Evidence Outline

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EVIDENCE OUTLINE INTRODUCTION I. Evidence Introduction, Terminology, FRE 101 & 102 a. Evidence (defined): all the means by which any alleged matter of fact, the truth of which is submitted to investigation at judicial trial, is established or disproved. Evidence includes the testimony of witnesses, introduction of records, documents, exhibits, objects or any other probative matter offered for the purpose of inducing belief in the partys contention by the factfinder. b. Evidence law is about the limits we place on the information juries hear. The Rules are like a filter. An item of evidence is something that you to pass through the filer so it can be presented to the court or trier of fact. The great bulk of evidence law focuses on either the relevance or the reliability of the information going to the jury. i. Rules of relevance attempt to focus the parties and the jury on the issues at hand. They guard against digression and distraction. ii. Rules of reliability attempt to ensure that the evidence the jury hears is as good as it purports to be or at least that its defects are apparent to the jury. c. Background information on the Federal Rules of Evidence: The Rules were enacted by Congress in 1975, and they are largely the product of centuries of common law contrivance and compromise. 42 states and Puerto Rico have adopted the Federal Rules in whole or in great part. Even those states that have adopted distinct evidence codes or have not codified their evidence law adhere to similar evidence principles. Underlying almost all American evidence law is the common law tradition, and the Federal Rules borrow heavily from that tradition. d. Important Terminology: i. Law the reasonable expectation of what a court will do the result. Thus, the law is not necessarily as flexible as some would want you to believe. ii. Fact something that actually happened. iii. True Facts what can be established, what can actually be proved. (Main Focus in Evidence). iv. Proponent of evidence person presenting/offering the evidence, the one trying to move the evidence into the case. e. FRE 1101. Applicability of Rules i. 1101(a) Courts and judges FRE apply to all federal courts, etc. ii. 1101(b) Proceedings generally FRE apply generally to civil & criminal actions, admiralty and maritime cases, and to cases under title 11 of the U.S.C. iii. 1101(c) Rule of privilege Privilege rules apply at all stages of all actions, cases, and proceedings. iv. 1101(d) Rules inapplicable FRE (other than w/ respect to privileges) do not apply to 1) preliminary questions of fact; 2) grand jury proceedings; 3) miscellaneous proceedings (extradition or rendition, preliminary examinations in criminal cases, sentencing, issuance of warrants for arrest, criminal summonses, search warrants, bail hearings. f. FRE 101. Scope i. 101 FRE govern proceedings in the US courts, bankruptcy courts, and US magistrate judges, to the extent and with the exceptions stated in rule 1101. g. FRE 102. Purpose and Construction i. 102 FRE shall be construed to 1) secure fairness, 2) eliminate of unjustifiable expense and delay, 3) promote growth and development of the law of evidence so that truth may be ascertained and proceedings justly determined. RELEVANCE (Article IV. Relevancy And Its Limits) I. Probativeness and Materiality a. FRE 401. Definition of Relevant Evidence
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i. 401 Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 1. 2 Parts in determining relevancy: a. Materiality Is the evidence material? Is it a fact of consequence? i. Evidence must be material that is, it must bear on a fact that is of consequence to the determination of the action. ii. Essential underpinning of the issue thus, necessary evidence. iii. Deals with something that is of consequence to the fact situation. iv. The substantive law tells us whether evidence is material NOT FRE. v. Materiality is binary it is either material or it is not it is either a fact of consequence of it is not. b. Probativeness Is the evidence probative? (more or less probable) i. Any tendency of the evidence to make the existence of the fact more or less probable. (Not every piece of evidence (statement, exhibit, etc.) has to hit a home run.) Thus, probativeness is not a high bar. 1. An item of evidence does not need to prove anything, it just has to show a tendency of something (fact of consequence) being more or less likely. ii. You know it when you see it iii. More or less probable means logical relevance iv. An item of evidence can be in b/t when dealing with probativeness. Thus, it can be highly or slightly probative. But, relevance as a whole is cut and dry it is either relevant or it is not. b. FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible i. 402 All relevant evidence is admissible, except as otherwise provided by the Constitution, Congress, FRE, or other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible. 1. Irrelevant evidence is inadmissible. c. United States v. James (Victim told girlfriend about past murder; victim punched his girlfriends daughter; girlfriend
gave daughter gun and daughter shot victim; girlfriend claimed she gave gun to daughter b/c of victims past; issue whether victims arrest record was relevant b/c girlfriend never saw it? Yes it made the fact that victim told girlfriend about past crimes more probable b/c people are more likely to boast about something that actually happens)
II.
i. Rule: Evidence that directly corroborates a witnesss testimony and credibility is admissible, even if the evidence relates to facts not known to the witness. Conditional Relevance a. FRE 104. Preliminary Questions i. 104(a) Questions of admissibility generally Preliminary questions concerting 1) the qualification of a person to be a witness, 2) the existence of a privilege, or 3) the admissibility of evidence shall be determined by the court, subject to subdivision (b). Except for privilege rules, the Court is not bound by the FRE in making its determination. 1. Standard judge uses a preponderance of the evidence standard. ii. 104(b) Relevancy conditioned on fact When relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shall admit the conditional evidence when evidence is introduced fulfilling the condition. 1. Standard Huddleston standard the reasonable jury rule could a reasonable juror find the existence of the facts that the conditionally relevant evidence depends on (this is a slightly lower standard than that of 104(a).) iii. 104(c) Hearing of jury Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearing on other preliminary matters shall be
conducted w/out the jury present when justice requires or when an accused is a witness and requests this. iv. 104(d) Testimony by accused The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues. (Accused does subject himself to cross-examination as to issues by his own testimony upon a preliminary matter before the jury.) b. Cox v. State (L was killed by gunshot; Cox was convicted of murder on theory that he killed L as an act of retaliation b/c
H, a close friend of Cox, was in prison due to L; Cox objected to testimony by P who testified 4 days before the murder at a hearing for H. At Coxs trial, P testified that H bond was not reduced and that multiple charges were being filed against H; Cox argued testimony was inadmissible b/c it was only relevant if Cox knew what had happened at Hs hearing; trial ct admitted evidence, concluding that b/c Hs mother knew denial of Hs bond, other persons in Hs circle reasonably knew including Cox.)
III.
i. Under 104(b), the Court may admit evidence only after it makes a preliminary determination that there is sufficient evidence to support a finding that the conditional fact exists. 1. Legal Standard for sufficiency of evidence under 104(b): The judge must determine only that a reasonable jury could make the requisite factual determination based on the evidence before it. ii. Rule: Evidence that is relevant only if another fact is proven will be admitted if the court concludes that a reasonable jury could make the required finding of fact based on the evidence before it. 1. See also Huddleston v. US: Rule 104(b) requires that the proponent introduce sufficient evidence that the jury could reasonably find the conditional factby a preponderance of the evidence. Unduly Prejudicial a. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time i. 403 Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of 1) unfair prejudice, 2) confusion of the issues, 3) misleading the jury, or 4) by considerations of a) undue delay, b) waste of time, or c) needless presentation of cumulative evidence. b. Rule 403 - Phrase by phrase i. Although relevant, Rule 403 permits exclusion of otherwise relevant evidence. ii. evidence may be excluded Decisions whether to exclude evidence under 403 are committed to the trial judges discretion and are reviewable on appeal only for abuse of discretion. iii. if probative value is substantially outweighed by 403 is a liberal evidence rule, thus if the evils of a particular piece of evidence exactly offset (or only slightly outweigh) the probative value of the evidence, 403 grants the trial judge no discretion to exclude iv. the danger of unfair prejudice Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under 403. v. [the danger of] confusion of the issues, or misleading the jury Distracting the jury from the task at hand may also supply grounds for excluding evidence under 403. vi. or by considerations of 1) undue delay, 2) waste of time, or 3) needless presentation of cumulative evidence. Even sheer time waste may justify exclusion. c. Inflammatory Evidence i. State v. Bocharski (at Ds trial photos were presented that were gruesome, etc.) 1. Holding: Relevant photos may be received in evidence even though they also have a tendency to prejudice the jury against the person who committed the offense, but if a photo is of a nature to incite passion or inflame the jury, the court must determine
whether the danger of unfair prejudice substantially outweighs the exhibits probative value. 2. Rule: If D does not contest a fact that is of consequence, then a relevant piece of evidence may have little probative value, but the unfair prejudicial effect can be significant. 3. Rule: Relevant evidence should not be admitted if the only effect of the evidence would be to inflame the jury. ii. United States v. James (Part II) 1. Rule: Evidence that is unfairly prejudicial to either party should be excluded; unfair prejudice is not limited to Ds claims 2. Unfair prejudice means an undue tendency to move the court to decide on an improper basis, commonly, though not always, an emotional one. d. Evidence of Flight i. United States v. Myers (D fled after FBI agents tried to apprehend) 1. Rule: Evidence of flight is admissible to show consciousness of guilt only if the evidence is sufficient to support inferences 1) from Ds behavior to Ds flight, 2) from flight to consciousness of guilt, 3) from consciousness of guilt to consciousness of guilt of the crime charged, and 4) from consciousness of guilt of the crime charged to actual guilt. Flight evidence has only marginal probative value as evidence of guilt or innocence, so all 4 inferences must be supported before it may be admitted. e. Probability Evidence i. People v. Collins (Prosecutor introduced mathematical evidence that corresponded w/ Vs description of a
black man w/ beard in a yellow car that purported to show the probability that a couple matching the description of D and his wife committed a robbery.)
1. Rule: Statistical evidence will not be admitted unless it has a foundation in evidence and statistical theory, and it must not distract the jury from its duty to weigh the evidence on the issue of guilt. Thus, mathematical odds are not admissible as evidence to identify a D in a criminal proceeding so long as the odds are based on estimates, the validity of which have not been demonstrated. a. Foundation must prove that the individual probability factors were accurate, and there must be proof that the characteristics selected are mutually independent. b. There has to be actual guidance on who actually committed the crime. Problem: No mathematical equation can prove beyond a reasonable doubt that a party in fact possessed the characteristics described; in addition, no math formula could ever establish that the witness correctly observed and accurately described the distinctive features implemented into the formula. ii. Foundational Evidence: Evidence that determines the admissibility of other evidence. iii. Mathematical Evidence: loosely, evidence that establishes its conclusions w/ absolute certainty using mathematical formulas. f. Stipulations i. United States v. Jackson (D was accused of bank robbery and moved to exclude evidence that, shortly after
the robbery, he was arrested in a different state while using a false name.)
1. Rule: Exclusion of evidence may be conditioned on a stipulation that acknowledges the truth of a part of the excluded evidence. Thus, courts will exclude prejudicial parts of certain relevant evidence if D enters into a stipulation to allow the inclusion of the relevant non-prejudicial parts of the same evidence. ii. Old Chief v. United States (Ds offer to stipulate to the fact of a prior felony conviction was refused.) 1. Regarding Rule 401: Relevance is not affected by alternative forms of evidence or proof. Thus, the fact to which evidence is directed need not be in dispute to be
IV.
relevant. If relevant evidence is inadmissible in the presence of other evidence related to it, its exclusion must rest on its character as unfairly prejudicial, waste of time, cumulativeness, not on the ground that other evidence has rendered it irrelevant. Note: The probative worth of any particular piece of evidence is affected by the scarcity or abundance of other evidence on the same point. 3 Factors: 1) need for the evidence; 2) availability of alternative evidence; 3) unfair prejudice effect. 2. Rule: A court abuses its discretion if it rejects an offer to stipulate to a prior conviction when a prior conviction is an element of the offense charged. 3. Dissent & Parr: Prosecution is entitled to prove its case by evidence of its own choicea criminal D may not stipulate or admit his way out of the full evidentiary force of the case The Specialized Relevance Rules a. Rules 407 through 411 reflect the rule-writers judgment that, as a matter of law, the evidence it governs fails a Rule 403 weighing test. i. FRE 407. Subsequent Remedial Measures 1. 407 When measures are taken after an injury or harm allegedly caused by an event, evidence of the subsequent remedial measures is not admissible to prove [fault]. However, evidence of subsequent remedial measures is admissible for other purposes such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. a. Fault includes negligence, culpable conduct, a product defect, a products design defect, or a need for warning/instructions. b. The requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue be present. This allows the opposing party to make an admission of ownership, control, or feasibility so the evidence does not come in. c. Third-Party Repairs: Most courts allow admission of evidence of repairs carried out by a third-party under 407 b/c the public policy of the rule provides no grounds for excluding the evidence. (A third party will not be dissuaded from making a repair just b/c evidence of those repairs might be offered against someone else.) But some hold that the evidence is simply not relevant under 401. d. Strict Liability Actions: 407 applies to defective products lawsuits. 2. Tuer v. McDonald (P claimed it was error to exclude evidence of a change in medical protocol
implemented by D after Ps husbands death.)
a. Rule: Evidence of remedial measures taken after an allegedly negligent act is not admissible to prove negligence or culpability. b. Feasibility can mean more than mere physical possibility. Judgment call=broad definition of feasibility. (Ex. An assertion by a doctor that a remedial measure was inappropriate b/c it was medically unsafe is the same as asserting the measure was not feasible.) c. Re Impeachment: Subsequent remedial measures have been held inadmissible to impeach testimony asserting that at the time of the event a measure was not believed to be as practical as the one employed, or that the D was using due care at the time of the accident. ii. Rule 408. Compromise and Offers to Compromise 1. 408 Evidence of settlement or an offer to settle a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise (settlement) negotiations is not admissible, but all other discoverable evidence
presented in settlement negotiations is admissible. Also, evidence offered for another purpose is admissible [such as proving bias or prejudice of a witness, falsifying a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.] a. Rule 408 only applies in civil cases. (410 addresses plea agreements in criminal cases). b. 408 does not protect offers to compromise made before a claim of some sort has been made. A lawsuit is a claim, and courts will sometimes deem informal oral or written demands to be claims. c. Impeachment: 408 does not say whether statements made during compromise negotiations may be used to impeach a witness who later makes contradictory statements in court. Courts go both ways. 2. Bankcard America v. Universal Bankcard Systems (P sued D for breach of K, and D tried to
introduce evidence of a settlement)
a. Rule: Evidence regarding settlement negotiations is admissible as long as it is used for purposes other than showing liability. iii. FRE 409. Payment of Medical and Similar Expenses 1. 409 Evidence of paying or offering to pay medical, hospital or similar expenses resulting from an injury is not admissible to prove liability for the injury. a. Rule 409 does not exclude statements surrounding offers to pay medical expenses. (Ex. Guy leaps out of his car after accident and says in sudden remorse, Gosh, Im sorry I ran the light let me take care of your treatment. Rule 409 will bar evidence of the drivers humane impulse to pay the others medical bills but his unguarded impulse to apologize will come in. iv. FRE 411. Liability Insurance 1. 411 Evidence that a person was or was not insured against liability is not admissible to prove liability (fault or lack of fault); but evidence of liability insurance can be used for other purposes such as proof of agency, ownership, control, or bias or prejudice of a witness. 2. Williams v. McCoy (Ds attorney asked P why she saw a chiropractor when she did, and the judge
did not allow P to explain that she did so after an insurance adjustor spoke with her.)
a. Evidence of liability insurance is inadmissible only when the evidence is offered to show that the insured acted negligently or wrongfully. v. FRE 410. Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related Statements 1. 410 Evidence of 1) a plea of guilty which was later withdrawn; 2) a plea of nolo contendere; 3) any statement made in the course of any proceeding under Fed. R. Crim. P. 11 or comparable state procedure regarding either of the foregoing pleas; or 4) any statement made in the course of plea discussions w/ a prosecuting attorney or his agent (there must be a record) which do not result in a plea of guilty or which result in a guilty plea later withdrawnis not admissible in any civil or criminal proceeding against the D who made the plea or participated in the plea discussions. a. Note on made in the course of plea discussions: If D unilaterally offers information w/out first establishing that he is seeking concession, a court may determine that no plea discussions had begun and that Ds statements are therefore admissible against him. Some courts may also admit statements if D talks to an agent that does not have the authority to negotiate. Courts differ. b. Evidence offered against the prosecutor: The rule does not prevent D from presenting evidence that the prosecutor offered to drop a charge during plea
discussions, but some courts rule differently so purpose of rule (promoting plea negotiations) is not frustrated. 2. 410s Two Exceptions: However, such a statement is admissible 1) in any proceeding wherein another statement made in the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or 2) in a criminal proceeding for perjury or false statement if the statement was made by D under oath, on the record, and in the presence of counsel. a. United States v. Biaggi (D claimed it was error for the court to exclude evidence that he
refused an offer of immunity in exchange for his testimony against his co-defendants.)
i. Rule: Evidence of a defendants rejection of immunity b/c of lack of wrongdoing is admissible at trial (to prove Ds innocent state of mind). Thus, plea negotiations are only inadmissible against the defendant. b. Re Impeachment: Statements D makes during plea negotiations with the prosecutor may not be used to impeach her should she later testify differently at trial. But note: The Supreme Court has held that prosecutors may, as a precondition to any plea negotiations, demand that D agree that any statements they make during negotiations may be used to impeach any contradictory testimony they give at trial. c. Note: 410 is fundamentally different from the other specialized relevance rules in that they all exclude evidence only when offered to prove certain specified things, while admitting it on any other issue, whereas 410 always bars plea evidence except where permitted in the two exceptions. COMPETENCY OF WITNESSES I. Historical Perspective a. At early common law, there were a broad array of competency rules that dictated who could and could not testify in court, but today virtually all of the old competency rules are gone. The rules rationale was to keep from the witness stand anyone whose temptation or inclination to lie was greater than average. Thus, competency rules served two purposes: 1) they ensured juries would base their verdicts (mostly) on truthful evidence; and 2) they protected the souls of witnesses who otherwise might be tempted to commit the mortal sin of perjury. II. Modern Competency Rules a. Hallmarks of competency (under these you can attack a witness): The capacity to 1) observe, 2) remember, 3) communicate, and 4) the capacity to understand the oath and duty imposed to tell the truth. i. Usually an attack on the above hallmarks goes to how much weight should go to the evidence. b. The test for competency is initially a low threshold. c. FRE 601. General Rule of Competency i. 601 Every person is competent to be a witness except as otherwise provided... 1. Rule 602 competency is a matter of status, not ability. d. FRE 602. Lack of Personal Knowledge i. 602 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness own testimony. Exception: This rule is subject to 703, relating to opinion testimony by experts. 1. Summary: This rule requires lay witnesses to testify from personal knowledge. e. FRE 603. Oath or Affirmation i. 603 Before testifying, every witness shall be required to declare that he/she will testify truthfully, by oath or affirmation
f.
g. h.
i.
1. Summary: This rule requires all witnesses to swear or affirm to tell the truth. No special requirement or words are needed FRE 604. Interpreters i. 604 An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. 1. Interpreter is actually sworn. 2. If there is a difference b/t what the witness and translator says the translator controls. What the translator says is the item of evidence; it is what the court reporter puts down in the record. Jurors can be dismissed for not accepting the translation. FRE 605. Competency of Judge as Witness i. The judge presiding at the trial may not testify in that trial as a witness.\ FRE 606. Competency of Juror as Witness i. 606(a) At the trial A jury member may not testify as a witness before his or her own jury. If the juror is called to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. ii. 606(b) Inquiry into validity of verdict or indictment (2 Exceptions) 1) A juror may testify to a question of whether extraneous prejudice information was improperly brought to the jurys attention. 2) A juror may testify as to whether any outside influence was improperly brought to bear upon any juror. FRE 610. Religious Beliefs or Opinions i. Evidence of a witnesss religious beliefs or are not admissible for the purpose enhancing or impairing credibility.
CIRCUMSTANTIAL EVIDENCE I. What is Circumstantial Evidence? a. (defined) secondary facts by which a principal fact may be rationally inferred b. Example: If you went to bed and the outside snow was undisturbed, and you woke up and there were footprints leading to the front door, you can infer that someone walked up to the door. The footprints are the circumstantial evidence. If you have fact A, you can infer fact B. B does not have to be the only logical consequence of A, just a logical consequence. c. Inference a logical consequence/conclusion from an adduced fact. II. Cases a. United States v. Nelson (D was waiting in car while co-D robbed bank, D argued that he did not know that co-D was
going to rob and that a conviction cannot be based on circumstantial evidence)
i. Rule: A conviction can be based upon circumstantial evidence or inferences drawn from other inferences. Test: Whether jurors could reasonably arrive at that conclusion. b. Smith v. Bell Tel. of Penn. (D constructed an underground conduit to carry phone lines, P discovered seepage in his
basement, circumstantial evidence showed that D was at fault)
i. Rule: When a party who has the burden of proof relies upon circumstantial evidence and inferences
reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must be so preponderate in favor of that conclusion as to outweigh in the mind of the factfinder any other evidence and reasonable inferences therefrom which are inconsistent therewith. (**The inference must be such that a reasonable jury can reach the conclusion sought by the P; does not have to be the only conclusion.**)
ii. Note: Court first determines if the circumstantial evidence is even worth sending to the jury. JUDICIAL NOTICE I. Article II. Judicial Notice a. Judicial Notice is a procedural and evidentiary shortcut to proof. FRE 201 is appropriate when no reasonable jury can go the other way. b. FRE 201. Judicial Notice of Adjudicative Facts
i. 201(a) Scope of rule This rule governs only judicial notice of adjudicative facts. 1. Adjudicative facts are simply the (disputed) facts of the particular case. ii. 201(b) Kinds of facts A judicially noticed fact must be one not subject to reasonable dispute in that it is either 1) [notorious] generally known within the territorial jurisdiction of the trial court or 2) [facts that are manifest] capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. 1. Common knowledge means that everyone w/ average intelligence and knowledge generally knows. 2. Test: Whether the average person in the territorial jurisdiction of the trial court knows of the fact at the time of the trial. iii. 201(c) When discretionary A court may take judicial notice, whether requested or not. iv. 201(d) When mandatory A court shall take judicial notice if requested by a party and supplied with the necessary information. v. 201(f) Time of taking notice Judicial notice may be taken at any stage of the proceeding. vi. 201(g) Instructing jury In a civil action the court shall instruct (b/c no reasonable juror can come to a different conclusion) the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. (The reason for the option in criminal cases is to uphold the right to trial by jury, a jury determines
factual issues in criminal cases 6th Amendment.)
II.
Cases a. Varcoe v. Lee (A judge instructed the jury that a street was in a business district when there was no evidence on this
issue.)
i. Rule: If a fact is a matter of common knowledge throughout the jurisdiction in and for which a court is sitting and the same fact is not in dispute, a court may take judicial notice of the fact. ii. Test: 1) Is the fact one of common, everyday knowledge in that jurisdiction, which every one of average intelligence and knowledge of things can be presumed to know? and 2) Is it certain and indisputable. If there is any reasonable question whatsoever as to either point, proof should be required. iii. Re appellate courts: An appellate court can properly take judicial notice of any matter of which the court of original jurisdiction may properly take notice of. b. B.V.D. Licensing v. Body Action Design (P tried to reregister its famous underwear trademark, D opposed, issue is
whether a court should take judicial notice of a famous trademark yes)
i. Rule: Courts may take judicial notice of facts of universal notoriety, which need not be proved, and of whatever is generally known within their jurisdictions. c. Nicketta v. National Tea Co. (Court took judicial notice that a human cannot contact or get an illness known as
trichinosis from eating properly cooked pork.)
i. Rule: Courts may take judicial notice of scientific facts which have been well established by authoritative scientists and are generally accepted as irrefutable by living scientists. Scientific facts do not have to be common knowledge for a court to take judicial notice of them. ii. A court can apply the doctrine of judicial notice to pleadings. d. United States v. Jones (Appeals court took judicial notice of a fact in a criminal trial that the trial court did not.) i. Rule: Judicial notice cannot be taken to an element of a crime b/c the government must prove every element of a crime beyond a reasonable doubt. In addition, if a trial court did not take judicial notice of a fact in a criminal trial, the appellate court cannot take judicial notice of the fact. Thus, 201(f) (authorizing judicial notice at the appellate level) must yield to 201(g) for criminal jury trials. However, in civil actions, an appellate court may take judicial notice of a fact even if not taken at trial. PRESUMPTIONS I. Article III. Presumptions in Civil Actions and Proceedings
II.
a. A presumption is an assumption of one fact from the proof of another. Thus, upon proof of a basic A fact, the jury must accept the presumed B fact unless the opponent presents evidence to rebut that presumption. i. AB A is the proven fact, B is the presumed fact. ii. Examples of presumptions: Postal regularities; a vehicle lawfully stopped and then struck in rear by another presumption is that second driver was negligent; If absent persons disappears for 7 years w/out any contact w/ family and friends presumption that person is dead. b. FRE 301. Presumptions in General in Civil Actions and Proceedings i. 301 In all civil actionsa presumption imposes on the party against whom the presumption is directed the burden of going forward with evidence to rebut or meet the presumption 1. Presumptions governed by this rule are given the effect of placing upon the opposing party the burden of establishing the nonexistence of the presumed fact, once the party invoking the presumption establishes the basic facts giving rise to it. A Presumption Rebutting a Presumption a. Legille v. Dunn (One party claimed an item was mailed and thus invoked a presumption that the item arrived on time,
other party claimed that they have a proper way of receiving items and if mailed on time, then they would have got item on time)
III.
i. A presumption (sometimes a presumption of law) is an inference which the law directs the fact finder to draw if it finds a given set of facts; an inference is a conclusion which the fact finder is permitted, but not compelled, to draw from facts. ii. Rule: The effect of a presumption of law (real presumption) is merely to invoke a rule of law compelling the fact finder to reach a conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judges requirement of some evidence), the presumption disappears as a rule of law, and the case is in the fact finders hands free from any rule. (Bursting Bubble theory) Thus, presumptions do not conflict or compete, and they cannot exist at the same time. 1. A presumption can be rebutted by invoking another presumption Rational Connection a. Mobile, Jackson & Kansas City RR v. Turnipseed (Mississippi had a statute that said if injury occurred to
passengers of a train and that injury resulted from the operation of the trains, then a jury could come to the conclusion that RR was negligent.)
IV.
i. Holding: When a presumption of one fact from evidence of another is at issue, it is only necessary that there is some rational connection b/t the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. Also, a presumption must not operate the other party from the right to present his defense to the main fact presumed. ii. Rule: There must be a rational connection b/t the fact proved and the presumed fact. iii. *Inference = jury may find, but no requirement; Presumption = jury must find unless evidence to the contrary.* 1. Note: The statute in this case operated as an inference to protect the constitutionality of the statute. When State Law Applies a. FRE 302. Applicability of State Law in Civil Actions and Proceedings i. In civil actions, the effect of a presumption respecting a fact which is an element of a claim or defense as to which state law supplies the rule of decision is determined in accordance with State law. b. Cities Service Oil v. Dunlap: When in diversity jurisdiction situations, if a presumption could effect the outcome, state law must govern. Thus, if the application of a presumption could have a substantive effect on an element, state law governs.
CHARACTER EVIDENCE (Prior Bad Acts Focus is on 404(b)) I. The Character Propensity Rule a. Character Evidence (defined): evidence regarding someones personality traits; evidence of a persons moral standing in the community, based upon reputation or opinion. b. FRE 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes i. 404(a) Character evidence generally Evidence of a persons character or a character trait is not admissible to prove that a person acted on the occasion in question consistently with his character. Exceptions: 1. 404(a)(1) Character of accused a) an accused may offer (good) character evidence about himself, in which the prosecution may then rebut that evidence with evidence of bad character; b) if an accused introduces pertinent evidence of the victims character under 404(a)(2), then the prosecution may introduce similar evidence (of the same trait) about the accused in rebuttal. 2. 404(a)(2) Character of alleged victim a) Evidence of the victims character can be offered by the accused, if so b) evidence of the victims character can be offered by the prosecution to rebut the character evidence proffered by the accused; c) the prosecution can present evidence in a homicide case of peacefulness to rebut evidence proffered by the accused (even non-character evidence) that the victim was the first aggressor. a. Examples of when accused might present character evidence about the victim: If accused needs to support a self-defense claim he might want to show Vs propensity for violence; but note the prosecution can then rebut that evidence w/ same trait character evidence about the victim and the accused. 3. 404(a)(3) Character of witness Evidence of the character of a witness as provided in Rules 607, 608, 609. ii. 404(b) Other crimes, wrongs, acts Evidence of other crimes, wrongs, or acts is not admissible to prove [propensity]. Evidence of other crimes, wrongs or acts may be admissible for other purposes such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (MOIPPKIA) provided that, upon request by the accused, the prosecution (must) provide reasonable notice before trial (or during trial if court allows) of the general nature of the other, crime, wrongs or acts evidence it intends to introduce at trial. 1. B/c 404(b) does not require trial judges to admit evidence of other acts whenever such evidence does not violate the propensity evidence ban, admission remains within the courts discretion. Thus, rule 403 analysis plays a heavy role in the admission of other act evidence. For example, if the danger of undue prejudice outweighs the probative value of the evidence in view of the availability of other means of proof etc, then the evidence should not be admitted. 2. The pretrial notice requirement has no specific time limit on what constitutes a reasonable time of request or disclosure and no specific form of notice is required. 3. If court determine that the notice requirement was not met, 404(b) evidence is inadmissible. 4. The phrase other crimes, wrongs, or acts refer to any acts other than those directly at issue in the case. The other act need not be a crime and it could have taken place either before or after the crime charged. 5. 404(b)s list of possible other purposes is not exhaustive but merely illustrative. Evidence of a persons other acts may be used for any purpose other than the one forbidden by the rule to prove character in order to show action in conformity therewith. c. Rule 404 does not apply only in criminal cases; nor does it apply only to proof of the Ds character. The propensity evidence ban of 404 operates fundamentally the same way in all cases.
II.
i. *NOTE: 404(a)(1) and 404(a)(2) give only criminal Ds the option to open the character inquiry. Civil litigants do not have the privilege of opening the character inquiry, even though some courts have allowed them to - against the declared intent of the rule-writers. See Perrin & SEC infra. d. Advisory Committees Notes on Subdivision (a): Character questions arise in two fundamentally different ways: 1) Character may itself be an element of a crime, claim, or defense. (Generally, the above rule has no provision on this subject). 2) Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently w/ his character. (Circumstantial character use). Circumstantial use of character is rejected under 404(a) but under 404(a)(1)-(3) provide important exceptions. e. People v. Zackowitz (D was charged w/ murder and at trial, P introduced evidence that D possessed several guns.) i. Evidence showing that D has dangerous or criminal propensities is inadmissible. Thus, evidence of character, prior crime, or prior bad act is not admissible to show that D has a propensity to commit crime or to show that D is a bad person or to ultimately establish guilt. Other Purposes a. People v. Molineux (Common law poisoning case that embodies Rule 404.) i. General Rule: The commission of one crime or bad act is not admissible in evidence upon the trial for another crime, where its sole purpose is to show that D has been guilty of other crimes, and would, consequently, be more prone to commit the offense charged. 1. Exceptions: Evidence of other crimes is competent to prove the specific crime charged when it tends to establish: 1) motive, 2) intent, 3) the absence of mistake or accident, 4) a common scheme or plan; 5) identity. ii. Distinction b/t motive and intent: motive is the moving power which impels to action for a definite result; intent is the purpose to use a particular means to affect such result. b. United States v. Trenkler (D was charged w/ building a bomb, and a trial P introduced evidence of another bomb D had constructed that was very similar). i. Two part test for determining the admissibility of Rule 404(b) evidence: 1) Court must determine whether the evidence has some special relevance independent of its tendency to simply show criminal propensity; 2) if the evidence has special relevance on a material issue, the court must then conduct a 403 analysis to determine if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. 1. *Special Relevance refers to the exceptions in 404(b) the MOIPPKIA exceptions.* 2. Note re identity exception: When 404(b) evidence has special relevance on the issue of identity, court requires as a prerequisite to admission, a showing that there exists a high degree of similarity b/t the other act and the charged crime. a. An exact match is not necessarythe test focuses on the totality of the comparison, demanding not a facsimile or exact replica, but rather the conjunction of several identifying characteristics or the presence of some highly distinctive quality. c. United States v. Stevens (D was accused of robbery and assault and sought to introduce evidence at his trial that
someone else had committed a similar crime.)
III.
i. Rule: Evidence that a D did not commit similar crimes may be used to show that D did not commit the crime charged. Thus, b/c prejudice to D is not a factorthe admissibility of reverse 404(b) evidence depends on a straightforward balancing of the evidences probative value (Rule 401 relevance showing that the evidence has a tendency to negate guilt) against 403 considerations such as undue waste of time and confusion of the issues. The Doctrine of Chances a. The Doctrine of Chances deals with the accumulation of similar but unlikely circumstances. At some point, random chances are no longer a valid conclusion.
b. Rex v. Smith (D was charged with murdering his wife by drowning her in the bath, and evidence that his two former
wives had also drowned in bathtubs was admitted at his trial.)
IV.
i. Doctrine of chances An accident that happens a number of times, and that benefits the person to whom the accident happens, allows a strong inference that the occurrence of so many accidents was such a coincidence that it could only have happened by design. The matter depends upon how unusual the occurrence was and the number of times it was repeated. ii. Test: Whether the uncharged incidents are so numerous that it is objectively improbable that so many accidents would befall the accused. iii. Rule: Evidence of similar acts is admissible to show a plan/design or the lack of an accident. Knowledge a. Huddleston v. United States (D was charged with selling stolen videotapes, and at trial the prosecution introduced
evidence of his other sales of allegedly stolen property).
V.
i. Huddleston Standard: In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial courtsimply examines all the evidence in the case and decides whether the jury could reasonably find the conditional factby a preponderance of the evidence. ii. Rule: Under Rule 404(b), similar act evidence is admissible only if the jury can reasonably conclude that the act occurred and that D was the actor. b. Knowledge is generally proven by repetitive other bad acts. Subsequent crimes may also be permitted, but they must speak to the Ds mens rea at the time of the indicted act b/c that is at issue. Motive, Opportunity, Intent, Preparation, Plan, Identity a. United States v. Danzey (D was tried and convicted of bank robbery. He contends that the Governments introduction
into evidence of his admissions of 15 similar bank robberies was highly prejudicial Note: His admissions show that he had a modus operandi (manner of operation, means of accomplishment), practically a signature to his robberies. D claimed that the trial court erred by admitting the evidence at the beginning of the trial, before any witnesses had testified.)
VI.
i. Rule: Generally, the government will be permitted to introduce similar act evidence in its casein-chief if the evidence is relevant to identity, but not if the evidence is relevant merely to intent. Note: Identity evidence generally has to involve a signature. b. United States v. Hadaway (Similar acts evidence was presented to the jury to show Ds intent and knowledge.) i. Rule: Evidence of other crimes will be presented to the jury when necessary to prove an element like intent or knowledge of the present crime. c. Re Plan & Design: 2 forms 1) the way the two crimes were connected in Ds mind; 2) the modality (ex. weapon used) d. Re Common Plan & Scheme: There must be some overall scheme of which each crime is but a part. Generally a pattern or systematic course of conduct is insufficient to establish a plan. e. Re Identity: Speaks to the unique nature of the crime. Courts will often admit evidence of crimes that have several unique and distinct features. (Is there a signature crime?) Is there a specific mode of operation in the indicted crime that was used in the prior crime? Phrasing (ex. I am going to make him an offer he cant refuse.) can be used under the identity exception. Handwriting. Limiting Instructions a. FRE 105. Limited Admissibility i. 105 When evidence is admissible only for a limited purpose (as to one party or for one purpose but not admissible as to another party or for another purpose) the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. 1. Rule 105 apply in 2 situations: 1) admissible as to one party, but not to other party; 2) relevant as to one purpose, but not to another purpose. 2. Note: The availability and effectiveness of this practice must be considered heavily w/ 403 issues. See Bruton v. US, ruling that a limiting instruction did not effectively protect the accused against the
prejudicial effect of admitting in evidence the confession of a co D which implicated him. The decision, however, does not bar the use of limited admissibility w/ an instruction where the risk of prejudice is less serious.
b. United States v. Misle Bus & Equip. Co. (Lower court admitted 404(b) evidence conditionally, but did not give a
limiting instruction until the end of trial.)
i. Rule: A court is not required to grant a limiting instruction every time evidence is conditionally admitted. To comply w/ Rule 105, a court must only grant a limiting instruction at the close of the evidence. c. United States v. Reddeck (D was involved in mail fraud to promote his fake universitiesP presented evidence of
prior indictments to prove that D had notice that his actions constituted a crime.)
i. Rule: When allowing the admission of other bad acts evidence under 404(b), a court may and should give the jury limiting instructions based on specific areas of potential confusion and unfair prejudice to the defendant
1. In reviewing a challenge to jury instructions, they must be read in their entiretyreversal is proper only when such error is prejudicial in light of the entire record,Courts disfavor laundry list limiting instructions that merely list the text of Rule 404(b).
d. What triggers limiting instructions? When a party makes a request for limiting instructions the court must make the limiting request. Even w/out a request, a court may choose to issue a limiting instruction. e. When limiting instructions should be given? It is better to instruct when the 404(b) evidence is admitted and before jury instructions. If a contemporaneous instruction is not given during when the evidence is admitted, the dangers of jurors considering propensity evidence is heightened. f. FRE 103. Rulings on Evidence i. 103(a) Effect of erroneous ruling Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and 1. Either a. 103(a)(1) Objection (The ruling is one admitting evidence) the party timely objects or motions to strike (which appears in the record), stating the specific ground of objection, if the specific ground was not apparent from the context; or b. 103(a)(2) Offer of proof (The ruling is one excluding the evidence) the substance was made known to the court by the proponents offer or the substance was apparent from the context within which questions were asked. 2. Thus, rulings on evidence cannot be assigned as error unless 1) a substantial right is affected, and 2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. The objection and the offer of proof are the techniques for accomplishing these objectives. 3. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. ii. 103(b) Record of offer and ruling The court may add (to the record) any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. iii. 103(c) Hearing of jury In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. iv. 103(d) Plain error Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. CHARACTER (DEFENDANTS AND VICTIMS CHARACTER) I. Introduction a. See 404(a) supra.
b. FRE 405. Methods of Proving Character i. 405(a) Reputation or opinion In all cases in which evidence of character or a character trait is admissible, proof may be made by 1) testimony of reputation or 2) by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 1. Thus, 405(a) limits D on direct to only present evidence re opinion or reputation. 2. Note: Cross-examination about specific acts is not a means of proving or disproving that the D or victim actually has the character trait in question. The litigant may ask about specific acts only to test the character witnesss knowledge of the defendants reputation or her familiarity with the defendant. 3. 405(a)s requirement that proof be by reputation or opinion does not apply to 413, 414, 415. These rules require proof by specific acts ii. 405(b) Specific instances of conduct Specific instances of a persons conduct may be used to prove character in cases in which character of a person is an essential element of a charge, claim or defense. 1. When does Rule 405(b) apply? Only when the existence of the character trait is the thing to be proved - This rule typically only applies in 3 situations: 1) Rebutting an entrapment defense; 2) Rebutting a defense of truth in a libel or slander action; 3) resolving a parental custody dispute. c. Michelson v. United States (D called character witnesses to testify on his behalf, and four of them were asked if they
heard about Ds arrest many years ago for receiving stolen goods.)
II.
i. Generally, courts do not allow the prosecution to present evidence of a Ds evil character to establish a probability of his guilt...but D may put character at issue by putting the witness on the stand to testify as to Ds good reputation or opinion of Ds characterthen after D puts character at issue the prosecutor may pursue the inquiry (on cross-examination) to show that Ds reputation is not so good, or that the witnesses were not credible, that rumors exist about D, etc. 1. The character evidence must relate to the character trait at issue. 2. Note: Prosecutor must have a good faith belief that questions asked to witness(es) are true. 3. Qualifications for a character witness: The witness must qualify to give an opinion of D by showing such acquaintance w/ the D, the community in which he has lived and the circles in which he has moved, as to speak w/ authority of the terms in which D is regarded 4. Majority Rule re Cross-examination: A character witness may be cross-examined as to a prior arrest of the D even if it did not culminate into a conviction. (Note: Counsel in determining credibility of a character witness during cross-examination is not allowed to ask whether the witness himself has been arrestedonly a character witnesss prior conviction(s) may be inquired about to undermine the trustworthiness of a witness). 5. Test re Ds prior arrest examination: Majority rule allows the prosecution to crossexamine a character witness on Ds prior arrest(s) even if the arrest is not similar to Ds current charges. The test does not examine whether the crimes are alike, but whether the prior and current crimes proceed from the same character traits like honesty and truthfulness and being a law abiding citizen. Proof of Character a. Perrin v. Anderson (P alleged that D deprived her son of his civil rights and at trial D introduced evidence of violent
acts committed by Ps son.)
i. Rule: Although the literal language of the exceptions to Rule 404(a) applies only to criminal cases,, when the central issue involved in a civil case is criminal in nature, the D may invoke the exceptions to Rule 404(a). Thus, a D in a civil action may offer evidence of the victims character if
the central issue in the civil action is criminal in nature, but he may not introduce evidence regarding specific acts.
III.
ii. Note: Rule 405(b) only allows evidence concerning specific instances of conduce when character is in issue in the strict sense. Character is in issue in the strict sense when it is a material fact that under the substantive law determines the rights and liabilities of the parties. b. SEC v. Towers Financial Corp. (D sought to introduce character evidence in a civil action brought by the P.) i. Rule: Evidence of Ds good character is inadmissible in a civil suit. ii. Note: Some courts follow the language of the rule, some follow the rationale. Main distinguishing fact b/t this case and Perrin, SEC involved fraud, whereas Perrin involved a heinous crime. Thus, the nature of the crime is the main distinguishing factor. Character for Truthfulness a. United States v. Curtis: (case dealing with character evidence and Rule 405(a)) i. Rule 405(a) provides that on cross-examination, inquiry is allowable into relevant specific instances of conduct, but these relevant specific instances of conduct are only instances going to the accuracy (truthfulness) of the character witnesses testimony. 1. If direct testimony is addressed to community reputation, inquiry may be made about conduct, and even about charges, which may have come to the attention of the relevant community. 2. If opinion evidence is offered in proof of character, relevant cross-examination is only that which bears on the fact or factual basis for formation of the opinion. 3. NOTE: An accused may advance more than one character trait as evidence, so long as each of those traits are relevant to some issue at trial, but cross-examination must be confined to matters bearing on the particular character trait to which the witness testified. 4. An opinion witness can be cross-examined only on matters bearing on his own opinion, while a reputation witness can only be cross-examined on matters reasonably proximate to the time of the alleged offense and likely to have been known to the relevant community at that time. In addition, the cross examination must be confined to conduct relevant to the character trait to which the direct testimony was directed. ii. In dealing w/ community reputation for a trait of character, it has long been settled that reputation reasonably contemporaneous w/ the acts charged is relevant but that reputation after the criminal charge under consideration is not. b. NOTE: See also FRE 607 & 608 infra. c. SEE STUDY GUIDE ON PGS. 241-247.
RAPE SHIELD RULE AND SEXUAL ASSUALT CASES I. Rape Shield Rule a. United States v. Bear Ribs (D wanted evidence admitted showing Vs propensity to routinely undress herself, court said no) i. Corroboration Requirement in rape cases: this permits a guilt verdict only if there is independent evidence corroborative of the victims testimony. 1. Some jurisdictions have eliminated this requirement, but suggest that where the motivation of the
complainant in bringing the charge is in issue, such as where D contends that V consented, D should be allowed to emphasize the dangers of falsification to the jury, and the judge should instruct the jury on those dangers. Some jurisdictions have dispensed w/ both the corroboration requirement and the cautionary jury instruction below.
ii. Mandatory Cautionary Jury Instruction in Sex offense cases: this informs the jury that b/c the charge is one easily made and difficult to defend, it should examine the females testimony w/ caution. 1. Some jurisdictions have rejected this rule entirely; others have left open the possibility that an instruction might be required where there is evidence of malice, desire for revenge, or lack of corroboration.
iii. In sum, both requirements are not adhered to as frequently. b. FRE 412. Sex Offense Cases; Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition (Commonly referred to the federal rape shield law.) i. 412(a) Evidence generally inadmissible 1) Evidence offered to prove that any alleged victim engaged in other sexual behavior, or 2) Evidence offered to prove any alleged victims sexual predisposition (promiscuity), is not admissible in any civil or criminal proceeding involving alleged sexual misconduct 1. Past sexual behavior connotes all activities that involve physical conduct (ex. intercourse or sexual contact) and sexual activities of the mind, such as fantasies or dreams. Lastly, unless an exception is satisfied under (b)(2), all other evidence such as mode of dress, speech, lifestyle, etc. is not admissible if it relates to an alleged victims sexual predisposition. a. Note: Even references to things such as use of contraceptive, birth of an illegitimate child, venereal disease can be held inadmissible b/c it implies sexual activity. ii. 412(b) Exceptions 1. 412(b)(1) In a criminal case, (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of sexual behavior between the alleged victim and the accused may be offered by the accused to prove consent or by the prosecution (to prove a pattern of behavior for example); or (C) evidence the exclusion of which would violate the constitutional rights of the defendant is admissible, if the evidence does not violate any other rule. 2. 412(b)(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim. a. There are 3 distinctions b/t 412(b)(2) and Rule 403 weighing: i. This rule (412(b)(2)) shifts the burden to the proponent of the evidence to establish admissibility rather than making the opponent justify exclusion of the evidence. ii. This rule is more stringent and is slanted against admissibility; it raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers. iii. This rule puts harm to the victim on the scale in addition to prejudice to any party. iii. 412(c) Procedure to determine admissibility 1. 412(c)(1) A party intending to offer evidence under subdivision (b) must (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victims guardian or representative. 2. 412(c)(2) Before admitting evidence under this rule, the Court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. c. Other Important Information regarding Rule 412:
II.
i. Rationale of the rule: Aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process. The rule also encourages victims of sexual misconduct to institute and to participate in legal proceedings against alleged offenders. Lastly, the Rule holds that evidence of a victims sexual past is of doubtful relevance, and can be unfairly prejudicial ii. Scope of the Rule: The rule applies in all cases involving sexual misconduct without regard to whether the alleged victim or person accused is a party to the litigation. However, when the case does not involve alleged sexual misconduct, evidence relating to a third-party witness alleged sexual activities is not within the scope of Rule 412. The rule also does not apply unless the person against whom the evidence is offered can reasonably be characterized as a victim of alleged sexual misconduct For instance, in a defamation action involving statements concerning sexual misconduct in which the evidence is offered to show that the alleged defamatory statements were true or did not damage the Ps reputation, neither 404 nor this rule will operate to bar the evidence. This rule does apply in sexual harassment cases. Sexual Assault Cases a. Rules 413, 414, 415 were enacted as part of the Violent Crime Control and Law Enforcement Act of 1994. They permit prosecutors and civil plaintiffs to offer evidence of the Ds other acts of sexual assault or child molestation on any matter to which [they are] relevant. This includes the Ds propensity to commit sexual assault or child molestation offenses. b. FRE 413. Evidence of Similar Crimes in Sexual Assault Cases i. 413(a) In a criminal case in which D is accused of an offense of sexual assault, evidence of Ds commission of another offense(s) of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. (Thus, evidence is okay for propensity.) ii. 413(b) In a case in which the Government intends to offer evidence under this rule, the prosecuting attorney shall disclose the evidence to the D, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before the trial or at such later time as the court may allow for good cause. iii. 413(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. iv. 413(d) For purposes of this rule and FRE 415, offense of sexual assault means a crime under Federal law or the law of a State (as defined in 513 of title 18, U.S.C.) that involved 1. 413(d)(1) any conduct proscribed by chapter 109A of title 18, U.S.C. 2. 413(d)(2) contact, without consent, between any part of Ds body/object and the genitals or anus of another person; 3. 413(d)(3) contact, without consent, between the genitals or anus of D and any part of another persons body; 4. 413(d)(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or 5. 413(d)(5) an attempt or conspiracy to engage in conduct described in (1)-(4). c. FRE 414. Evidence of Similar Crimes in Child Molestation Cases (almost identical to 413) i. 414(a) In a criminal case in which the D is accused of an offense of child molestation, evidence of Ds commission of another offense(s) of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. ii. 414(b) Same as 413(b) above. iii. 414(c) Same as 414(c) above. iv. 414(d) For purposes of this rule and FRE 415, child means a person below the age of 14, and offense of child molestation means a crime under Federal law or the law of a State that involved
1. 414(d)(1) any conduct proscribed by chapter 109A of title 18, U.S.C., that was committed in relation to a child; 2. 414(d)(2) any conduct proscribed by chapter 110 of title 18, U.S.C.; 3. 414(d)(3) contact between any part of Ds body/object and the genitals or anus of a child; 4. 414(d)(4) contact between the genitals or anus of the D and any part of the body of a child; 5. 414(d)(5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or 6. an attempt or conspiracy to engage in conduct described in (1)-(5). d. FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation i. 415(a) In a civil case in which a claim for damages or other relief is predicated on a partys alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that partys commission of another offense or offenses of sexual assault or child molestation is admissible any may be considered as provided in Rule 413 and Rule 414. ii. 415(b) A party who intends to offer evidence under this rule shall disclose the evidence to the party against whom it will be offered, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least 15 days before trial or at such later time as the court may allow for good cause. iii. 415(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. e. Lannan v. State (D was convicted of molesting a child after the jury heard evidence that he had molested other girls.
Issue regarded a state statute that allowed evidence of prior sexual misconduct in b/c of a depraved sexual instinct.)
i. Rule: Evidence of prior sexual conduct is inadmissible to prove that a D had a tendency to commit a sexual assault. The admission of evidence of other sexual acts is to be governed by Rule 404(b), and thus may be admissible for other purposes (MOIPPKIA). f. State v. Kirsch (D, a church group leader, was charged with molesting 3 young girls, and testimony that he had
molested others was admitted at the trial against him on the basis of motive, intent, common scheme.)
i. Rule: Even if the prosecution nominally labels its reasoning for admitting prior bad acts evidence as one of the 404(b) exceptions, a Court will deem the evidence inadmissible if proper 404(b) test is not satisfied. Also, if one of the 404(b) exceptions is already satisfied, P cannot bring in evidence that would fall under the satisfied exception, b/c ultimately all that is doing is showing propensity. g. United States v. Guardia (D was accused of sexually assaulting two women during a medical examination, and the P
moved to admit evidence of similar allegations made by other women.)
i. Three threshold requirements before a court can admit evidence under Rule 413: 1) The court must determine that the D is accused of an offense of sexual assault; 2) The court must find that the evidence proffered is evidence of the Ds commission of another offense of sexual assault; 3) The evidence must be relevant. 1. Note: 403 balancing still applies to 413, but 413 supersedes 404(b)s prohibition on propensity evidence, and allows the government to offer evidence of a Ds prior conduct for the purpose of demonstrating a Ds propensity to commit the charged offense. 2. Thus, evidence of a Ds other sexual conduct will be admitted only if the probative value of the evidence outweighs the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, and the needless presentation of cumulative evidence. h. United States v. Mound: Dissent in this case argued that 413 presented a huge risk that the jury will convict a D for his past conduct, and that it violates due process
Impeachment of Witness I. Use of Past Convictions a. Historical Perspective See pgs. 249-253. b. Impeach to discredit the veracity of a witness. c. Impeachment the act of discrediting a witness, as by catching the witness in a lie or by demonstrating that the witness has been convicted of a criminal offense. d. FRE 607. Who May Impeach i. 607 The credibility of a witness may be attacked by any party, including the party calling the witness. 1. The traditional rule against impeaching ones own witness is abandoned as based on false premises. A party does not hold out his witnesses as worthy of belief, since he rarely has free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under rule 801(d)(1). e. FRE 608. Evidence of Character and Conduct of Witness i. 608(a) Opinion and reputation evidence of character The witnesss credibility may be attacked or supported by reputation or opinion evidence, but subject to the following limitations: 1) the evidence may refer only to character for truthfulness or untruthfulness [veracity], and 2) evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked by opinion or reputation evidence or otherwise. 1. Character inquiry is strictly limited to character for veracity, rather than allowing evidence as to character generally. Character evidence in support of credibility is admissible under the rule only after the witness character has first been attacked. Opinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption also fall within this category, but evidence of bias or interest does not. Note also, whether evidence in the form of contradiction is an attack upon the character of the witness must depend on upon the circumstances. ii. 608(b) Specific instances of conduct Specific instances of the witnesss conduct, for the purpose of attacking or supporting the witness veracity, other than conviction of crime under 609, may not be proved by extrinsic evidence. However, specific instances of a witness conduct may, in the discretion of the court, if probative of veracity, be inquired into on crossexamination of the witness 1) concerning the witnesss character for veracity (truthfulness or untruthfulness), or 2) concerning the character for truthfulness or untruthfulness of another witness whose character the witness being cross-examined has testified to. iii. Testifying, whether by an accused or by any other witness, does not operate as a waiver of the accuseds or the witness privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. f. FRE 609. Impeachment by Evidence of Conviction of Crime i. 609(a) General rule - For the purpose of attacking the credibility of a witness, 1. 609(a)(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment for more than a year; evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and 2. 609(a)(2) evidence that any witness has been convicted of a crime involving dishonesty or false statement shall be admitted regardless of punishment, subject only to the limits imposed by Rules 609(b)(c), and (d).
a. Example regarding subject only to the limits: If a witness has a 14 year old perjury conviction, 609(b) will impose a demanding weighing test that may trump 609(a)(2)s command that the evidence shall be admitted. ii. 609(b) Time limit Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or release from confinement (whichever is the later date), unless the court determines (in the interest of justice) that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years oldis not admissible unless the proponent gives sufficient advance written notice of intent to use such evidence to the adverse party to provide that party with a fair opportunity to contest the use of such evidence. iii. 609(c) Effect of pardon, annulment, or certificate of rehabilitation Evidence of a conviction is not admissible under this rule if 1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or 2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. iv. 609(d) Juvenile adjudications Evidence of juvenile adjudications is generally not admissible under this rule. v. 609(e) Pendency of appeal The pendency of an appeal therefrom does not render evidence of a conviction inadmissible, but evidence of the pendency of an appeal is admissible. g. For more on FRE 609 see pgs. 264-270. h. United States v. Brewer (D was charged with kidnapping and transporting a stolen motor vehicle and moved to
suppress evidence of 4 prior felony convictions.)
i. Rule: Before evidence of prior felony convictions may be admitted for impeachment purposes, the court must determine whether the probative value of admitting the convictions outweighs the prejudicial effect to the defendant. 1. To balance the probative value against the prejudicial effect, the court will utilize 5 factors: 1) the nature of the crime; 2) the time of conviction and the witness subsequent history; 3) the similarity b/t the past crime and the charged crime; 4) the importance of the defendants testimony; and 5) the centrality of the credibility issue. a. Re #1: Violent crimes have little or no bearing on veracity thus weighing against admission. b. Re #2: Continuing conflict w/ the law favors admissibility of convictions. c. Re #3: The more similar the past crime is with the present one, the less the likely admission is b/c of the heightened risk of unfair prejudice. d. #4 and #5 balance one another out. If Ds testimony is important, admission of conviction evidence is lowered, but if credibility is big issue, then admissibility of conviction is favorable. ii. Re 609(b) time computation: Reconfinement pursuant to parole violation is confinement imposed for the original conviction, and therefore the release date from the second confinement is the one used in computing time under Rule 609(b). i. United States v. Brackeen (D objected to the introduction of evidence of his two convictions for bank robbery,
arguing that they were not crimes that involved dishonesty.)
i. Rule: Under 609(a)(2), a crime involves dishonesty if it involves some element of deceit, untruthfulness, falsification, or misrepresentation. (Bank robbery is not a per se crime of dishonesty.) In fact, the bulk of modern decisions say convictions for theft in its various forms are not within 609(a)(2)
II.
ii. *Note also: 609(a)(1) has the 403 weighing requirement built into the rule, but 609(a)(2) has no such requirement and if a person is convicted of a crime involving dishonesty, impeachment evidence (the conviction) is automatically admissible if relevant. j. Rule 609 - Case Notes on Appellate Review: 609 is especially protective of criminal Ds, but if the trial judge disregards the Rules safeguards and wrongly admits evidence of past convictions to impeach a D, the D normally may appeal. The Supreme Court has ruled, however that a D may not appeal from the trial judges ruling unless two conditions are met: 1) D must in fact testify at trial; 2) the prosecutor must introduce evidence of the contested conviction. See Luce v. U.S. & Ohler v. U.S. k. Limiting Instructions Article pgs. 274-277: The study concluded that the presentation of the Ds criminal record doe not affect the Ds credibility, but does increase the likelihood of conviction, and that a judges limiting instructions do not appear to correct that error. Peoples decision processes do not employ the prior-conviction evidence in the way the law wishes them to use it l. SEE STUDY GUIDES IN TEXTBOOK m. Ethical implication of 609: An attorney trying to impeach must have a good faith basis for asking a question, like a conviction or a rap sheet. n. Generally, D will not be impeached for a conviction that is part of the same transaction as the indicted crime, but courts are split on this issue. o. **A D can be impeached by a crime that takes place after the indicted crime.** Inconsistent Statements of a Witness Offered to Impeach a. Introduction: Rule 613 governs the impeachment of witnesses with past inconsistent statements. (Note
the rule itself deals with specific procedures that control this mode of impeachment, which are not as important as the underlying theory of impeachment.) Past inconsistent statements, when offered to impeach, are not offered
for the truth of what they assert, but merely to show that the witness says different things at different times and therefore should not be believed. The party against whom such statements are offered may ask the judge for a limiting instruction to that effect. Of course the jury might not grasp the distinction b/t using an out-of-court statement substantively that is, proof of what it says and using it only to impeach. Rule 612 also does not concern hearsay, but deals with the mechanics of refreshing a witnesss memory. Information used to refresh a witness memory is not itself being admitted as evidence and need not be admissible. b. Prior Inconsistent Statements i. FRE 613. Prior Statements of Witnesses 1. 613(a) Examining witness concerning prior statement In examining a witness concerning his or her prior statementthe statement need not be shown nor its contents disclosed to the witness at that time, but on request the statement shall be shown or disclosed to opposing counsel. 2. 613(b) Extrinsic evidence or prior inconsistent statement Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the statement and the opposite party is afforded to interrogate the witness about the statement This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). ii. United States v. Barrett (D was not allowed to introduce evidence that a witness who implicated him has said
earlier that D was not involved in the crime.)
1. Rule: Evidence of prior inconsistent statements made by a witness may be used to impeach the witness. The contradiction need not be in plain terms, it is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the witness whom it is sought to contradict. Thus, a prior inconsistent statement is admissible to impeach a witness if it gives some indication, either directly or indirectly, that the fact was different from the testimony of the witness. a. Extrinsic evidence of a witness past inconsistent statement come in.
b. Note: The witness must be afforded at some time an opportunity to explain or deny, the alleged contradictory statement, and the opposing party is afforded an opportunity to interrogate the witness regarding the contradictory statement. iii. United States v. Ince (P introduced a statement from a witness that said D confessed to the crime.) 1. Rule: Prior inconsistent statements may not be introduced if their only purpose is to circumvent (get around) the hearsay rule and admit an otherwise inadmissible confession. Thus, prior inconsistent statements may not be used to introduce otherwise inadmissible evidence. To make sure a party does not try to impeach his own witness to circumvent one of the other evidence rules, a court must apply a 403 balancing test to see whether the testimonys impeachment value is outweighed by unfair prejudice or confusion to the jury. 2. Note: If testimony does no damage, impeachment evidence has no probative value. iv. Fletcher v. Weir (D was asked on cross-examination why he did not tell the police officers who arrested him
that he acted in self-defense.)
v.
vi. vii. viii.
1. Rule: A Ds silence after Miranda warnings have been given cannot be used as impeachment evidence if the D takes the stand; but pre-arrest silence and post-arrest silence before Miranda warnings have been given can be used as impeachment evidence if the D takes the stand. Regarding Silence: Silence may be used to impeach if the witnesss previous silence is inconsistent with his testimony on the stand. One must ask if it would have been natural, under the circumstances, to assert the fact at issue. If a person has been advised explicitly that she need not speak and that her words may be used against her, it is no longer natural to expect her to speak. Thus, if there is no expectation that the person would speak, then that persons silence can not be used as impeachment evidence under 613. For more see chart on pg. 404. Evidence of a prior inconsistent statement is used for credibility purposes, not substantive purposes. Ethical Requirement: To question about a prior inconsistent statement, the attorney must have a good faith belief that the statement was said, and a good faith belief that the prior statement was inconsistent. Scope: Prior statements can include many things including police sketches (broad).
REFRESHING A WITNESS RECOLLECTION I. Rule 612 a. FRE 612. Writing Used to Refresh Memory i. [I]f a witness uses a writing to refresh memory for the purpose of testifying either 1) while testifying, or 2) before testifying, if the court in its discretion determines that it is necessary in the interests of justice, - an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any unrelated portions, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. b. United States v. Riccardi (witness was shown her written notes on antiques that were stolen) i. Past Recollection Recorded the witness has no present recollection of the matter contained in the writing; the witness cannot directly state the facts from present memory and must ask the
court to accept a writing for the truth of its contents b/c he is willing to swear that its contents are true. ii. Present Recollection Revived the witness relates his present recollection and under oath and subject to cross-examination asserts that it is true; the witness presently recollects facts and swears to them from his revived memory; in this case, the witness capacities for memory and perception may be attacked/tested (can be cross-examined); his determination to tell the truth investigated and revealed. (Writing is not critical in this case.) c. S&A Painting v. O.W.B. Corp. (D sought production of written notes of a witness prepared by Ps attorney) i. Under 612, if a witness refers to only a part of a writing in refreshing his memory for the purpose of testifying, the court must excise the unused portions of the writing or the parts that are not related to the subject matter of the testimony. The parts used must be disclosed to the adverse party, even if the writing is applicable to an attorney client privilege or work-product doctrine. ii. The purpose of disclosure under 612 are 1) to test the credibility of a witnesss claim that memory has been revived and 2) to expose any discrepancies b/t the writing and the testimony. HABIT EVIDENCE I. Defined and Rule a. Habit Evidence: Evidence of ones regular response to a repeated specific situation. (Akin to a flinch) Habit is instinctive. When the response becomes one that is not thought about, then it is predictive. b. FRE 406. Habit; Routine Practice i. 406 Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. c. Distinction b/t character and habit: Character is a generalized description of ones disposition, or of ones disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit describes ones regular response to a repeated specific situation. d. Halloran v. Virginia Chemicals (P was injured when a can of Freon exploded, and D claimed that it was Ps practice to heat the cans.) i. Rule: A party may present evidence of habit, routine practice, etc. if it is relevant to prove the existence of a deliberate and repetitive practice. To justify habit evidence, a party must be able to show (to the satisfaction of the trial judge Huddleston standard) a sufficient number of instances of the conduct in question. e. Examples of what does not fall under habit: Violence, drinking, religious habits have all been excluded. f. Cf. 404: B/c proof of habit does not involve drawing inferences from general traits of character, it falls outside 404(a)s bar against evidence of character offered to show action in conformity therewith. g. Form: Proof of habit need not take any particular formRule 406 permits proof by evidence of specific acts h. The effective use of habit evidence, creates a rebuttable inference (not conclusive jury does not have to find) that the party acted in accordance w/ his or her habitual behavior. HEARSAY (Article VIII) I. Historical Prelude a. See pgs. 334-336 for The Trial of Sir Walter Raleigh, Knt. At Winchester, for High Treason (1603) b. The main problem with hearsay is that the declarant is not in the courtroom 1) testifying under oath, 2) in the presence of the trier of fact (demeanor evidence), and 3) subject to cross-examination. A problem with allowing hearsay is that the witness cannot testify to the dangers (below)all the
II.
witness is able to tell the jury is the declarants confidence. Hearsay denies 3 things to the trial process: i. Hearsay denies the right of the jury to judge. ii. Hearsay denies the right of the defendant or other party to cross-examine the real witness against them the declarant. iii. Hearsay denies the right of the criminal defendant to confront the declarant. c. There are four factors (dangers) to be considered in evaluating the testimony of a witness: i. Perception risk of misperception of the declarant; jury needs to know could the declarant perceive the subject matter of the out-of-court statement? problem only the witness is in court, not the declarant the witness cannot testify to how well the declarant could perceive the subject matter of the out-of-court statement. ii. Memory risk of a faulty memory; jury needs to know does the declarant remember the subject matter of the out-of-court statement? a witness cannot testify to this, cross-examination is needed to probe the declarant on his/her memory of the subject matter giving rise to the statement. iii. Narration risk of narrative ambiguity; jury needs to know 2 things 1) did the declarant misspeak about the subject matter of the out-of-court statement? 2) did the witness misunderstand the declarants out-of-court statement? you cannot cross-examine the witness on whether the declarant misspoke or whether the witness misunderstood. iv. Sincerity risk of insincerity; jury needs to know was the declarant sincere about the subject matter of the out-of-court statement? there could be actual lying, subconscious lying, sarcasm, etc. d. The hearsay rule is about the reliability of the evidence the jury hears. Defining Hearsay a. Hearsay (Common Law Definition): An out-of-court statement offered for the truth of the matter asserted. i. To decide whether any particular out-of-court statement is hearsay, 2 questions must be asked: 1. Is the litigant/witness offering the statement to prove (the truth of) what it says? 2. Is it an assertion? -Unless the answer to both questions is yes, the statement is not hearsay. ii. Example: Assume, that declarant A told defendant B, Watch out for Joey. Hes looking for you, and he has a gun. Now
assume that defendant B, who is charged w/ killing Joey testifies, the day before I had the run-in with Joey A called me and said, watch out for Joey If B offered the evidence of As statement to prove that Joey really was looking for him and really did have a gun, then As statement would be hearsay; but Bs testimony would not be hearsay if offered to prove that he had reason to fear Joey at the time of the attack, b/c As warning gave B reason to fear Joey even if what A said was completely fasle
b. FRE 801. Definitions i. 801(a) Statement A statement is 1) an oral or written assertion or 2) nonverbal conduct of a person, if it is intended by the person as an assertion. 1. Note on written statements think of the statement on the paper being from the declarant, and the paper being the witness; thus when written statements come into play hearsay should be immediately considered. 2. Example of a nonverbal assertion act of pointing to identify a person in a lineup. 3. Nothing is an assertion unless intended to be one a. **Nonassertive conduct cannot constitute hearsay.** Close cases should be resolved in favor of admissibility. b. **For more on assertions see pgs. 348-354. ii. 801(b) Declarant A declarant is a person who makes the out-of-court statement. 1. Example: Smith said, The D shot the victim; Smith is the declarant, and the witness is the person on the stand that will tell what the declarant said.
c.
d. e.
f.
iii. 801(c) 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. iv. 801(d) Statements which are not hearsay A statement is not hearsay if 1. 801(d)(1) Prior statement by witness (Declarant and the testifying witness are the same person) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, or other proceeding, or in a deposition, or (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person (line-up rule); or a. Note: 801(d)(1)(B) regards prior consistent statements and they do not need to be made within the confines of a trial or hearing; whereas 801(d)(1)(A) regards prior inconsistent statements made by the declarant which requires a higher indicia of trustworthiness hence the requirement and was given under oath. 2. 801(d)(2) Statement by a party-opponent The statement is offered against a party and is (A) the partys own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. a. Note on 801(d)(2)(E) when the conspiracy ends, application under this rule ends. b. Silence sometimes constitutes an adoption under 801(d)(2)(B). There are 4 preconditions to using silence as evidence of an adoptive admission: 1) the statement was heard and understood by the party against whom it is offered; 2) the party was at liberty to respond; 3) the circumstances naturally called for a response; and 4) the party failed to respond. **801(d) Evidence is by definition not hearsay, thus the evidence comes in as substantive evidence, and can be used to prove the truth of the matter asserted.** i. **NOTE: If a statement is offered just to prove that the words/statement were uttered and not to prove the matter asserted by the declarant, there is no hearsay problem.** ii. Exceptions to the hearsay rule are also allowed to be used as substantive material. FRE 802. Hearsay Rule i. 802 Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. FRE 805. Hearsay Within Hearsay (Multiple Hearsay) i. 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. 1. Example: Declarant says something, heard by someone, who then tells someone else Smith said, Jones said, A killed B For every jump where you have a hearsay problem, there must be a hearsay exception. FRE 806. Attacking and Supporting Credibility of Declarant i. 806 When a hearsay statement, or a statement defined in Rule 801(d)(2), (C),(D),(E) has been admitted in evidence, the credibility of the declarant may be attacked - if attacked, credibility may be supported, by any evidence which would be admissible had declarant testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarants hearsay statement, is not subject to any requirement that the
III.
declarant may have been afforded an opportunity to deny or explain. If the opposing party calls the declarant as a witness, the opposing party is entitled to examine the declarant on the statement as if under cross-examination. 1. Rationale: The declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified. 2. Note on Rule 806: Rule 806 permits litigants to attack a hearsay declarants credibility by any of the techniques available against live witnesses. These include proof of bias; contradiction by inconsistent statements; contradiction by other evidence; and evidence of untruthful character, whether in the form of opinion or reputation under Rule 608(a), specific acts suggesting untruthful character under 608(b), or past convictions under Rule 609. By its terms, Rule 806 extends to statements of spokespersons, agents and coconspiratorsand it applies to hearsay admitted under 803 or 804. Only when a partys own statement or adoption comes in against her under 801(d)(2)(A) or (B) and when a live witnesss past words are admitted under 801(d)(1) is there no provision for an attack on the declarants credibility. With regard to Rules 801(d)(2)(A) and (B), Rule 806 apparently contemplates that parties can attack their own credibility by taking the witness stand; and with regard to Rule 801(d)(1), parties can attack the credibility of testifying witnesses in the normal fashion. Exceptions to and Statements Outside the Hearsay Rule a. Introduction i. The FRE divide the exceptions to the hearsay rule into 5 broad categories: 1. Rule 801(d)(1): Prior Statements by Witnesses (A) Prior Inconsistent Statements (B) Prior Consistent Statements (C) Statements of Identification 2. Rule 801(d)(2): Admissions by Party-Opponents By definition, not hearsay thus can (A) The Partys Own Statements be used substantively. (B) Adoptive Statements (C) Statements by Spokespersons (D) Statements by Agents (E) Coconspirators Statements 3. Rule 803: Exceptions in Which the Availability of the declarant is Immaterial 4. Rule 804: Exceptions Applicable Only When the Declarant is Unavailable 5. Rule 807: Residual Exception ii. Rationale of the Exceptions: Most of the exceptions to the hearsay rule are traditionally justified by necessity (unusually necessary) and trustworthiness (indicia of reliability). Thus: 1. 2 Main Rationales for the 30 Hearsay Exceptions a. Indicia of reliability b. Necessity b. Statements of Party-Opponent (See Rule 801(d)(2) above) i. The hearsay rule poses no obstacle to confessions made freelyRule 801(d)(2)(A) declares that a partys own words are not hearsay when offered against her at trial. 1. Rationale: 1) Most statements offered by a litigant against an opponent were against the opponents
interests when she made them, and since people rarely lie in ways that hurt themselves the statement has a higher indicia of reliability (more truthful); 2) cross-examination is possible the declarant is the opponent; 3) any statement that a party makes or that otherwise may be attributed to her under this rule may come in against her b/c she said itshe will not be heard to complain that her own statement may be unreliable.
ii. Partys Own Statement
1. Jewell v. CSX Transportation (Statements of a young girl asserting that her parents were arguing
before a train collision were offered by the D under the party admission rule 801(d)(2)(A))
a. Rule: Trustworthiness (and reliability) is not a separate requirement for admission under Rule 801(d)(2)(A). Thus, if an opposing party makes a statement, they can not just take it back and say that is was not trustworthy. iii. Adoptive Admission 1. United States v. Morgan (Govt detective heard from a reliable source that a third-party was selling
drugs in a housewhen authorities arrived, D had drugs, Ds defense was that the third-party was actually selling drugs and D tried to show that govt believed that as well by admitting statements made by the informant to the detective)
a. Rule re 801(d)(2)(B): Once a party-opponent indicates its adoption or belief that a statement is trustworthy, the party-opponent cannot turn around and object to the statements admission on hearsay grounds. iv. Agent Statements 1. Mahlandt v. Wild Canid Survival & Research Center (P claimed he was injured by a wolf
kept by D, and he attempted to introduce evidence of statements made by D that the wolf had injured P.)
a. Rule 801(d)(2)(D) Statements made by an agent or employee that concern a matter within the scope of agency or employment and that are made during the existence of the relationship are admissible, even if those statements are not made to third parties. Such statements are not excluded even if the agent did not have personal knowledge of the facts on which the statements were based. b. Note: Agency only operates as a one-way street, agent statements can be used against the principle, but the corporations statements cannot be used against the agent. v. Co-conspirators Statements 1. Bourjaily v. United States (Statements made by an alleged co-conspirator were admitted in Ds trial
for conspiracy, and D claimed there was insufficient proof that the statements were made in furtherance of a conspiracy.)
a. Under 801(d)(2)(E), a court must be satisfied that 1) a conspiracy exists b/t the declarant and the non-offering party, and 2) the statement was made during the course and in furtherance of the conspiracy. These 104(a) preliminary matters must be established by a preponderance of the evidence. A court may use the contested hearsay statement to find the existence of a conspiracy b/c under 104(a), a court is not bound to the FRE except for those rules that relate to privilege. b. Rule: Statements made by co-conspirators during the course of the conspiracy are admissible if the existence of the conspiracy is proven by a preponderance of the evidence, which may include the statements themselves. 2. The coconspirator exception almost never applies to a confession made knowingly to the police and implicating ones associatesb/c the rule requires the statement to have been made in furtherance of the conspiracy. (Such a confession may terminate the conspiracy, and it can never qualify as furthering the conspiracy. 3. Note on 104(a) and 104(b): Both address how we should resolve questions on which the admissibility of evidence depends. The Bourjaily Court determined that 104(a) requires that the trial judge herself decide whether the preliminary conditions of the coconspirator exception had been proved judge must decide these questions by a preponderance of the evidence. Under 104(b), Huddleston held in determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial courtsimply examines all the evidence in the case and decides whether the jury could reasonably find the conditional factby a preponderance of the evidence.
a. Two important facts regarding these dual standards of proof: 1) The preponderance of the evidence standard in 104(a) is higher (requires a higher burden of proof) than the sufficient evidence standard of 104(b). 2) Under 104(a), the evidence used to prove facts under the rule need not itself be admissible; whereas under 104(b), only admissible evidence may be used to prove contested preliminary facts. b. Note also: 104(b) governs matters of conditional relevance, and Rule 104(a) governs everything else c. Past Statements of Witnesses i. Introduction 1. Past inconsistent statements, when offered to impeach (see Rule 613), are not offered for the truth of what they assert, but merely show that the witness says different things at different times and therefore should not be believed. (The party against whom such statements are offered may ask for a limiting instruction, but the jury might not grasp the distinction.) In contrast, when a witnesss past inconsistent statements are admitted under Rule 801(d)(1)(A), the statements come in substantively, and the jury may consider them for their truth. (Note:
a litigant must satisfy far more stringent conditions to admit a past inconsistent statement for its truth under 801(d) (1)(A) than to use it merely to impeach under 613.) Rule 612 (like 613) does not concern hearsay,
but deals with the mechanics of refreshing a witnesss memory. Information used to refresh a witnesss memory is not itself being admitted as evidence and need not be admissible. Rather, once the witnesss memory has been refreshed, the witness simply testifies from memory the ordinary way. In contrast, Rule 803(5), which governs the admission of a record of past events when the witnesss memory of those events has faded, provides for the admission of hearsay b/c the statements in the written record are themselves read to the jury and may be considered for their truth. 2. SEE CHART on pg. 386. ii. Inconsistent Statements Offered Substantively (Offered to prove what they say is true.) 1. United States v. Castro-Ayon (3 witnesses gave statements to an agent, at subsequent trial, the 3
witnesses gave inconsistent statements which the government used substantively)
a. Rule: Under 801(d)(1)(A), a prior inconsistent statement made by a declarant at a trial, hearing, or other proceeding (given under oath, subject) is not hearsay, and can be used to prove the truth of the matter asserted. i. Other proceeding can include an interrogation that provides legal rights such as the right to remain silent, the right to counsel, and the right to have the interrogator inform the witness of these rightsit can also extend to a grand jury proceeding. ii. Inconsistency can be found in evasiveness, silence, inability to recall, change of position, or any other shade of grey answer. iii. Under this rule, the prior statement must have been made at a hearing 2. Tome v. United States (D claimed that sexual abuse charges against him were fabricated, and the
government introduced consistent statements made after the motive to fabricate those statements arose)
a. Rule 801(d)(1)(B) permits the introduction of a declarants consistent out-ofcourt statement(s) to rebut a charge of recent fabrication or improper influence or motive only when those prior statements were made before the charged fabrication, improper motive or influence. Thus, you have to look at when the motive to fabricate arose i. Rationale: The purpose of the rule is not to bolster the truthfulness of the story, but to rebut an alleged motivein fact the rules do not allow prior consistent statements to be used to support a witnesss testimony. b. Rewording of the Rule: Prior consistent statements are admissible to rebut a charge of fabrication only if
the consistent statements were made before the motive to fabricate arose. FRE make prior consistent
Downloaded From OutlineDepot.com statements of a witness non-hearsay only if the statements are used to rebut a charge of recent fabrication or improper motive or influence.
3. Commonwealth v. Weichell (D was tried for 1st degree murder, and a composite sketch prepared
from a witnesss description was admitted into evidence.)
a. Under 801(d)(1)(C), a statement of prior identification is not hearsay if made by a witness who testifies at trial and is subject to cross-examination concerning the prior identification. Thus, the record of a witnesss out-of-court description of a person is admissible. 4. United States v. Owens (D was charged with attacking Foster, who could not remember who
attacked him but could recall identifying D as his attacker some weeks after the attack.)
a. Under 801(d)(1), a witness is subject to cross-examination concerning a statement if he or she is placed on the witness stand, under oath, and responds willingly to questions. Thus, memory loss do not make a witness unavailable for cross-examination. d. Declarant Unavailable Hearsay Exceptions (FRE 804) i. FRE 804. Hearsay Exceptions; Declarant Unavailable 1. 804(a) Definition of unavailability Unavailability as a witness includes situations in which the declarant 1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or 2) persists in refusing to testify concerning the subject matter of the declarants statement despite a court order to do so; or 3) testifies to a lack of memory of the subject matter of the declarants statement; or 4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; or 5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means. a. Note: lack of memory must be established by the testimony of the witness himself. 2. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 3. 804(b) Hearsay exceptions The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: a. 804(b)(1) Former testimony (Out-of-court statements were given in a prior proceeding) Testimony as a witness at another hearing of the same or a different case, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. i. develop to challenge, to dig into the testimony. ii. In assessing similar motive to develop, a court must consider whether the party
resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove or disprove the same side of a substantially similar issue. The nature of the two proceedings (both what is at stake and the applicable burden of proof) and, to a lesser extent, the cross-examination at the prior proceeding (both what was undertaken and what was available but foregone) will be relevant though not conclusive on the issue of similarity of motive. See DiNapoli below. predecessor in interest means a sufficient community of interest to qualify - the former party to the suit has to have a like motive for cross-examination and actually had the opportunity for such examination. See Lloyd below.
iii.
b. 804(b)(2) Statement under belief of impending death In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. i. There is no requirement that the person actually die, person just has to have belief that there is no chance of living, that death is imminent and there is no hope of recovery. c. 804(b)(3) Statement against interest A statement which was at the time of its making so far contrary to the declarants pecuniary or property interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. i. Thus, if it hurts declarant, it is against interest. d. 804(b)(4) Statement of personal or family history (A) A statement concerning the declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the others family as to be like to have accurate information concerning the matter declared. e. 804(b)(5) Forfeiture by wrongdoing A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. ii. Former Testimony 1. United States v. DiNapoli (At trial, D and other defendants sought to introduce grand jury
testimony from 2 suspects who testified with immunity.)
a. Rule: The test for whether a party has the same motive in developing evidence is not only whether the questioner was on the same side of the same issue in both proceedings, but also whether the questioner had a substantially similar interest in asserting that side of the issue. The degree of interest in an issue often depends upon the nature of the proceedings, as well as on the importance of the issue. If both proceedings are trials and the same matter is in dispute at both trials, the motive of a party in developing testimony will normally be the same in both trials. b. In some cases, the prosecutor may have the same motive at a grand jury hearing and at trial. 2. Lloyd v. American Export Lines (P did not appear in his action, and his testimony at a prior
administrative hearing arising out of the same incident was admitted at trial.)
a. Rule: A predecessor in interest is determined according to a partys motive in developing testimony. If the former suit party had a like motive to crossexamine about the same matters as the present party would have, and the former suit party was accorded such opportunity, then the testimony may be received by the present party. Thus, the previous party having like motive to develop testimony about the same material facts is a predecessor in interest.
b. Test for determining whether a person is a predecessor of interest: 1) the nucleus of operative facts was the same; and 2) the basic interest advanced by both parties is the same. iii. Statement Against Interest 1. Williamson v. United States (Harris made a statement that incriminated both Harris himself and D,
but he refused to testify at trial, and his statement was admitted into evidence.)
a. Rule: The parts of an out-of-court statement that do not inculpate the declarant are not admissible as statements against interest. (Only self-inculpatory parts of out-of-court statements are admissible.) Thus, collateral statements are inadmissible under 804(b)(3), even when they are coupled w/ self-inculpatory statements. i. Inculpatory statement evidence showing or tending to show ones involvement in a crime or wrong. b. Test of whether a statement is admissible under 804(b)(3)s penal interest exception: Whether the statement was sufficiently against the declarants penal interest that a reasonable person in the declarants position would not have made the statement unless believing it to be true. This question must be answered in light of all the surrounding circumstances. iv. Dying Declaration 1. Shepard v. United States (part 1) (Ds wife asked her nurse about having a bottle of whisky tested
for poison, and then said that D poisoned her.)
a. Rule: In order to be admissible as a dying declaration, a statement must have been made while the declarant had no hope of recovery and knew that death was imminent. b. Test: State of mind the patient must have spoken with the consciousness of a swift and certain doom; a settled hopeless expectation that death is near (imminent). i. Fear or even belief that illness will end in death will not avail itself to make a dying declaration. ii. In addition, the speakers declaration is inadmissible if spoken with conjecture or suspicion and not to known facts. 2. Note on hearsay & competency: Testifying witnesses must be competent, and the most basic competency rule is that non-expert witnesses must have personal knowledge of the facts they relate. (See FRE 602) In a hearsay situation, the declarant is a witness and neither 803 nor 804 disposes with the requirement of firsthand knowledge. Hearsay declarants must abide by the opinion evidence rules that govern lay witnesses. (See FRE 701 below). Testifying witnesses and lay declarants, if not qualified as experts, must confine their testimony to facts they have observed and to opinions drawn from those facts without the benefit of specialized knowledge. However, statements of a party-opponent are generally admissible even if the words are poorly informed or conjectural b/c under 801(d)(2), we must all live with our words (this-iswar rationale). Thus, party admissions have enjoyed freedom from the restrictive influences of the opinion rule and the rule requiring first hand knowledge. v. Forfeiture by Wrongdoing 1. United States v. Houlihan (A police informant who linked D and others to a drug conspiracy and
several murders was killed, and D objected to the introduction into evidence of statements made by the deceased.)
a. Rule: A D waives his right to object to the admission of an unavailable witnesss out-of-court statements on Confrontation Clause grounds if 1) the D caused the potential witnesss availability, 2) by a wrongful act, 3) done with the intention of preventing the potential witness from testifying at a future trial.
The government must prove the predicate facts (that D caused the potential witnesss unavailability by a wrongful act) by a preponderance of the evidence. e. Availability of Declarant Immaterial Hearsay Exceptions i. Introduction: In introducing 804, the advisory committee noted that hearsay embraced by that rule admittedly is not equal in quality to testimony of the declarant on the stand, but is better than no evidence altogether. (Testimony given on the stand is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant.) In contrast, the committee suggests that hearsay admitted under Rule 803 is sometimes better than the declarants live testimony. Rule 803 proceeds upon the theory that under appropriate circumstances a hearsay statement may possess guarantees of trustworthiness sufficient to justify nonproduction of the declaranteven though he may be available. ii. FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule even though the declarant is available as a witness: 1. 803(1) Present sense impression A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. a. A statement that involves the operation of memory is inadmissible under 803(1) b/c it is not a present sense impression. b. A present sense impression is a translation (spoken/declared to the witness) of the events in front of the declarant at time they are happening. c. Indicia of trustworthiness: the contemporaneous nature of the statement; there is no time to fabricate a lie. d. The declarant does not have to be agitated under this rule. e. United States v. Cain (CBers reported seeing two prison escapees a few miles backgovt
argued their statements fell under 803(1))
i. Rule: Rule 803(1) requires that the declarant make the statement at the same time or very near the same time he perceives the event or condition in question. Thus the time lapse b/t perceiving the event or condition and when the statement is made cannot be too wide. 1. Exception: If the declarant was still in a state of excitement resulting from the event, the temporal requirement will be relaxed. 2. 803(2) Excited utterance A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. a. Five factors that courts consider in determining whether to admit the out-ofcourt statement under 803(2): i. Lapse of time b/t the startling event and the declaration (the further removed the
more likely the declarant has calmed down)
ii. The age of the declarant (the younger the declarant would suggest that a longer time is
reasonable)
iii. The physical and mental state of the declarant (injury to the declarant will suggest
that a longer period of time is reasonable being unconscious for example will extend the period of time)
iv. The characteristics of the startling event (some are more startling than others) v. The subject matter of the statements made by the declarant. (If court believes
that declarant is lying, they generally will not admit the so-called excited utterance.)
b. Subjective Test: Whether this person is agitated, not whether a reasonable person would be agitated. c. The statement itself can be used to prove that the person was operating in an agitated state.
d. Indicia of trustworthiness: the mind is too busy reacting to the startling occurrence that it cannot fabricatethere is not capacity in the mind leftover to fabricate a lie. e. Cf. 803(1): The statement in this rule only as to relate to the startling event or condition whereas a present sense impression has to actually describe/explain the event. Thus, 803(1) is not as broad as 803(2). f. City of Dallas v. Donovan (Woman saw a horrifying car crash, and uttered, in a shaken
state, that she had called the city about a stop sign down)
i. Rule: The three required conditions for a statement to be admissible under 803(2) are: 1) a startling condition; 2) a statement made before time to fabricate; 3) and a statement relating to the circumstances of the occurrence (startling event or condition) (Note: Excited utterances are not confined to
statements describing or explaining the startling event.)
ii. Test re remoteness of statement from event: Is the declarant still acting under the effect of the startling circumstances? Thus, the only requirement concerning time w/ respect to admission of excited utterances is the necessity that the statement be made while in a state of excitement caused by the startling event. iii. Note: There does not have to be independent evidence of the related incident that the statement is being offered to prove, but there does have to be independent evidence of the startling event itself. 1. Example: In City of Dallas, the city had to prove that the wreck happened by independent evidence, but the statement (the excited utterance) was sufficient to prove the sign was down if the jury believed the woman. 3. 803(3) Then existing mental, emotional, or physical condition A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed. a. Mutual Life Insurance v. Hillmon (P brought suit to recover on three life insurance
policies, and D attempted to introduce letters written by the man they claimed was the actual decedent.)
i. Rule: Out-of-court statements that express a declarants present intention are admissible to prove what that intention was.
1. Example: The letters (in this case) were probative of the fact that when other evidence tended to show that Walters went away w/ Hillmon, he had in fact the intention of going away with Hillmonwhich made it more probable that he did actually go with Hillmon. Indicia of reliability: A person who had the intent of doing something, makes it more probable that he/she actually did do the intended act; there is no danger of memory failure and no risk of misperception (Walter would not misperceive his own statements.)
2.
b. Shepard v. United States (part 2) (Ds wife asked her nurse about having a bottle of
whisky tested for poison and then said that D had poisoned her.)
i. Rule: Past-looking statements are generally inadmissible, particularly about a 3rd party. For a declaration to be admissible on showing speakers intent or state of mind, it must be a statement showing future intention. Also, a declaration of a persons state of mind is inadmissible to prove the actions of someone other than the declarant. c. Rule 803(3) should render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.
4. 803(4) Statements for purposes of medical diagnosis or treatment Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. a. United States v. Iron Shell (D was prosecuted for assault with intent to commit rape, and
the victims doctor was allowed to testify about what the victim told him had happened.)
i. Rule 803(4) admits three types of statements when they are reasonably pertinent to diagnosis or treatment: 1) medical history; 2) past or present sensations (ex. it used to hurt or it now hurts); and 3) inception (origin, beginning) or general cause of the disease or injury. ii. Test: Admission of an out-of-court statement under this rule depends on 1) whether the declarants motive in making the statement was consistent with the purpose of the exception (see rationale below), and 2) whether it was reasonable for the physician to rely on the statement for diagnosis or treatment. 1. Note: Statements under this rule almost always cannot concern who is at fault, but questions concerning what happened are pertinent to diagnosis or treatment. 2. If statements are made without the motive of treatment or diagnosis, those statements would not be admissible. iii. Rationale of the rule focuses upon the patient and relies upon the patients strong motive to tell the truth b/c diagnosis or treatment will depend in part upon what the patient says; in addition the rule recognizes that life and death decisions are made by physicians in reliance of patients statements so they should be sufficiently trustworthy. iv. Indicia or reliability: the patient would not want to lie b/c if they did they could get improper treatment or be misdiagnosed; generally, people care about their own well-being. 5. 803(5) Recorded recollection A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. If admitted, the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. a. Johnson v. State (Taylor gave a statement that implicated D in a murder, but he was unable
to recall anything about the statement at trial, even after it was shown to him.)
i. Rule: In order for a recording of a past recollection to be admissible, the witness whose recollection is refreshed must testify that the recording is accurate. The predicate for past recollection recorded requires that four elements be met: 1. the witness must have had firsthand knowledge of the event 2. the written statement must be a record or memorandum made at or near the time of the event while the witness had a clear and accurate memory of it 3. the witness must lack a present recollection of the event; and 4. the witness must vouch for the accuracy of the written memorandum or record
a. An assertion of the statements accuracy in the acknowledgement line of a written memo or such an acknowledgement made
b.
previously under oath will not be sufficient (no statement should be allowed to verify itself, especially by boilerplate language). Example of a valid voucher: the witness may testify that he remembers recording the facts accurately; it has also been held sufficient for a witness to testify that he recognizes his signature on the statement and believes the statement is correct b/c he would not have signed if he did not believe the statement was true at the time it was made.
b. Indicia of trustworthiness: eliminates the risk of faulty memory. 6. 803(6) Records of regularly conducted activity (business records) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. a. Palmer v. Hoffman (P and his wife were involved in a traffic accident with a train, and the
railroad (D) sought to introduce a report of the accident as a business record.)
i. Rule: Out-of-court statements in the form of records of regularly conducted business activity are admissible as evidence, but they must be records made in the regular and systematic course of business, and not records for use outside the business. Thus, an accident report is not made in the regular course of business (it is made due to the potential of litigation surrounding the accident), and so is not admissible under this exception. ii. Business records exception (concise definition): A hearsay exception allowing business records (such as reports or memoranda) to be admitted into evidence if they were prepared in the ordinary course of business. b. Indicia of reliability: the routine and necessity for the records. c. United States v. Vigneau (D was accused of sending money to D for illegal drugs, and
records of money transfers with Ds name on them were introduced into evidence at trial.)
i. Rule: The business records exception does not include statements contained within a business record that were made by someone who is not part of the business if the statements are offered for their truth. 7. 803(7) Absence of entry in records kept in accordance with the provisions of 803(6) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with 803(6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. a. Technically this is not hearsay. b. Examples of use include showing a shipment was not sent, or showing that a payment was not made. 8. 803(8) Public records and reports Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, but excluding (in criminal cases) matters observed by police officers and other law enforcement personnel, or (C) in civil actions, and against the
Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. a. Beech Aircraft v. Rainey (P sued D for his wifes death in an airplane crash, and D
introduced the report of an official investigation that said that pilot error was the cause of death.)
i. Investigatory reports are not inadmissible solely b/c they set out a conclusion or opinion. Portions of investigatory reports that state a conclusion or opinion are admissible under 803(8)(C) if 1) the actual report itself is admissible under the rule, 2) the conclusion or opinion is based on factual investigation, and 3) the conclusion or opinion satisfies the rules trustworthiness requirement. 1. Four factors that help determine trustworthiness are: 1) the timeliness of the investigation; 2) the investigators skill or experience; 3) whether a hearing was held; and 4) possible bias when reports are prepared with a view to possible litigation. 9. 803(9) Records of vital statistics Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. 10. 803(10) Absence of public record or entry To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. 11. 803(11) Records of religious organizations Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. 12. 803(12) Marriage, baptismal, and similar certificates Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. 13. 803(13) Family records Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones or the like. 14. 803(14) Records of documents affecting an interest in property The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. 15. 803(15) Statements in documents affecting an interest in property A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
16. 803(16) Statements in ancient documents Statements in a document in existence 20 years or more are admissible if the authenticity of the document is established. 17. 803(17) Market reports, commercial publications Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. 18. 803(18) Learned treatises To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. a. Zwack v. State (D tried to read a book on psychology to the jury without the assistance of an
expert.)
i. Rule: Learned treatises are to be used only in conjunction w/ testimony by an expert witness, either on direct or cross-examination, even though the authority of the publication is otherwise established. Thus, an expert has to be available on the stand to explain and assist in the application of the treatise. 1. Rationale: To ensure that a jury will not receive arcane information without some guidance from a live witness; to avoid the possibility that the jury will misunderstand and misapply the technical language w/in a 19. 803(19) Reputation concerning personal or family history Reputation among members of a persons family by blood, adoption, or marriage, or among a persons associates, or in the community, concerning a persons birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of person or family history. 20. 803(20) Reputation concerning boundaries or general history Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located. 21. 803(21) Reputation as to character Reputation of a persons character among associates or in the community. 22. 803(22) Judgment of previous conviction Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. 23. 803(23) Judgment as to personal, family, or general history, or boundaries Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. f. Residual Exception i. FRE 807. Residual Exception 1. 807 A statement not specifically covered by 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponents intention to offer the statement and the particulars of it, including the name and address of the declarant. ii. Dallas County v. Commercial Union Assurance Co. (D introduced into evidence an old newspaper
article to show that Ps courthouse had been damaged by fire over 50 years earlier.)
1. The requisites of an exception to the hearsay rule are necessity and a circumstantial guarantee of trustworthiness: a. Necessity means that unless the hearsay statement is admitted, the facts it asserts may be lost, either b/c the person whose assertion is offered is unavailable, or b/c the assertion is of such nature that one could not expect to obtain evidence of the same value from the same person or from other sources. i. Test: Necessity does not require total inaccessibility of first hand evidence as a condition precedent to the admission, but that great practical inconvenience would be experience in making the desired proof. b. Trustworthiness there are three sets of circumstances when hearsay is trustworthy enough to serve as a practical substitute for the normal test of crossexamination: 1) where the circumstances are such that a sincere and accurate statement would naturally be uttered, and no plan of falsification be formed; 2) where, even though a desire to falsify might present itself, other considerations, such as danger of easy detection or the fear of punishment, would probably counteract its force; 3) where the statement was made under such conditions of publicity that an error, if it had occurred, would probably have been detected and corrected. 2. Rule: Hearsay evidence may be admissible if there is no other way of proving the facts in the hearsay statement and if there are circumstances that show the evidence is trustworthy enough without the need for cross-examination. 3. Note: The reason the article did not fall under the ancient documents exception is probably b/c of the double hearsay nature of the article, the writer did not have first hand knowledge of the fire (one layer of hearsay) and then the article itself was hearsay. iii. United States v. Laster (D was accused of manufacturing methamphetamine and records that showed that he
ordered one of the components of the drug were introduced.)
1. Majority approach to the application of Rule 807: Courts apply 807 to statements specifically covered by, but not admissible under 803 or 804; under this approach, hearsay inadmissible under 803 or 804 may still be admissible under 807, even when they are the sort specifically covered by 803 or 804, if they possess equivalent circumstantial guarantees of trustworthiness. 2. Minority approach to the application of Rule 807: The residual exception means what it says that it applies to those exceptional cases in which an established exception to the hearsay rule does not apply but in which circumstantial guarantees of trustworthiness, equivalent to those existing for the established hearsay exceptions are present. 3. Black Letter Rule: The residual hearsay exception allows the admission of hearsay if there is no indication that the evidence is not reliable, if the hearsay is more probative
on the point for which it is offered than any other evidence, and if its admission serves the best interests of justice. CONFRONTATION CLAUSE I. Introduction a. Sixth Amendment: provides that in all criminal prosecutions, the accused shall enjoy the rightto be confronted with the witnesses against him i. Olden v. Kentucky: held when the defendants accuser testifies against him at trial, the Confrontation Clause protects his right to test her accusation through cross-examination. ii. Re hearsay: For well over a century, the Supreme Court has recognized that some hearsay may be admitted against criminal defendants even if the declarant never submits to crossexamination. At the same time, the Court has insisted that the Confrontation Clause bars at least some out-of-court statements by absent declarants even when those statements satisfy an exception to the hearsay rule. iii. Keep in mind: Evidence permitted by the rules of evidence but forbidden by the Confrontation Clause must stay out. Evidence permitted by the Confrontation Clause but excluded by the rules of evidence also must stay out. iv. For more see Confrontation Clause hand-out material. II. Cases a. Crawford v. Washington (D stabbed Lee b/c Lee tried to rape Ds wife; D claimed self-defense, wife gave statement
to the police saying she did not see anything in Lees hands, State wanted to introduce tape against D even though she could not testify against D b/c of privilege) Rules:
i. Statements taken by police officers in the course of interrogations are testimonial hearsay. Testimony a solemn declaration or affirmation made for the purpose of establishing or proving some fact.
1. Various formulations of testimonial statements include 1) ex parte in-court testimony or its functional equivalent affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pre-trial statements that declarants would reasonable expect to be used prosecutorially; 2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; 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. Testimonial applies at a minimum to prior testimony, to police interrogations Majority broadened the definition as to what hearsay constitutes testimonial hearsay
ii. Testimonial statements of witnesses absent from trial can be admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. Thus, where non-testimony hearsay is at issue, States may be flexible in their development of hearsay law; where statements are testimonial, the Sixth Amendment demands what the common law required: 1) unavailability and 2) a prior opportunity for cross-examination. b. Davis v. Washington; Hammon v. Indiana (two cases that deal w/ confrontation clause; issue: what constitutes
testimonial statements during police questioning, 911 questioning, etc.)
i. Only testimonial statements cause the declarant to be a witness within the meaning of the Confrontation Clause; other hearsay is not subject to the Confrontation Clause, but only subject to the traditional limitations upon hearsay evidence. ii. Rule: Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet ongoing emergency. Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. OPINION TESTIMONY I. Lay Opinions a. Introduction: Common law judges typically gave lay witnesses leeway to state two broad sorts of opinion evidence: 1) Inferences that resist reduction to fundamental facts these basic, less
controversial kind of permissible lay opinions are those inferences that can hardly be stated in the form of sensory perceptions alone. Prototypical examples of this sort of opinion evidence: the appearance of persons or things, the manner of conduct, degrees of light or darkness, sound, size, weight, distance, emotions etc. 2) Opinions that can be reduced to more fundamental facts but still gain from the inference most judges allow people to opine on matters such as intoxication, whether D was the same person witness saw fleeing from scene, etc. b. Rule 701, governs the admission of lay testimony The rule imposes only 3 constraints: 1) Rule 701(a) demands that a lay witnesss opinions be rationally based on her perception hence simply reaffirming the first-hand knowledge requirement of Rule 602; 2) Rule 701(b) requires that lay opinions be helpful to the jurys fact-finding most lay opinions that convey reliable and material information clear this hurdle; 3) Rule 701(c) demands that a lay witness not invade the experts realm but what is the realm? c. FRE 701. Opinion Testimony by Lay Witnesses i. 701 If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 1. Limitation (a) is the familiar requirement of first-hand knowledge or observation. 2. Limitation (b) requires testimony to be helpful; if witness attempts to introduce meaningless assertions which amount to little more than choosing up sides, exclusion of the evidence for lack of helpfulness is demanded by the rule. 3. Limitation (c) does not distinguish between expert and lay witnesses, but rather between expert and lay testimony. Sometimes a witness will provide both lay and expert testimony, but the rule requires that any part of the witness testimony that is based on scientific, technical, or other specialized knowledge within the scope of 702 is governed by the standards of 702 and the corresponding disclosure requirements of the civil and criminal rules. d. United States v. Figueroa-Lopez (Govt presented testimony by police as to how Ds conduct conformed to the
methods and techniques of experienced drug dealers, but they were not qualified as experts.)
II.
i. Rule: Testimony based on specialized knowledge falls under expert testimony, and the requirements of Rule 702 must be met. Thus, a witness may not give opinion testimony about matters outside the realm of common knowledge unless that witness is qualified as an expert. Expert Testimony a. FRE 702. Testimony by Experts i. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the case.

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vi. vii. viii.

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ii. Partys Own Statement

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