of reasonable doubt does not give it evidentiary value INADMISSIBLE BC NOT RELEVANT TOO MUCH POREJUDICIAL VALUE, PROB NO MATTER HOW HIGH THE PROBATIVE IS PROB OUT UNDER 403

SAME FOR DISMISSALS, too many reasons, no value

Ex: several passengers injured on bus and there may be proof driver forgot to stop at stop sign were oinjured Passenger#1 brings case against driver for negligence, finds for P Now 12 others want to sue also o o Does the first decision (neg) mean anything YES, RES JUDICATA: first finding is RES JUDICATA and all Ps can rely on it Similar to coolateral estoppels

First P loses.Is that Res Judicata? o NO, bc every P has right to prove their case and are NOT bound by prior findings or other parties.

o o

IDVOXS 404 a rule of exclusion for character evidence D can intro evidence of good character and victims bad character (404 a 2) exception is 412 404 b OTHER CRIMES 607, 608, 609 cross examintation S = prior sexual crimes: 413, 414, 415 THESE RULES ARE EXCEPTIONS TO 404 (a) no evidence of prior conduct can be used to show a propensity to do this bad thing Evidence of prior sexual misconduct being offered in crim or civil lawsuit IS ADMISSIBLE TO SHOW A PROPENSITY TO BEHAVE IN THIS WAY If it is a prosec for sexual misconduct, prior acts can be shown to show a propensity CAN A JUDGE TRY TO BALANCE THIS OUT UNDER 403?

YES, seems to always be a backup, the circuit courts are worried thought bc CONGRESS WANTED TO ADMIT THIS PROOF BC IT IS PREJUDICIALCONGRESS INTENDED THE PREJUDICE FOR THE PRIOR SEXUAL BEHAVIOR THE JUDGE DOES HAVE 403 POWER HOWEVER. THERE WILL BE CASES WHERE THE CONDUCT OCCURRED A WHILE AGO, PROBATIVE VALUE MAY NOT BE GREAT, JURY INFLUENCE MAY BE TOO SERIOUS THAN VALUE OF EVIDENCE.

o o o

EXAMINATION OF WITNESSES RULES 1.DIRECT EXAMINATION 2.CROSS EXAMINATION: rules that are used for discrediting a witness etc. Intrinsic impeachment: being allowed to ask witness certain questionsthere are rules that limit the kind of questions you can ask. Extrinsic Evidence: extrinsic impeachmentcan ask certain questions to show witness is lying.

3. Re direct examination

II.EXAMINATION OF WITNESSES
- DIRECT EXAMINATION o RULE 607: Impeaching Ones Own Witness o RULE 608 (a):Opinion and reputation evidence of Character o RULE 608 (b): Evidence Of Character and conduct of Witnesses o RULE 609: Impeachment by evidence of Conviction of Crime o RULE 611 (c ) Mode and Order of Interrogation and Presentation leading questions o RULE 612: Writing Used to Refresh Memory leading questions documents

 other tangible evidence o RULE 613: PRIOR STATEMENTS OF WITNESSES o RULE 614: JUDGE CAN CALL ANY WITNESS o RULE 801 (d)(1)(A): HEARSAY DEFINITIONS o LEADING AND OTHER IMPROPER QUESTIONS Rule 611 (c ): Mode and Order of Interrogation and Presentation
Do not assume facts that are not I evidence or Not proof o Ex: Do not say how was the apartment broken into if there is no evidence that the apartment was broken into 611 c: DEALS WITH LEADING QUESTIONS o LEADING QUESTIONS GENERALLY HAVE YES OR NO ANSWERS o They influence your witness to give testimony you are looking for o IMPROPER! Usually bc of laziness on lawyers part not prepping questions Ex: What did you see after the Truck passed the Stop sign GOOD Ex: When the Green Truck passed the Stop sign did you see Someone hit it? NO GOOD, LEADING

o LEADING QUESTIONS ON CROSS EXAMINATION ARE ALLOWED UNDER 611 (c ) SHOULDNT ASK ANYTHING OTHER THAN LEADING QUESTIONS ON CROSS EXAMINATION

o LEADING QUESTIONS ARE ALLOWED IN 1). Cross Examination

2). Hostile Witness (judge decides who is hostile) 3). Witness not giving you what you want 4). Preliminary Matters : you were a cop at that time right? 5). Developing Testimony with Children No capacity, mental illness etc NEED TO BE CLEAR

RULE 607: IMPEACHING ONES OWN WITNESS o CREDIBILITY OF WITNESS MAY BE ATTACKE DBY ANY PARRTY INCLUDING PARTY CALLING THE WITNESS o Usually used with own witness when not cooperating or coming forward with info CANT IMPEACH OWN WITNESS IN NY (common law) ONLY IF JUDGE DECLARES WITNESS HOSTILE

o Ex: D accused of shooting cop but friend brags that he actually shot him. Call friend to witness stand to claim that D did not shoot the cop and then ask him if he said he shot him (friend) RULE 612 : WRITING USED TO REFRESH MEMORY o Need to account for memory of witness with skewed memory o IF WITNESS CANT REMEMBER A FACT WE CAN ASK LEADING QUESTIONS TO JOG MEMORY

Did you see a blue sedan drive through the stop sign? IS OK TO REFRESH MEMORY

o If Witness prev gave Deposition, Testimony, Written Docum etc and witness cant remember, MAY REFRESH WITH THE ACTUAL WRITTEN DOCUMENT o May Also Use CUE STIMULUS TO GET WITNESS TO REMEMBER

Ex: bring plate of pasta in that witness was eating that night Ex: If witness confessed or wrote something on paper, can ask them to look and then ask Can you now testify from your own recollection what you saw?

- CROSS EXAMINATION
o RULE 611 (b) SCOPE OF CROSS EXAMINATION Matters covered in Direct Examination should be the matters covered in Cross Examination Ex: Direct Exam covers the repairs on Car A, Cross exam can ask about Car A plus whatever he wants to show that the mechanic is a liar.

Cant ask about other cars bc the scope was on Car A

The goal is to show improbability of the witness and IMPEACHMENT is accomplished by showing the witness is LYING or MISTAKEN

- CROSS EXAMINATION AND IMPEACHMENT

REMEMBER: CRIB CAPP Convictions Reputation for Truth Inconsistencies Bias Contradictions Acts Perception Psychiatric

IMPEACHEMENT METHODS
Types of Impeachment ************* CONTRADICTION Intrinsic (Asking the witness questions) YES (Subjective to judge control) ACTS (608) MAYBE - 608(b) Only if criminal act relates to truthfulness CONVICTION (609) Extrinsic (Bringing in other evidence) YES (When fact is NOT collateral) NO 608(b) May not be proved by extrinsic evidence

1).Contradiction: INTRINISICALLY PROVED= YES/ EXTRINSICALLY PROVED / YES IF NOT COLLATERAL 2).Acts: INTRINSIC = YES (603 b) / EXTRINSIC = NO (608 b) 3).Convictions: INTRINSIC = YES (609) / EXTRINSIC = YES 4).Psychiatric Conditions: INTRINSIC = YES / EXTRINSIC = YES 5). Perception: INTRINSIC = YES (608 a) / EXTRINSIC = YES

6).Reputation for Truth/Veracity: INTRINSIC = YES (613 a) / EXTRINSIC = YES (608 a) 7). Prior Inconsistent Statements = INTRINSIC = YES / EXTRINSIC = YES IF FOR TRUTHFULNESS 8).Bias = YES / YES

INTRINSICALLY: THE QUESTION YOU CAN PUT TO THE WITNESS EXTRINSICALLY: WHETHER OR NOT CAN INTRO EXTRINSIC EVIDENCE (documents)

o IMPEACHMENT BY CONTRADICTION
1).CONTRADICTION
INTRINSIC =YES/ EXTRINSIC =YES IF NOT COLLATERAL TO ISSUE Ex: Saw a crime when coming out of coffee shop and called 911. Gave statement that went in and bought a NY TIMES and saw it happen At court they ask do you see anyone here who was there.YES THE D. On Cross EXAM Mr vd is it true that you really bought a Daily News instead of NY TIMES? PROSEC. Cant call store to have witness come in EXTRINSICALLY to prove I bought Daily news BC IT IS IMPEACHMENT ON COLLATERAL ISSUE CAN ASK ME AND BRING UP INTRINSICALLY, NOT EXTRINSICALLY

STATE v OSWALT: D accused of robbery in Washington, calls Ardiss (restaurant owner ) as witness and testified that D was in his restaurant on day of crime and had been in Oregona every day for past few months. State wanted to impeach Ardiss through police testimony that a cop saw D in Washington on a day one month before crime. RULE: A WITNESS MAY NOT BE IMPEACHED UPON MATTERS COLLATERAL TO THE PRINCIPAL ISSUE BEING TRIED COLLATERAL EVIDENCE RULE: WHERE CONTRADICTIONS ARE COLLATERAL TO THE CASE THEY MAY BE PROVED INTRINSICALLY BUT NOT EXTRINSICALLY This info would not be relevant unless trying to prove PLAN or PREP

Ex: Mr. B, you said you were coming home from coffee shopisnt it true that you were at an all night party the night before? o PROB NOT collateral bc could show mistaken ID, DRUNKENESS. But if says NO I WAS NOT DRINKING YOU CAN TESTIFY THAT HE WAS BC IT IS CENTRAL TO WHETHER HE IS MAKING A RELIABLE ID NEED TO FIG IF CONTRADICTION MATTERS / IF ITS IMPORTANT /RELEVANT

o o o o

IF IT IS CRITICAL TO ISSUE THEN PROB WONT BE COLLATERAL IF IT IS NOT CRITICAL TO ISSUE, IT IS COLLATERAL AND CANT BRING EXTRINSIC EVIDENCE IN TO CONTRADICT

o CHARACTER OF WITNESS
PRIOR BAD ACTS CANNOT PROVE CHARACTER BY SHOWING PROPENSITY EXCEPTIONS IDVOXS (404 a) o ISSUE (character is in issue) o Defendents bring it up o Victim o Other Crimes (KIPPOMIA) prior wrongs or crimes have a purpose other than showing propensity
o

X : CROSS EXAMINATION TO PROVE CHARACTER FOR TRUTHFULNESS OR UNTRUTHFULNESS Sexual Prosecution: can prove prior sexual acts

X: Cross Examination to Prove WITNESSES CHARACTER FOR TRUTHFULNESS o 607: Can Impeach Own Witness o 608: Deals with ability to show witness engaged in prior bad acts and specific acts of conduct

o 609: Conviction of a Crime : Acts Arrests, conviction honest people don't commit crimes you placed self interest above society

RULE 608 usage focuses on acts that DID NOT end in conviction, just trying to impeach credibility o Common law different than 608

US v OWENS: D on trial for murdering wife, claims it wa an accident, at trial govt introduced evidence showing he fired gun at her after a quarrel and intended to kill her. D took stand and claimed accident. On X prosec attempt to impeach D by having D admit to previously lying on govt application for job (lied bout pot convictions, fraud etc). RULE: UNDER RULE 608 (b) COUNSEL MAY IMPEACH A WITNES BY EXTRACTING ON CROSS EXAMINATION HIS ADMISSION TO A PRIOR ACT OF INTENTIONAL FALSEHOOD UNDER OATH. o 608 (b) covers Truthfulness crimes o Could not just ask if he was convicted of pot (does not satisfy 609 requirement)

Under 608 has to RELATE TO TRUTHFULNESS 1).fraud 2). Perjury 3) tax evasion 4).shop lifting

o Prosec instead brings OMMISION ON AP (pot omission) along with TAX FRAUD COMMON LAW ALLOWS ANY ACT IF ITS A BAD ACT OR CRIME/ FED RULES CURTAILS IT MORE

o Could NOT JUST ASK did you lie about gun conviction or did you assault your wife bc these are NOT 608 (b) ACTS! THE SWORN DOCUMENT HE FILLED OUT FOR THE JOB HOWEVER DOES SHOW TRUTHFULNESS! AND HE CAN BRING IT UP UNDER THIS, CANT JUST ASK ALONE

o WHEN IMPEACHING BOUT PRIOR BAD ACTS..MAY NOT ASK WITNESS WHETHER THEY WERE ARRESTED, INDICTED OR CHARGED AS A CHILD OFFENDER.can ask about convictions NOT ARRESTS If D said I told the warrant officer (app) everyting CANNOT EXTRINSICALLY CALL WARRANT OFFICER BC IT IS COLLATERAL TO CASE CAN KEEP PUSHING INTRISNICALLY!

o NY: People v Sandeville: CAN ASK WITNESS ABOUT ANY PRIOR BAD ACT WHATSOEVER. Sandevelle hearing: allows witness to request pretrial hearing(judge ask prosec to list all prior bad acts seeks to question) and judge will rule on what can and cant be asked.

o Ex: W charged w murder and recently indicted on tax fraud and still pending. W testifies. Prosec asks Mr W is it not a fact that you engaged in tax fraud? CANNOT ASK THIS BC LAST SENTENCE of 608 (b) PROTECTS W FROM SELF INCRIMINATION SINCE THE CASE IS STILL PENDINGviolates privilege of SELF INCRIMINATION QUESTIONS PAGE 460 o 1).No, that is NOT independently relevant and probably collateral. CAN ASK, BUT CANT PROVE EXTRINSICALLY o 2). Yes, could show was drinking in a bar with extrinsic evidence BC it affects his judgment and would be CENTRAL o 3). Yes, possibly to prove BIAS of the witness to P. May induce to lie
o

4).HYPO: emplymnt discrimination action bc on Feb 3rd she refused to go out with boss on date. Feb 4th was employee rvw. Claims she had bad rvw on the 4th bc it was the day AFTER she refused bosses advances. Had good rvws all along. THE DATE IS SIGNIFIGANT AND NOT COLLATERAL BC IF PERF RVW WAS 3rd AND

ADVANCEMENT WAS 5th IT WOULD BE IRRELEVENT AND COLLATERAL QUESTION PG 473 -474 o 1).YES COULD ASK, BUT COULD NOT PROVE EXTRINSICALLY BC COLLATERAL. Under 608 (b) can ask bc it relates to truthfulness. o 2). NO, it is collateral if he says he didnt do itIF HE SAYS HE DOESNT REMEMBERTHEN COULD SHOW under 612 to REFRESH MEMORY o 3). NO 608 (b) it was inquired into, NOT PROVED o 4). If witness admits to Plaigairism, prob dont have to go any further and confession could be admittedPROB WOULD NOT be viewed as Extrinsic since witnesses own statement o 5). Problem with question: asking the witness to give opinion can't give opinion on someone else's views they decided to expel me, because they found that I was committing plagarism

PRIOR CONVICTION RULE 609: Criminal Convictions/Felonies (except (a)(2)) NOT ALL CRIMINAL CONVICTIONS ARE ALLOWED CONVICTION OF CRIMES of WITNESSES: admissible if punishable by death or life or over 1 year in prison. SUBJECT TO 403 BALANCE (probative value substantially outweighed by undue prej inadmis) o Plea of guilty is a conviction o NOT CONVICTIONS FOR NON CRIMES Disorderly conduct/civil violation etc

UNDER RULE 609 Judge HAS DIFFERENT TESTS TO USE TO DETERMINE

o The Difference for Accused Witness under 609 for Crim Ds IF PROBATIVE VALUE OF ADMITTING THE EVIDENCE OUTWEIGHS ITS PREJUDICIAL EFFECT!!! (INVERSE OF 403) Do not want to discourage Crim D from taking stand

UNDER 609 ALL WITNESSES (other than accused) ARE SUBJECT TO RULE 403 BALANCING. o ACCUSED IS SUBJECT TO 609: THE PROBATIVE VALUE OF ADMITTING THE EVIDENCE OUTWEIGHS ITS PREJUDICIAL EFFECT.

What if D has Alibi claiming it is NOT him? o 404 (b) KIPPOMIA, prior assaults could be shown under identity to show identity of ASSAILANT. WHEN D concedes IDENTITY IT WOULD ONLY SHOW PROPENSITY UNDER 404 (b) and NOT TRUTHFULNESS AND CANT COME IN UNDER 609 (a)(2)

609 (b) TIME LIMIT o 10 years from date of conviction or date person came out of jail whichever is later (WITNESS) NEED SUFFICIENT NOTICE TO ADVERS PARTY o May use some convictions that are excess of 10 yrs if PASSES 403 (if Crim D still need PROBATIVE VALUE SUBSTANTIALLY OUTWIEGHS PREJUDICIAL EFFECT)

OTHER TESTS: JUDGE HAS NO DISCRETION AND NO BALANCING UNDER 609 (a)(2) o 609 (a)(2): IF THE CRIM CONVICTION RELATES TO HONESTY OR FALSE STATEMENTS AND IT IS WITHIN TEN YRS (misdmenor , felony) IT CAN BE ANY CRIM CONVICTION, IF IT IS RELATING TO HONESTY JUDGE MUST ADMIT.NO DISCRETION

Perjury, fraud, bribery, tax easion, false statement IF RELATES TO HONEST AND HAPPENED IN 10 YEARS THE JUDGE LACKS DISCRETION JUDGE MUST ADMIt

US v SANDERS: D was convicted of having a shank while incarcerated after the govt was allowed to cross examine D about his similar prior convictions for assault and possession. Jury convicted for possession but not assault and had mistrial, D moved to exclude prior convictions. D testified he acted in self defense. RULE: EVIDENCE OF A PRIOR FELONY CONVICTION MAY BE USED TO ATTACK THE CREDIBILITY OF A WITNESS ONLY IF THE PROBATIVE VALUE OF THE EVIDENCE OUTWEIGHS ITS PREJUDICIAL EFFECT. o This evidence Shold have been inadmissible due to the likelihood of prejudice o Also inadmissible under 404 (b) to show intent bc it only prove crim dispostition o NEED TO LOOK AT IMPEACHMENT VALUE OR PRIOR CRIME Here it was harmless for possession count, but not for assaul

o NEED TO LOOK AT SIMILARITY BETWEEN CONVICTED OFFENSE AND CHARGED OFFENSE, A DMISSION OF EVIDENCE OF A SIMILAR OFFENSE DOES LITTLE TO IMPEACH THE CREDIBILITY OF A TETIFYING D WHILE USUALLY ALWAYS PREJUDICING.

US v WONG: D charge w mail fraud. At trial moved to preclude use of prior fraud convictions for impeachment. Court said since prior convictions were crimes involving dishonesty under 609 (a) (2) No balancing of prejudice against probative value was appropriate and they are compelled to admit. D took stand and was impeached by prior convictionsRULE: UNDER 609 , a TRIAL COURT MAY NOT EXCLUDE IMPEACHMENT EVIDENCE OF PRIOR CONVICTIONS OF CRIMES INVOLVING DISHONESTY IF IT FINDS THE

PREJUDICIAL EFFECT OF THE EVIDENCE SUBSTANTIALLY OUTWEIGHS ITS PROBATIVE VALUE. o 609 requires the admission of impeachment evidence of prior convictions of crimes involving dishonest, and COURT CNANOT EXCLUDE IT o Rule 403 will NOT override this rule o 609 STATES PAST CRIMES OF DISHONESTY MUST BE ADMITTED o 609(a)(2)= IF THE CRIM CONVICTION RELATES TO HONESTY OR FALSE STATEMENT AND IT IS WITHIN TEN YRS (misd, felony) IT CAN BE ANY CRIM CONVICTION, IF IT IS CRIM CONVICTION RELATING TO HONESTY JUDGE HAS NO DISCRETION PRejury, fraud, bribery, tax evasion, false statement FOUR TESTS
o

If happened in 10 yrs JUDGE LACKS DISCRETION

1). Criminal Defendant: Probative Value MUST outweigh Prejudicial value RULE 403 2).All OTHER GET 403 BALANCING TEST

o 3) PRIOR CONVICTIONS WHEN DEALING WITH HOENSTY OR TRUTHFULNESS OF CRIME JUDGE MUST ALLOW IT, THERE IS NO BALANCING TEST
o

4).CONVICTIONS IN EXCESS OF 10 YEARS THE PROBATIVE VALUE HAS TO SUBSTANTIALLY OUTWEIGH THE CHANCE FOR PREJUDICE - RULE 609
Hypo we know that before trial there is going to be a request by D for a pretrial here on whether the prosecutor can use 608(b) convictions in the trial. The judge is going to scrutinize these crimes and use the four tests listed above to determine which crimes are going to be admissible.

o o o o o o o

L ets say that two out of five convictions are allowed in but the judge is committing an error. The D decides to stay off the witness stand and go for an appeal. The D is found guilty and appeals. Can the errors be raised on appeal? The error has not been preserved for appellate review because the D did not testify and subject himself to impeachment RULE you cannot appeal judges errors if you were not put to stand on the things he admitted in error. United States v. Luce What if we alter the hypo and the D takes the stand As defense attorneys we want to bring it up first and soften the blow. Is it then allowed on appeal? NO! You got the benefit of taking advantage of the proof. You are manipulating it to your advantage then arguing error on appeal. You cant do that. United States v. Oler

o o

If you acknowledge it on redirect it is still preserved because you didnt open the door. Hypos on Page 496 1. A. This is a misdemeanor. Maybe this is usable under 609(a)(2) because it involves truthfulness. There is no balancing test. If the judge finds that it involves truthfulness than it has to be admitted. B. This is not a felony and it doesnt go to truthfulness. Inadmissible. However, it might be admissible to impeach the ministers testimony that in his opinion she has a peaceable reputation.

2. You cannot ask about arrests. It does not relate to the truth so it cannot go under 608(b). Not admissible. However, there could be some bias here to impeach. 3. The first conviction is for rape. We have a special test for criminal defendants that the probative value must outweigh prejudice. It does not seem to here. But what about 413, 414, and 415. Dont they allow crimes of sexual abuse in to establish a propensity for rape and sexual abuse. Under 414, this is the rape of an adult and not a child and therefore does not qualify. The judge could give a limiting instruction to eliminate the title of rape from the prior conviction. This would force the prosecutor to refer to the rape convictions simply as the prior felony. What about the felony drug conviction? Under the inverse 403 balancing test the danger of prejudice is great and most judges would keep it out. Again there might be a limiting

instruction. Grand Theft? It could possibly relate to truthfulness. If not, it is probably too prejudicial.

See People. v Arnold

IMPEACHMENT ACRONYM (WHAT IS REQUIRED FOR IT TO BE ALLOWED) C- CONTRADICTION A- ACT/BAD FAITH (608 B) C-CONVICTIONS (609) P- PSYCHIATRIC CONDITION P- PERCEPTION (CAPACITY TO OBSERVE) [608] R- REPUTATION FOR TRUTH and VERACITY [608 A] -RULE 405 (A1) CHARACTER OF DEFENDANT
-RULE 405 (A2) CHARACTER OF WITNESS -RULE 405 ALLOWS REPUTATION OR OPINION

I-INCONSISTENT STATEMENTS [613]

PSYCHIATRIC CONDITIONS

US v LINDSTROM: D owned pt practice and was convicted of mail fraud after the tc limited cross examination of Govts key witness in regard to her recent past of mental disorders and destructive conduct. The ds intended to impeach her credibility thru cross exam and prove a vendetta RULE: PSYCHIATRIC EVIDENCE REGARDING A RECENT HISTORY OF MENTAL INSTABILITY MAY BE USED TO IMPEACH A WITNESS

o NEED TO DETERMINE (608 B) WHETHER THE QUESTIONS RELATE TO THE TRUTHFULNESS OF TESTIMONY o o A crim D has right to be confronted with witness against him, including right to cross examine WITH A GOAL TO IMPEACH CREDIBILITY OF OPPOSING WITNESSES o Many forms of mental disporders have high probative value on issue of credibility o Witness had history of violent threats etc
o

NOT NECESSARILY CONTROLLING, BUT IT INFLUENCES THE DECISION OF THE JUDGE

6th amendment right in Crim cases

o Mental illness can create bias, impair veracity bc of inability to recollect. o Can Use intrinsic or extrinsic to impeach based on Psychiatric No RULES, so need to use 403 balancing

o CAN ALSO IMPEACH WITNESS ON THE LACK OF ABILITY TO PERCIEVE, REMEMBER OR NARRATE AN EXPERIENCE which may be caused by Drugs or alcohol. CAN BE USED TO IMPEACH INTRINSICALLY OR EXTRINSICALLY

o HYPO pg 503

1). Yes, this is a prior bad act, the evidence is intrinsic

evidence, it relates to truthfulness so 608(b) is satisfied. Extrinsic evidence would not be allowed to prove a prior bad act(so if prosecution wanted to introduce the evidence for anything other than "refreshing memory" it would be disallowed). If this is a common law jurisdiction, however, there may have to be a Sandoval hearing before the trial. And could use to refresh memory

2).this is inadmissbible bc does NOT relate to truthfulness. if addicted to drugs at the time of the event, could be introduced to impeach witness's capacity to observe (see footnote 6 pg 501) if the witness was a drug addict around the time from which the testimony is based then = [courts divided] it is plausible that it would be allowed

3).Prob allowed to show bias as well as untruthfulness (608 b) 4). This could show the witness is crazy an probably admissible

REPUTATION FOR TRUTH AND VERACITY

RULE 608 (a): Evidence of Conduct and Character of Witnesses. Opinion and Reputation evidence of character.
At common law you could always call a witness to testify that someone else has a bad reputation for truthfulness. Now under 608(a) not only can you do that but you can also ask about the witnesss own personal opinion that someone is untruthful. This can be done intrinsically or extrinsically. This can only be done after a persons reputation for truthfulness has been attacked.

Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation but subject to these limitations: 1). The evidence may refer only to character for truthfulness or untruthfulness and 2). Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidenc or other wise.

HYPO 499 can call the witness. extrinsic evidence that goes towards the witness's ability for recollection of specific events and instances

o PRIOR INCONSISTENT STATEMENTS

RULE 613: Prior Statements of Witnesses

RULE: 801 (d)(1)(A): HEARSAY DEFINITIONS THE IDEA IS A PERSON SHOULD NOT BE RELIED UPON BC THEIR STORIES CHANGED COLES v HARSH: One of Ds key witnesses testified that Ds conduct toward Ps wife was proper and harmless. P testified that the witnress told him on one occasion that the conduct of D and Ps wife was disgraceful (when wrestling on beach)RULE: BEFORE A WITNESS CAN BE IMPEACHED BY EVIDENCE OF PRIOR INCONSISTENT STATEMENT, HE MUST BE TOLD THE STATEMENTS AND THE SURROUNDING CIRCS AND BE ALLOWED TO EXPLAIN THEM, IF HE ACKNOWLEDGES THEM AS HIS. (FOUNDATION REQUIREMENT)
At common law, in order to introduce the Ps statement he needed to give the D the time, circumstances, the place, and it must be dated. In this case, P would have had to cross-examine Thompson and say something like, do you recall talking to my client on the banks of the Pudding River and telling my client that the conduct of D was disgraceful? This would have been sufficient foundation. The theory here is to give the witness a heads up. We dont want suprises. The federal rule 613 this tosses the common law rule of foundation in the trash in the interests of allowing more aggressive and hardhitting cross-examination. o GETS RID OF FOUNDATION REQUIREMENT (613 a) FOUNDATION - TIME, LOCATION, ETC. OF STATEMENT NEW YORK KEEPS IT

Intrinsic is allowed under 613(a) Extrinsic is allowed under 613(b) o ex: o Another witness Written document

have to allow the witness a chance to explain the inconsistency

SEE ALSO RULE 801 D 1 A

What if you try to bring up a prior inconsistent statement but the witness doesnt remember making the prior inconsistent statement? This is a hypo on page 519. This about it. IN NY NEED TO LAY FOUNDATION BEFORE ASKING OF PRIOR INCONSISTENT STATEMENTS Under Fed 613 CAN INTRO EVIDENCE EXTRINSICALLY, BUT NEED TO GIVE WITNESS CHANCE to say Yes I said that or NO o o o IF ADMITs..DO NOT NEED TO BRING IT IN Most normal impeachment. Ex: expert witness testifies and your treatises have something he wrote that is inconsistent with his testimony

HYPOS:

1).Could use 612 to Refresh memory with Grand Jury testimony

(look at these pages). If does not work, may be able to use 801 (d) (1)(A): IF PRIOR INCONS STATEMENT WAS MADE UNDER OATH THAT PIS CAN BE MADE FOR ITS TRUTH AS WELL AS TO IMPEACH (if witness says on stand car was driving at safe speed, but prev on said to cop it was speeding, you can us ePIS to IMPEACH WITNESS TESTIMONY, IF STATEMENT WSS MADE UNDER OATH IT CAN BE USED TO PROVE THE CAR WAS SPEEDING. IF PIS MADE UNDER OATH IT IS A SWORN STATEMENT, IT IS USABLE TO BOTH IMPEACH AND FOR THE TRUTH IT CONTAINS.

If the witnesses lack of memory seems feigned, her grand jury testimony, since under oath could be admitted for the truth of everything said in Grand jjury. Judge discretion This would go to rule 613

2). Assume dont need to lay foundation, this question is focsuin

on whether there is PIS to bs testimony at trial and what B said to C. The statement is implicitly inconsistent. Xs claims of self defense is at odds with Bs statement said to C. Calling C to testify to this statement will be proper. In Bs statement to C, X appears to be the aggressor. The point of this hypo is dont be so technical, judge is going to look at sense of statement and construe inconsistency more broadly. B would have an opp to explain or deny.

3). I dont remember is NOT a PIS bc it is not inconsistent

ALWAYS SCRUTINIZE I DONT REMEMBER TO SEE IF IT IS SUSPICOUS. IF IT IS, then the PIS may be used ot impeach. NEED TO SCRUTINIZE THE I DONT REMEMBERS . REFRESSH RECOLLECT UNDER 612 DOES NOT ALLOW TO BRING IN COP OR EXTRINSIC EVIDENCE, CAN JUST ASK

Good basis for impeaching the I don't remember in this instance because of the suspicious nature of the statement.

4)THE PURPOSE OF THIS IS TO REINFORCE 613 a,

abolishment of foundation on COMMON LAW. DO NOT NEED FOUNDATION RQMT AT COMMON LAW. Can ask in New York

5) Using 612, can be used to refresh memory?

o BIAS
Proof of Bias is ALWAYS relevant to credibility and can be inquired into thoroughly Threats to people, loved ones or monetary influence can all be shown under bias to impeach credibility RAP SHEET EXERCISE During discovery you are able to get every prior statement the witness has made

Most Courts acnkolwedge BIAS as critical method of impeachment IF WITNESS DENIES BIAS CAN PROVE EXTRINSICALLY No RULES, mainly common law

BIAS CAN BE EXTRINSIC OR INTRINSIC Sequestration order by judge RULE 615 Witnessess can not sit in court room until turn to testify by judge comes up Exceptions to the Sequestration rule o Party o Corporation who is interest

o Party who essential to the presentation of the party's cause Ex:

An accountant who was integral in assisting with presenting part of the case Case agent Expert witness

US v ABEL: D charged w bank robbery w 2 others who plead guilty. One EHLE of the others make deal with prosec that D was also a robber. D calls mills who was a friend in prison. Mills testifies that other cohort told him he would take stand and say D was part of robbery to get favorable treatment. The prosec calls EHLE to stand and asks if involved with Aryan Bro Hood PErjurious group. RULE: A DC IS AFFORDED A WIDE DISCRETION IN DETERMINING THE ADMISSIBILITY OF EVIDENCE UNDER EVIDENCE INVOLVING BIAS. The testimony of Ds witness made the existence of the witnesses bias more probably, so it was relevant. BIAS WILL LEAD A WITNESS TO SLANT TESTIMONY PROOF OF BIAS ALWAYS RELEVENT D and witnesses membership in Aryan Bro hood supports inference that his witness has slanted and thats why it was offered. Judge did not allow ARYAN BRO HOOD in and limited its instruction IF WITNESS DENIES BIAS CAN PROVE EXTRINSICALLY EHLE COULD ALSO BE QUESTIONED ABOUT HIS DEAL WITH PROSEC.

o HYPO pg 525: Inference that B doesn't like police officers. Evidence would be admitted because it shows a bias. Not admitted because the evidence is too far attenuated. Also specific instances of conduct go towards truthfulness. The misdemeanors and nonconvictions do not show truthfulness or lack of. RULE 608 (b)?

o IMPEACHMENT PROBLEMS Answer is D. Although 608 (b) applies to answer A, BIAS is "stronger" than 608 (b) and overcomes it. Tricky question, need to examine IMPEACHMENT acronym whenever looking at problem like this Contradictions, Acts/Bad faith, Convictions, Psychiactric Condition, Perception, Reputation for truth and veracity, inconsistent statements, bias

o ACRONYM FOR IMPEACHMENT CRIB CAPP

C - CONTRADICTION R - REPUTATION FOR TRUTH/V I - INCONSISTENT STATEMENTS B - BIAS C - CONVICTION A - ACTS/BAD P - PSYCHIATRIC CONDITION P - PERCEPTION

- REHABILITATION o RULE: 801 (d)(1)(B)

o This occurs when a witness was DESTROYED on Cross examination, now he can try to Rehab himself BIG RULE: IT ALLOWS ONLY ONE INSTANCE FOR EXAMINER ON REDIRECT EXAMINATION TO BRING OUT A PRIOR CONSISTENT STATEMENT OF WITNESS.

TOME v US: D charged w sexual abuse of daughter and ex wife attempts to get custody of her in past to no avail. D claims they were fabricated so ex could get child. P produced 6 witnesses who retold statements made to them by Ds daughter which implicated D. These statements were admitted in court to REBUT Ds testimony that the claims were Fabricated. D convicted. RULE: WITNESSES OF OUT OF COURT STATEMENTS CONSISTENT WITH COURT TESTIMONY ARE ADMISSIBLE TO REBUT A CHARGE OF RECENT FABRICATION OR IMPROPER INFLUENCE OR MOTIVE ONLY IF

MADE BEFORE THE CHARGED RECENT FABRICATION OR IMPROPER MOTIVE 801 (d)(1)(B)= Addresses the use of prior CONSISTENT STATEMENTS of witness on the stand UNDER COMMON LAW PRIOR CONSISTENT STATEMENTS OF WITNESSES ARE NOT ADMISSIBLE WITH ONE EXCEPTION 801(d)(1)(B) o 1). NEEDS TO BE INSINUATION OF CHARGE BY IMPEACHER THAT WITNESS IS LYING/MAKING IT UP.. THEN can Rebut by statements MADE PRIOR TO TIME WHEN MOTIVE TO FABRICATE AROSE STATEMENT HAD TO BE MADE BEFORE THE POINT IN TIME A MOTIVE TO MAKE UP STORY AROSE Here, D claims the fabrication occurred over summer break with her momSO THE CONSISTENT STATEMENTS HAD TO HAPPEN BEFORE THIS

o STEPS FOR REHAB 801 (d)(1)(B) 1). Has there been a charge of Fabrication? 2). When was the fabrication?

In this case Fabrication charge was during Summerso if little girl told BEFORE THAT SUMMER THE EVIDENCE IS ADMISSIBLE. o Bc she DID NOT HAVE MOTIVE TO LIE AT THAT TIME

Ex: Confirmation hearing of Clarence Thomas, Anita hill testified she worked at office w him and he made crude sexual advances. Thomas claims she made it up. The next day there is a panel of 5 witnesses who say they knew he was making crude remarks. THIS SPEAKS TO FACT THAT SHE IS TELLING THE TRUTH BC THEY WERE MADE BEFORE SHE HAD ANY MOTIVE. ONLY HAVE PROBATIVE VALUE IF MADE BEFORE FABRICATION CLAIMS ARISE

Ex: D arrested on drug charges and says my friend joe is mr big sam testifies that joe is drug operator. Sam is impeached by showing made deal with Prosec. Can prosec bring up the fact that Sam immediately on arrest said Joe was the main guy? This is a prior consistent Statement, D saying he is lying Motive to fabricate arose when he was arrestedSO ANYTHING SAID TO POLICE WOULD BE AFTER MOTIVE AROSE AND SO IS INADMISSIBLE STEP 1). WHEN DID MOTIVE ARISE? When Arrested. STEP 2). When Was Statement made? WHEN ARRESTED o NO GOOD

PRIOR CONSITENT STATEMENTS o May not usually be made; goes to o May be used when used to show motivation for bias or when the witnessess testimony is linked to some sort of improper purpose You can use when a prior consistent statement could be used to rebut a claim that the witness is "recent fabrication" in order to prove something RULE 801 (d)(1)(b)

III.OPINIONS AND EXPERTS

RULE 1001: Original Writings/Documents Rule (formerly known as Best Evidence

Rule) Witnesses can't testify to the contents of a document must produce the actual document for evidence See (3) ORIGINAL
-

RULE 701: Opinion and Testimony by Lay Witnesses

RULE 702: Testimony by Experts

-

RULE 703: Bases of Opinion Testimony by Experts

RULE 704: Opinion on Ultimate Issue RULE 705: Disclosure of Facts or Data Underlying Expert Opinion RULE 706: Court Appointed Experts

- OPINION, EXPERTISE AND EXPERTS o CHART IN 3/12 norris RULE 701: LAY OPINION

1). Rationally Based on Witness Perception 2).Helpful (judges discretion) 3). NOT TECHNICAL

RULE 702: EXPERT

1). Scientific , Tech, Specialized knowledge 2). Assist with the Jury 3).Qualified 4).Daubert Factors
o

1). Sufficient Datat

o 2). Reliable Principal Method o 3). Applied to Principal

RULE 703: BASIS OF EXPERT TESTIMONY

1). First Hand observation 2). 2nd hand observation 3). Hypo question

RULE 704: OPINION ON ULTIMATE ISSUE - OPINION , EXPERTISE and EXPERTS o RULE 701: OPINION TESTIMONY BY LAY WITNESSES
o Rules for witnesses Giving Opinions

Laywitnesses and Experts: can provide jury with accurate info the jury can use

o How do Fed Rules differ between Expert and Lay opinions? 701 = Lay opinions are rationally based on perception of the witness, Need to have perceived subject matter you are giving opinion of Ex: Heard noise and it sounded like a firecrackerthat noise is perception and that statements is rationally based on first part
o

MAY NEED TO LAY FOUNDATION THAT YOU KNOW SOUND OF FIRECRACKER do you attend 4th of juyl etc.

Ex: you testify in court that handwriting is handwriting of D. this is ability to recognize handwriting of classmate and would be based on perception IF proper FOUNDATION is laidseen his handwriting etc. Ex: Come in dining room, near kitche, 2 hours earlier explosion, cops com in later and say it smelled like gas. The smell is a perception. If you know smell of gas and can lay that foundation THEN THAT IS AN OPINION AND IT IS ALOUD. NEED TO ESTABLISH IN ORDER TO ALLOW LAY WITNESS OPINION TESTIMONY: o 1). Rationally based on witnesss perception; and o 2). Helpful to the jury; and o 3). CANT BE BASED ON SCI, TECH, EXPERT OPINON

ALWAYS NEED TO LAY FOUNDATION FOR EVERYTHING PERCEIVED 1). Ex: did he appear drunk? Do you know what a drunk looks like? UP TO JUDGES DISCRETION IF RATIONALLY BASED

Ex: the cop looked shock is an opinion, is it rationally based? o Ex: Lil kid asked how fast car was going It was going 70 mph, Is that rationally based?

Could he estab make? NEED TO ESTAB FOUNDATION

CANT BE BASED ON SCI/EXPERT TECH OPINION Cant just spring up an expert opinion bc they have different scrutinizing rules Ex: cop investigates drug ring, got in car and followed guy. Cop was asked do you have an opinion as to way the person was driving in terms of involvement in drug ring? Cop says heard him stop and use drug lingo o THIS IS PROB EXPERT TESTIMONY AND WOULD NEED TO ADMITTED UNDER 702.

o PROOF Testimony from a fact Real evidence Documentary evidence Opinions

o

Most "today" are from a variety of experts Lay witnesses may also give opinions

COMMONWEALTH v HOLDEN: Jones gave testimony that Holden (being brought on murder charges) winked and that in his opinion it meant he wanted him to make up an alibi. RULE:A WITNESS MAY NOT TESTIFY AS TO THE MEANING MANIFESTED BY THE ACCUSED IN A SIGNAL COMMUNICATED TO WITNESS A wink is an opinion, may have had dust in eyes, light etc. Could be admitted under 701 bc RATIONALLY BASED ON PERCEPTION The second question did you understand the wink to involve communicative intent? o YES The third Question

How did you understand the wink? He wanted me to make up an alibi. THIS IS AN OPINION AND SHOULD NOT BE ALLOWED BC CANT READ OTHER PEOPLES MIND THROUGH A WINK

CAN GIVE OPINONS THAT ARE RATIONALLY BASED ON YOUR PERCEPTION o Ex: Hear thunder and knew storm was coming Was it rationallu based? Not if reading astrology card to fig it out

o Ex: My prof was behaving irrationally today Acceptable lay opinion

o Ex: I think my prof is a schizo NOT acceptable bc IT IS EXPERT TESTIMONY

- SCIENTIFIC EVIDENCE
o RULE 702 : TESTIMONY OF EXPERTS 1). SCIENCE, TECH, SPECIALIZED KNOWLEDGE 2). ASSIST THE JURY Common Law: In NY , for experts to testify, the subject matter needs to be beyond the fringe of the Avg juror o Ex: Average juror could tell whether an ID is reliable wouldnt need an expert FED COURT TEST: WILL AN EXPERT ASSIST THE JURY o Ex: Expert may testify on problems of eyewitness ID. this would prob be accepted in FED court but NOT state 3). QUALIFIED Need To Qualify your expert by laying foundation [INCLASS]

What is your expertise, what have you written, have you worked in the field etc

o VOIR DIRE Extrapolate that they have lectured, published articlesetc. EXHAUSTIVELY, THOROUGHLY, CAREFULLY

OTHER SIDE CAN STIPULATE : ex: may not want qualifications readDONT HAVE TO CONCEDE, HAVE RIGHT TO SHOW IMPRESSIVE QUALIFICATIONS o Other Side may ask questions also eX: Youre board accepted right? Yes, is there a difference btwn board accepted and board certified? THIS CAN BRING OUT DEFECTS

4). DAUBERT FACTORS:TESTIMONY HAS TO BE BASED ON 1).Sufficient facts or data 2).Reliable principal and methods 3).Applied to principle and methods reliably to the facts of the case

o RULE 703: BASES OF EXPERT TESTIMONY FIRST HAND IS MOST CRUCIAL BASES FOR TESTIMONY 1). FIRST HAND (A doctor who performs an autopsy) 2). SECOND HAND OBSERVATION (look at record, medical records etc)NEEDS TO BE INFO THAT IS REASONABLY RELIED UPON o Expert reading report o EX: cop arrests D and questions him without Miranda Rights, Prosecution wants to give the statements to a shrinkEVEN THOUGH INADMISSIBLETHE EXPERT CAN BASE HIS OPINION ON IT

Last Sentence of 703 says EXPERT CAN GIVE OPINION BUT CANT ARTICULATE INADMISSIBLE STUFF IF JUDGE THINKS ITS TOO PREJUDICIAL

3). HYPOTHETICAL QUESTION (witness knows nothing bout case)

o

assume certain factsassume the facts are correctwhat is your opinion

o The assumptions HAVE TO BE BASED ON THE EVIDENCE IN THE RECORD

o

RULE 704: OPINION ON ULTIMATE ISSUE Expert may give opinion on accidents, med malpractice etc CANT SAY in my opinion the testator had CAPACITY/MENTAL STATE to make will bc Capacity is a legal word

EXPERTS MAY TALK ABOUT MANY THINGS BUT CANNOT GIVE OPINION ON DS MENTAL CAPACITY/LEGAL INSANITY IN ANY CRIM CASES CANT GIVE OPINION ON DS CAPACITY Ex: D is on trial for drug distribution his defense is IM NOT A DRUG DISTRIB, IM A USER. Evidence shows 2000 lb of coke and 100,000 cash. Can ask cop was this for personal use CANT SAY D LACKED CAPACITY TO COMMIT THE CRIME CANT GIVE TESTIMONY ON MENTAL STATE IN CRIM CASE

HOW DO YOU CROSS EXAMINE AN EXPERT? 1). Show lack certain qualifications 2).Can ask how much has been paid 3). If consistently testified for P, can ask if ever testified for D

o RULE 705 DISCLOSURE OF FACTS

Do not need to give a hypothetical situation. May testify without knowing the specific underlying facts. Testimony on the ultimate issue is not disallowed because it is testimony on the ultimate issue. Can waste too much time...

NY differs though. Ex: workin on case involving new experimental drug and there is one person in country who knows more than anyone and is working on a treatise on it. Need to get him and lives in middle of nowehere. He says he doesnt want money. CAN SUBPOUENA HIM

o REVIEW OF LAY AND EXPERT WITNESS Lay Witness Can Give opinions AS LONG AS BASED ON RATL USE OF THEIR SENSES EXPERTS: have training, skill experience, knowledge educ in sci or other subj. CAN GIVE OPINIONS ON FIRST OR SECONDHAND OBSERVATIONS
o

As long as 2nd hand info is something an expert would usually rely on

RULE 706 says a judge can call an expert if both sides agree to it o If only one side agrees, it can bias the jury. The jury will take that expert (appointed by the court) more "prominently" than one brought in by D or P

CROSS EXAMINATION OF EXPERTS: o Can sho bias by fee, only testifies for D etd. o Can use treatises, periodical, pamphlets to cross examine Ex: Expert testifies impossible for batteries to explode at temps higher than 90 degrees. Found treatise written by expert that says it can explode. IF facts witness depends on for testimony arent present, CAN DISMISS THE TESTIMONY

o Testimony by experts on NOVEL scientific aspects

things that have not been subjected to strict scientific scrutiny In order to determine look at DAUBERT

DAUBERT v MERREL DOWN PHARMECEUTICALS: Ps both have birth defects and allege they were caused by Benedictin, drug marketed by D. Ps 8 experts conducted their own studies concluding that Benedictin can cause birth defects, Ds had 30 published studies that it was NOT a factor. The court granted Ds motion for sum jdg. Holding that SCI EVIDENCE MUST BE GENERALLY ACCEPTED TO BE ADMISSIBLE RULE: THE GENERAL ACCEPTANCE THEORY IS NO LONGER THE RULE WHEN ADMITTING EXPERT WITNESS EVIDENCE. THE JUDGE IS THE GATEKEEPER AND WILL MAKE THE DECISION WHETHER NEW SCI EVIDENCE COMES INTO COURT REGARDLESS OF ACCEPTANCE IN SCI COMMUNITY OR NOT Gives tremendous deference to judge GENERAL ACCEPTANCE IS NO LONGER LIMITATION ADMIT EVIDENCE IF JUDGE FINDS IT TRUSTWORTHY VALID UNDER 702/703: IF ASSIST TRIER OF FACT 104 (a) gives judge Very broad Gate keeping function over all evidence 401 and 402 also relevant

JUDGE SHOULD LOOK AT *Important* 1) Has it been tested? 2). Whether the theory has been subjected to peer review publications 3).Known or potential rate for error 4). General acceptance

FRYE = OLD LAW The thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. This is still NY COMMON LAW This law has been displaced in Fed Court by the Rules of evidence.

Publication, Peer Review, and General Acceptance may have a bearing they are not required

o THE BEST EVIDENCE RULE Common Law rule intended to prevent fraud DEALS WITH WRITING Writings, documents, pics, videos, sound recordings

RULE 901 and 902: TODAY ITS CALLED THE ORIGINAL WRITINGS RULE Writings, photos, xrays, video etc

IN ORDER TO PROVE CONTENTS OF A WRITING, NEED TO PRODUCE THE WRITING, WRITINGS NEED TO BE BROUGHT INTO COURT TO TESTIFY! Ex: Cant prove content of K to sell, but CAN testify that entered into K and testify to those terms. Ex: CANT TESTIFY TO WHAT MARRIAGE CERTIFICAT SAYS, But a Witness can testify I was in Vegas and saw marriage in a church CAN TESTIFY TO AN EVENT, NOT TO WHAT A DOCUMENT SAYS Ex: Lawsuit involving contamination of food, now a question of contents of soupCANT TESTIFY TO THE CONTENTS OF THE SOUP Ex: Dr. Says I looked at ex ray and it showed bone was moving o NO GOOD BC CANT TESTIFY TO WHAT WRITING SHOWS o Can Say from my examination, the bone was moving o CANT TESTIFY TO WHAT EX RAY SHOWS Ex: Are you familiar w As voice? YES!...who was talking? A was o Thats ok o Expert CANT SAY after listening to video recording the voice is def A o Cant testify to contents

Ex: Cant testify to whether work papers contain itemized deductions. o Can testify that was directed by Fam to take itemized deductions, CANT testify to what work papers said.

Ex: Testimony bout writings on Stat of Liberty? o Prob not aloud

JUDGE HAS DISCRETION,,,WRITINGS NEED TO BE BROUGHT INTO COURT TO TESTIFY WHEN DOCUMENTS ARE ADMITTED INTO EVIDENCE IT CAN BE TESTIFIED TO BY EXPERTS BEFORE IN EVIDENCE IT CANNOT

THE HEARSAY RULE

RULE 801: HEARSAY Defintions RULE 802: Hearsay Rule RULE 803: Hearsay Exceptions, Availability of Declarant Immaterial Rule 804: Hearsay Exceptions Declarant Unavailable - RATIONALE AND MEANING
o Statements May be wrttien, oral or even conduct. o Can usually say what you seeBUT CANT SAY WHAT YOU HEARD o PREVIOUS CASES COVERING STATEMENTS Prior Inconsistent Statements: Tome Rehabilitation: Tome Knapp v State: recently heard cop beat old man to death used to show Ds fear MICHELSON : reputation/character evidence MAY be hearsay Davison v Prince: Plaintiff is attacked by a cow, writes letter saying how close/far he was from cow.... The letter written to D was a statement

The commonality for all these cases is statements made out of court and offered as evidence in the current trial

o TESTIMONY AS TO REPUTATION IS HEARSAY, BUT IS AN EXCEPTION AND IS ADMITTED EVERY DAY o STEPS TO HEARSAY 1). IDENTIFY THE STATEMENT - could be verbal, writing, and in some "few" cases even be conduct that is intended as a statement (ex: raising your hand) 2). NEED TO IDENTIFY THE ISSUE THAT THE STATMENT IS BEING USED TO PROVE - Hearsay can only be determined through relationship of statement and issue (whether it is or isn't hearsay)

o Historically, Hearsay has been considered unreliable due to witness bad memory etc. It may be misused by the fact finder and produce the wrong result. "intrinsic weakness" "tale of a tale"

o BC OF THIS HEARSAY EVIDENCE IS INADMISSBLE (subj to exceptions). Protects juries from unreliable evidence

o WHITMORE: Hearsay rule is the greatest contribution to the jury trial Second hand evidence is too risky, is the person who said the statement right? Ex: Testifying witness heard other witnesses tell him about the event, and now testifying witness is testifying to event NOT from personal knowledge, but from what he was told by WITNESSES WHO WERE AT THE EVENT Witnesses at event cant get to court

o TESTIMONIAL DEFECTS TO GIVING CREDIT TO OUT OF COURT HEARSAY memory recognition sincerity

o Where the out of court statement is offered for the truth of the matter asserted

It is hearsay There are plenty of times when an out of court statement is not offered for truth, but some other purpose Ex: In car with friend who is driving. Driver shouts, "Oh my God! There is a cow in the intersection!" There is a civil action. Driver is in a lawsuit because he tried to avoid the cow and struck a pedestrian. As a witness, you testify that your friend, the driver, shouted "Cow... etc..." o What would it depend on to determine whether this is hearsay or not? It is hearsay because it is being offered to prove the truth of the mattered asserted. Can NOT use it for that reason. If not offering as proof towards truth, it may be used. In this instance it could be offered for the purpose of proving *STATE OF MIND*

There still needs to be an analysis that proves that the state of mind is relevant to the action

o STEPS FOR DETERMINING WHETHER HEARSAY IS ADMISSABLE 1). Identify the statement

What is the relevance of the statement that you are using?

2). What is the purpose of that statement? Why is it being offered? What is the issue? Ask yourself, "What would be the issue to make that statement hearsay?"

Determine next, whether it is hearsay or not. If it is, the statement is not admissible. If it is not, go to step 3.

3). Once you figure out that the statement is not hearsay, you must ask"What is the RELEVANCE of the statement?"

o RULE 801 (c) - DEFINITION OF HEARSAY

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

o 3 CONDITIONS OF TESTIMONY FOR TRUTH: 1). OATH OR AFFIRMATION 2). PERSONAL KNOWLEDGE OF WITNESS OF EVENT 3). CROSS EXAMINATION

o THE DEFINITION OF HEARSAY: RULE 801 A STATEMENT: defined in 801 (a) A DECLARANT: defined in 801 (b) people who declare something about an event HEARSAY 801 (c ): A STATEMENT OTHER THAN ONE MADE BY DECLARANT MADE AT TRIAL, OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED. A STATEMENT IS HEARSAY WHEN: WHEN THE STATEMENTS IS BEING USED TO PROVE THE TRUTH OF THE MATTER ASSERTEDresting for its probative value upon the credibility of the out of court statement Ex: Knapp claims people told him cop killed old man. NOT HEARSAY! IF THE TRUTH OF THE MATTER ASSERTED WAS Did cop kill old man THEN IT WOULD BE HEARSAY BC IT WOULD BE OFFERED TO PROVE THE TRUTH OF THE MATTER o Not using the statement to show Cop beat old man, The statement was offered to show Knapps fear. o STEPS FOR DETERMINING HEARSAY 1).ID THE STATEMENT/ IS IT A STATEMENT? WHAT IS THE STATEMENT? (ID THE STATEMENT) 2). DOES IT PROVE THE TRUTH OF THE MATTER ASSERTED? IS IT BEING OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED? IF YES = HEARSAY.IF NO = NO HS

3). IF HEARSAY, WHAT IS ITS PURPOSE? IF NOT HEARSAY WHAT IS ITS PURPOSE / IS IT RELEVENT (401) If not, then not hearsay. Ex: will executed by testator. Issue is whether or not testator was competent to make a will. The son, a creep was disinherited and challenges. Wants to prove mothers lack of capacity by testifying that a Dr. who treats his mom visited her 24 hours before death and said your mother is crazy. SON CANNOT OFFER IT BECAUSE IT IS BEING USED TO PROVE THE ISSUE OF THE MATTER ASSERTEDthat mother was crazy. INADMISSIBLE Ex: Son has report from Dr. saying mother is crazyDr. is not there. INADMISSIBLE, IT IS A WRITTEN ASSERTION, SAME TREATMENT AS ORAL. Ex: Dr. comes out of room and makes crazy sign by his head. THIS IS CONDUCT INTENDED AS AN ASSERTION. HEARSAY, INADMISSIBLE BC BEING OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED (mom crazy) Ex: Dr. cam out of room and said your mom thinks shes a princess. Prob allowed in court UNLESS BEING OFFERED TO PROVE MOTHER REALLY WAS A PRINCESS. o 1). STEP 1: ID THE STATEMENT o 2). STEP 2: IS IT HEARSAY? The Matter asserted is Iam a princess IF THATS WHAT IT WAS TRYING TO PROVE, THEN INADMISSIBLE. BUT WE ARE TRYING TO PROVE SANITY. ADMISSIBLE.

o 3). WHY IS IT BEING ASSERTED? Ex: People v Knapp, charged w murder, shortly before killed cop he heard from bystanders cop just beat old man to death. NOT HEARSAY bc THE TRUTH OF THE MATTER ASSERTED IS NOT WHETHER OR NOT COP BEAT OLD MAN. FOR THIS TO BE HEARSAY ISSUE WOULD HAVE TO BE DID COP BEAT OLD MAN

1).STEP 1: ID THE STATEMENT

2). STEP 2: WHY IS IT BEING OFFERED? To prove the truth of the matter asserted? THEN HEARSAY NO?

3). WHAT IS THE PURPOSE? Need to find relevance for the statement under 401 Knapps purpose was mens rea IF NOT USING STATEMENTS FOR TRUTH OF MATTER ASSERTED, CAN CROSS EXAMINE KNAPP TO SHOW STATEMENTS WERE FABRICATED.

o IF PERSON WHO MAKES STATEMENTS COMES INTO COURT AND GIVES FIRSTHAND TESTIMONY, THATS FINE o CATEGORIES OF STATEMENTS THAT ARE NOT HEARSAY: KISS SMAC 1). STATE OF MIND OF (HEARER) Knapp Subramanian Vinyard Johnson Supermarket (ketchup) Police XRAY CASE

2). STATE OF MIND (SPEAKER) Supermarket Orange Juice Will Case Heart Attack Prior Inconsistent Statement

Iam princess

3). CONDUCT

1).Is it attended as an assertion? (NO) ZENNI o if intended as assertion IT IS HEARSAY

2). Whats the Relevance ? cant be irrelevant Zenni Flight Will

4). INDEPENDENT LEGAL SIGNIFIGANCE Threats Gift Ks

5). KNOWLEDGE Kinder Dentist

6).SILENCE NOT A STATEMENTS

7).ANIMALS Do not speak/NO STATEMENT

8). MACHINES DO NOT MAKE STATEMENTS

US v BROWN: D tax preparer, indicted and on trial for preppin fraudulent tax returns. Govt theorizes D overstated HUGE amounts of deductions to TP. Prosec. Called FED INVESTIGATOR, Investigator claims to have intrvwd TPS of D TP claims 5,000 deduction and D had 20,000 deduction. IS THIS OUT OF COURT STATEMENT FROM TP COMPETENT TO PROVE DS FRAUD?RULE: IT IS

INADMISSIBLE HEARSAY WHEN ONE ATTEMPTS TO TESTIFY TO CONCLUSIONS HE HAS MADE BASED ON THE STATEMENT OF OUT OF COURT DECLARANTS. Jury has not way to examine the trustworthiness of the agents testimony bc it could NOT examine the TPS statements STEP 1: ID THE STATEMENT

my deductions were 5,000

STEP 2: WHY IS IT BEING OFFERED? The Issue to be proved was was tps deductions $5,000 THIS IS BEING OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED

STEP 3: WHAT IS THE PURPOSE? To Prove the Truth of the matter asserted IT IS HEARSAY! BC DONT HAVE TP, JUST STATEMENT FROM TPS AND NOT WAY OF CROSS EXAMINING TP

o STATE OF MIND OF HEARER

o

SUBRAMANIAM v PUBLIC PROSECUTOR: D allegedly took up arms against the crown. Gets on witness stand and offers testimony that he was kidnapped. He claims his captors said we will kill you unless you help us. RULE: EVIDENCE OF THE OUT OF COURT STATEMENTS OF A PERSON NOT PRESENT IN COURT IS NOT HEARSAY IF THE STATEMENTS ARE NOT OFFERED FOR TRUH, BUT RATHER AS EVIDENCE OF THAT FACT THEY WERE MADE. STEP 1: ID THE STATEMENT

we will kill you.

STEP 2: WHY IS IT BEING OFFERED? TO SHOW DURESS, not to prove THE TRUTH OF THE MATTER ASSERTED.that his captors were going to kill him NOT HEARSAY

STEP 3: WHAT IS ITS PURPOSE?

Not H/s, its purpose is to show duress/ his mens rea to show he reasonably believed his captors would kill him.

CAN CROSS EXAMINE TO SEE IF HE IS LYING Ex: Prof starts screaming, making accusations bout Pace students calling us Commies. IF THIS WAS BEING OFFERED TO PROVE THAT WE WERE COMMIES/ INADMISSIBLE HEARSAY

Ex: Car accident, Hubby and wife killed. Cop goes over and sees that the wife has died goes to hubby and hubby says Iam alive and then he dies. It is for estate purposes, and question in lawsuit is WHO DIED FIRST? STEP 1: what is the statement?
o

I am alive

STEP 2: WHY IS IT BEING OFFERED? o Not to prove the truth of the matter asserted o THE FACT HE COULD SPEAK SHOWED HE WAS ALIVE

STEP 3: WHAT IS THE PURPOSE? o Cognitive noise is enough

o STATE OF MIND OF HEARER

o

VINYARD v VINYARD Funeral Home: P fell in Ds parking lot at trial evidence admitted that people had complained to D that the lot was slippery when wet. D objected to admission as hearsay. RULE: WHERE, REGARDLESS OF TRUTH OR FALSITY OF STATEMENT, THE FACT THAT IT HAS BEEN MADE IS RELEVENT (knowledge here) THE HEARSAY RULE DOES NOT APPLY AND THE STATEMENT MAY BE ADMITTED TO EVIDENCE It would have been improper if offered ONLY TO PROVE THE FACT THAT THE LOT WAS SLICK HERE WAS THE ISSUE OF Ds KNOWLEDGE OF SLICKNESS HEARSAY MUST BE A STATEMENT OR OTHER COMMUNICATIVE CONDUCT OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED

1). ID THE STATEMENTS

surface slipper when wet o Employees and people made statements to owners of funeral home

IT WOULD BE HEARSAY IF BEING USED FOR THE PURPOSE OF REFUTING THAT SURFACE IS NOT SLIPPERY WHEN WET

2). WHY IS IT BEING OFFERED? ISSUE: TO PROVE KNOWLEDGE AND STATE OF MIND OF OWNER

3). WHAT IS THE PURPOSE? 1). To show he had knowledge and state of mind of owner NOT TO PROVE THE TRUTH OF THE MATTER ASSERTED IN THE STATEEMNT

Ex: Supermarket customer going down aisl. Manager screams dont go there, broken ketchup she goes down, slips falls and sues. The statement DONT GO DOWN THERE, THERES BROKEN KETCHUP. 1). ID THE STATEMENT
o

dont go down there.ketchup

2). WHY IS IT BEING OFFERED? o To show contrib. negligence and fair warning. o IF WAS BEING OFFERED TO SHOW THERE WAS NOT OR WAS KETCHUP IN AISLE THEN HEARSAY o NOT BEING OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED NOT HEARSAY

3). PURPOSE o To show contrib. negligence, STATE OF MIND etc

Ex: D murders girlfriends, He concedes to killing. Gets on witness stand and testifies stormy relationship, had a fight one evening and told me she was having another mans kidI killed her then

STEP 1). ID STATEMENTS

o

im having other mans kid

STEP 2). WHY IS IT BEING OFFERED? o To prove extreme emotional Disturb NOT to prove truth of matter asserted,,,,that she is or is not having other persons kid. o NOT HEARSAY

STEP 3). PURPOSE OF OFFERING STATEMENT? o To show mens rea, show he acted in heat of passion

Ex: Woman in s. Carolina murdered kids in car in lake. Prosecutor wants to show she killed kids in cold blood and wants to intro a letter (writings can be hearsay) written to her from her boyfriend saying he doesnt want kids. 1). ID STATEMENT
o

I dont want kids

2). WHY IS IT BEING OFFERED? o Not to prove the truth of matter asserted/not to prove he doesnt want kids o NOT HEARSAY

3). PURPOSE? o TO SHOW MOTIVE

Ex: Sueing hospital for ED. Goes in for treatment and Dr. says ms you beter get that cut off, it looks cancerous. 1). ID STATEMNT:
o

your shoulder has cancer

2). WHY IS IT BEING OFFERED? o To show statement created ED o NOT TO SHOW TRUTH OF MATTER ASSERTED (cancer on shoulder

3). PURPOSE o To show ED

Ex: Motion to suppress a gun found on D, officer testifies I heard from that D was carrying a gunI confronted and arrested him 1). ID STATEMENT
o

D was carrying a gun

2). WHY IS IT BEING OFFERED? o To Show probable causeNOT TO SHOW D WAS CARRYING A GUN/SHOW TRUTH OF MATTER ASSERTED

3). PURPOSE o Show ED

Ex: Wife killed by bus in NY, hubby is sueing bus company for damages, wrongful death seeking loss of consortium. Bus co uncovers last will and testament of wife. Last will says whereasfaithful loving wifedone everything to make life comfortablehe treated me with disdain and shitty I leave $1 STEP 1: ID STATEMENT
o

treated me shitty.$1 Written Statement

STEP 2: WHY IS IT BEING OFFERED? o NOT TO PROVE TRUTH OF THE ASSERTED that he treated her badly o NOT HEARSAY MATTERS

STEP 3). PURPOSE? o To prove state of mind, that shes pissedNOT MUCH LOSS OF CONSORTIUM

Ex: Driver in car with companion, driving and says that car is weaving driver must be having heart attack. Driver runs out to car swervinghit by oncoming car. Companion sues oncoming car for loss of consortium. On coming car claims contrib. negligence. STEP 1). ID STATEMENT

that driver must be having a heart attack

STEP 2). WHY IS IT BEING OFFERED?

o

Not to prove truth of matter asserted

o To show emergency invites rescueNOT HEARSAY STEP 3). PURPOSE o TO SHOW EMERGENCY, THAT HE NEEDED TO HELP SOMEONE
o

JOHNSON v MISERCORDIA: Dr. is a butcher, treated patient terrible. Patient sues hospital . At trial, evidence presented showing that if D checked dr.s credentials it would have found hospital records that he was a shit Dr. RULE: EVIDENCE MUST BE INTRODUCED FOR THE TRUTH OF ITS ASSERTIONS IN ORDER TO BE SUBJECTED TO HEARSAY OBJECTION THIS EVIDENCE WAS PRESENTED TO SHOW THAT IT EXISTED (prove knowledge and negligence of hospital) NOT TO SHOW THAT DR WAS A HACK. STEP 1). ID STATEMENT

Dr is shitty dr

STEP 2). WHY IS IT BEING OFFERED? Not to prove Dr was shitty Dr (not to prove truth of matter asserted) BUT TO SHOW KNOWLEDGE OF THE HOSPITAL NOT HEARSAY

STEP 3). PURPOSE To show knowledge of hospitalthey were on notice of incompetent Dr. NOT USING STATEMENT TO PROVE TRUTH OF MATTER ASSERTED

EX: False adv lawsuit brought by FTC against OJ company claiming that the MANUFRS suggest in advertising that its fresh squeezed when it isnt. FTC puts a survey of 10,000 oj drinkers. is Tropicana made from fresh squeezed oj? Over 90% say yes. Want to bring statements in. 1). ID STATEMENT

Tropicana is made from fresh oj

2). WHY IS IT BEING OFFERED? o To show misleading advertising NOT TO SHOW THAT THE OJ WAS NOT MADE FROM FRESH SQUEEZED ORANGES (the truth of the matter asserted)

3). Purpose o Prove state of mind of the agency

Machines do not make statements. They are what they are. You can not crossexamine a machine.

o General rule of thumb to determine whether something is capable of making a statement is whether it is able to be cross-examined RULE 802- you can still use the evidence gained.... just not under hearsay o Words that are uttered can have legal significance. determine the use of the evidence. Ex: of words of legal significance Slander/ defamation "give me all the money in your cash drawer, or i'm going to kill you" the words constitute an armed robbery words of criminal solicitation The words themselves

Words of independent legal significance

Check for: do the words have significance just by the fact that the words are uttered

6 Areas where out of court statements are hearsay 1) machines 2) Animals 3) Independent Legal significance 4) silence

US v HERNANDEZ: DEA agent and informant arrange meeting with D where D allegedly offered to sell coke, D was arrested and claims he was framed and objected to admission to evidence of DEA agents testimony that US CUSTOMS

had idd D as drug smuggler. D claims it to be hearsay testimony. RULE: EVIDENCE RELIED UPON NOT AS PROOF OF A WITNESSES STATE OF MIND AT THE INCEPTION OF INVESTIGATION BUT AS EVIDENCE OF DS GUILT IS INADMISSIBLE AS HEARSAY UNDER RULE 802. DEAS STATE OF MIND WAS NOT AN ISSUE, THEREFORE THE TESTIMONY IS HEARSAY EVIDENCE ABOUT THE MEANING OF information received by the witness or testimony of the results of investigations made by other persons offered as proof of the facts asserted out of court, are properly classified as hearsay. STEP 1). D IS A DRUG SMUGGLER STEP 2). WHY IS IT BEING OFFERED? To show state of mind of the agent, need to show why agent went after D THIS CASE SHOWS US THAT STATE OF MIND IS NOT RELEVENT WE DONT CARE WHY HE WENT AFTER D, HIS STATE OF MIND IS NOT RELEVENT, THE REASON HE WENT AFTER HIM IS NOT RELEVENT!

STEP 3). PURPOSE To Show state of mind of DEA officer.. IRRELEVENT, INADMISSIBLE.

WHEN STATEMENTS ARE OFFERED NOT FOR THE TRUTH OF THE MATTER ASSERTED, NEED TO DETERMING WHETHER THEY ARE RELEVENT OR HAVE SOME OTHER CIRCUMSTANTIAL VALUE.

o CONDUCT
o

US v ZENNI: Criminal Prosecution, cops enter premises with warrant and the phone starts ringing and cops pick up phone and the caller said 5 gs on Kentucky 10 gs on Syracuse Heard several calls. RULE: NON-ASSERTIVE VERBAL CONDUCT COVERED BY THE HEARSAY RULE.

Rule 801 defines hearsay as AN OUT OF COURT STATEMENT OFFERED TO PROVE ITS TRUTH STATEMENT IS DEFINED AS A ASSERTION INTENDED TO BE AN ASSERTION THE CALLERS HERE DID NOT BY THEIR CALLS, INTEND TO ASSERT THAT Ds PREMISES WERE A BOOKIE PLACE Statements under heresay may be written, oral or manifested in conduct

HAND MOTIONS INDICATING ACQUIESSANCE ARE STATEMENTS AND IF OFFERED TO PROVE ACTOR AGREED TO A PARTIC THING ARE HEARSAY, BUT FALL WITHIN THE EXCEPTION BETTER UTTERANCE WERE NONASSERTIVE VERBAL CONDUCT, OFFERED AS RELEVENT FOR AN IMPLIED ASSERTION TO BE INFERRED FROM THEM, THAT BETS COULD BE PLACED AT PREMISES. THE LANGUAGE IS NOT FACIALLY AN ASSERTION AND ITS OBVIOUS THESE PEOPLE DID NOT INTEND TO MAKE AN ASSERTION ABOUT THE FACT SOUGHT TO BE PROVED, AS AN IMPLIED ASSERTION , THE EVIDENCE IS EXCLUDED FROM OPERATION OF HEARSAY RULE BY 801 THIS IS CONDUCT The probative value of offering these statements PROVE THAT ITS A GAMBLING HOUSE The Callers are saying This is a place for gambling Without saying this is a place for gambling

Ex: School says gersh isnt teaching, gersh tries to prove that there is class by showing people come to class Ex: D after committing robbery runs to CA, evidence of flight, that person is making a statement implied assertion I just committed a crim NOT INTENDED AS AN ASSERTION RULE: CONDUCT CAN BE TREATED AS A HEARSAY STATEMENT WHEN THAT CONDUCT IS INTENDED AS AN ASSERTION

Ex: Ask CA flight guy, re-enact how you robbed bank.THIS IS A STATEMENT Ex: If guy said im here to place a bet HEARSAY, INTENDED AS AN ASSERTION Ex: Phone rings, 100,000 on red NOT HEARSAY, NOT AN ASSERTION, JUST A STATEMENT EX: Fixing property after someone was injured, is that an assertion? NO just fixing property. NOT INTENDED AS AN ASSERTION Ex: Testator makes will and leaves all property to Butlernephew challenges capacity, the P offers in evidence letters written by law prof, clergy etc written to testator before death, detailed narratives of events. The letter writers claim she was of sane state of mind. THEY ARE NOT o 1). Being offered for truth of matter contained Once fig not being offered for hearsay purpose 2). IS IT RELEVENT?

Ex: Questions of safety of airlinea lot of people fly IS CONDUCT buying a ticket IS CONDUCT. Is it intended to make a statement? NO Ex: CEO of jetblue tries to bring image of airline backCEO walks on to place and buys ticket in front of Camera. IT IS CONDUCT AND HE INTENDS TO MAKE STATEMENT IN FRONT OF CAMERASTHIS IS HEARSAY AND ASSERTION Ex: Need to prove patient has illness. Have evidence that Dr has placed this patient in a medical facility that treats ONLY PEOPLE WITH RARE DISEASE. Does Drs CONDUCT qualify as hearsay? 1). Is it intended as an Assertion? NO o He is just putting him in a facility o NOT HEARSAY 2). Is it relevant? o Yes, shows he has disease

CONDUCT NOT INTENDED AS AN ASSERTION IS NOT HEARSAY Ex: trying to show conspiracy between 2 people. Raid one home and find little cards with one of their names and numbers on it. Is the card hearsay? 1). IS IT INTENDED TO MAKE AN ASSERTION? NO, not hearsay bc no assertion. 2). IS IT RELEVENT? Yes, to show connection

o INDEPENDENT LEGAL SIGNIFIGANCE

Ex: bank robber shows note to teller gimme money or ill kill you youre a shitty law professor threats will you marry me ALL THESE STATEMENTS HAVE INDEPENDENT LEGAL SIGNIFIGANCE AND ALL CHARACTERIZE A LEGAL EVENT They are NOT offered for the truth, they show a legal event NOT HEARSAY, HAVE OPERATIVE VALUE

Ex: Here is my book as a gift NOT HEARSAY, law of gifts

Ex: Marry me: marriage law, NOT HEARSAY ALL THESE HAVE INDEP LEGAL SIGNIFIGANCE, THE UTTERING IS RELEVENT TO PROVE PARTIC LEGAL EVENTTHE UTTERANCE IS A LEGAL EVENT WORDS HAVE LEGAL SIGNIFIGANCE Conspiracy, Threats, Cite to violence

o NON HEARSAY CATEGORIES: KISS SMAC 1). State of Mind of hearer 2). State of Mind of speaker 3).Conduct (1. Is it intended as an assertion? IF NO 2). Whats the relevance RULE 801 (a)2 4). Indep Legal Signifigance (words of)

5). Knowledge 6). Silence 7). Animals 8). Machines IF IT IS HEARSAY IT IS INADMISSIBLE.IF NOT HEARSAY ADMISSIBLE IF RELEVENT IS CROSS EXAMINATION IMPORTANT? MOST EXCEPTIONS TO HEARSAY DOESNT MATTER IF DECLARANT IS AVAILABLE, THERE ARE SOME WHERE DECLARANT HAS TO BE UNAVAILABLE TO MAKE IT WORK.

o KNOWLEDGE
o

KINDER v COMMONWEALTH: Older Kinder stole property belonging to someone else, it was on his pickup truck, witness sees it, theres a kid in the truck. The cops ask where the property is. The kid points and cops find the propertyRULE: TESTIMONY BY A PERSON WHO WAS AT THE SCENE AND OBSERVED ASSERTIONS FROM ANOTHER PERSON AND WHO IS SUBJECTED TO CROSS EXAMINATION ABOUT THOSE ASSERTIONS ARE NOT BARRED ADMISSION UNDER HEARSAY RULE 801.

1). STATEMENT: conduct pointing at property 2). IS IT BEING OFFERED TO PROVE TRUTH OF THE MATTER ASSERTED? NOT BEING OFFERED TO PROVE TRUTH OF MATTER ASSERTED ITS BEING OFFERED TO PROVE KNOWLEDGE OF LITTLE BOY

3). WHATS THE RELEVENCE? Ex: IF kid said he put it there then hearsay bc offered to prove truth of the matter asserted. Ex: STATE v BRIDGES: D charged w sexual abuse, evidence shows he took to his aptm and molested her. After girl tells mother and little girl describes where he took her, colors, pics and detailed description of the room. Little girl doesnt testify, arrest D and mother is being called as

witness to testify. DID YOUR DAUGHTER DESCRIBE PLACE WHERE TAKEN? CAN YOU TELL US? 1).ID THE STATEMENT 2). IS IT BEING OFFERED TO PROVE TRUTH OF THE MATTER ASSERTED? o NOT TO PROVE TRUTH OF MATTER ASSERTED, ITS TO SHOW KNOWLEDGE o NOT HEARSAY 3). IS IT RELEVENT? o Yes, shows little girl was there ex: D is dentist, travels to india before leaves his host gives him a sui t (told him its for his friends wedding) that is stashed with heroin (unknowing) and tells him to give to their friend. At customs he gets bustedand they let him give suit to friend and bust him. When they intrvwd firend he said im getting married next month Dentist is on trial and wants to put cop on stand who questioned cab driver and said he was getting marriedsaid IM GETTING MARRIED. STEP 1). ID STATEMENT STEP 2). IS IT BEING OFFERED TO PROVE THE TRUTH OF MATTER ASSERTED? o NO STEP 3). RELEVENCE o It goes with dentist story o Enhances and reinforces credibility of D. o Differentiate TRUTH and KNOWLEDGE (need more info. might be wrong) WHAT IS THE DIFFERNCE?

Knowledge goes towards information that an eyewitness personally has, that the eyewitness has knowledge of a specific thing Truth goes towards general information on an issue, not necessarily having to do with an eyewitness.

o SILENCE

Ex:Lawsuit against bus co for negligence, travelled cross xntry in cold

weather and everyone developed serious illness. Testimony from driver no body mention anything about being cold. The fact that no one said anything IS NOT HEARSAY BC SILENCE IS NOT A STATEMENT.

IS IT RELEVENT? o ANIMALS

Ex: Dog alerts officers to drugs in caris that a statement? NO ANIMALS DONT MAKE STATEMENTS

o MACHINES
MACHINES DO NOT MAKE STATEMENTS Ex: cop clocks motorist , wants to intro radar into evidence to prove speed of car. Is the tape admissibile? NOT HEARSAY Its relevance questionmake sure its in working order THESE ARE FOUNDATION RELEVENCE QUESTIONSIS THE EVIDENCE ADMISSIBLE?

HYPOS PG 197-198

1) Statement: from witness B, wants to testify that A told B that x hit him with bat a week before. If prosecutor was trying to prove that then it was HEARSAY. WHAT IS THE RELEVENCE? Xs defense is self defense, he hit him bc he was being aggressive.IF THIS STATEMENT SUGGESTS A MAY BE AFRAID OF X, this would show fear. WHAT IS THE RELEVENCE OF A FEARING X? CAN INFER THAT A WOULD NOT ATTACK X? could undercut his claim of self defense. ALWAYS GO THROUGH HEARSAY TEST

1). ID statement 2). Is it being use to prove truth of matter asserted? o IF NOT NOT HEARSAY

3). WHATS THE RELEVENCE 4) Whose state of mind does this go to prove?

o Can't use for X's state of mind because it would go to prove the truth of matter o NEED to use it to prove A's state of mind Comes down to relevance How does the statement go to prove self-defense Need to prove that A is the first aggressor How does this statement rebut the claim of self defense o Shows state of mind where we can infer fear o If so, you can infer that A was scared of X so it is unlikely that A would be the aggressor THIS DOES HAVE RELEVANCE in rebutting claim of self defense ISSUE IS ULTIMATELY FOR FACT FINDER This is allowed since Defendant raises the issue of self defense and opens the door for A

2) STATEMENT: B says A told him X threatened to kill me. IF THIS WAS BEING USED TO PROVE THE TRUTH OF MATTER ASSERTED IT WOULD BE HEARSAY AND INADMISSIBLE BC IT SHOWS A PROPENSITY

FIRST, determine whether it goes towards the truth of the matter asserted. here it is. NEXT Look at relevance: RELEVENCE: STATE OF MIND OF SPEAKER: X SAYS ITS ACCIDENCT, THE PROSEC IS OFFERING THE STATEMENT TO SHOW WHAT IS THE RELEVENCE OF THE STATEMENT OF FRIEND IT SHOWS As STATE OF MIND WAS FEAR! IF A IS AFRAID OF X THEN HE PROB

WOULDNT BE PLAHYING W A GUN IN HIS APTMT. RELEVENT BC IT SHOWS TO JURY THAT X IS CONCOCTING A FALSE PERJURIOIS DEFENSE 3). STATEMENT I knox will kill me, I wish he did it already IF OFFERED FOR HEARSAY THE ISSUE WOULD BE THAT IT WAS A ROCKY MARRIAGE. HES CHARGED WITH KILLING AND SHE MADE THESE STATEMENTS SHORTLY BEFORE.NOT OFFERED TO PROVE TRUTH OF THE MATTER ASSERTED RELEVENCE? o THEY PROVE STATE OF MIND FOR WIFE, fear, depressed, stress BUT INADMISSIBLE BC STATE OF MIND OF WIFE HAS NO BEARING ON ANY ISSUE IN THE CASE. NOT RELEVENT, IRRELEVENT.

- EXCEPTIONS TO THE HEARSAY RULE o Business records (public also, all record) o Recorded recollection o Interest(declaration against interest) o Excited utterance o Former testimony o Contemporaneuos statement o Admissions o State of mind o Everything (residual) o Dying declarations o Actions causing unavailibility o Diagnosis (dr)

o There are some out of court statements that judges found to be more reliable than others. depending on who, the timing, circumstances, etc... judges may allow some things in even if considered hearsay

o EXCEPTIONS TO HEARSAY 803 EXCEPTIONS : DO NOT REQUIRE DECLARANT TO BE UNAVAILABLE 804 EXCEPTIONS: REQUIRE DECLARANT TO BE UNAVAILABLE Requires a FOUNDATION (judge has to decide this exception may be invoked by making sure the foundation exists) THIS IS UNDER 104 (a) When judge based on 104 (a) is making determination whether statement (out of court) is hearsay fits into one of the categories. o Ex: Assume exception requires unavailability and assume there is a dispute that the declarant it unavailable and there is a witness coming to court for a hearing and the witness claims he just heard from the witnesses friend that the declarant is in Europe (unavail). THE PROB IS THE JUDGE ISMAKIN DETERMINATION BASED ON HEARSAY UNDER 104 (a) THE JUDGE CAN BC IN MAKING 104 (a) DECISIONS HE IS NOT BOUND BY RULES OF EVIDENCE. DEF of UNAVAILIBILITY: Common Law = Declarant is dead, ill or outside JDX and cant be located. o UNDER 804 FED: DEF IS BROADENED 1) death or illness 2). Cant be located 3). Privilege 4). Refusal 5). Testifies to lack of memory Ex: What did assailant look lik? I done remember

o 1. CONFRONTATION EXCEPTION

does not apply in civil cases... only criminal cases See Roberts test in Crawford. Not used anymore? CRAWFORD v WASHINGTON: cops question wife who was allegedly attacked by rapist. Long statement from wife that was inconsistent w hubby. Wife doesnt testify bc of privilege. Crawford has NO OPP TO CROSS EXAMINE THE STATEMENT. RULE:WHERE TESTIMONIAL STATEMENTS ARE AT ISSUE, CONFRONTATION IS THE ONLY INDICIUM OF RELIABILITY SUFFICIENT TO SATISFY CONSTITUTIONAL DEMANDS (6th amendment) See michigan v. bryant IT WOULD BE UNFAIR TO USE EX PARTE TESTIMONY o EX PARTE = POLICE STATEMENTS Statements against penal interest - statements that might subject you to criminal liability o ... Core class of Scalia's Testimonial Statements o pg 409 highlighted o 6th Amendment Confrontation Clause Ex Parte Examination o TESTIMONIAL 1) Ex testimony Parte in-court

2) Extrajudicial Statements 3) Statements that were made under circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later trial o If it is testimonial: Witness must be present at trial if available A prior oppurtunity to cross-examine was dispositive, and not merely one of the several ways to establish reliability

TESTIMONY: o 1)solemn declaration or affirmation made for the purpose of proving some fact o 2).statements that were made under circs which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial Ex: sylvias testimony is NOT admissible bc witness has to be UNAVAILABLE and THERE NO OPP FOR CROSS EXAMINATION.

THE ONE DEVIATION IS DYING DECLARATIONS

DAVIS CASE: 911 call, hubby is gonna kill me. Police arrive and arrest D for domestic violence. Wif who made call not available. CAN A 911 CALL BE ADMISSIBLE AS AN EXCEPTION TO THE HEARSAY RULE? o 1). Is it a solemn Declaration or Affirmation? o 2). Did she know the statement would be made under circs which would lead her to believe it would be available? o COURT SAID PRIMARY PURPOSE OF COPS IS TO RENDER ASISTANCE. IF PRIMARY PURPOSE WAS NOT TO GATHER EVIDENCE, BUT TO RESPOND TO AN EMERGENCYADMISSIBLE BC PURPOSE WAS NOT TO OBTAIN STATEMENTS BUT TO RENDER EMERGENCY ASSISTANCE

Ex: Hammond: domestiv violence case, she makes statements to cops incrimination D. Are they admissibile? NO BC THEY ARE TESTIMONIAL A CERTIFICATE FROM LAB PROVING DRUG TEST WAS ADMISSIBLE/.

o If an out of court statement is testimonial it may not come into evidence if the declarant is unavailable, without the defendant having the oppurtunity to cross examine that declarant o 802 Exceptions do not depend on availability of declarant

o 2. DYING DECLARATIONS EXCEPTION: 804 (b)(2)

ALL 804 EXCEPTIONS UNAVAILABLE

Must first establish this

DECLARANT

MUST

BE

STATE v JENSEN: woman writes letter and gives to friend, if something happens to me..open it and you will know what happened. The letter illustrated her fear of being killed by her hubby. RULE: a delayed letter received by a 3rd party from decedent/declarant describing her imminent fear of being killed in future by accused IS sufficient ad a dying declaration exception without offending the accused 6th amend rights (confrontation clause under Crawford)

Gershman Did not like this outcome. Does not seem to make sense that the statement was made based on imminency of death CHILDS v CA: court was gonna decide the issue of waiving hearsay exception by causing death or unavailability of declarant. If could show that you caused this person from being unavailable, you may forefeit your right to 6th amend. o THE JUDGES STANDARD OF RVW UNDER THIS 104 a DECISION IS PREPONDERANCE OF THE EVIDENCE o Ex: What id evidence showed victim was walking into building, a man came up and shot him in back and ran (same facts as above) Cop says your gonna diewho shot you? Need to show Declarant had person knowledge of the subject atter. PERSONAL KNOWLEDGE IS BASIC REQUIREMENT

DYING DECLARATION EXAMPLES

o

Ex: cops did report of shooting in projects. Cops respond to scene and there was a shooting in the lobby, blood on the floor, trail of blood to the 6th floor. Find a man bleeding from chest, Concsious. They ask who shot you he says frank. Rush him to hospital and he dies. Frank is prosec for murder. IS THIS STATEMENT ADMISSIBLE AGAINST FRANK? 804 b 2: MAY APPLY IN NON HOMICIDE CASE CAN VICTIM CAN SURVIVE AND JUST BE UNVAVILABLE NEED TO SHOW 1). Witness is unavailable 2).Belief in impending - imminent death 3). Cause of circumstance of death

How do you prove belief in imminent death? See forfiture by wrongdoing* 5 Ways of proving Unvailability Exemption Persistence of refusal testifies to lack of memory death or physical/mental illness/infirmity absence and unable to change that

The theory is that a person will not lie bc he is about to meet his maker Contrastingly, he may also be in a condition where he cant make a reliable statement

Ex: Cop say buddy youre going to diewho killed you?

This would prob be a clear impending death situ

Ex: officer testifies that nurse told officer that she told dying guy her was gonna die Ex: Priest just gave him last rights Yes dying declaration

Ex: Who shot you? Frankie whos Frankie? Hes a bookie who thinks I owed him money The statement about him being abookie under 804 b 2 is NOT concerning the cause or circs (immediate) of what declarant believed to be impending death

IS IT POSSIB TO CROSS EXAMINE DYING DECLARANT? Maybe if had motive Med examiner could show he was all boozed and fucked up Charcter witness claiming he was a liar o CAN IMPEACH A HEARSAY STATEMENT THE SAME WAY CAN IMPEACH A WITNESS ON STAND UNDER RULE 806 RULE 806 ATTACKING CREDIBILITY OF DECLARANT o HYPO pg 320 321 1). The standard for judge for Dying Decs is preponderance of the evidence, therefore if judge believed equally both sides, there is NO PREPONDERANCE of EVIDNEC IN BELIEFE OF IMPENDING DEATH (standard needed) SINCE NO

PREP OF EVIDENCE CANT SHOW DEATH WAS IMPENDING 2). Ex: Assume question about Ds confession, whether it was give, whether it was given after Miranda rights were given and no mistreatment of himhe wants to offer that cops beat him. Judge believes cops, can that D call witnesses he was beat up in station? YES. WHEN THE JUDGE ADMITS DYING DECS HE IS MAKING ALEGAL DECISION, NOT FACT, THE QUESTION OF FACT YOU ARE TRYING TO SHOW THE DECLARANT WAS NOT FEARING IMPNEDING DEATH GOIN TO THE WEIGHT OF THE EVIDENC AN YOU CAN ALWAYS DO THAT DIFFERENCE BTWN FUNCTION OF JUDGE AND JURY.

o 3. SPONTANTEOUS (EXCITED UTTERANCE 803 (2)) / CONTEMPORANEUOS (PRESENT SENSE IMPRESSION 803 (1)) EXCLAMATION

TRUCK INSURANCE EXCHANGE v MICHLIN 803 (2) EXCITED UTTERANCE: Ps huby died of brain injuries, claims form accident at work, hubby came home from work and made an EXCITED UTTERANCE that he hit his head so bad he had to leave. He died month later. This was admitted under 803 (2) EXCITED UTTERANCE RULE: FOR DECS TO BE ADMITTED IN EVIDENCE AS PART OF THE SPONTANEOS/EXCITED UTTERANCE OF 803, THERE MUST BE EVIDENCE OF AN ACT ITSELF ADMISSIBLE IN THE CASE INDEPENDENTLY OF THE DECLARATION THAT ACCOMPANIES IT

Wife wants to testify that he said my head is killing me bc I hit it on bulldozer o IT I HEARSAY BC IT IS BEING USED TO PROVE THE TRUTH OF THE MATTER ASSERTED (that he banged his head) WANTS TO ADMIT IT UNDER 803 (2) excited utterance elements 1).STARTLING EVENTS (does not need to be macabre or graphic but judges discretion by prep of evidence) 2). STATEMENTS MUST RELATE TO THAT STARTLING EVENT 3). MUST BE MADE WHILE DECLARANT IS UNDER STRESS/EXCITEMENT OF THE STARTLING EVENT (all decided under 104 a)

o The theory is statement is made w no time for fabrication o WITH THIS CASE THERE IS NO PROOF OF STARTLING EVENT , THE ONLY PROOF IS THE STATEMENT WHICH IS BEING USED TO PROVE THE STARTLING EVENT, NO GOOD.BOOTSTRAPPING NEED TO 1). PROVE THE EVENT HAPPENED THROUGH INDEP EVIDENCE then 2). THEN CAN USE STATEMENT MOST FEDERAL COURTS WILL ALLOW THE STATEMENT TO COME INTO EVIDENCE WHEN THE STARTLING EVENT IS WITHIN THE STATEMENT (BOOTSTRAPPING) IN FED COURTS BOOT STRAPPING IS ALOUD

CRIM CASE EX: guy shot, stumbles up roof of building, blood everywhere, back to wall bleeding terriblycop says what happened jones shot me he dies. Maybe an DYING DECbut judge would have to find under 104 a that he believed in his impending death.IF CANT USE DYING DEC CAN USE EXCITED UTTERANCE (803 (2)) may be a prob after Crawford.

ALWAYS REMEMBER WHEN INTRODUCING HEARSAY INTO CRIM OR CIVIL CASES, CRIMINAL CASES, D ALWAYS HAVE RIGHT OF CONFRONTATION NO CONSTITUtIONAL RIGHT OF CONFRONTATION IN CIVIL CASES, so hearsay may be used as long as relevant o CRAWFORD (right to confront) applies to investigative reports, SCI records etc

WHAT IS TESTIMONIAL EVIDENCE? CRAWFORDS WIFES STATEMENST TO COPS WERE TESTIMONIAL AND COULDNT BE INTRO WO PROOF OF OPP TO CROSS EXAMINATION ONE EXCEPTION = DYING DECLARATION o Can still try to impeach by showing MOTIVE, NOT OF SOUND MIND, DRUGS, Judge always makes the call under the 104 a Foundational Requirement GERSHMAN THINKS JENSEN WOULD HAVE BEEN BETTER UNDER FOREFEITURE OF WRONGDOING EXCEPTION THAN UNDER DYING DEC

EXCITED UTTERANCE (803 2) and PRESENT SENSE IMPRESSION (803 1) ALL RELATE TO A STATEMENT MADE ABOUT AN EVENT THAT PRODUCES SOME KIND OF EMOTIONAL REACTION TO THAT EVENT

DAVIS v WASHINGTON (803 2, EXCITED UTTERANCE): 1). Davis: P called 911 frantically explaining how bfriend was hitting her while he was hitting her stop talking and answer my questions operator said P wants to use this 911 testimony and did NOT appear to testify. 2). HAMMON v IND: police respond to domestic violence dispute, When got to house found P on porch frightened, cops went in house and talked with hubby and wife separately. Wife filled out signed affidavit explaining how hubby injured her. The state called officer to testify to authenticate the affidavit claiming that Ps statements in affidavit would fall under excited utterance. RULE: SOMEITMES STATEMENTS MADE TO LAW ENFORCEMENT PERSONELL DURING a 911 CALL OR AT A CRIME SCENE ARE TESTIMONIAL AND SUBJECT TO 6th aMMENDMENT CONFRONTATION CLAUSE REQUIREMENTS Statements are NON testimonial when made in course of police interrogation under circs objectively indiciation that the primary purp of

the interrogation is to enable police assistance to meet an ONGOING EMERGENCY Statements ARE TESTIMONIAL when the circs objectively indicate there is NO SUCH ONGOING EMERGENCY and the primary purpose of the interrogation is to estab or prove past events potentially relevant to later crim prosecution Statement is testimonial when its intended illicitation is future use in trial DAVIS: ongoing emergency on phone, when boyfriend left, everything else was testimonial) 803 (2) EXCITED UTTERANCE? Yes, Could be 803 (1): Present Sense Impression? o Maybe bc was immed after Hour, prob not, half hour prob not, 10 mins prob

This is crim case BUT THIS DOES NOT VIOLATE CRAWFORD OR CONFRONTATION CLAUSE BC THESE STATEMENTS ARE NOT TESTIMONIAL o If PRIM PURPOSE IS TO RENDER AID OR ADDRESS ONGOING EMERGENCY, THEN NOT TESTIMONIALBC NOT SEEKING TO CREATE EVIDENCE OF A CRIME o IF COPS PRIM PURPOSE IS TO RENDER EMERGENCY SITU, CONFRONTATION CLAUSE IS GONE o IF PRIMARY PURPOSE IS TO GAIN INFO ABOUT A CRIME THEN IT IS TESTIMONIAL o Psych sexual abuse? IF PRIM PURPOSE IS TO HELP CHILD, MAY NOT BE TESTIMONIAL

Ex: Houston O2 EXCEPTION: collision btwn car and gas truck, evidence is a statement made by someone standing on hwy fixing their car. Truck flashes past and one woman says to her friend they are gna crahs the car then crashed into the 02 truck, they sued the truck in a tort action. O2 truck heard people were on road

and investigated, found woman who said statement. IS IT RELEVENT? o Yes, to prove contrib. neg o 1). OUT OF COURT STATEMENT o 2). ASSERTION OF FACT? o 3). OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED? HEARSAY! NEED TO PROVE AN EXCITED UTTERANCE (maybe if almost hit her) IT IS RELIABLE BC IT IS CONTEMPORANEUOS TO THE EVENT, MADE IMMED WHILE OBSERVING THE EVENT

o 803(1) CONTEMPORANEUOS 1). STATEMENT ABOUT EVENT 2). DESCRIBING OR EXPLAINING EVENT 3). WHILE THE DECLARANT WAS PERCIEVEING THE EVENT OR MADE IMMED AFTER

PEOPLE v BROWN: similar to Davis. 6am cops get 911 call im henry in my aptmt and acroos the street black and white male are robbing restaurant, theyre running out... He calls back and says they only got one, the other is on roof They eventually got everyone. IS THE TAPE ADMISSIBLE? o THE TAPE IS HEARSAY (being offered to prove the truth of the matter asserted) o IS IT EXCITED UTTERANCE? Prob Not o IT IS A CONTEMPORANEUOS STATEMENT? YES

Ex: Woman calls friend and talks on phone and says there is someone at door and goes to door and says ill call you back She never does and was murdered. Prosec wants to intro statement. o 1). Is It Relevent? Yes, bc proves person who came to door MAY have killed her

o 2). IS IT HEARSAY? Yes, out of court statement, Assertion of fact that someone is at door.

o 3). Is it admissible CONTEMPORANEOS impression 803 1 Present Sense

o 1). Statement About event yes

o 2). Describes Event Yes

o 3). Made While Declarant perceived event? yes

Hammond: cops seeking for what happened in past.TESTIMONIAL 1). Startling Event? o Attack 2). Related to Startling Event? o Yes 3). Made While Under Stress? o Judge needs to find under 104 a Since seeking what happened in past, need to decide if TESTIMONIAL

o Cops were questioning and the purpose was to look BACK TO SEE WHAT HAPPENED o THIS IS TESTIMONIALIF TESTIMONIAL THEN UNDER CRAWFORD NEED TO SHOW 1). Declarant Unavailable 2). D had opp to cross examine Declarant HERE HE DIDNT

IN CIVIL CASES EXCITED UTTERANCES IS A VERY FREQUENTLY USED EXCEPTION o If Hammond was for civil action, it would be admissible o CIVIL CASE = EXCITED UTTERANCE PROMINENT.CRIM CASE = BE CAREFUL IS

o PERSONAL KNOWLEDGE IS REQUIRED (602) FOR A STATEMENT TO BE ADMISSABLE UNDER HEARSAY EXCEPTIONS
o

LIRA v ALBERT EINSTEIN MED CENTER (803 1 CONTEMPORANEOUS EXPRESSION, PRESENT SENSE IMPRESSION):Dr performed shitty tracheotomy. Went to other Dr and Dr said who is the butcher who did this? Wants to admit to evidence. RULE: A PHYSICIANS EXTRAJUDICIAL MEDICAL OPINION IS INADMISSIBLE AT TRIAL AS HEARSAY EVIDENCE.

1). IS IT RELEVENT? Yes

2). IS IT HEARSAY? Yes , being offered for truth of matter asserted

3). Is it an Excited Utterance? No, Dr. did not see a startling event

4). Is it a Present Sense Impression? YES THIS WOULD BE ALOUD IN FED COURT.

o Requirement of Present Sense impression

Describing or explaining the event Made while declarant was perceiving event or condition OR immediately afterwards -- IN NY -- For this to be invoked, NY requires that the statement be sufficiently corroborated

o HYPOS PG 235 1). EXCITED UTTERANCE 803 (2) EXCEPTION: The fact that made ten minutes later is A QUESTION FOR JUDGE TO DETERMINE UNDER 104 a. THE STATEMENT WAS MADE 1). Startling event, 2). Relates to that Startling event 3). Made while under stress of startling event. Fact that it was 10 minutes later and in response to a question does NOT undermine the judges ability to find it as excited utterance. 2). THIS IS NOT EXCITED UTTERANCE BC THE PERSON DID NOT WITNESS ANYTHINGDEPENDING ON TIME FACTOR (5 mins) IT COULD BE AN 803 1 PRESENT SENSE IMPRESSIONher ethe event is the STATEMENT THAT WAS HEARD AND IT DESCRIBES THE EVENT AND WAS MADE WHILE DECLARANT PERCIEVED CANT BE EXCITED UTTERANCE BC NEEDS PERSONAL KNOWLEDGE OF EVENT, AND OTHER PRSON SHRIEKING IS NOT A STARTLING EVENTIT COULD NOT COMEIN AS EXCITED UTTERANCEBUT IF WANT TO INTRO AS PRESENT SENSE IMPRESSIONPROBBUT JUDGE MAY FIND TOO PREJ UNDER 403. 3). THE STATEMENT IS HEARSAY BC IT IS OUT OF COURT STATEMENT USED TO PROVE ID. IT IS RELEVENT. IT MAY BE EXCITED UTTERANCE 1). Startling event (trauma of seeing assailant again) 2). STATEMENT RELATES TO THE STARTLING EVENT and 3). MADE WHILE UNDER STRESS yes. Would qualify. IS IT TESTIMONIAL UNDER CRAWFORD? 4). The time Distance Wont work unde r803 (1) bc they are captured a few minutes later 5 or 6 miles aways SO IT COULD NOT BE A PRESENT SENSE IMPRESSION.

4). ADMISSIONS 801 (d)(2) 1) Confessions 2) Admissions

 3) Statements *******ANY STATEMENT THAT A PARTY MAKES, ANY TIME, ANY PLACE, UNDER ANY CIRCUMSTANCES IS ADMISSABLE AGAINST THAT PARTY***** LIKELY EXAM QUESTION ** theory is that it is part of our adversarial system Statements made by a party can not be introduced by the party themselves. It is self-serving if they are allowed to.
REMEMBER JUDGE MUST FIND ALL EXCEPTIONS AS A FOUNDATIONAL MATTER Ex: DYING DECLARATION: declarant must be unavailable, persom must think hes dying, statement goes to circumstances Ex: Excited utterances: time factor is important Ex: Present Sense Impression: no startling event, but person talking bout event while its happening o Found to be reliable and trustworthy so cross examination is not critical FED RULEMAKERS FEEL THAT ADMISSIONS SHOULD NOT BE LABELED AN EXCEPTION Cant say a person CANNOT CROSS EXAMINE HIMSELF AND SO SHOULD BE AUTOMATICALLY ADMISSIBLE THIS IS AN EXEMPTION, NOT AN EXCEPTION IF THE ADMISSION IS RELEVENT IT IS ADMISSIBLE

WHAT ARE ADMISSIONS? THEY DONT HAVE TO ADMIT ANYTHING! JUST HAVE TO MAKE A STATEMENT o Confession is an admission, person makes a number of incriminating remarksTHEY CAN JUST BE INTIMIDATING STATEMENTS Example: Made statement to cops, investigate crime in Staten Isl and I say I was in bjlyn talking to a group bout crim justice

o NOT AN INCRIMINATORY STATEMENTbut if they were trying to prove in SI, the statement made about being in Bklyn IS RELEVENT! ADMISSION IS A VERY BROAD TERM: ANYTHING A PARTY SAYSANYTHING ANYTIME, UNDER ANY CIRCS IS AN ADMISSION, AUTOMATICALLY ADMISSIBLE IF RELEVENT WHAT IS A PARTY? o In a Civil Case: P v D are both partiesso statements offered by either are offered by parties. o IN CRIM CASE ONLY 1 PARTY = D o IN BOTH, THE PARTY CAN INVOLVE OTHER PARTIES CRIM (conspiracy) Civil case: agency, partnership etc

STEP 1: Who is Making the Statement? o IF A PARTY, ITS ADMISSIBLE

PARTY = RESPONDENT SUPERIOR (VICARIOUS LIAB)

ADMISSIONS ARE TRIGGERED BY PARTY MAKING OUT OF COURT STATEMENTS AND ADVERSARY OFFERING THOSE STATEEMNTS AGAINST THOSE PARTIES! PARTIES MAY NOT OFFER OUT OF COURT STATEMENTS ON BEHALF OF THEMSELVES o Ex: oj simpson, after car chase cops bring him in and question him for 3 hours. The prosec could have introduced it under ADMISSIONS but they didntwhy, BY THE MAJORITY OF IT WAS SO EXCULPATORY THEY MAY BE GIVING HIM A DEFENSE. SIMPSON CANNOT INTRO Q&A BC HE IS A PARTY OPPONENT AND PART OPPONENT CANNOT INTRO OWN OUT OF COURT STATEMENTS If they did pick and choose, the rule of completeness would allow OJ to intro the rest. CANNOT INTRO OUT OF COURT

OWN PARTY STATEMENTS

o Ex: Caveat: sir your best friend was just shot they suspect you. You say I was in Nevada Can you intro that? NO bc it is NOT a statement made by an opposing party, Prosecution CAN but you CANT bc YOU CANT USE OWN STATEMENTS AS ADMISSIONS BUT!!! your friend was shot and you started yelling, screaming etc CAN TRY TO INTRO AS EXCITED UTTERANCE.

** THIS FUNCTIONS AS AN EXCEPTION TO RULE 602 -PERSONAL KNOWLEDGE IS NOT REQUIRED FOR ADMISSIONS ** JUST BE CAREFUL WHAT YOU SAY IF YOU ARE PARTY TO SOMETHING

REED v MCCORD: P wa skilled when truck part owned by Ds employee fell and hit him. The coroners inquest, D admitted that his employee had failed to follow proper safety procedures. In an action by Ps intestate against Mccord for damages, the admission was introduced. RULE:PARTY ADMISSIONS ON ANY MATERIAL ISSUE ARE ADMISSIBLE AS EVIDENCE. ADMISSIONS DO NOT HAVE TO BE BASED ON FIRST HAND KNOWLEDGE TO BE ADMISSIBLE IF ITS AN ADMISSION IT IS ADMISSIBLE Boss said the machine was defective bc thats what he heard from foreman. o If boss said I was TOLD by my foreman that the machine was defective instead of his direct assertion IT IS HEARSAY BC OUT OF COURT STATEMENT DYING DECs, EXCITED UTTERANCES AND PRESENT SENSE IMPRESSIONS ALL REQUIRE THE DECLARANT TO HAVE PERSONAL KNOWLEDGE OF THE EVENT o ADMISSIONS DO NOT NEED TO HAVE FIRST HAND PERSONAL KNOWLEDGE o Can say on cross examination I didnt mean that, thats what the foreman told me so you have opp to convince jury otherwise. LAWYERS MAKE STATEMENTS ON BEHALF OF CLIENTS IN THE REPRESENTATIVE CAPACITY

ADMISSIONS 801 (d)(2): MANY DIFFERENT TYPES

A). THE PARTYS OWN STATEMENT IN A INDIVID OR REPRESENTATIVE CAPACITY -INDIVIDUAL ADMISSION o INDIVIDUAL: Confesion, anything else said by a party o REPRESENTATIVE: lawyer client Ex: D charged w others in large drug traffic conspiracy. Lawyer for one of minor Ds gets up and gives opening statement my client was in aptmt at time, friends there , police came and arrested everyone jury couldnt convict Case set for retrial6 mos later, now trying to create a defense that client was NOT in that room at timePROSEC CAN GIVE OPENNING STATEMENT THAT HE WAS THERE AND CAN BRING LAWYERS STATEMENT IN BC IT WAS MADE IN REP CAPACITY.

US v HOOSIER: D convicted of armed robbery of bank, during trial court allowed a witness to testify to certain statements made by Ds girlfriend such as you should have seen the bags of money we had in hotel RULE: A STATEMENT WHICH WOULD OTHERWISE BE HEARSAY MAY BE ADMITTED AGAINST A PARTY TO THE ACTION WHO MANIFESTED HIS ADOPTION OR BELIF IN THE TRUTH OF THE STATEMENT Probable human behavior would have been for him to deny it if he didnt do it EVEN THOUGH SILENCE IS NOT A STATEMENT WHEN DEALING WITH HEARSAY, IT CAN BE A STATEMENT WITH ADMISSIONS WHEN MADE BY A PARTY THE JUDGE NEEDS TO DETERMINE UNDER 104 WHETHER DS SILENCE TO HIS CHICK IS AN ADMISSION o IT WOULD BE AN ADMISSION IS BY HIS SILENCE HE ADOPTS A BELIEF IN IT
o

HE HAS AN ADOTPIVE ADMISSION THROUGH HIS SILENCE

Ex: you should have seen all the people we killed.prob would have spoken up if didnt kill anyone Ex: Standing on street, fixing back wheel on car guy walks by and says you better fix or get blowout guy walks by and dont respond back. Want to intro bystander who said that and you dont respond. IS THIS AN ADOPTIVE ADMISSION? No bc there is no reason to react to this statement. A reasonable person WOULDNT be responding. This driver is NOT adopting the passerbys assertion

HOOSIER WOULDVE RESPONDED IF NOT TRUE Ex: 2 bros, bob and ray, charge w burglary, cops question separately. Ray (mor malleable) gives written statement to cops, assume the statement included all the actions his bro did. Is that statement and admission? YES, are the statements Ray makes agains bob admissible against bob? NO, only against RAY not bobnow indicting both together for burglaryhave Rays signed confessionif tried together CANT INTRO BOTH BC CANT CONFRONTso what do we do? o 2 Ds, maybe try separately, can also just NOTuse or redact confession

Ex: got rays statement, before I sign I wanna talk to bob rays in cell cop bring in bob you better sign it, you told him everything anyway o Is this admissible against bob? YES BC IT SHOWS A MANIFESTATION OF BELIEF IN RAYS STATEMNT

o 801 (d)(2)

Ex: in bar, drunk and say to guy yea I hit her, I shouldnt have are these admissible? YES AS AN ADMISSION Ex: NOCTURNAL ADMISSIONS: NO NOT ADMISSIBLE

A - PERSONAL (Representative capacity) B - Adoptive Admissions C - Authorized Admissions

D - Agency Admissions - Concerns matter within the scope of the agency E - Co-conspirator statements
o

** Statements by C, D, and E are made by someone with some sort of special releationship with the admissor ***

MAHLANDT v WILD CANID: P boy was bitten by wolf when allegedly climbed under fence, an offer made to disprove that theory was when 1). D left note on the owner of wolfs door saying the wolf bit someone 2). Minutes taking in a meeting speaking about legal ramifications of the bites. All were held inadmissible as hearsay. RULE:IT IS UNNECESARY TO SHOW THAT THE AGENT HAD PERSONAL KNOWLEDGE OF THE FACTS UNDERLYING HIS STATEMENT FOR A STATEMENT MADE BY AN AGENT WITHIN THE SCOPE OF HIS EMPLOYMENT TO BE ADMISSIBLE AS AN ADMISSION [Theory of agency] (D) 1). Poos wrote letter to boss: dog may have bit kid POOS DOESNT HAVE PERSONAL KNOWLEDGE, IT WOULD STILL BE ADMISSIBLE UNDER (D) AGENCY ADMISSIONS, AND AGAINST POOS 2). Poos telling SEXTON that dog bit kid 3). BD OF DIRECTORS MINUTES sophie bit kid o 1 &2 are admissible against Poos, NOT 3 bc wasnt present It can be admissible against the center also JUDGE NEEDS TO USE 104 (a) : TO FIG IF STATEMENT IS ADMISSIBLE BY AN EMPLOYEE AGAINST EMPLOYER: 801 (d)(2)(D) : statement by partys agent or servant concerning on a matter within the scope of the agency employementDURING THE EXISTENCE OF THE RELATIONSHIP o Cant be fired and then use the statements o JUDGE NEEDS TO FIND UNDER 104 (a) THAT THIS IS AN AUTHORIZED ADMISSION UNDER 801 (d)(2)(c) o 801(d)(2) ADMISSIONS BY

(A).INDIVIDUALADMISSIONS: either individ or representative (B).ADOPTION OR BELIEF IN THE TRUTH OF A STATEMENT (C).AUTHORIZED ADMISSION: authorized by the party to make a statement concerning the subject (D) AGENCY ADMISSIONS: statement by parties agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship

AGENCY ADMISSION (D) IN A CIVIL CONTEXT IS A VERY HANDY WEAPON TO INTO EMPLOYEE AND AGENTS o Ex: bus driver, Ny bus crashes, passengers hurtdriver woozy, gets out of bus EMS says to him what happened he says brakes werent workin lawsuit by injured Ps NYC bus co. Get ahold of statement, is it admissible against driver? YES as (A) an INDIVIDUAL ADMISSION (he is a PARTY in a lawsuit)Can we get that statement against the CO? YES Under 801 (d)(2)(D) AGENCY ADMISISONS o EX: Assume after accident driver doesnt say brakes werent working and was hysterically crying. Is this admissible? YES IT IS AN EXCITED UTTERANCE AND IS ADMISSIBLE AGAINST HIM? IT IS ALSO ADMISSIBLE AGAINST THE BUS COMPANY , MAYBE EVEN AS A PRESENT SENSE IMPRESSION if he was lying on ground about to die and said it, it may even be admissible as dying dec o Ex: Truck driver hits pedestrian, 5 ocklc in afternoon, sign on truck that says 1800 flowers. He gets out and says Sorry I was trying to make last delivery. Assume the issue is whether he was making last delivery or not. IT IS ADMISSIBLE AGAINST D as and ADMISSION. Depending on regular hours, etc it may also be admissible under AGENCY ADMISSIONS.

There must be some other evidence other than the statement itself to prove agency, authority, or conspiracy (amendment to 801 last

sentence of the paragraph) relates to rule 104(a) - the independentevidence rule

BOURJAILY v US: Declaration of co conspirators, govt informant working with Lonardo crim, suppose to find other who want to use and distrib drugs. Lonardo says he has a friend who will pick up the drugs. Lonardo makes call and hooks up informant with a real person and they arrange a meeting. Lonardo goes to parking lot to meet guy. Guy waiting in car Bourjaily is in car and is arrested. Now they are indicted for conspiracy to deal drugs. RULE: TO ADMIT STATEMENTS UNDE
RRULE 801(d)(2)(E) (conspirator) as an exception to hearsay rule, the court MUST determine by indep evidence that a conspiracy existed and the D and declarant were members, the burden of proof is PREP OF EVIDENCE and the court may examine the circs to determine reliability of the statement THIS DOES NOT OFFEND THE CONFRONTATION CLAUSE

801 (d)(2)(e): statements are made by co conspirators, made in furtherance of conspiracy, and so they MAY be admitted JUDGE HAD PRELIM DETERMINATION UNDER 104 (a) has to find by Prep of Evidence that o 1). IS THERE A CONSPIRACY (prep of evidence) o 2). STATEMENTS MADE DURING FURTHERANCE OF THE CONSPIRACY? AND IN

NOTE: under 104 a THE JUDGE IS NOT BOUND BY THE RULES OF EVIDENCE TO FIND FOUNDATION o BOOTSTRAPPING IS ALLOWED WITH CONSPIRACY SO CAN ALLOW STATEMENTS TO PROVE CONSPIRACY

THE AMMENDMENT TO C, D, E IS :THE STATEMENT ALONE ARE NOT EOUGH TO PROVE CONSPIRACY, AGENCY or PERSON WAS SPEAKING WITH AUTHORITY NEED SOME OTHER EVIDENCE TO PROVE CONSPIRACY, AGENCY, AUTHORITY o The statements can be used by judge under 104 a, but they are NOT sufficient and should be considered with other evidenceNEED OTHER EVIDENC TO DETERMINE UNDER 104 (a).

ADMISSIONS IN GENERAL

o ANYTHING YOU HAVE SAID, IF A PARTY IN A LAWSUIT, CAN BE USED AGAINST YOU IF RELEVENT, OFFERED BY OPPONENT Even if admission, IT MAY BE FOUND INADMISSIBLE IF VIOLATES CONSTITUTIONAL RIGHTS, PRIV ETCbut if notADMISSIBLE

o ADMISSIONS BY CO CONSPIRATORS

any statements made by persons who is part of crim conspiracy is admissible against any member of that conspiracy AS LONG AS SHOWN A MEMBER OF THE CONSPIRACY: PROVED BY CIRCUMSTANTIAL EVIDENCE

o 5. FORMER TESTIMONY (804 (b)(1))

Most logical place for exception to hearsay In this case, person has had prior opp to cross examine Declarant but now the Declarant is NOT around still need to use former testimony ASSUMING IT IS SAME ISSUE Here, the out of court statement is OUT OF COURT TESTIMONY IN A PREV PROCEEDING

TRAVELERS FIRE INSUR v WRIGHT: Insurance co being sued on fire insurance policy, insurance is claiming that bros burned it down. The DA from OK indicted JB wright (one bro) for burning down a bldg charging w arson. At THIS trial the prosec called a few witnesses. Witness 1, 2 JB was aquiteed. After aquitted he and his bro sue insurance co, insurance is claiming bros burned it down. THE INSURANCE CO SAYS THEY WILL NOT PAY, EVEN THOUGH AQUITTED WE THINK HE STILL DID IT. Travelers wants to call witness 1 and 2 againthey REFUSE TO TESTIFY, NOW HAVE TO ASSUME UNAVAILABLE, SO THEY WANT TO USE TESTIMONY GIVEN BY WITNESSES AT CRIM TRIAL AGAINST ONE BROTHER RULE WHERE PRIOR RECORDED TESTIMONY IS GIVEN IN A CRIM TRIAL, AND NOW SOUGHT TO BE ADMITTED IN A CIVIL TRIAL, COMPLETE IDENTITY OF THE PARTIES IS NOT NECESSARY.

FOR PREVIOUS TESTIMONY, UNDER 804 (b)(1) NEED:

o 1). Unavailability o 2). DID PARTY HAVE OPP TO CROSS EXAMINE? (yes) o 3). SIMILAR MOTIVE (prove roughly same issue) The fact that it was crim first and civil now is NOT relevant WHAT IS RELEVENT WAS THE TESTIMONY GAVE JB THE OPP TO CROSS EXAMINE JC (other bro) SAYS IT ISNT FAIR BC HE DIDNT HAVE OPP FOR CROSS EXAMCOURT SAYS IT DOESNT MATTER BC HE WOULDNT HAVE DONE ANYTHING ANY DIFFERENTLY o Would you have done naything different? o The former testimony was subj to lengthy cross exam,,,IT IS ADMISSIBLE AGAINST BOTH. o May be different under FREWOULD HAVE TO PROVE OTHER PARTY AS PREDECESSOR IN INTEREST Ex: D charged w robbery of victim on stree. In crim law usually have prelim hearing and at hearin victim testifies, Ds there, Victim gets on stand, prosec asks whodefense cross examines, asks few questions etc. Prelim hearings are routine. NOW AT TRIAL at trial victim doesnt show up, cant find. Prosec says cant find victim, can we admit testimony of victim from Prelim Hearing? NO BC THE OBJECTION UNDER 804 (b)(1) WOULD BE THAT DID NOT HAVE SIMILAR MOTIVE TO DEVELOP TESTIMONY o Prelim Hearing = NOT WHERE CROSS EXAMIN, DO NOT HAVE SAME MOTIVE AT PRELIME HEARING AS DO IN TRIAL, NOT FAIR TO INTRO THIS TESTIMONY o ALWAYS ASK DID D HAVE A SIMILAR MOTIVE/OPP TO EXPLORE , QUESTION, PROBE WITNESS TESTIMONY. o SIMILAR MOTIVE: where subj matter, whether or not so similar of testimony at crim trial that it would be used. EX: witness gives testimony at trial 1). Hung jury 2). Witness who gave testimony in 1 is now out of countryprosec says witness is

in S america and I would like to read this testimony. IS THE FACT THAT IN S. AMERICA ENOUGH o As Prosec, have an obligation to call witness etc to ask to come to NYwitness says NO. Need to USE DUE DILLIGENCE TO GET WITNESS..JUDGE UNDER 104 (a) NEEDS TO FIND THAT UNDER RULE 804 DEF OF UNAVAILIBILITY THAT PROSEC COULD NOT GET ATTENDENCE BY PROCESS OR REASONABLE MEANS
o

did you use Spanish speaker interp? NONOT DUE DILLGENCE!

HYPOS PG 274-275 1. DUE DILIGENCE. PROSEC DID NOT USE DUE DILIGENCE BEFORE ARGUING THAT WITNESS WAS UNAVAILABLEdid NOT look at bartenders union, No investigatin. NEED TO DO A LITTLE MORE INVESTIGATINGif investigator talked to several people, guys said he left xntry etc can a judge rely on hearsay statements to find the witness unavail? YES UNDER 104 a 2.Crim trial in NY, witness who testified is now living in cali. Witness wont come voluntarily to NYis he unavailbe? A NY subpoena can be sent to cali (every state has uniform witness production act which means that if want a witness from other state to come to ny, can goto ny judge, show by affidavit that need witness in trial, have judge sign order call MATERIAL WITNESS ORDERthis authorizes prosec to goto cali, locate witness and say come to NY if say no,he can be under arrest. SO THERE ARE WAYS, SO FACT THAT IN CRIM CASE WITNESS IS IN OTHER JDX DOES NOT MAKE DIFFERENCE. IN CRIM CASE FED SUBPOENA CAN ALWAYS GET..NEED TO TO GO THROUGH UNAVAILBILITY VERY CAREFULLY, NEED TO MAKE ENOUGH SHOWING SO JUDGE CAN FIND UNDER 104 (a) THAT WITNESS IS UNAVAILBLE. 3. TRIAL IN CALI, prop lawsuit, now move to NYlawyer wants to use As deposition in Cali, X objects. Prob rather not go back to cali for a 1500 chargethe other side CANT subpoena.. IN THIS CASE X HAD OPP TO CROSS EXAMINE IN DEPOSITION THE DEPOSITION SHOULD BE ADMITTED

4. LAWSUIT BROUGHT BY A against CITY UNAVAILBILITY IS NOT AN ISSUE. The question is whether there is SIMILAR MOTIVE, city had opp to cross examine at first trial. The prosec would have used every method he knew to cross examine B to show lack of credibility of B. NOW IS A vs. CITY, A WANTS TO INTRO BS TESTIMONY.CITY COMPLAINS THEY DID NOT HAVE OPP TO CROSS EXAMINE B SHOULD IT BE SUSTAINED? Was there similar motive to make objection by city? THE CITY WOULD HAVE DONE SAME THING PROB, THE CROSS EXAMINATION BY PROSEC IS EVERYTHING CITY WOULD HAVE DONETHEREFORE CANNOT SAY DID NOT HAVE REAL CHANCE TO SHOW B WAS MISTAKENTHE MOTIVE WAS EXACT SAME. 5. D wants to intro testimony of X from murder case at his drug trialAt drug trial, the Ds theory of defense is that it is Xs (grfriend) D testified she uses drugs. He wants to reinforce his testimony that the drugs belong to X by intro Xs testimony at murder trial. ASSUME X UNAVAILD wants to intro testimony of X at murder trial 1). Is it relevant? YES at drug trial did the prosec have opp and motive to cross examine and probe X? The prosec in this drug trial did NOT have opp. . . but D could say that SINCE PROSEC AT DRUG TRIAL HAD SIMILAR MOTIVE IN MURDER TRIAL, PROSEC IN DRUG TRIAL CANT SAY LACKED MOTIVE AND SO HAVING THIS SIMILAR MOTIVE..BOTH PROSEC WOULD HAVE HAD TRIED TO DISAASSOCIATE X FROM DRUGS.

o 6. DECLARATIONS AGAINST INTEREST 804 (b)(3) *3rd Unavailability Exception

VERY IMPORTANT TO BE ABLE TO TELL DIFFERENCE BETWEEN DECLARATIONS AGAINST INTEREST AND ADMISSIONS ADMISSIONS: ANYTHING YOU SAY CAN BE USED AGAINST YOU IF YOU ARE A PARTY DAI: FOCUSSING SPECIFICALLY ABOUT THINGS THAT ARE AGAINST YOUR INTEREST o ONLY A PARTY MAKES ADMISSIONS o DAI: Anyone Can Make: people ordinarily dont say things against own self interest UNLESS TRUE

IF IT IS A PARTY THAT MAKES THE DAI THEN DONT NEED IT TO BE A DAI, BC IT IS AN ADMISSION DAIS ARE FROM NON PARTIES AND USED AGAINST PARTIES WITH ADMISSIONS, PERSONAL KNOWLEDGE IS NOT A REQUIREMENT, DAI IT IS DAI: IT IS CRITICAL THAT THE DECLARANT HAS TO HAVE PERSONAL KNOWLEDGE OF THE SUBJECT MATTER THEY ARE TALKING ABOUTNEED TO SHOW THEY KNEW IT WAS AGAINST THEIR INTEREST TO SAY WHAT THEY SAID DECLARANT HAS TO BE UNAVAILBLE UNAVAILIBILITY NEEDED IN o FORMER TESTIMONY o DYING DECLARATION o DECLARATIONS AGAINST INTEREST

GM Mckelvey v General Casualty: Employees of P stole money that wa his. They not be found in JDX but had signed written confessions admitting to the amounts taken. P was insured against the losses under the policy. In an action to recover under the policy, P sought to prove the misappropriation and amount taken by means of written confession. RULE: A DECLARATION AGAINST INTEREST BY A NON PARTY TO AN ACTION IS ADMISSIBLE WHERE THE DECLARANT IS EITHER DEAD OR UNAVAILABLE, HAD PECULIAR MEANS OF KNOWING THE FACTS STATED and MADE THE DECLARATION THAT WAS AGAINST HIS PECUNIARY AND PROPRIETARY INTEREST AND HAD NO PROBABLE MOTIVE TO FALSIFY THE FACTS IN FED COURTS, STATEMENTS MADE BY EMPLOYEES CAN BE DAIS Ex: bus driver crash, stumbles out and says I ran the light, I didnt mean to, tell wife I love her and dies. Admissible? LIST EXCEPTIONS o Dying Dec o DAI o EXCITED UTTERANCE

o PRESE SENSE INTERP o ADMISSION NEED TO BE CAREFUL WITH CRIM CASES

o

Ex: 2 Ds charged robbery, one holds kid and one grabs necklace. Both are arrested, indictedseparate trials. One D pleads guiltyat pleas hearing judge says what did you do? I stood there, held person and friend grabbed necklace Charged w robbery in 3rd degree. Prosec now prosecuting D2 and wants to intro plea of D1 and wont testify (unavailable). 1). IS IT RELEVENT (yes) 2). Is the statement against own interest? Yes 3). Would not have made if he didnt believe it to be true? YES IS IT ADMISSIBLE?THE MAIN PROB WITH DAIS IS CRAWFORD v WASHINGTON BC D WOULD NOT HAVE OPP TO CROSS EXAM

o EX: same D as above, testified to gradn jury prosecution. Now unavailable.his testimony is now being used ina subsequent civil proceeding. Is witnesses testimony in grand jury admissible as former testimony in subsequent trial? NO BC NO OPP TO CROSS EXAMINE IN GRAND JURY!! THERE IS IN DEPOSITIONNOT A DAI either if given a deal

US v BARRETT: D appeals conviction of stealing stamps, D argues that a dead guy made statement to Melvin that claimed D was NOT involved. D wants Melvin to be able to testify under 804 (b)(3), claiming they were against dead guys interest. RULE: An out of court statement tending to expose the declarant to criminal liability and offered to exculpate the accused is admissible only if corroborating circs cleary indicate its trustoworthiness DAIs= STATEMENT NEEDS TO BE AGAINST INTEREST OF DECLARANT o NOT AN ADMISSION BY PARTY o DAI = STATEMENTS MADE BY NON PARTY o NEED TO ID RELEVENCE OF STATEMENT TO SOME ISSUE IN CASE

1) Out of Court Statement (hearsay) 2). Against Declarants Interest 3). Connvection btwn statement and case THAT REQUIRES

THIS IS 3rd EXCEPTION UNAVAILIBILITY

DECLARATION AGAINST INTEREST - RULE 804 b (3) o 1). Declarant Unavailble o 2). Statement against declarant very far against crim or civil interest o 3). Knowledge that declaration is against interest
o

4). Corroboration (corroboration clearly indicate*) when crim D offers declaration to exonerate himself.

DECLARANT NEEDS TO KNOW THE DECLARATION WAS AGAINST DECLARANTS INTEREST FOR CRIM Ds, IF D WANTS TO EXONERATE HIMSELF W A DECLARATION, THE RULE REQUIRE CORROBORATION OF THAT STATEMENT o The Corroboration is STATEMENT TENDING TO EXPOSE DECLARANT TO CRIM LIAB AND OFFERED TO EXCULPATE D IS NOT ADMISSIBLE UNLESS CORROBORATING CIRCS ARE OFFERED very strong circs

Ex: in prison, playing ball, frank goes up to sam sam, why are you playing ball im dying well if your gonna die soon, maybe you can go sign affidavit that you did it, I can attach to my petition o THIS IS A DAI against sam,,, FRANK NEEDS SERIOUS CORROBORATION

Ex: killing in NY bar, D arrested, claims he shot other guy when he drew gun to shoot him, self defense. The only prob was no one was able to locate gun near body of dead guy. After shooting a D is arrested for robbery w use of gun and statement to cops he admits the robbery and using a gun and claims he found it on floor of bar. THE SAME BAR. This was extremely relevant in self defense. THE COURT CALLS D TO TESTIFY 1). A claim of privilege is

enough to be unavailable 2). A declaration of crim laib is enough to be against crim interest 3). IS it true? Enough witness corroboration (BARRETT) HYPOS pg 287 1. DECLARANT IS UNAVAIL but the prob is that there is NO KNOWLEDGE THAT THE DECL IS AGAINST HIS INTEREST. The jacket is mine NOT ENOUGH, need to add that there were drugs in the jacket. Corroboration prob as well, NOT ENOUGH TO EXCULPATE 2. IN a situ when know statement made is privilege and cant be used against you, may say something that know isnt true. Here, if you know what you say is priv and can never be used against you, its hard to say you wouldnt make that statement if you didnt know it was true. JUDGE NEEDS TO FIND THIS IS REALLY AGAINS INTEREST OF DEC 3. Admissible, declarant unavavildef laible, wouldnt have made statement unless knew it was true 4. Need to make argument that the statement is against Cs interest. It would subject him to pecuniary liab. Needs to be against some kind of interest against C, is there a crime against him? If there is, it would be clearly be admissible. The question the judge would ask would a reasonable person say hes having an affair unless its true the idea that there may be consequences make it more likely agains interest. 5. The judge sustains prosec objection, excludes Xs statement to A, correct? Xs statement I did the shooting. But X said before that he was gonna make something up. IT MAY BE AGAINST HIS INTEREST, BUT HE SAID HE WAS GONNA LIE. JUDGE WOULD PROBE FIND UNDER 104 a THAT IS NOT A STATEMENT AGAINST Xs INTEREST.

o 7. STATE OF MIND 803 (3) ELEMENTS

1. Then existing state of mind(emotion, sensation, phys condition

2. Future or present Intention (Not statements looking back because memories are sometimes hazy or defective --except as if it relates to a will)

Declaration of PRESENT STATE OF MIND to prove the truth of that state of mind DOES NOT REQUIRE UNAVAILABILITY Adkins v Brett: P sued D charging him w adultery of his wife. At trial evidence of statement of D admittin to have sex w ps wife was introduced as well as evidence of his wifes convos with him claiming that she did not like him anymore and that the other man made her feel good and she would continue the affair. D objected to the admissibility of the statementRULE: STATEMENTS EXPRESSING THE DECLARANTS STATE OF MIND AT THE TIME OF THE UTTERANCES ARE EXCEPTIONS TO THE HEARSAY RULE, NOTWITHSTANDING THAT SOME PORTIONS OF THE STATEMENTS DO NOT DESCRIBE THE STATE OF MIND AND MAY DAMAGE D

If wife said I hate you it shows state of mind and is admissible bc they are her present existing state of mind I love brett also state of mind PROBLEM
o

I LOVE D, we HAD such great times together, he GAVE me jewelry

o NOT ADMISSIBLE UNDER 803 (3) BC THEY ARE USED TO PROVE BACKWARD LOOKING STATEMENTS o BACKWARD LOOKING STATEMETNS ARE NOT PRESENT STATE OF MIND INVOLVES MEMORY, PROBLEM IF PRESENT STATE OF MIND = ADMISSIBLE, IF PAST NO

STATEMENTS THAT GO BACK IN TIME INVOLVE MEMORY OF FACTS TOT PROVE THE FACTS

REMEMBERED AND ARE NOT WI STATE OF MIND EXCEPTION

MUTUAL LIFE v HILLMON: Hillmon was missing and a body that may have been his was buried at crooked creek, his wife(P) filed suti against insurance co(D) to collect payments as benne, D claimed it could not adeuquately be estab that body was Ps and WILL NOT PAY CLAIM, some evidence admitted that Hillmon had gone to crooked creek at same time body was foundD contends WALTERS was the decedent at Crooked creek and TRIED TO INTRO A LETTER WRITTEN TO WALTERS FIANCE BY HIM THAT HE INTEDED TO GOTO CROOKED CREEKRULE: WHERE A PARTYS INTENTION IS A DISTINCT AND MATERIAL FACT IN A CHAIN OF CIRCUMSTANCES, IT MAY BE PROVED BY CONTEMPORANEUOS ORAL OR WRITTEN DECLARATIONS This letter would be relevant bc it shows a good possib that Walters was going there o Ex: I have to give lecture in Chicago and then an issue whether I was there.THE LETTER WOULD BE RELEVENT o IF MAKE STATEMENT AS TO INTENTION TO DO SOMETHING IN FUTURE IT IS RELEVENT o Walter saying IAM GOING TO CRIPPLE CREEK is relevant to prove he did go What if said last month I went Ks city and had a blast? o Is it relevant to prove he was in KS? YES o IT IS NOT A PRESENT STATE OF MIND OR FUTURE INTENTION

Could authenticate letters by comparing handwriting samples with experts and letting the jury deide STATEMENT OF FUTURE INTENTION TO DO SOMETHING IS ADMISSIBLE I was in NY last month o NOT ADMISSIBLE , HAPPENED BACKWARD LOOKINGNOT GOOD IN PAST,

SHEPHARD v US: D charged w poisoning wife, at trial the court allowed testimony of a nurse who claims the wife said dr shep poisoned me after she fetched the decedents bottle of whiskey from Ds room. The nurse claimed decedent insisted the bottle smelled and tasted strange and requested a testRULE: DECLARATIONS OR PRESENT MEMORY LOOKING BACKWARDS TO A PRIOR OCCURRENCE ARE NOT ADMISSIBLE TO PROVE OR TEND TO PROVE THE EXISTENCE OF THE OCCURRENCE The prosec wants to intro Dr POISONED me IT IS HEARSAY NOT GOOD BC IT IS IN THE PAST, POINTING BACK TO THE PAST NOT PRESENT STATE OF MIND, NOT FUTURE INTENTION IT IS BACKWARD LOOKING

US v PHEASTER: D was charged w kidnap ransom conspiracy of a multi millionaires son, one of sons friends testified that he left them on night he disap w intentions of picking up free pot and to meet angelo and he would be right back, other friends testified to those statements and they were admitted under the HILLMON doctrine (allows hearsay statements to be admitted under STATE OF MIND exception to show that an individ intended to perforem a partic act)RULE: The HILLMON DOCTRINE PERMITS THE INTRO OF HEARSAY DECLARATION AS EVIDENCE THAT THE DECLARANT CARRIED OUT HIS INTENTION TO PERFORM THE ACT THEY INDICATE IT WAS HIS INTENTION TO PERFORM, EVEN IF ITS ACCOMPLISHMENT REQUIRES ACTION BY OTHERS

im going to meet angelo in parking lot o Being offered under Hillmon application o THE CRITICAL DIFFERENCE IS W PHEASTER IT IS THE INTENTION TO DO SOMETHING WITH ANOTHER PERSON Hillmon it was only walter

o IN PHEASTER SAID im going to parking lot THATS HILLMON AND ITS FINE

Here too meet angelo IS BEING USED TO PROVE THAT ANGELO WAS IN PARKING LOT TO MEET LARRY Cannot use your state of mind to prove someone elses state of mind or to prove what someone else did

JUDGE WOULD HAVE TO SAY

this statement is from larry to his friends you may use it to prove larry went to meet angelo, NOT that angelo went to meet larry

Ex: guy charged w murder, prosec offers statement saying im gonna spend wknd w frank court admitted as girlfriends future intention and to prove she was w frankCANNOT USE TO PROVE FRANK SPENT WEEKEND W HER.JUDGE NEEDS TO GIVE INSTRUCTIONS CANNOT USE TO PROVE ANGELO INTENDED TO MEET LARRY

possible extra credit exam question: what is Buzzy's phone number o 658-2789

HYPO 298-299,304

1). HEARSAY, ADMISSIBLE UNDER STATE OF MIND, relevant bc

provides motive o b. LOOKING BACKWARDS, but in a NON hearsay sense he is scared of buzzy has a fear and that is relevant bc he wouldnt be playing w guns with him. Would come in under state of mind exception, FEAR, (b). looking backward, showing fear

2).(a).
o

3).buzzy is after me bc I ripped him off is backward looking .. buzzy has me .this statements is VERY prejudicial. The victims fear may not ebe able to come in bc its being used to show what buzzy MAY have done. It isnt suppose to be used to show what someone else did, its suppose to show what you did. THIS STATEMENT PROB CANT COME IN BC VERY PREJUDICIAL.

4. Shows her state of mind, but how is her state of mind relevant to prove he killed her? It may be a state of mind, but is it really relevant.NEED TO WEIGH PREJ OVER RELEVENCE. state of mind can't be used to prove what someone else is thinking

HYPO 304
a. Yes, future intention state of mind b. OUT, third poarty state of mind c. fact that going to angelos apartment is admissible, d.admissible e. admissible, shows declarant intended to go out with angelo. f. admissible. Feester.

o 8. PHYSICAL CONDITION 803 (3)(4) ELEMENTS: STATEMENTS ALLOWED IF MADE FOR PURPOSES OF
1).TREATMENT 2). DIAGNOSIS

The theory behind PHYSICAL CONDITION and STATEMENTS FOR MED DIAGNOSIS AND TREATMENTS is you are NOT going to lie to your DR about your ailments bc you want the right help STATEMENTS FOR PURPOSES OF TREATMENT ARE ADMISSIBLE A little bit of STATE OF MIND overlap here bc of statements of PRESENT PHYSICAL CONDITION

THIS IS NOT LIMITED TO STATEMENTS MADE FOR PURPOSES OF MEDICAL TREATMENT.ALSO COVERS STATEMENTS FOR PURPOSE OF DIAGNOSIS Ex: purposes of getting ready for trial, issue of med malpractice decide to goto most prominent exper in world and and talk about how he diagnosed your probmakes diagnosis of past treatment and decideds it was terrible. DRAFTERS OF RULE SAY IT DOESNT MATTER IF SEEMS A LITTLE MANUFACTURED

THE STATEMENTS ARE ALLOWED IF THEY ARE MADE FOR PURPOSES OF TREATMENT AND DIAGNOSIS (in ny only treatment) CAVEAT: INSOFAR AS REASONABLY PERTINENT TO DIAGNOSIS AND TREATMENT

ex: doc, my back is killing me, it has been for weeks, I slipped and fell on banana peel o o o SLIPPING AND FALLING = YES ADMISSIBLE BANANA PEEL? ,maybe Banana peel in room 202 at PACE LAW (no dont need that much)

NEED TO FIGURE THE FACTS DR NEEDS TO KNOW IN ORDER TO GIVE GOOD DIAGNOSIS AND TREATMENT o Ex: I was hit by car crossing street (OK) a green chevy (NO NOT OK)

DOES NOT NEED TO BE GIVEN TO DR, JUST FOR PURPOSES OF TREATMENTCOULD BE MADE TO AN INTERMIEDIARY, AS LONG AS THEY ARE MADE FOR PURPOSES OF TREATMENT OR DIAGNOSIS THE STATEMENTS CAN BE MADE TO EMT, NURSE, AMBULANCE, NOT JUST DR INDIVID DOES NOT HAVE TO MAKE THE STATEMENTS IF HE IS YOUNGER CHILD, ELDERLY etcAS LONG AS STATEMENTS ARE MADE FOR PURPOSES OF TREATMENT PRESENT OR PAST SYMPTOMS ARE OK STATEMENTS OF PRESENT EXISTING PAIN ARE ADMISSIBLE UNDER STATE OF MIND AND MEDICAL DIAGNOSIS o o Ex: sit down and get up and say oh my back is killing me ADMISSIBLE UNDER PRESENT STATE OF MIND Ex: My back is killing me, and has been since that bus hit me. NOT ADMISSIBLE UNDER PRESENT STATE OF MIND BC BACKWARD LOOKING, could make to a drbut not just to anyone Ex: Childs mom talking to shrink bout sex abuse and Dr asks who did it and child said stepdad want to into statements from kid. UNDER FRE THE statement is admissiblKNOWING

WHO THE PERSON IS IS VERY PERTINENT TO TREATMENT ALWAYS ASK o o 1). ARE THESE STATEMENTS REASONABLY PERTINENT TO THE DIAGNOSIS OF TREATMENT JUDGE NEEDS TO USE 403 VERY CAREFULLY

Statement made by juvenille implicating a parent is admissible because it is reasonably pertinent to the diagnosis -HYPOS 310-311

1).Objection overruled, testimony admissible, IT IS RELEVENT ON THE ISSUE OF DAMAGES. IT IS HEARSAY BUT IT IS PRESENT STATE OF MIND EXCEPTION 2). OBJECTION SUSTAINEDbc they are NOT forward looking they are a backward looking statement and exception for state of mind EXCLUDES backward looking statements. 3). RELEVENT bc could show defense of accident. Would fit under State of Mind.but is self serving and suspicious. What if made Crying and screaming it would be an excited utterance. 4). It is relevant testimony bc she would not be there if she was afraid of guns.IT DOES GOTO HER PRESENT STATE OF MIND ADMISSIBLE. 5). The statements are relevant, it helps Xs defense bc it shows that it was more likely an accident that a cover up. HILLMON USE = FUTURE USE AND FUTURE INTENTIONHILLMON =FUTURE LOOKING AND FUTURE LOOKING IS FINE,, BACKWARD LOOKING NO GOOD. 6). RELEVENCE(break into 2 statements)MOTIVE, shows a motive for Sarah to kill him.IS it admissible? YES IT IS A STATE OF MIND LOOKING INTO FUTURE AND IT IS RELEVENT TO PROVE SARAHS MOTIVE. I might get killed over it CANT USE ONE PERSONS STATE OF MIND TO PROVE ANOTHER PERSONS STATE OF MIND, jury would need to be told how to confine the use of the statement.THIS IS A PRESENT STATE OF MIND, IS IT RELEVENT YES, it would show he is afraid of SARAH and if he is afraid of SARAH he prob would not be the first aggressor, and if he is not the aggressor it is possible that sarahs defense is bs. (judge should give limited instructions on this)

 HYPOS 314 A). NOTES IN NORRIS 4/20, under 803 (3) YES, UNDER 803 (4) NO, bc not a dr b). Under 803(4) Yes, bc deals with past symptons C). ADMISSIBLE UNDER 803 (4) D). Dropped by astocker NOT admissible.SLIPPED AND FELL Reasonably pertinent and admissible 2). ALL ADMISSIBLE Under 803 (4). Bc co

o 9.PRIOR IDENTIFICATION

3 TYPES OF STATEMENTS IN 801 (d)(1) ARE ALL ADMISSIBLE (NON PARTY STATEMENTS)

A). Prior Inconsistent Statements: always admissible to impeach, BUT IF MADE UNDER OATH IT IS AUTO ADMISSIBLE FOR ITS TRUTH AND NOT JUST PURPOSES OF IMPEACHMENT B). PRIOR CONSISTENT STATEMENTS: admissible if used to
rebut a claimed recent fabrication

C). PRIOR IDENTIFICATION FOUNDATION: o One thing all 3 of these have in common IS THAT THE WITNESS IS AVAILABLE AND SUBJECT TO CROSS EXAMINATION (THE WITNESS MUST BE ON WITNESS STAND AND SUBJ TO CROSS EXAMINATION)

PRIOR IDENTIFICATION Promintent in trials bc witnesses make mistakes ID PROCEDURES HAVE TO BE FAIR AND FAIRNESS IS PROTECTED BY DUE PROCESSIT IS THE CONSTITUTIONAL PROTECTION A D HAS FROM FAULTY ID PRIOR ID MAKDE ONE WEEK AFTER A CRIM MAYBE MORE RELIABLE THAN 2 YEARS

 US v OWENS: Prison guard severely beaten and while in hospital, idd

the D as his attacker. He later could NOT remember who his attacker was and could not explain why he chose D at hospital. D was convicted RULE: A WITNESS MAY TESTIFY IN A CRIM TRIAL ABOUT AN EARLIER ID EVEN IF HE CAN NO LONGER TESTIFY AS TO THE BASIS FOR THAT ID Ex: Mr. V, do you see person who attacked you in court? o He cant make ID, doesnt really remember what happened, who did it, etc Lack of memory also important when dealing with unavail of a witness o UNVAILABILITY MAY BE DEFINED AS FAILURE TO REMEMBER WITNESS NEEDS TO BE ON STAND HERE FBI AGENT IS ALOWED TO TESTIFY TO PRIOR ID OF D THOUGH VICTIM DOES NOT KNOW ANYTHING ABOUT IT

HYPO 326
1). THIS WOULD BE ALLOWED BC STILL AVAILABLE FOR CROSS EXAMINATION, What if officer continues invest, takes victim to place in hood where robbed and victim says thats the car he got out of when he robbed me NG bc he is not Iding a person. Assume the detailed (scars etc)description by victim is NOT admissible by 801 (d) (1), how can you get it admitted? The witness is being cross examined and challenged, maybe to show KNOWLEDGE like in KINDER. 2).TOP IS RIGHt. WHAT IF WITNESS IS TOO SICK TO TESTIFY.CAN COP GIVE ? NO BC THE WITNESS NEEDS TO BE ON STAND AND SUBJ TO CROSS EXAMINATION.

o 10. PAST RECOLLECTION RECORDED o Foundation (Lack of present memory) 1) Personal knowledge of the facts 2) Made or adopted while fresh in the mind 3) Statement is accurate

 *** NOT THE WAY WE COVERED IT IN

CLASS****ELEEMENTS: 1). RECORD OF STATEMENT WITNES MADE OR ADOPTED 2). FRESH IN WITNESSES MEMORY WHEN MADE 3). THE WITNESS DOES NOT REMEMBER THE EVENT 4). THE WITNESS HAS TO SWEAR THAT IT ACCURATELY AND TRUTHFULLY REFLECTS THE FACTS ***********************************************

Need to assume no matter how much try to refresh memory of witness, she still cant remember What if have record of CONTEMPORANEOUS STATEMENT OF THE WITNESS THAT WITNESS EITHER MADE OR ADOPTED (ex: cop looks at statement and signs it) o HAS TO BE A STATEMENT THAT IS MADE NOT AT IMMEDIATELY TIME OF EVENT, NOT IMMEDIATELY AFTER THESE ARE RECORDS OF MEMORIALIZED STATEMENTS WHICH WERE MADE WHEN THE MATTER WAS FRESH IN THE WITNESSES MAEMORY WITNESS NEEDS TO SWEAR THAT THE RECORD ACCURATELY AND TRUTHFULLY REPS THE FACTS

Letting record come into evidence for the truth of the record, Made when fresh in memor, witness can swear its accurate and truthful and witness does Not remember If all this is established they can come into evidence

CAVEAT: IT MAY BE READ INTO EVIDENCE, BUT IT CANT BE RECEIVED AS AN EXHIBIT Jury cant take into jury room with them.UNLESS OFFERED BY ADVERS PARTY

BAKER v STATE: D convicted of robbery and murder, she argued that the tc erred in refusing the opp to refresh the present recollection of a cop who was

testifying by showing him a report written by a fellow officer. In cross examining the cop, D counsel sought to elicit from him the fact that the victim confronted D and stated she was NOT one fo the peoples who had attacked him . The cop stated he did Not remember who it was the victim had confronted and D sought have him look at a police report prepared by another cop to refresh his memoryRULE: A MEMO MADE BY ANOTHER MAY BE USED TO REFRESH A WINTESSES RECOLLECTION OF AN EVENT IF IT DOES NOT MEET STATNDARDS APPLICABLE TO A RECORD OF PAST RECOLLECTION.

Anything may be used to refresh a WITNESSES RECOLLECTION OF AN EVENT, EVEN A MEMO AND IT DOESNT HAVE TO MEET STANDARDS APPLICABLE TO PAST RECOLLECTION NO LIMIT AS TO WHAT CAN BE USED TO REFRESH WITNESSES MEMORY OF AN EVENT The stimulus is NOT itself released into evidence, so shouldnt be confused with documents admitted into evidence as embodiments of past recollection recorded and is NOT subj to same stringent rules Stimulant JUST NEEDS TO IGNITE THE FLASH OF ACCURATE RECALL HERE THE LAWYER WAS NOT TRYING TO ENTER THE DOCUMENT, HE WAS JUST TRYING TO REFRESH WITNESSES MEMORY o CAN USE ANYTHING TO REFRESH

HYPO 337:

1). We are going to have to call two witnesses here; the person who saw
the license plate to lay the foundation and the police officer who has the report. The police officer wrote down a record of the witnesss statement. She made the statement only ten minutes, so this was fresh in her memory. She doesnt remember the license plate number now. She swears to its accuracy. It seems to meet the elements here but whats missing? She didnt make the record herself, the police officer did and it does not seem like she adopted the police officers written record. The first element is not filled. However, this might be admissible under the present sense impression exception. Ten minutes might not be immediately thereafter, however.

o 11. FOREFEITURE BY WRONGDOING

Needs: Procuring the absence of a witness [Unvailaibility] Designed or intended to prevent the person from testifying

REQUIRES WITNESS UNAVAILABILITY THE THEORY FOR PRODUCING THE PRIOR STATEMENTS IS THAT THE OTHER PARTY MADE THE WITNESS UNAVAILABLE
GILES v CALI: D shot and killed his girl and testified he acted in self

defense after she came to house and threatened to kill himprosec wanted to offer police reports of girlfriend who called to report domestic violence dispute 3 weeks before the shooting where he choked her, threatened to kill her and punched her. RULE: When offering hearsay statements by an
unavailable declarant under the forfeiture by wrongdoing doctrine, the state must establish not only that the defendant caused the absence of the declarant, but that he acted with the specific intent of keeping the witness from testifying. In order to prove this INTENT, at least five justices agreed that evidence of a history of domestic violence - - the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process, - - meets this intent requirement

o 12. BUSINESS RECORDS AND OFFICIAL RECORDS 803 (6)

DOES NOT REQUIRE UNAVAILIBILITY Difference between BUSINESSS AND OFFICIAL RECORDS? OFFICIAL RECORDS ARE GENERALL PUBLIC RECORDS, business are business Ex: NYPD , records are official, but they are ALSO BUSINESS BC MADE IN COURSE OF EVERYDAY BUSINESS NOT A CRIM CASe, SO NO CONFRONTATION CLASUE PROB BIG UNLESS CAVEAT IN 803 (6) IS UNLESS THE SOURCE OF INFO OR METHOD OR CIRCS OF PREPARATION INDICATE A LACK OF UNTRUSTWORTHINESS Business records have special place as exception, THE KEY TO BUSINESS RECORDS IS THERE NEEDS TO BE THAT REGULATORY MAKING OF MAINTAINING RECORDS TO BE INVOKED JUDGE HAS BROAD DISCRETION UNDER 105 TO DETERMINE IF RELIABLE

**FOUNDATION QUESTIONS** Maintained in the regular course of the business? Common practice in business to keep these records? Made at or near the time of the events? BUSINESS RECORDS ARE RELIABLE IF 1). DUTY ON PART OF SOURCE PERSON (employee, hosp etc) 2). IF THAT SOUCE IS IN A WAY SHOWS AN INDEP EXCEPTION TO HEARSAY RULE, REFLECTS HEARSAY EXCEPTION o Ex: excited utterance OFFICIAL RECORDS, 3 DIFFERENT WAYS ADMISSIBLE 1). Activs of pub agency, reg conducted activs, even if happens once in lifetime, if active agency does that finds its way into pub records THAT ACTIVE IS ADMISSION 2). MATTERS OBSERVED BY PUB AGENCY .EXCEPT LAW ENFORCEMENT agency translating key law enforcement observations into the record and making ti accessible 3). INVESTIGATIONS AND REPORTS BY AGENCIES o In crim case, D can use investigation against govt, govt cant use against D IF TRYING TO SHOW A CRIT FACT THAT WOULD ORDINARILY BE IN BUSINESS OR OFFICIAL RECORD AND ITS NOT THERE, TRYING TO SHOW THERES A RELEVENCE TO YOUR CASE THAT THE RECORDS OMIT THE FACTTHE OMMISIONS IS ADMISSIBLECAN ADMIT RECORDS AND SAY IT WOULD ORDIN CONTAIN THAT FACT AND IT DOESNT NOW ABSENCE OF FACTS IN RECORD IS ADMISSIBLE JOHNSON v LUTZ: P killed in traffic accident with D (lutz) in order to prove he was not at fault, D attempted to have an accident report admitted into evidence. The report was made by cop on duty and included statement of witnesses to the accident. A statute in effect provided that records kept in normal course of business were admissible wo firsthand knowledge of the RECORDER...RULE: a statute that allows admission into evidence of business records that are kept in the reg course of business, even wo firsthand knowledge of the record by the recorder, an entry in that business record that includes hearsay statements of third parties NOT engaged in the business related to the record is inadmissible. Today this would be covered by FRE 803 (6) D wanted to use police report as a business record. Bystander told cops what happened and officer put it in report.

SHOULD NOTBE INTRODUCED UNDER THE BUSINESS RECORD RULE (which allos admission of records reg made in course of businessBC WAS NOT MADE TO ALLOW INTRO OF HEARSAY Here the entry was NOT made in reg course of business and the cop was NOT present at time of accident If cop saw accident or had only reported his direct observations it would be fine o If cop saw accidenet or reported his direct observations, it would have been fine THIS IS TOTEM POLE HEARSAY o Hearsay (bystander) upon hearsay (written report) The officer only recorded hearsay statement of those present when the accident ocured, does NOT state whether those people saw the accident or how they knew the info NEED BASIS FOR BYSTANDER HEARSAY STATEMNT THE INFORMATION IS ONLY ADMISSIBLE IF THE PERSON HAD A DUTY TO REPORT THE INFO ACCURATELY o THE EYEWITNESS IN THIS CASE DID NOT HAVE THAT DUTY.

Over a period of several years, Duncan D and wife and friends staged fake car crashed injuries to defrau insurance co. They tried to prevent on grounds of hearsay, the admission of insurance record based on hospital. The insurance co wanted to enter records RULE: BUSINESS RECORDS OTHERWISE ADMISSIBLE UNDER AN EXCEPTION TO THE HEARSAY RULE ARE NOT PRECLUDED FROM ADMISSION MERELY BC THEY ARE BASED ON OTHER BUSINESS RECORDS OR THE NONHEARSAY STATEMTN OF AGENTS ON MATTERS WITHIN THE SCOPE OF THEIR AGENCY Although insurance co records contained info they didnt produce, they rcvd the info from other businesses (hospitals etc) Since reors from other businesses were business records themselves there is NO ACCUMULATION OF HEARSAY and the entire package is admissible under 803 (6) Also, since patients routinely authorize hospitals to release their medical info to insurance cos, the hospitals could be considered to be making an admission while acting as an agent of the patient THIS ALLOWED THE COURT TO GET AROUND 805 HEARSAY WITHIN HEARSAY o If a statment falls under another hearsay exeption, it may be admissible under the business record exception. (See hypo C following this) o BUSINESS RULE REQUIREMENTS 1) DUTY TO REPORT; and/or 2)FALLS UNDER ANOTHER HEARSAY EXCEPTION

US v DUNCAN:

HYPOS 344-345

I was standing at my beat and saw the red Chevrolet [which we now know to be the defendants car] go through the red light and strike the green Ford [which other testimony shows to be the plaintiffs car].

Answer: Admissible under FRE 803(6)- business record

Gersh: this is a perfect place for the business duty exception. These records are kept in the regular course of business and the officer has a duty to make truthful reports. I arrived at one thirty [which other evidence indicates was twenty minutes after the accident] and noticed a skid mark, which I measured at 93 feet leading directly to the rear wheels of the Chevrolet. Answer: Admissible under 803(6) o Measure at or near time from when saw skid marks to making of report, so this is close in time, & personal knowledge 803(6) applies o Gersh: Falls perfectly into the business record exception, just as (a). Other ways you could get this in: refresh his memory, present sense impression, or recorded recollection C).I arrived within five seconds of the impact and heard a bystander scream, Did you see that crazy red car go through the red light?

One position you can take:

o DOUBLE HEARSAY, yet Admissible Can argue its admissible under 803(6), 803(1) and 803(2) T he report would be admissible as a business record Bystanders statements would be admissible under present sense impressions or excited utterances The bystanders statement is a good example of a question that is intended to make an assertion.

o Another position:

o Another position:
Can argue that its Inadmissible under only 803(6), but can be an excited utterance, if could prove that they were still under the stress of the excite Question also suggests that the statement was

not intended to make an assertion. Thus, combine 803(6), duty to make the report w/ present sense impression/excited utterance.

Question (c) Notes

1. First thing to note is that the bystander is the source of the information, AND the bystander has NO DUTY to provide information to the police department 2. What else can it be? Ans: excited utterance or present sense impression 3. Rule 805 hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules
I arrived a few minutes after the accident and asked the driver in the red Chevrolet what happened. He stated that he had fallen asleep at the wheel and did not rightly know. Answer: Admissible under 803(6) and 801(d)(2)(A) biz record and admissions of party opponent Gershman: This is an admission by a party-opponent and therefore automatically admissible I arrived a few minutes after the accident and Officer Jones approached me and said that he had seen the accident and that the red Chevrolet had gone through the red light and hit the green Ford. Answer: Admissible under 803(6) and 801(d)(2)(A) Business record exception applies b/c both are subject to same duty, so its admissible under 803(6) because both officers within the organization Gershman: The first officer ALSO has a duty to be truthful I arrived a few minutes after the accident and Officer Jones told me that she had gotten there just before I did and asked the Chevrolet driver what had happened and that he had said, I fell asleep at the wheel and I dont rightly know. Answer: All three are likely hearsay, BUT:

Admissible under 803(6) (business records) because both officers are within the organization Admissible under Rule 801(d)(2)(A)admission of a party opponent Both police officers made the statements w/in the organization, and the business record is a record of an admission of a party opponent.
Gershman: This is triple hearsay. But using 805, are each of these hearsay statements admissible? YES! See Justys analysis. I arrived twenty-five minutes after the accident and I asked a bystander what had happened. He said that he had seen it all and the red Chevrolet was going too fast and couldnt stop for the red light and went right through the red light and hit the green Ford.

nswer: Inadmissible (Johnson v. Lutz) as hearsay on hearsay (805). 1.) The bystanders statement is not w/in any exception. The bystander was not under any duty to report what happened, and 25 minutes is too long for a present sense impression. b. Gershman: Another approach? c. Admissible under 803(6) and 801(d)(2) (A)??

HYPO 347 Here we are dealing with business records, newspapers keep and sell business records. This may be problematic however bc no mater how reputable the paper, it may not be trustworthy. RULE 803 (8) RULE FOR PUB RECORDS (records by pub offices and agencies)

Admissible on theory that pub office or agency has an interest in maintaining accurate reliable records Activities: includes personal records, payroll documents Reports regarding business Matters observed (excluding matters observed by cops wi a crim case) Govt agency investigation, results of investigations are admissible but there is a cavea, the judge is going to have to determine trustoworthiness. PUB RECORDS EXCEPTION GOES BEYOND BUSINESS REC EXCEPTION o BUSINESS REC NEEDS CUSTODIAN (duty) PUB RECORD ONLY NEEDS CERTIFIACTION (person does not owe aduty) US v GRADY: D tried in NY for trading firearms in NY and sending to IRELAND. The TC wants to show records from police in Ireland showing false entries of 10 . 30 caliber riflesRULE: RULE 803 (8)(b) EXCLUDES FORM CONSIDERATION AS A PUBLIC RECORD ONLY THOSE COPS REPORTS WHICH CONTAIN THEIR CONTEMPORANEOUS OBSERVATIONS OF A CRIME MASS v MELENDEZ: in lab, found test stuff was drugs, offers it as proof to prove the substance sold was NARCOTICSthe cop who dusted house found prints that matched, now have police report saying it matches D. SCIENTIFIC REPORTS ARE EXEMPT FROM CRAWFORD o TESTIMONIAL, NEED TO GET WITNESS ON STAND o NEED TO AT LEAST CALL SOMEONE IN LAB WHO HAD SUPERVISION RESPOSNSIBILTIY HYPO 375

o Subdivisions of Public Record 803(8) A: Activities of agency B: Observations --- Duty by law to report excludes: matters observed by police officers in criminal cases (violates confrontation clause) C: 1. Factual findings in civil cases 2. Criminal cases by defendant against government

o 13 RESIDUAL EXCEPTION (807)

Residual can cover anything that is OUT OF COURT, OFFERED FOR TRUTH and does NOT fit any exception

How? How? Example. Natl moot court prob : D on trial for murder, testimony evidence
that it was murder for hire, 20 gs in envelope, transfer was observed by secretary. The secretary testifies in grand jury and testifies to what was said. Guy is indicted and on trial. On trial, secretary meets tragic death. No showing he had anything to do with death. Prosecution wants to intro her grand jury testimony identifying D giving him 20 grand to kill. IS IT ADMISSIBLE?

ELEMENTS OF RESIDUAL EXCEPTION a). Material fact b) More probative than other evidence you have c) interest of justice will be served

 Is an out of court statement, is hearsay etc. Cant use former testimony bc NO CHANCE FOR CROSS EXAM IT IS CRITICAL THOUGH AND FAR MORE PROBATIVE THAN ANY OTHERSO HOW CAN THEY INTRO HER GRAND JURY TESTIMONY? ONLY WAY TO ADMIT IT IS RESIDUAL EXCEPTION OF HEARSAY RULE

CASE USED IT: Clocktower In Alabama, one night in a storm the tower collapses onto court house below. No one in court at timethe municipalitie sues insurance co. for liability insurance for damage to structure. Large recoverythe policy allows for recovery for damage caused by lightning. The theory is lightining struck and caused damage. The insurance co investigates and go down into bottom of bldg and notice that there is charred timber at basethey do some testing and find that it goes back many years and concluded that the structure of the tower is weaklooks like fire from long agocausing structure to be weak. There is a clause that limits recovery form structural damage. Insurance co. gets paralegal or lawyer to go into archives of county and find a tribune of 85 yrs ago that says FIRE GUTS CLOCKTOWERIS IT ADMISSIBLE The interest of justice would be served by entering as a statement Court admitted, Appellate court affirmed

TURFEYBILL v INTL HARVESTER: p severely burnt went putting oil in car buying. A man that worked there went into office and wrote everything down..they want to admit it. RULE. A HEARSAY STATEMENT NOT SPECIFICALLY COVERED BY AN EXCEPTION CAN BE ADMITTED IF 1). IT WAS MADE UNDER EQUIVELANT GUARANTEES OF TRUSTWORTHINESS 2). OFFERED TO PROVE A MATERIAL FACT 3). IS MORE PROBATIVE THAN OTHER RSNBLY OBTAINED EVIDENCE and 4). THE GEN PURPOSE OF THE HEARSAY EXCEPTION AND THE INTEREST OF JUSTICE WILL BE SERVED BY ITS ADMISSION INTO EVIDENCE.

B - Business records and Public Records 803 6 & 8

R - Recorded recollection 803 (5) I - Interest 804 b 3 E - Excited Utterance - 803(c) F - Former Testimny - 804 (b) (1) C - Contemporaneous Utterance - 803 (i) A - Admissions - 801(d) (2) S - State of Mind - 803 (3) E - Eyewitness - 801 d 1 c D - Dying Declaration - 804 b 2 A - Absence (Forfeiture by wrongdoing) - 804 b 2 D - Doctor - Diagnosis and Treatment - 803 (4)