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Why Have Rules of Evidence? A. Judges/Society dont trust juries: dont believe juries can evaluate out of court statements or dismiss information once given B. Related substantive policies: To achieve substantive goals in litigation (who wins) C. Unrelated substantive policies: To achieve goals outside litigation (privilege allows communication) D. Make fact finding accurate: E. Save resources AND control scope Duration of trials F. Appearance and Validity: important for trials to appear valid- create appearance and realibility 1. To make results seem acceptable to public, even though they are not 2. Want litigants to think system if fair (even if not) II. What Happens in a trial? A. Lawyers/Judge select the jury Opening Statement (PL goes first)- gives summary of what evidence will show/prediction Ds Opening statement B. Ps Case in Chief- Puts on evidence/witnesses P rests C. D Puts on her case in Chief D. P gets rebuttal D gets to rebut E. Closing Arguments- reaffirms opening and also what the evidence did not show F. Judge instructs jury on the law (instructions proposed by each side) jury deliberation verdict G. Court enters judgment post trial motions H. Appeals : TEST: must show an error and that it would have affected the outcome of the case a. Reversible error --Need to show there is reversible error- error that is so important that it requires reversal i. Did the error probably affect the result? (a) If yes? There is reversible error b. Harmless error- error that causes no harm to the outcome of the case c. Plain error: court may take notice even if not objected to or offered proof i. You can argue plain error (rare)- the error was so plain that anybody would d. Ex: Co-party plaintiffs vs. D. D puts on police officer saying plaintiffs were speeding. Counsel for P1 objects to the witness as an expert. D wins. P2 appeals and D argues appeals should be dismissed for his failure to object in court below (a) Doesnt matter who objects as long as one does III. Judicial Mini-Hearings A. Who decides evidence Qs, e.g. whether witness was excited when he spoke. B. FRE 104(a) Judge decides questions of admissibility; determines preliminary questions 1. Examples: a. Simple relevancy (not contingent based on establishment of a fact) b. Witness competency qualifying an expert c. Privilege atty-client; spousal d. Admissibility of evidence e. Hearsay doctrine [mostly] 2. Judge NOT bound by rules of evidence when determining admissibility (104a) [except privileges] 3. PREPONDERANCE STANDARD of evidence (more likely than not) [Bourjaily] a. Example Can a textbook be offered as proper, was someone excited when they spoke (both involve the hearsay doctrine) i. If the evidence is admitted, it can still be rebutted by the opponent at trial C. FRE 104(b) Jury decides preliminary questions of fact 1. When relevancy turns on fulfillment of a condition of fact 2. When different answers are possible based on the evidence Judge merely screens the evidence & jury decides conditional relevancy a. Jury decides whether the condition is satisfied evidence that is conditionally relevant is admitted subject to the introduction of sufficient other evidence to support a finding by the jury that the condition is satisfied (prima facie showing b. Factual issue of whether the necessary condition has been met to allow evidence in 3. LOWER STANDARD OF PROOF Need enough evidence to enable a reasonable jury to come to a conclusion 4. If the evidence is admitted, it can still be rebutted at trial a. Examples OF SITUATIONS WHERE THE JURY DECIDES: i. Authentication of evidence a matter of conditional relevancy ii. Personal knowledge of a witness

Downloaded From iii. Connecting a weapon to the crime. Whether a gun is connected to a murder scene is an issue of authentication, which is treated as a matter of conditional relevancy decided by jury iv. Certain hearsay issues: (a) Whether a party adopted a statement made by another (b) Whether a person making a dying declaration actually knew he was dying IV.

Presenting Evidence A. Through Witnesses: TESTIMONY

1. Direct Examination- by party offering the testimony a. PL lays foundation- shows witness knows something about his/her testimony b. Kinds of Questions; i. Leading questions- a question that communicates the answer that is sought/Q that suggests an answer (a) Not allowed during direct examination (i) Always prepare the witness in advance/never ask if you dont know answer (b) BUT, they are allowed on cross examination ii. Scope of Direct Rule (Rule 611b p.17) (a) Cross examination should be limited to: (i) The subject matter of direct examination and (ii) Matters of credibility of the witness a. But judge has discretion to allow info not presented during direct (rare) b. Any information not presented during direct can be elicited by D calling again later during the def presentation of the case (b) Tests of Scope of Direct Evidence (i) Points Raised on Direct: must address same points (majority) (ii) Transaction Described: much broader (minority)- cannot be before/after (c) Problem 1A p.25: B&D has accident with F. F is defendant. B sues F. B (PL) calls D (witness) who says F ran red light on direct. (i) Isnt it true you are legally blind Mr. D? a. Can be asked b/c credibility of the witness (if blind liar impeaches testimony) (ii) Mr. D, you and B (PL) are dating arent You? a. Beyond the scope but may also to credibility of witness (potential bias, incentive to lie) (iii) Isnt it true Mr. D, that B (PL) turned and was looking out back window? a. Subject of Direct testimony was color of light, not what B was doing i. Does not pass Points on Direct, but probably passes Transaction b. Credibility? If you could answer the Q then how could you see what color the light was goes to credibility**** (iv) Isnt it true B had been drinking? a. Credibility? Does it show a social bond between the witness? (a bit strained b/c already admitted they had been datingjudge wouldnt let in) b. Scope of direct? i. Points on direct would not allow this Q (nothing to do with light) ii. Transaction Described Test: would not allow b/c has to do with before (d) Problem 1B- he didnt object- as long as the other side objected then you are ok. a. Two Ps and 1 D. One of the Ps attorneys objects but the other doesnt. Can the

attorney who didnt object appeal? i. Answer Probably yes, because at least someone did object and the court + adversary were put on notice that there was a potential problem ii. Shephard: DREEVES should be ok, normally you have to object to preserve the issue on appeal, but the other lawyer objected, and one lawyer objecting is enough (ii) Motion to Strike: a. Improper evidence has been introduced (a witness just blurts something out thats improper) and you didnt have a chance to object before i. Can ask for a mistrial if you think the jury has been completely tainted 2

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ii. If not, judge could grant a motion to strike and instruct the jury not to consider something they heard in their deliberation V. Admitting Real Evidence (things, including demonstrative evidence)
Laying a Foundation = authentication a. Foundation: information produced that must show evidence is what proponent says it is b. Process i. Mark for identification (give to clerk of court) as piece of evidence evidence/authentication offered D debates admitted/not 2. Keeping evidence Out: Objections a. If let in jury can consider; if not jury cannot consider i. Requirements (a) Objection must be on the record and state the ground (b) Timely: After the question, but before answer (i) If answered: motion to strike or motion for new trial (c) State Ground b. Must Object at time presented (timely objection) i. Cannot object later in the trial! This means many valid objections will go ignored ii. For an appeal later, object now iii. Why? Help the judge (adversarial system); allows adversary to fix the problem c. 2 Kinds of Objections i. Substantive: based on evidence itself (hearsay, Best Evidence Doctrine, privileges, character evidence) ii. Formal objection: nothing wrong with the substance, but the Q is being asked in the wrong way (form of Q)list on CB p.31 (a) Asked and Answered; Assumes facts in evidence; Argumentative; Compound, Leading the Witness, Misleading, Speculation/Conjecture, Ambiguous (b) Be careful with these b/c lawyer will get info anyway in another way! iii. General Objection: When the judge excludes evidence under a general objection, even on a mistaken theory, the ruling is usually upheld if excluding the evidence was right for any reason at all. iv. Motion in Limine: motion before trial to get a ruling then by judge that evidence cannot be introduced (a) May force settlement if important evidence is forced out (b) If you sleep: adversary can get someone on the stand and say something before you have a chance to object or discount credibility would then motion to strike but jury would not be able to really get testimony out of their headsyou cant MAKE THE JURY FORGET YOU SHOWED THEM A BLUE HORSE d. The Offer of Proof (FRE 103(a)(2)) i. If objection is sustained to exclude evidence, you must make offer of proof to preserve right to appeal ii. Must make it known to court what would have been presented if objection overruled (a) On the record out of presence of jury (appeal granted only if would have affected outcome of case) (b) if admitted, this piece of evidence would show. e. Who Decides Objections? i. The judge: judge does decide factual issues ii. Rulings on Evidence: Rule 103 (RB p.40) iii. Rule 104(a) (a) Questions of admissibility generally (i) Example of Fact finding: Judge decides hearsay exception of excited utterance (this is a Q of fact decided by the judge, not the jury); Preponderance of evidence (b) Relevancy Conditioned on Fact (104(b)) (i) When the relevancy of evidence depends upon the fulfillment of a condition of fact (weapon only relevant if murder weapon), court will admit if a reasonable jury can find it fulfills the condition (it is the murder weapon) (ii) Ex: If you have 1 witness saying it is the gun and 3 saying it is not this is admittable (only need 1 reasonably credible witness!) jury decides in the end f. Authentication: must provide prima facie evidence- evidence such that a reasonable jury could find the evidence is what purports to be (dont have to prove it)this is conditional relevancy 3. To get In a. Stipulation and Admissions Authentication ((p.849)- Rules of 104(b) repeated in 901-903 1.


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Laying the Foundation (no rule says you need to lay a foundation-but 402 says you need the evidence to be relevant to be admissible) Rule 901(a) says you need to offer sufficient evidence to show that the evidence is what the proponent claims it is... which serves as a screening function Who makes the final determination if it is what it is claimed to be? The jury (a prima facie case needs to be made and you usually only need one witness Just enough to convince the judge its enough Pg 854 1) 8 steps you need to authenticate Rule 901 b gives a list of examples there are 10 of evidence that satisfies the requirement of AUTHENTICATION see 10 things below of ways to authenticate Rule 902-Self -authenticationdont need to present evidence to authenticate it there are 12 things that are self authenticating Stipulations something the party admits Request for admission (to request that the other side authenticate the evidence ahead of time)
I. Authentication A. Lay Foundation for Evidence B. Must show it is relevant (Rule 402: if not relevant not admissible) II. Authentication Requirement Test 901a: Satisfied by evidence sufficient to support a finding that the matter in Q is what the proponent claims (same as prima facie case in 402 Relevance) 1. TEST: Evidence that a reasonable jury could find what is claimed if they find the evidence is true 2. Dont have to prove what is claimed or show beyond a reasonable doubt; just need some credible evidence for admission a. Ex: dont have to prove it is the murder weapon for admission- can later be proven it is not the weapon 3. Judge is only a screen: ultimate decision rests on jury 4. Authentication is not evidence of validity of the evidence once at trial B. Authentication is only 1 obstacle; doesnt guarantee admission C. Judges Discretion: difficult to get an appeal D. US v, Johnson (851) 1. Need to know why it is being offered (to know what info must be presented!) a. Here: ax offered as a murder weapon 2. Need to link evidence to murder a. Must somehow link ax to murder (not just ownership!) i. Need testimony from someone who witnessed assault or forensic evidence ii. NOT just presence of an ax at a house 3. Does not need to be entirely free from doubt a. Here: witness/victim was pretty sure ax was weapon, saw D with the weapon = sufficient i. A reasonable juror could find that this ax was the weapon used in assault III. What needs to be authenticated? A. Every piece of evidence; everything requires foundation/authentication- however some things are self authentication IV. 10 Ways of Authenticating: 901(b) 1. Testimony of witness with knowledge a. Testimony that the matter is what it is claimed to be 2. Nonexpert opinion in handwriting a. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purpose of litigation 3. Comparison by trier or expert a. (with an authenticated specimen) 4. Distinctive Characteristics and the like* a. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with other circumstances 5. Voice Identification a. ID of voice, whether heard firsthand or through recording, by opinion based upon hearing the voice at any time (i.e. at trial!!!) under circumstances connecting it with alleged speaker 6. Phone Conversations

Downloaded From Phone conversations, by evidence that the call was made to the number assigned at the time by the phone company to a particular person or business if: b. In case of person, circumstances, including self ID, show the person answering to be the one called c. In case of business, the call was made to a place of business and the conversation related to business reasonably transacted over the phone 7. Public Records or Reports a. Evidence that a writing authorized by law to be recorded/filed and in fact recorded or filed in public place or is from the public office where items of this nature are kept 8. Ancient Documents or data compilation a. Evidence that a document, in any form, is: b. In such a condition as to create no suspicion concerning its authenticity, c. Was in a place where it, if authentic, would likely be, and d. Has been in existence 20 years or more at the time it is offered 9. Process of System (TECHNICAL WAY) a. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result 10. Methods provided by statute V. Chain of Custody = Authentication A. Problem 13A: p857 prosecutor need to do to authenticate the bag? 901a (prima facie case that it a.

is what it is claimed to be)... what if it is given to all the people... MAYBE YOU HAVE TO GET TESTIMONY OF ALL THE PEOPLE THAT HANDLED IT (testimony from each link in the chain that touched the bag) a. For white powder you cant tell so for fungible evidence like that you need each link in the chain.... its ok if there is a break BUT STILL NEED THE FIRST IN THE CHAIN TO TESTIFY (US V HOWARD)

B. Example: Cocaine is confiscated: 1. Must have evidence that a reasonable juror can find that the bag of evidence is the SAME bag confiscated a. Would have testimony from each officer with custody: must show there was NO mistake C. Break in Chain: occasionally allowed (Dont rely on this exception!) 1. Test: sufficiently complete so as to convince the court that it was improbable the original item was not switched VI. Writings A. How do you show a letter is from or to someone claimed 1. Handwriting expert 2. 901b4: Distinctive characteristics and the like- appearance, patterns, contents, substance, internal pattern, etc, taken in conjunction with circumstances a. US v. Bagaric (p. 855) i. Facts: trying to link P with B by letter to P from B. P (D) challenges authentication of a letter ii. Court: Return Address, name signed was a name used by Bagaric (doesnt mean letter is ruled to be from Begaric jury decides) iii. Judge makes a finding of fact b. The letter and its contents matched facts about the author (city he lived in, his landlord, his

friends, information that he knew), so the letter was authenticated. U.S. v. Bagaric. 901b4all of the clues led to the conclusion and can be made with circumstantial evidence...

B. Letter on Letterhead: most courts say note on letterhead is enough to get a letter authenticated 1. Someone could have stolen letterhead, so D can present evidence of this at trial C. Land Sale contract (Problem 13-B) p860 1. In suit to quiet title, P seeks to offer a land-sale K between P and prior owner to show sale to P. K was executed in 1980 and original was obtained from courthouse. How can it be authenticated? 2. 901b1: notary or witness; nonexpert opinion in handwriting, Comparison by trier or witness, distinctive characteristics (can even compare signatures- distinctive , not voice or phone b/c not trying to get conversation into , ancient is 20 years- applies too (this should get a stipulation b/c probably not disputed) 3. 902(4): self authenticating D. US v Oslund-- when the informant is not testifying... d convicted by jury of robbery and

murder of a brinks security guard 1. Defendant was convicted of carrying a firearm

Downloaded From 2. 3. Defendant was convicted of robbery affecting interstate commerce, murder with a firearm during a robbery affecting interstate commerce, and felon in possession of a firearm

Use 901b9evidence of a process of a system..... showing it was a good device, workable, people operating it knew what they were doing.. Made in a technically reliable way a. Gaps in the recordinggo to weight 4. 901b1If the informant was available to testify that they had the meeting, what was said, the stuff on the recording. 5. Safest way to do it is to go both ways (use the technical way and the informant testify) 6. All this also goes to problem 13-d and the (OSLUND CASE)
E. E Mails (Problem 13-C) p861 1. Authentication: Must show that they are emails from the D a. Girl goes missing. Communicates with the Wizard online and they find emails describing a trip to Vegas. They find girl with a man Tate who was arrested. Investigators find Tate; calls himself the wizard in emails. P wants to use emails to show he induced her. What foundation is needed? i. Authenticating his emails (a) Not 901b1 (witness w/knowledge): girl doesnt really know the emails came from Tate (b) Focus on 901b4: distinctive characteristics (i) Find that Tate has an email account named the Wizard; Match IP addresses (ii) That Tate and the Girl acted out anything in the emails (went to the concert spoken of, the meeting, etc)surrounding circumstances ii. Authenticating her emails (a) 901b1 (witness w/knowledge) iii. Authenticating that she received the emails: 901b1 (witness w/knowledge) F. Tape Recordings 1. Foundation evidence demonstrating that the recording played is an accurate reproduction of relevant sounds previously audited by a witness 2. 2 Ways of Authenticating Tapes a. Technical Way: show technically that recording was good: competent operator, authentic, no changes or additions, preserved, speakers identified, conversation b. By Witness Present: Testimony by a witness present that remembers the conversation and can testify that it is a fair and accurate representation (Voice ID would only show participation!) i. ON EXAM: argue both!- technical way AND by witness present c. PROBLEM 13-D: pg863 i.

Two ways of admission technical way (901b9) or having the undercover officer testify that theyve heard the recording and its a fair representation of what happened and could get the witness present that remembers the conversation and can testify

Biggins (p.859) a. Facts: Conversation about a drug sale. 2 DEA agents were present and the conversation was recorded by a nonexpert recorder that did have knowledge and there was also a filtered version filtered by an unkown b. Government did not proceed on technical route: govt didnt offer evidence of competency offered witnesses (2 DEA Agents) who testified it was accurate c. Court: i. Operator didnt show that he was a competent operator of the equipment, but this didnt matter because another witness testified that the re-recording of the original was accurate. ii. Testimony that it was a duplicate of the original = insufficient iii. Must testify that it was a faithful recording of the convo that took place iv. Here: 2 other witnesses present said the re-recording was precise (not just a duplicate) 4. Wire Tap with no one present: a. Witness Present: must get someone in the conversation to testify b. Technical Way: if no witness will testify i. NOT 901b5- voice identification would only authenticate that the D was a participant in the conversation, NOT that the conversation is accurate! G. Technical Route = 901(b)(9)Process or System (testimony process produces accurate result) H. Photographs 1. Problem 13-E: p868 photo of intersection of accident is take 1 month later; how do you authenticate?


Downloaded From 901b1: testimony of witness with knowledge- ask a participant if it is a fair and accurate representation of the intersection b. Dont need the photographers testimony c. Unless change is so drastic, the picture can be authenticated d. Doesnt have to be taken at the time of the accident e. Can authenticate in a technical way (automatic photo at an intersection) X-Rays ( show damages) More difficult to authenticate because the person taking the x-ray cannot a.


independently confirm its accuracy must show the process and that it produces a fair result.
a. b. c. Need to prove that the X-Ray is actually of the Person at the time of the injury Need chain of custody Must prove the technical way unless a Dr can testify i. Problem: 13f x-ray you have to use the process approach (a) Witness cant say its a fair and accurate depiction (b) A lay person cant tell you what the x-ray shows (c) 901b1- technical process need somebody to testify to show that it was an adequate

(d) 403 danger of confusion to exclude 2. Computer PrintoutPROBLEM 13-G 13g p868 a. Ex: printout offered showing that D didnt pay an account to prove nonpayment b. What foundation is necessary to authenticate i. Technical way (no access, no reason to think names switched- the process b9) ii. Witness: talk to salesperson who would know whether the account was paid VII. Telephone Conversation A. Self Identification- not sufficient because too much danger of framing (e.g. this is Brian) B. Must show way of identifying the voice C. Can be done at trialvoice ID- JUST NEED MORE THAN VOICE IDD. 901(b)(4): If content of conversation had a distinctive characteristic of Chip (If Chip loves opera or is hard of hearing, etc) E. Remember it doesnt have to conclusively show D is Chip (just something more than self ID) F. The Reply Doctrine: If Someone called someone and that person received a call back- authenticates that the person calling back is that person G. 901(b)(6)- evidence that a call was made to the number assigned at the time by the phone company AND circumstances including self identification show the person answering to be the one called 1. Calling a number from the phone book is enough to authenticate VIII. Self Authenticating: - fre 902 A. No need for extrinsic evidence/foundation testimony as a condition precedent to admissibility B. Legal Implications: 1. *What if non-self authenticating and the adversary presents nothing to refute authenticity at admissibility Jury is Free to NOT believe credibility on its own 2. Self-authenticating: if adversary presents nothing to refute it gets to the jury and presumed authentic a. Must provide evidence against authenticity, not merely argue its not authentic b. Absent counter evidence a reasonable jury cannot find its not real directed verdict it is C. Types 1. Domestic Public Documents under seal (not a notary!) 2. Domestic Public Documents not under seal a. A document purporting to bear the signature in the official capacity of an officer or EE or a public entity having no seal, if a public officer with a seal/official duties in the district of the officer/EE certifies under seal that signer has official capacity and signature is authentic 3. Foreign Public Documents 4. Certified Copies of public records (must be certified as correct!) 5. Official Publications (issued by public authority!) 6. Newspaper and Periodicals 7. Trade Inscriptions (labels): a. Inscriptions, signs, tags or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin 8. Acknowledged documents (notary public)


Downloaded From 9. Commercial Paper 10. Certified domestic or foreign records of regularly conducted activity with NOTICE + written declaration of custodian that the record: a. Was made at or near the time of occurrence of any matters set forth; kept in course of regularly conducted activity; was made as a regular practice 11. Presumptions under Acts of Congress D. Examples: 1. Self A: NYT, Dictionary (902(7)), Sears Catalogue 2. Definition of a word not self authenticating under trade inscription. Dictionary is self-authenticated only that it was published by Webster E. Be very careful when admitting public records F. Look to the purpose of authentication! IX. Demonstrative Evidence- anything that is not testimony A. What is it? 1. Gives first-hand or sense impression (basically anything other than testimony) 2. Anything else is non-demonstrative = testimony B. Types? Of demonstrative evidence 1. Real Evidence- objects actually important to the lawsuit itself (e.g. the gun or severed hand) 2. Non-Real with Independent Probative Force (e.g. picture of D holding a gun) 3. Illustrative Evidence (e.g. a diagram of the robbed bank)- no indep probative value a. Illustrative is not usually admitted into evidence b/c its not evidence; more a summation C. What if only 1 side can afford not excluded X.

Relevance: Steps to determining relevancy: (1) What is the evidence sought to be admitted? Identify the actual item of evidence = fact in evidence (2) What fact is that evidence offered to prove = fact at issue (3) Does it tend to make that fact more or less probable than it would be w/o the evidence? This is a yes/no question (4) Is that fact of consequence to the determination of the action = material? o What is the ultimate issue to be proven? o Is it properly probable under the substantive law and the pleadings in the case? (5) Evidence meeting these tests is PF admissible now conduct 403 balancing test:


Inquiry A. Inquiry: Relevant to what- context matters- must know purpose for what the evidence is offered 1. Example: Inquiry whether D should have drivers license removed testimony of him lurking in backyard is irrelevant 2. Example: Evidence of lurking is relevant for theft case B. Old Test: 1. Relevant and Material Requirement a. Relevant: evidence tended to prove some fact b. Material: fact mattered to something in the case C. Relevance 1. Relevant Rule 401 = any tendency to make the existence of any facts that is of consequence to the determination of the action more or less probable than it would be without a. More or less probable: old relevant inquiry b. Of Consequence: old material inquiry c. Doesnt have to prove anything to be relevant, just more/less probable 2. 402: Evidence that is not relevant is never admissible 3. Relevant evidence may still be excluded (Rule 403- prejudice; Hearsay) 4. Example a. Color of partys hair is not relevant to a case on whether a stoplight was red (not of consequence) b. Color of partys hair is relevant if attempting to identify a D on a surveillance camera II. Direct Evidence vs. Circumstantial A. Direct Evidence: if its true, it certainly determines the issue 1. Example; testimony of man pointing at D saying he saw D rob

Downloaded From B. Circumstantial Evidence: evidence that makes the fact more or less probable 1. Example: testimony that witness saw D with blood on his hands a. There is nothing inferior about circumstantial evidence and they are considered to have the same weight (direct evidence may be easier to impeach) III. Relevance and Stipulation A. Old Chief: LOOK AT EVIDENCE BY ITSELF 1. Facts: a. D had a prior conviction for assault with bodily injury and was charged with assault with a deadly weapon. D didnt want the name of the prior conviction b/c they believed it would prejudice the jury (bad person or prone to assault). D offered to stipulate D had a prior felony (b/c only the class felony is what matters to increase the sentence). 2. Q1: Is it Relevant (If relevant not automatically included; 402: not relevant; not included ever)? a. Court: even if there is other evidence on the issue, doesnt decrease the relevance of your evidence; look at evidence by itself (not in light of other evidence) i. Prior Assualt felony makes committing an assault more probable (doesnt prove) relevant 3. Why Courts Dont allow Adversary to Merely Stipulate a. Breadth: can prove more than the bare minimum b. Undisputed Point Rule is NOT: evidence must be on a disputed point (unless CA)- CAN be undisputed c. Notion that a Party should be able to control own case- other side shouldnt be able to eviscerate adversarys presentation just by stipulating d. Narrative Richness: more effective to a jury; adversary cannot eliminate power of narrative by stipulation e. Jury Expectation- Jury expect they will get a full narrative; disappointment if only get a stipulation f. Rule on Stipulation: merely stipulating doesnt make the evidence irrelevant B. Problem 2a (60) PROBLEM 2-A 1. Facts: 2 drivers in accident and both die. P wants to provide evidence of witness that claimed they saw D speeding 30 miles earlier. Relevant? 2. Ask What is your evidentiary hypothesis and what kind of inferences do you have to make a. HYP: People who tend to speed at 1 point tend to keep speeding probably speeding at the time 3. Relevance: only must increase probability just a little bit; this does a. How much more probable goes to the weight of the evidence: it will be admitted 4. What about driving a red car with a racing stripe a. Relevant: people driving red cars drive faster/race stripe too (NOT a high standard) 5. Radar Detector- relevant: only those who speed are in danger of being pulled over C. Standard FRE 401 1. NOT: must show that the fact is more probable than not (increase above 50%) 2. STANDARD: just makes it a little more/less probable than without the evidence a. ANSWER: Trusts the Jury: Judge decides admissibility and jury decides weight IV. Evidentiary Hypothesis A. STANDARD: that you have that why the evidence you are proffering makes the point you are trying to prove more or less probable; based on your experience in the world 1. Ex: Issue is whether dude is a rockstar. Trying to admit evidence of the guys big hair with people screaming running after the limo a. Hypothesis: Normal people who arent rock stars dont have big hair b/c subject to social shiton; so more likely a rockstar who has big hair + normal people dont get into limos with screaming people increased probability they are rockstars B. Problem 2-B: pg 60

Want to introduce evidence that there was a sighting of teenagers running away from the bridge 2. Is this relevant? a. Evidential Hypothesis Falling concrete can come from kids playing pranks and kids tend to run away when they play pranks b. For the judge to exclude, the running away would have to have no bearing on whether there was a prank i. For example, if theyre seen running 2 miles away it is probably irrelevant 3. Judge is the one who determines whether the evidential hypothesis should be valid

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Relevance Standard: 1. Other court systems might use other standards a. more probable than not D. How does evidence work at trial? 1. Its cumulative a. Rule 104(e) This rule does not limit a partys right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. 2. Relevance is just a threshold but that doesnt mean that the jury has to believe the evidence E. Relevance of Flight: 1. Problem 2-C: pg 63
C. a. b.

Can the P introduce evidence of flight in prosecuting the second crime Step #1 Whats the evidentiary hypothesis? i. Behavior to flight ( you have to conclude that by this behavior he was trying to run away) (a) Problems: (i) Someone is charged with a crime & they go to another country 3 weeks later. They might claim that they had these plans for a while and they didnt even know they were being sought. ii. Flight to consciousness of guilt (even though hes trying to run away, you have to show he was doing this b/c he was guilty of the crime) (a) Problems: (i) Maybe he was feeling guilty about something else? He knew he was being sought for another crime, which might have been the one he felt guilty about (ii) Maybe he didnt realize it was the police, and he thought he was fleeing from someone else (iii) Maybe he was afraid of rogue police who might abuse him iii. Guilt to guilt concerning the charged crime iv. Consciousness of guilt to actual guilt (a) Maybe youre running away because you think youve committed a crime, but you actually havent committed one


Deduction vs. Induction a. Deduction: things that necessarily lead from one point to the next i. Example: know George is the only guy that teaches evidece; dude is teaching the class that guy is George b. Induction: make educated guesses to reach a conclusion i. Example: In general the guy in front of a class is a teacher, if the dude is in front of the class teacher


Prejudice Rule 403- probative value v. prejudice balancing test

A. Standard 1. Although relevant, evidence may be excluded if its probative value (tendency to make fact of consequence more/less probable) is substantially outweighed by: a. Danger of unfair prejudice; not just prejudice b. Confusion of the issues c. Misleading the jury d. Considerations of undue delay e. Waste of Time f. Needless presentation of cumulative evidence 2. Must have substantial reasons 3. Standard is NOT: whether probative value is outweighed; must be substantially outweighed B. Policy 1. Reasons for Excluding Evidence a. Demonstrates mistrust of the jury: confusion of the issues b. Efficiency: waste of time


Downloaded From C. Meaning of Prejudice 1. Adversary is trying and allowed to prejudice 2. Not Allowed unfair prejudice 3. Examples a. Facts: prosecution of mugging. Victim is old nun. Prosecutor asks foundational Es and asks if she could identify the mugger. D objects on grounds that allowing testimony would prejudice i. This is they type of prejudice allowed D. Presumption of Admission* 1. If Probative Value is the Same as Danger to Prejudice a. NOT substantially outweighed admitted b. Even if a little more prejudiced admitted E. State v. Chapple-- The prosecution is trying to prove that Dee was the person responsible for the murder.

They try to introduce photos of the victim. The Court determined that since the photos did not reveal any issues actually in dispute, then the photos were not admissible (minority decision)
1. 2. Facts: P wants to admit pictures of charred body. Relevant? a. YES; the pictures indicate the dude is dead, shows manner of death- makes more probable the consequence of action b. Willingness to stipulate does not make less relevant 3. 403 a. Admissible if any of the following are contested in trial i. To prove corpus delicti (concrete evidece/corpse) ii. Identify the victim iii. Show nature and location of fatal injury iv. Help determine the degree v. Corroborate state witness vi. Illustrate or explain testimony vii. Corroborate states theory how homicide was committed b. Danger of Unfair Prejudice i. If the photos have no tendency to prove or disprove any question actually contested, they have little use of purpose except to inflame not admissible c. Court: relevancy is established (D said I shot him in the head), but excluded under 403 b/c little probative value; only issue was whether witnesses were correct in identifying the D (cause of death was not in controversy!!!) d. Class i. Most of the time gross picture are NOT excluded, even if stipulation of manner of death ii. Not admitted here b.c the pictures were of autopsy and did not show what murderer inflicted Old Chief v. US (74)-- The defendant was charged with possession of a firearm while being a felon. One of


the elements that the prosecution needed to prove was that he was a convicted felon at the time. The defense did not want the nature of his crime to be introduced. They offered to stipulate. The defendant cannot stipulate or admit his way out of the full evidentiary force of the case as the other party chooses to present it.
1. 2. (prior conviction of assault case: was relevant) Court: although the evidence was relevant, it is excluded under 403 a. A stipulation doesnt decrease the relevance, but further information is redundant and unfairly prejudicial i. b. c. d. e. EXAMPLES: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.

Availability of Other Proof is a factor of prejudice (not relevance) Prejudice substantially outweighs the probative value: danger jury will convict based on bad character when prior charge is the SAME HIGH DEGREE OF PREJUDICE!!! Dont need any more evidence after this stipulation of the felony Narrative as to earlier conviction: 1st felony is just a technical thing (like 3 strikes laws-1st 2 could be stupid convictions) in this crime; here it just a fact of the crime, any concern for narrative should deal with the crime now charged (P wont be able to put on narrative of past c)


Opening the Door: If a party opens the door by introducing certain evidence, the opposing party is generally entitled to rebut it although it is still subject to FRE 403. it was an accident 11

G. Problem 2-E*************** pg 79 1. Man kills ex-wife but claims

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P tries to introduce evidence of wife going to battered womens shelter and then divorcing husband a. Is the testimony relevant? i. Evidential Hypothesis: (a) If you got to a battered womens shelter, youre afraid of something (b) People who go there are often afraid of their husbands (c) That fear often comes from abuse by the husband (d) A husband who has abused his wife in the past is more likely to do so in the future ii. Under the low relevance standard, this is probably sufficient iii. Should it be kept out under Rule 403? (a) Look at the level of probativeness and then the level of prejudice (i) The evidence rules would think this is ok (based on other rules well get into later) a. The evidence seems at least moderately probative & the court wouldnt see this as UNFAIRLY prejudicial H. Problem 2-F: pg 79----Exploding gas tank when someone smashes into the back of the car. Suit claims the gas tank was
2. defective. D wants to introduce admission of the crasher that he caused the death. Want to claim that this guy caused the death instead of the company 1. Should the guilty plea be admitted? a. Relevant? i. Would make it less probable that the jury would think it was defective (the high speed collision caused the death) 2. Exclude? a. There could be more than one cause of the death speeding AND defectiveness b. Concern Juries might not understand that there can be two simultaneous causes i. So the danger of prejudice might be very high 3. What else could the judge do here? Give a LIMITING INSTRUCTION a. Rule 105 If the court admits evidence that is admissible against a party or for a purpose but not against another party or for another purpose the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. 4. Problems with limiting instructions: a. Are juries necessarily going to follow limiting instructions? b. Are they necessarily going to understand these limiting instructions? i. Limiting instructions are typical for civil cases (a) Crafty lawyers try to find prejudicial evidence that is relevant for at least one point so they can admit it and simply have the judge give a limiting instruction I.

Problem 2-G: pg 80 Person in crash says I am sure my insurance will pay (RULE 411)
1. Why would the person want the jury to know the other party had insurance? a. Moral hazard if youre insured, youll behave more recklessly b. Jury might feel bad for the defendant and not want them to have to pay the judgment, but theyll feel less bad if they know the insurance company is paying the judgment c. Also, the lawyer is hired by the insurer, which most jurors dont understand As a result, insurance companies have lobbied to have Rule 411 in place a. Evidence that a person was or was not insured against liability is not admissible to prove whether the person


acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice or proving agency, ownership, or control.
3. Its my fault and my insurance will pay for it a. The first part is admissible (its my fault )but the second part is not (my insurance will pay for it) b. Most would say that 403 doesnt exclude this, but youd get a limiting instruction for the 2 nd part of the statement

VI. Limited Admissibility A. Intro: 1. Evidence will be admitted to show some things and not others


Downloaded From 2. 403 is just an in/out inquiry B. 105: if admitted for one purpose but not for another- Court can instruct the jury (give a limiting instruction) when admissible as to one part for one purpose but not another 1. Example: consider guilty plea as evidence of speed of impact but not as evidence that D did not cause C. Danger: 1. Just wont understand instruction + jury still hears and will do whatever they want VII. ****CompletenessProviding Context***** A. Evidence may be a distortion to consider one piece of evidence without other evidence (If P introduces part of evidence and leaves out other parts) 1. Writing or Recorded statements a. Judge can i. Exclude under 403 ii. Rule 106: applies only to writing or recorded; when introduced by a party, the adversary can require the rest of it to be admitted (this also lets in hearsay if 1 party opens the door) at that time b. Thus, if 1 side admits evidence that would not have otherwise be admissible it becomes admissible to the other side under 106 (OPENS THE DOOR!) 2. Testimony a. Rule 401-403 and 611(a) [Excluded for relevance; prejudice; court control for truth] b. Rule 611(a): Control by the Court over the mode and order of interrogating the witness and presenting evidence: make the interrogation and presentation effective for the ascertainment of the truth i. 611 would also get evidence in on cross that is outside the scope of direct; ii. actually, it allows the adversary to admit evidence during direct or at any point in time of the trial when it is relevant B. Problem 2G 1. Facts: pilot dies in a crash. 1 Pilot writes a report after investigating that there was sudden engine power failure but also wrote that pilot was tired. D calls pilot as adverse witness and asks about only the portion deal with pilot error. P crosses and asks about other part. D object based on hearsay and out of scope b/c dealing w/ different part of letter. Can P admit right then the rest of the report? a. P doesnt object to hearsay gets in other hearsay statements for completeness b/c D opened the door 2. 106: allows P, during direct, to admit the rest of the letter because the defendant opened the door a. D should never have admitted the letter in the 1st place b/c would have been excluded under hearsay b. If something bad is going to come out, offer it yourself and explain it so it doesnt look like you are trying to hide it VIII. Function of Judge/Jury; Logical Relevance A. Evidentiary questions: decided by both judge and jury 1. Judge is supposed to alone decide admissibility under 104(a) 2. But under Relevancy, judge is not lone decision maker a. Simple relevance is decided by judge under FRE 401(a), but up to jury to weigh under 104(e) i. If not FACT is needed to be determined to determine whether relevant b. Conditional Relevance i. When fact needs to be determined to determine relevance (relevant only if a certain fact is established) jury may need to be involved to determine the fact (a) Rule 104(b): admitted upon a prima facie case of that fact determination (dont need to prove) (i) Ex: Gun only admitted if murder weapon c. There is no rule on this, depends on jurisdiction! i. protect witnesses from harassment or undue embarrassment. 3. Problem 2-H pg 82--- Power Rollback Hypo a. Was it pilot error or manufacturer that caused the plane crash? b. Normally, under hearsay rules, defendant wouldnt have been allowed to introduce his own

report c. Should the husband be allowed to introduce the rest of the written report? i. Its a written report so he can use Rule 106 ii. Should the other part of the report be included at this point for reasons of fairness iii. Answer Yes because the main point of the report is that it was the engine malfunction that caused the crash. Without including the rest of it, the evidence completely misleads the jury.
IX. Probabilities and Relevance A. Standard of Proof:


Downloaded From Preponderance of the evidence = more probable than not = > 50% (51%) a. We will accept an almost 50% just that we are wrong 2. Proof Beyond a reasonable Doubt = there can be some doubt (just not a reasonable one) a. What the hell is reasonable? B. People v. Collins pg 90 (mathematical probabilities) 1. Facts: a. Old woman was attacked and robbed. 2 Ds were arrested. There were various characteristics that witnesses observed of the assailants (blonde girl w/ ponytail with black man in yellow car). Also, Ds ran. Ds also paid parking ticket fines shortly after the alleged robbery. The issue was whether Ds were them. Prosecutor called a math professor to testify. 2. Probability Evidence a. Math professor and prosecutor made up probabilities: i. Yellow car: 1/10; mustache ; ponytail 1/10; blonde hair 1/3; black man w/ beard 1/10; interracial couple 1/1000. (a) independent probabilities multiply the probabilities together to get the odds of both the characteristics together (i) Ex: Odds you will get heads on quarter = a. 2 Flips: 4 possibilities: TT, TH, HT, HH = chance you will get any one of theses (1/2 x = ) (ii) Here: Prosecutor multiplied all of the probabilities together to get 1/12 million\ b. Defense should have hired an expert witness, but didnt 3. Appeal: a. Stats were wrong + we should not count stats (lacked foundation = irrelevant) i. Lack foundation ii. Why Are they irrelevant = wrong stats are irrelevant = (not more/less probable)/ iii. FRE 403: even if they are right the prejudice outweighs the probative value 4. Court a. Independence: can only multiply together if they are independent i. Example: (if you have a mustache it cannot change the probability that you have a beard) ii. NOT independent: Ex: whiskers ; male , male name , low voice 1/2, no ovaries = not independent (if you have one of these it increases the probability of having all the other things = NOT independent) iii. Expert did not show that the characteristics were in fact independent b. No showing Probabilities were true (Made up probs) = lacked evidentiary foundation c. doesnt show the probability of Guilt! Doesnt help distinguish guilt from the subset of people that it identifies prejudicial 5. This is conditional relevancy- because it depends on a fact: must have a showing that the stats are real FRE 104(b) analysis (wouldnt have to prove they are valid, but a witness saying they are, but there is still an argument that judge should protect against having this in) 6. FRE 403: Assume they are correct argue they would unfairly prejudice the D: jury would focus excessively on stats (convict despite the weight of evidence) a. Policy i. People will informally use probabilities in their heads and blow it (never see interracial couple in Alabama) ii. Even witness identification is usually based on personal probabilities iii. Jury instructions: use your every day experience: personal probs that are probably wrong iv. Excluding probabilities: false sense of truth v. Why not use? (a) B/c it does expose the probabilities vi. Does it leave anything for the jury to do always directed verdict for the 1 side, but we take away lots of things from the jury C. Problem 2-J (102) exploding tire 1. Facts: Exploding tire injures a tire installer. Only issue is that P doesnt know what brand of tire it was. Knows that 80% of tires are from Ds brand. Should P be able to produce this number at trial? 2. Relevant? Here the stats are right makes it more probable than not that this Ds tire was the one that exploded. (independent legal significance) a. Also this is a civil case: more lenient rules than in a criminal case like Collins 3. Courts often dont allow this in a. Suppose this is the only evidence this does make it more probable than not (preponderance) b. Judges dont like the explicit uncertainty of 20% called out. We only want the private jury to know about the uncertainty, not the public 1.


Downloaded From 4. Courts excluded: nothing more than a guess a. Ex: Whether bus was made by D. Court rejected the % of buses in city that were Ds bus. Court didnt allow in b. Resolve: market share of damages?? c. GShep Still, in these kinds of cases courts tend to direct verdicts for defendants i. If its the only evidence


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Character Evidence
I. Character Evidence A. Intro 1. What is it? a. Character is a disposition to act a certain way; tells us description of the past and future prediction 2. What would one try to use it for? a. Since you acted in a way in the past therefore you did the act now (forbidden inference!) b. General rule: you cannot use it 3. Criminal context B. General Rule 1. FRE 404(a): General Rule that evidence of character is not admissible to prove action in conformity therewith a. In practice: so many exceptions you can use it if you are clever C. Kinds of character evidence 1. Specific Act Character Evidence: show specific acts to show character/propensity to act a. Example: Someone is accused of throwing bottle at football game and hitting someone. Can a witness testify that D had helped poor and broken up fights b. Example: Evidence that person committed 43 other murders before this act (would be relevant to a future murder more probable that person committed this murder) 2. Opinion about Character: the witnesss own opinion (not testifying to specific acts) a. Example: I have known D for many years and I can testify that this person is always peaceful b. Example: I know this person is freaking violent relevant to a future murder 3. Reputation Character Evidence a. Example: I dont know this person, but I know people who do b. Example: It is known that this person is freaking scary relevant b/c it makes it more probable that person is guilty here 4. All are relevant (but may be excluded) D. Reliability 1. Reputation- used to be more reliable b/c it is a consensus of many people. Now, it is viewed as a rumor and may have no basis. It is a compounding of hearsay (what one person heard from another)cannot cross examine others (I have heard) 2. Opinion- At least witness is purporting to have some 1st hand experience with the person. You can cross examine this person. (I know) a. **********Other danger: On cross, witness can be asked about SPECIFIC ACTS to test opinion change focus on other acts not charged ****************** i. (reputation does not have this danger b/c it wont matter if witness knows D has dismembered 43 other people b/c witness doesnt claim to know) 3. Specific Act- less opinionated and more reliable. But you are also ignoring other specific act that may suggest the contraryand there may be issue of whether the act actually occurred 4. Traditionally, law preferred reputation and specific act was worst. 5. Now, FRE deals with reputation and opinion the same; Specific act are still disfavored b/c of issues of whether act occurred, which derails the trial (mini-trials) E. Foundation 1. Foundation for reputation: that you have been in the community and know that is knowledge about this person (CROSS would attack this foundation: never have been in the community and do not know about this person) F. Exception to the General Rule Character Evidence is Excluded: FRE 404 1. Nature of Exclusions: a. Easier to get character evidence admitted in a criminal case: special advantage to the Defendant (not prosecutor) b/c of danger of imprisonment i. Which opens the door for prosecution (D must do it first) b. Basic rule that no character evidence at all in civil trial c. Exceptions deal with reputation and opinion NOT specific acts: FRE 405 2. When can you use specific Acts: FRE 405(a) a. On cross examination on opinion/reputation b. Cannot have witness testify to specific act i. Ex: Opinion cannot include I saw him be violent ii. Ex: on Cross you can ask about specific incidents: are you aware that the def has killed?


Downloaded From c. Propensity Argument = Not Allowed i. Ex: NOT allowed: since he killed beforehe killed now d. To Impeach = Allowed i. ALLOWED: to show that witness doesnt know what he is talking about (impeachment) e. Why do Defendants choose not to put on character witnesses?*** i. Because if it is known D has done something really bad, the only way prosecutor will get that prior bad act in, is if a character witness is put on stand!!!!*** Reputation of the Accused: FRE 404(a)(1) a. Allowed: evidence of a pertinent trait of character offered by the accused, or by the prosecution to REBUT that trait (once offered!), b. Allowed: if evidence of a trait/character of an alleged victim is offered by the accused, prosecutor can offer counter-evidence of the accused for the same trait c. Pertinent Trait: FRE 404: must pertain to the charged crime i. Ex: Honesty isnt pertinent to assault, but maybe for embezzlement d. Problem 5A (400) i. Bar fight. P wants to present evidence that D is prone to violence. - predisposition (a) Relevant: if he is prone to violence more likely that he committed crime = opinion evidence (b) If first thing that happens: NOT ADMISSIBLE (D must have opened door in certain way b/c prejudicial) ii. D wants to offer testimony that he has peaceful tendencies (opinion evidence) (a) Relevant for same reason (b) Admissible: Character of the accused offered by the accused (or by prosecutor to REBUT the same) iii. After d did so and (opens the door), P wants to put on another witness showing the person is violent (a) Relevant (b) Admissible under EVIDENCE = NEW TESTIMONY/witness (not limited to cross once def opens the door) to rebut character evidence presented by D (i) New character witness is limited to reputation/opinion Reputation of Victim: FRE 404(a)(2) a. Allowed: evidence of a pertinent trait of character of the alleged victim offered by the accused, or by prosecution to rebut (or evidence of peacefulness in homicide case to rebut 1 st aggressor) b. Problem 5B (401) i. Bar fight. D claims self defense. D wants to admit reputation evidence through character witness of the victims tendency to be a belligerent, aggressive person. (a) Okay (b) Under FRE 405: cannot be specific act, but must be reputation or opinion (c) Only evidence of reputation or opinion c. When Can Prosecution put in character evidence 1st (Exception to the general rule): In a homicide case, prosecution can introduce evidence 1st in a self defense case to rebut evidence that victim was 1st aggressor (rebutting non-character evidence of 1st aggression) ask shepherd d. ***Suppose Defense puts on character evidence of the victim prosecution can put on character evidence of the victim; also, under FRE 404(a)(1): character of alleged victim, prosecutor can now offer evidence of the same trait of character of the accused Door Opening a. If D offers character of evidence of the alleged victim: i. P can offer evidence to rebut character evidence of alleged victim WITH THE SAME TRAIT in the accused Character of the Witness: FRE 404a3 a. (In 607,608,609): Character evidence of truthfulness: character for being a liar Make Sure it is Character Evidence (otherwise, not forbidden) a. What if defense offer testimony Victim threatened 1st i. Relevant: People who threaten increase likelihood that they will commit increases likelihood of self defense ii. HOWEVER, this is not reputation/opinion; this isnt character evidence, but intent admissible




6. 7.

G. How do you get in Specific Acts? 1. Note: you can ask about opinion, NOT WHY 2. Admissible in which character is an essential element of a charge, claim or defense 3. Other Crimes, Wrongs, or Acts: FRE 404(b) a. Evidence of other crimes, wrongs or acts is not admissible to prove the character of the person in order to show conformity therewith.


Downloaded From Other Crimes, wrongs, or acts MAY be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake, {OPPKIMM} provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice c. Admitted only on the premise that its relevancy does not depend on conclusion about character d. Ex: D charged with drugs claims he was doing science experiment. Past charges could be admitted not to show his character for disobeying law, but to show he knew what he was doing/intent e. Ex: past drug charges could be characterized as showing motive for a kidnapping for ransom f. Ex: D wants to admit evidence of Ps Prior act. Ask: WHY were you Afraid of the victim? This lets in prior act. Not offering prior acts to PROVE this crime. But, to show that it was reasonable for Def to have fear of being attacked i. Do not admit as predisposition, but as reasonable fear H. Problem 5C (402) 1. Facts: Opinion testimony: witness wants to testify to the character of F, as belligerent 2. Foundation For Opinion: must show evidence sufficient to show that witness knows Ds character i. Can have cross examination on character and specific Act 3. Facts: Opinion of Reverend that D has reputation of character as peaceable 4. Foundation for Reputation: that Rev is a member of the community i. Cross that he is lying; can ask whether he knew about specific acts of the D ii. What if witness learned of character evidence after D has been indicted Unreliable b/c reputation has been affected after indictment I. Review 1. Character Evidence is Admissible in some situations in criminal cases (not civil) a. Prosecutor cannot initially offer character evidence of the accused b. In a criminal case, a DEF can offer char evidence of self opens door for prosecutor c. If DEFENDANT offers character of victim Prosecutor can offer character evidence of the SAME about the DEF 2. 2 ways prosecutor can put in about Defendant a. D puts in character evidence of SELF or VICTIM 3. 2 ways for prosecutor to put in char about victim a. Victim was dead in a homicide case b. DEF opened door about char evidence about the victim 4. Adversary can cross examine about specific acts 5. Cross Examine about Specific Acts************************************** a. FRE 405(a): can cross examine about relevant specific acts i. Ex: If testimony that dude is peaceful: Asking about beating wife is relevant, but not conviction of embezzlement (also this brings up issues of prejudice) (a) Impeaches character witness if witness doesnt know about prior relevant bad acts or can impeach by showing witness has bad judgment if witness does know (b) Prosecutor CANNOT make inference that bad acts are evidence of the accused acts; JUST whether to believe the character witness (Defense entitled to limiting instruction) (c) If Question lacks basis grounds for mistrial 6. To rebut character evidence a. Put on new witness to rebut b. Cross examine about relevant specific acts II. Review II: Proper Conclusions/Propensity Arugment A. Character evidence to prove a persons action in conformity therewith is often prohibited: cannot make propensity inference (cannot suggest someone did something) B. Character evidence to prove a persons action in conformity with that character is often allowed 1. Crim D can introduce good character to support inference he didnt commit crime [a propensity argument!!!!] 2. Crim D can show victim was the aggressor by showing bad character P can rebut by showing Ps bad character 3. P can offer character evidence of murder victim to rebut claim victim was aggressor 4. P can offer proof of Ds sexual propensities in sex offense trials 5. Impeachment allows propensity argument: if issue is whether witness testified truthfully, evidence of witnesss character for truth-telling is permitted to support inference witness has acted in conformity C. Character evidence to prove a persons character is allowed 1. When an element of a claim or defense explicitly involves character D. Evidence that seems like character evidence is allowed if its relevance does not depend on an inference involving a conclusion about the persons character 1. Cannot make inference that b/c of someones character did something now b.


Downloaded From 2. But if the character evidence has independent relevance III. Character Evidence in Civil Cases A. Why less evidence in civil cases? 1. Deference to Defendant in criminal case 2. Main Rule: no predisposition arguments a. 1 Exception: FRE 415: Specific Acts in sexual assault civil case B. Only allowed in FRE 404(a)(3) Character of Witnesses: evidence of the character of the character witness a. Ex: Case of kicking P during game. D claims self defense. Does evidence from other players come in that he is a dirty player. i. Evidence: Opinion Character evidence ii. 404(a): civil case cannot use to make inference that he is guilty iii. Even under a criminal case it would not be admissible IV. Element of a crime, charge or defense: If criminal OR civil case and character is an element of a crime or charge or defense can offer specific evidence of proof of that persons conduct 405(b): A. Admitted for limited purposes: CANNOT use it to show guilt NOW B. Must be element = convicted purely because of character C. Ex: (406) 1. Shoplifting and items were in purse. She says they were hers and she bought on a different day. 2. 3 Kinds of Evidence a. Evidence D has been seen in store stealing before i. 404(a): Cannot make inference that b/c she stole before she is stealing now (not offered by D) ii. 405(b) : not charged with disposition of being thief, but charged with being a thief (it is just circumstantial evidence); not element of crime no b. Evidence in community that she is shoplifter i. 405(b) : not admissible b/c it is NOT AN ELEMENT of a crime, just RELATES to crime c. evidence that she has been charged many times before i. 405(b) : not an element 3. What if you want to introduce evidence of prior shoplifting to show motive of security guards for following her around? a. Relevant? Tangentially only FRE 403 = excluded b/c prejudicial D. Ex: 3 Strikes law 1. Evidence that D was convicted 2 other times a. 405(b): it is an element of the crime i. Admitted only for this limited purpose: CANNOT use the evidence to show that he is guilty NOW because of those act (a) Defense would offer to stipulate to the 2 priors so details wouldnt come in E. Ex: Entrapment (D is prosecuted for buying drugs but argues entrapped) 1. Prosecutor would have to show D had a predisposition to buy the drugs a. Evidence D had bought drugs before and been convicted OR opinion evidence that he is drug buyer i. 405(b): It is an ELEMENT Prosecutors must show to rebut the defense (a) Character is an element Civil Cases Character as Element Character is an element in civil cases more often than in criminal cases This is because of the difference of what is at stake between criminal and civil law Thus: character shouldnt be used against someone in criminal trials, whereas in civil cases, less is at stake and character is more often an element Defamation How is character an evidence? Truth is a defenseD can claim that D has a character for doing certain things, so it was ok to write about it DAMAGES in defamation suit Ex: paper sued by president because the paper claimed that president had sex with interns Paper can defend with truth ORpaper can defend and try to mitigate damages by claiming that the presidents reputation is already bad Defense will often use character evidence to prove the truth a statementin particular, specific act evidence; Opinion and reputation evidence is also sometimes used Sometimes reputation can bear on damages In a libel suit where P alleges damage to Ps reputation, D can offer evidence that Ps reputation was already bad


Downloaded From BUT if the statement charges specific acts of wrongdoing, D can NOT support a defense of truth with evidence of other specific acts of a similar nature (just mitigate damages?) Negligent Entrustment Element because P has to prove that D should have known that the other person was not trustworthy in some way (known in community as a bad driver, etc) Thus: fact that the other person had a disposition for being a bad driver is an ELEMENT of the claim/defense P must prove that D negligently entrusted another to operate equipment AND that the other person was negligent BUT this allows for introduction of character evidence (wouldnt be available in a similar respondeat superior action) Note: this is a way to introduce character evidencewill have a limiting instruction, but you just hope the jury uses it in an impermissible way Child Custody The character of the parents (which will be in the best interests of the child) is essentially the fundamental question character evidence is permitted (especially specific acts and reputation) Proof of parents past behavior/reputation, etc will determine custody Wrongful Death D can usually reduce his liability by introducing evidence that of the victims poor character (damages based on value of victim to P) Idea is to discredit the decedent in order to minimize a potential award NOTE: in a certain way, in any tort suit, the character of the victim is relevant If you have a dead victimwhat kind of person was the victim? o DANGERunfair prejudice o Thusunder 403, sometimes this evidence is excluded (as opposed to admitted with a limiting instruction) Basically: ALWAYS remember that 403 applies and could exclude the evidence

Prior Acts as Proof of Motive, Intent, Plan, etc

Still rare to let in character evidence 404(b)/404(a) same languagecant use character evidence to make a predisposition argument BUT 404(b) permits use of character evidence for motive, intent, plan, etc Basic theory is that you are NOT introducing the evidence to prove predisposition, but rather to prove motive/intent, etc Many courts use a 4 part test/process 403 vs. 404(b): (1) whether the evidence is offered for a proper purpose (other than to prove future conduct) (2) whether it is relevant for that purpose (3) whether its probative worth is outweighed by the risk of unfair prejudice (4) if soadmissible with a limiting instruction (1) prosecutors need for evidence (2) degree of probative worth How similar are the past acts to the current act? (3) nature of prior misdeed Ex: Paula Jones v. Clinton case Jones claimed that Clinton made a lewd advance toward her Jones wanted to introduce evidence that he had made advances to other women P trying to prove that D did a certain thing Not admissible for this purpose D claims it wasnt him/he didnt do this Was it admitted? Element of the claims (that he harassed her because she was a woman-intent) D claimed that he didnt harass her because she was a woman By framing the issue as harassment because she was a womancould introduce past specific acts to prove that he had an intent to harass her because she was a woman i.e. he had a pattern of only harassing women Distinction between element of a claim and intent Drug dealer exampleperson caught with drugsissue is their intent Not an element of the crime for which they are charged to prove character (i.e. not an element that he has been convicted in the past)


Downloaded From In paula jones casefact that he has harassed others in the past is NOT an element of the claim BUT by showing his past harassment, P will try to show his past actions as evidence of his intent here (harassment of women) Another way of stating the rule on character evidence: Prior offense evidence may be admitted on any issue to which it is relevant unless probative value is substantially outweighed by the risk of unfair prejudice, except that it is not admissible if its only relevance is to show a propensity on the part of the accused NOTE: this is dangerous if used as a rule!

Proving Intent Often can use character evidence (specific acts in particular) in proving intent in drug casesgovt can offer evidence that on some other occasion D sold drugs as proof that on this occasion he intended to sell similar drugs NOTE: in a drug trial, if D claims not to have engaged in the transactionprior act evidence (to prove intent) will probably NOT be admissible because intent is not an issue If D is caught with drugs and claims that he didnt intend to sell them, but merely to use themprior acts admissible? YESproof that prior instances of selling drugs demonstrates that D intended to sell drugs here RULE: generally can NOT introduce character evidence to prove that D did an act In contrastif you already know that D DID do the act and the only issue is intentyou CAN introduce the evidence of prior acts i.e. character evidence to show what was going on in Ds head IF 404(b) permits character evidence in these casesis it always admitted? NOcan STILL BE unfairly prejudicial NUMBER of prior convictions can alone be unfairly prejudicial, even if 404(b) would otherwise allow the evidence HYPO Ex: person accused of shoplifting; Prosecution not sure of whether they have the right person (could be the twin brother, not D) Can witness testify that they have seen D shoplift before? NOdoesnt go to intent; this is prohibited by the first sentence of 404(b) [propensity arg] New HYPOperson caught with clothes right outside of the store Ds defense was that they innocently forgot to payclaims that it was not shoplifting P wants to introduce evidence that D has shoplifted before o Admissible? YESP is proving that because D has shoplifted many times before, it demonstrates the intent here o Here we know that D did the act and we are only looking to the intent This allows a substantial amount of evidence in! Intent is often an element If probative value of prior instances is low and danger of unfair prejudice is high, even if intent IS an element, 403 will bar it Problem 5-F (410) Drug sale or scam? D claims he was defrauding the buyer, NOT trying to sell drugs Is evidence of prior drug sales admissible: testimony from her girlfriend? How does the court balance probative value and unfair prejudice? Factors that courts use (To show intent to sell, not defraud??) NOTE: 404(b) requires the prosecution to give notice of the general nature before trial (if D requests, which always happens) OR during trial if P can show good cause for not doing so before trial Entrapment Defense expressly raises the question of intent if D raises the defense, prosecution can ask about prior acts on cross Knowledge Ex: police have beaten up a victim and violated the persons constitutional rights Issue: is dept or only the officer liable? Evidence that the officer had beaten up other suspects in the past and had been disciplined by the dept Admissible? YES negligent entrustment analogyif dept knew he had done things in the past and con Could look at it as an element of a charge vs dept (that D had a propensitydept guilty) OR 404(b) evidence of knowledgedept must have known that he was a violent person and should have fired him


Downloaded From Identity, Modus Operandi Evidence of prior acts as proof of a modus operandi requires a signature sufficient similarity as to support the inference HYPO: D charged with robbing a bank Evidence of prior conviction for bank robbery is NOT admissible BUTif the person robbed the bank this time used a very unique method to do it AND D had earlier been convicted of bank robberies based on the same unique plan/details/etc Rule: as long as the prior crime has a very distinct signature, it is admissible NOTE: this is really just predisposition evidence (normally NOT admissible) But because of the requirement of a distinct signature, the law treats it differentlylaw views it as more probative Problem 5G (413) D confesses to past robberies similar to current robbery Maybe admissibleyes, if there are sufficient similarities BUTif it is not very distinct (if many bank robbers use similar methods, then it is NOT admissible) Reverse Modus Operandi Evidence D accused of robbing a bank; perpetrator robbed the bank in a pink tutu Can D introduce evidence of somebody else having robbed many banks with a pink tutuSOME courts will permit this, but not all Proving the Prior Act United States v. Huddleston (US 1988) (1) the Rules do NOT require a preliminary finding by the court that the prosecution has proved a prior act by a preponderance (or any other standard)instead, the judge makes a threshold decision whether the evidence is probative of a material issue other than character (2) admitting evidence of prior acts raises a question of relevance conditioned on a fact under 104(b), which is for THE JURY to decide under the preponderance standard Thus: proof of a prior crime is relevant if the jury can reasonably conclude by a preponderance that the act occurred and that D was the actor Problem 5-I (416) Mom brings child to hospital claiming he fell down stairs. Kid dies. Other 2 visits admissible? With child abuse, courts will often make exceptions to prove predisposition If a kid is brought in a few times with injuries that the parents claimed were accidents But thenyou start bringing in the kid many more timesare the past instances admissible? YESto prove absence of mistake or accident Remember: on exam try to find a way to get in Modus Operandi I. Supreme Court: 104(b) Governs (Huddleston) A. Prosecutor must just show a prima facie case that the evidence is what it says it is (not by a preponderance of evidence); just that a reasonable jury could by a preponderance of evidence believe it to be what it says it is (jury and judge share the responsibility) 1. Even though this is a criminal trial, the rule is prima facie case, not beyond a reasonable doubt 2. Same standard as civil case 3. Jury still has to determine that it occurred by a preponderance of evidence 4. Threshold issue: whether evidence is probative of a material issue other than character B. 5J (417) 1. Guy was selling stolen property. Guy claims he didnt know it was stolen. Prosecutor wants to offer evidence of prior acts that he had sold stolen before 2. Since we are trying to find out what is in his head that is ok (NOT ok is the forbidden predisposition 3. What kind of proof do you need to offer? (answer above) II. Acquittal A. What if there was no conviction and defendant was acquitted? 1. Rule: Mere fact that there is an acquittal, doesnt mean that the prior act will not be admitted; Usually can be admitted a. Why? i. Prior trial standard is beyond a reasonable doubt (criminal), and jury could have still found charge to be true by a preponderance of evidence, but this is not enough for a conviction ii. Since this standard is a civil standard, the criminal standard in prior case is higher iii. May pass this test; this is an evidence test


Downloaded From Evidence in Rape Cases I. Old Court Standard A. Prior sexual conduct = immoral probably a liar since sex before, probably consented this time 1. Embarrassing; inference is that they are a liar; inference that they consented and not raped 2. Victims unwilling to testify B. Relevance under Old Standard 1. Just some tendency to make some fact in the case more or less probably a. Ex: evidence that woman had sex with D before is relevant 2. FRE 403 Issue: maybe prejudicial, but still relevant C. FRE 404(a)(2) Would Govern: Character of the Alleged Victim 1. D can admit character evidence of the alleged victim 2. Would also admit reputation evidence of promiscuity D. Policy: Why are we Excluding 1. Unusual b/c we are supporting social policy outside the case (usually evidence excluded within the case) 2. Without FRE 412, exclusion decision comes down to discretion of the judge empirical irregularity that female judges were not letting in and males were 3. A sensible law must still consider rights of defendant wrongly accused II. Now: FRE 412 A. Intro 1. Does not keep out all prior sexual history B. Sex Offense Cases 1. FRE 412a: Evidence generally inadmissible: generally not admissible in civil and criminal cases involved alleged sexual misconduct a. Specific Acts: Evidence offered to prove that any alleged victim engaged in other sexual behavior b. Reputation: Evidence to prove victims sexual predisposition C. Criminal Exceptions to no-admission (CAN come in) 1. ALL EXCEPTION STILL ARE SUBJECT UNDER 403 2. FRE 412b1A: Evidence of specific instances of sexual behavior to prove that someone else was the source of semen, injury or other physical evidence 3. FRE 412b1b: Evidence of specific instances of sexual behavior by the victim with respect to the person accused offered by the accused to prove consent 4. FRE 412b1c: Evidence the exclusion of which would violate the constitutional rights of the D D. Problem 5K 1. Facts a. Girl comes home from party with Fred. She claims he raped her. Fred pleads innocent and says they had sex before. Greg offers testimony that girl is very sex active and that he had sex with her earlier that night 2. Evidence of consent a. Relevant: sexual conduct before with D, makes it more probable now that it was consensual b. Probably not excluded under 403 because nothing especially prejudicial 3. Evidence of Promiscuity a. 412a2: not admitted b/c sexual predisposition i. All exceptions deal with specific acts 4. Testimony from another that he had sex with her earlier that evening a. Not allowed: she is promiscuous, she had sex earlier, more likely she consented b. If D argues he didnt have sex with her at all, he could say that Greg was the source of the semen and other physical evidence; i. Semen NOT the issue here, because D admits he had sex with her ii. Bruising is the issue argue Greg was the source of injury 5. Still argue prejudicial 403: minor probative value 6. What if D was told that victim always says no, but they really mean yes; D wants to testify a. Not admitted: this evidence is just to show victims predisposition i. Not like self defense example where D is told that dude is violent so he got scared ii. Would have to argue that it violates constitutional rights (some courts do let in under 412b1c) E. Civil Cases Exceptions to No Admission 1. Exception like 403-but opposite because here there is a presumption of not admitting: a. 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 the victim and unfair prejudice to party i. Usually DOES NOT come in


Downloaded From III. Evidence of the Accused A. Other Violent Crimes 1. Basic rule is NO, prosecutor cannot offer character witness until D open the door 2. 413-415 is completely different a. No balancing test, stuff just comes in 3. 413: sexual Assualt 4. 414: Child molestation 5. 415: Same rules apply in civil cases B. FRE 413: Sexual Assault: evidence of an offense of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant 1. Dont need to be convicted; just prove that by a preponderance of evidence jury could believe 2. FRE 403 Does NOT apply!!! (doesnt say: subject to other evidence rules) 3. Notice requirements: 15 days, unless court allows later notice for good cause C. FRE 414: Child Molestation: Evidence of the Ds commission of another offense or offenses of child molestation is admissible on any matter to which it is relevant D. Problem 1. Facts a. Victim says they didnt consent. Was a minor, Prosecution wants to offer testimony from another woman that D tried to rape her and that he was convicted of child molestation 2. Rape a. Other Standard i. He raped before, so he raped now no; forbidden character predisposition argument ii. Even if character evidence was allowed this is specific acts b. FRE 413: i. Relevant comes in to show sexual disposition (propensity argument allowed) 3. Child Molestation a. Admissible on any matter to which it is relevant i. Relevance standard is low comes in E. DANGER: guy will be put in jail for the crime he did before, not the crime charged F. Policy 1. Normal rule has a preference for respecting the rights for the Defendant, this is the opposite a. We Exclude victims history and admit defendants history 2. Ex: Paula Jones v. Clinton: a. She claims he sexually assaulted her. Permits the P to inquire into Clintons prior history Monica Lewinski.

I. FRE 406 A. Evidence of habit or routine practice of an organization is admissible regardless of eyewitness II. Why Allow Habit? A. Greater danger jury will convict for bad character III. Habit vs. Character A. Character = 1. Generalized description of ones disposition in respect to a general trait 2. A tendency to act a certain way in all situations in life 3. A general, non-specific tendency that is volitional B. Habit 1. More specific 2. A regular practice of meeting a particular kind of situation with a certain type of conduct 3. Reflex in a certain situation: no choice at all- just do it 4. Response to a repeated situation; specific setting 5. Non-volitional, almost involuntary, reflexive C. Which is more probative? 1. Habit 2. Ex: clean person vs. brushes teeth every nightshows difference between character evidence and habit evidence IV. Problem 5M (429) A. Facts: car accident and everyone dies. P, the estate, sues Ds estate and trying to prove who is at fault. P wants to put a witness that dead P was a good, careful driver. B. Character or Habit? 1. Character! It is general, nonspecific tendency excluded


Downloaded From C. What could have been Habit? 1. Something about driving at that specific intersection: I have driven with driver through this intersection many times and he always drove 5 mph under the limit V. Problem 5N A. Facts: Free-on can explodes and injures P. P sues manufacturer. D asserts contributory negligence and says P heated it up. D Called witness that he had often seen P use an immersion coil to heat water. B. Character vs. Habit? 1. If habit, it must show P did this all the time. This is not habit. Often is not enough. a. Other examples of character v. habit i. Can going to church on Sundays be a habit? (a) Could be either. If never misses habit. If misses for certain reasons character. For most people it would be character b/c they would miss if there were reasons. ii. Conflicts violence on spouse (3 times in last year) (a) Character: too many interactions without violence iii. Every time D is arrested, he hits the police officer (8 times) (a) Habit: reflex that when arrested hits iv. If D had a high blood alcohol level and wants to admit his drinking a lot (a) Habit if goes to bar every night and leaves drunk all the time (b) Character: if often leaves drunk (c) Being an alcoholic is not enough for habit by itself v. Paula Jones wanted to show that Clinton had harassed Paula and wanted to introduce he had a habit of harassment (a) Character: too much volition VI. Routine Practice of an Organization 406 A. Problem 5-O 1. Facts: agent claims to know the routine of serving subpoenas to foreign people. He has no first hand knowledge of actually executing the subpoena. 2. Is this there enough foundation for routine practice? a. No, he is not part of the process B. More routinely admitted than personal habit 1. Courts view it as more reliable C. Examples 1. Suppose a DR cannot remember if he warned the patient about the risks and wants to testify that his normal practice was to tell patients about risks a. In the middle: i. Habit if completely reflex; character if not b. ARGUE: routine practice of an organization (as opposed to personal habit) 2. Firm needs to prove that some letter was mailed. Witness wants to testify that that there was a letter in the outbox and someone always came by at 2pm to pick it up a. Routine practice if there is a procedure 3. What if child is injured b/c no shoulder belt. Can you use FRE 406 to show that it was industry practice to have a belt so proves negligence a. FRE 406: must be used to show that on a particular occasion, the organization was in conformity with the routine practice; not show a standard Remedial Measures FRE 407 I. FRE 407: A. Remedial measures to make an injury less likely to occur after the fact are usually inadmissible to prove negligence, culpable conduct, or product defect II. Policy A. Wont fix a dangerous problem B. Possible a change in product has no causal relationship with the injury: just confusion C. Dont want to punish good conduct D. It Matters where in the product run if they will change: if at end maybe wont change but maybe will expose to liability to all the rest; if at beginning will III. Exceptions to Inadmissibility A. Infeasible: if D claims it was infeasible to fix the defect (if feasibility is controverted) 1. Ex: witness claims there was only 1 way to do something but they fixed it later shows it was feasible B. Impeachment: credibility, not to show change in mind/negligence


Downloaded From C. Tuer v. McDonald (433) 1. Facts: a. Hospital stopped giving drug before Ps surgery. Ps surgery was postponed and he died. D later changed policy to keep giving the drug 2. General Rule: generally not admissible that they changed their policy 3. Feasibility a. If Dr said: If I would have given him the drug at the time he would have died i. Feasibility is now controverted (denying that it was feasible to give drug) admit remedial measure to show that it would have been possible b. Here: Dr said it was our judgment at the time that it was better to do it the way they did i. Court: Not controverting feasibility; Dr not saying it was infeasible. ii. Class: Most courts come out this way, but some would say feasibility was an issue (a) Problem: if allow it to come in everything would come in 4. Impeachment a. Broad: every time counsel would say: Did you think it was the best way to do what you did? Then witness would say yes counsel would try to admit remedial measure for impeachment b. Court: should be read narrowly c. Remedial measures Should be used to cast into doubt the credibility of the witness, not to show negligence or that they changes their minds later 5. Remember the clear rule is that this stuff doesnt come in but there are exceptions however they are read narrowly IV. Settlement Discussion: A. FRE 408: 1. Settlement discussion are generally inadmissible 2. Exception a. Does not require exclusions if offered to prove another purpose such as proving bias or prejudice of a witness, negating a contention of undue delay B. Policy 1. Just because you want to get rid of claim doesnt mean that you are liable 2. It may be totally relevant information but we exclude to encourage people to settle cases C. What is a Settlement Discussion? 1. There must be some kind of dispute = give and take 2. Lawyer can admit guilt in a settlement discussion and it will be protected 3. The document and discussions involved in the settlement are inadmissible a. FRE 408: This rule does not require the exclusion of any evidence otherwise discoverable i. Means that you cannot throw a preexisting document into the discussions to exclude it! b. If prepared for settlement inadmissible 4. In criminal: the victim is NOT a party to the litigation. Any offer to the victim is not a settlement a. Must be between the prosecutor and the D D. Problems 1. Problem 5-P a. Facts: fertilizer burns crop. Representative says dont worry well take care of you b. This is an admission there is something wrong with the feritilizer i. There must be some kind of dispute, there isnt admissible ii. If there was a discussion/bargain of sort inadmissible 2. Problem a. Facts: Car crash. P cannot introduce a settlement to prove liability. What if D calls other P who settled in the case to the stand and that P blames the other P. The P in this case: i. P in this case Can admit the settlement of the P in the other case to show bias 3. Problem: a. Facts: There is a rape and D offers to pay the victim admissible b/c victim is not a party to litigation E. Criminal Cases: FRE 410 1. Policy a. Want to encourage settlement of criminal cases as well 2. What is a settlement discussion? a. It is narrow b/c we dont want the D to be able to spill the truth and always argue settlement discussion b. Must be with an attorney with the prosecuting authority


Downloaded From 3. Problem 5Q a. D wants to make a plea agreement. Pros doesnt want to settle yet. D talks anyway to secret service agents. b. Admissible? i. Yes: not told to prosecutor and not for a settlement ii. Although some courts: excludable if D subjectively and reasonably believes there was a settlement agreement talk (but here, would lose too b/c P said no settlement) Problem a. 2 Ds go to prosecutor and want 2 female Ds to be let off and in the process say something incriminating. Are these incriminating statements admissible? b. Admissible? i. 2 ways to characterize (a) Were Ds trying to get all released? If yes excludable (b) If Ds were trying to reach deal that other 2 get off if we incriminate ourselves Not excludable b/c that is the deal (deal was that their confession was admissible) (c) #2 is the better way of reading this Problem a. Suppose in plea negotiations D says I am guilty, but I dont think you will be able to prove it. On stand, that same D claims innocence and that it is a racist prosecution. Can Ds statement in settlement be used to impeach? b. NO! Cannot impeach with plea discussions (as opposed to bias/prejudice)



Nolo Contendere Pleas = Means you dont contest charges but not saying guilty a. Not admissible (I think) F. Payment of Medical and Similar Expenses 1. FRE 409: Promising to pay or actual pay is not admissible to prove liability 2. Policy a. Want insurance to pay bills before a finding of liability or not G. Proof of Insurance Coverage 1. FRE 411: cannot introduce evidence that someone is insured only when used as evidence to show D acted negligently a. Exceptions: if used for another purpose: proof of agency, ownership, control or bias or prejudice of a witness 2. Example a. Facts: Investigator hired by insurance company and comes to the conclusion that D was at fault. Is his testimony admissible b. Insurance coverage Admissible: because it can be used to show bias of witness because he is hired by insurance company (bad by insurance b/c it opens the door about info on insurance) 3. Example a. Accident and D claims that car is not his. Is insurance admissible to show that he owns it. b. Yes, admissible b/c not using coverage to prove liability but ownership (an exception) 6.


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I. What is Hearsay A. What is Hearsay? 1. An out-of-court statement offered for (prove) the truth of the matter asserted offered to prove the truth of the matter asserted B. Example 1. Facts a. Armed robbery. Want someone on stand to testify what someone said out of court. 2. Inquiry: is it to prove the truth of the matter asserted? a. Witness hears Higgins is the one that did it! i. Out of court statement (even though witness of the statement is in court) ii. Offered for the truth of the matter asserted: YES (a) Prosecutor is trying to prove Higgins is the one that did it and offered to prove Higgins is the one that did it b. Witness hears The fellow Higgins went out carrying money bags i. Out of Court statement ii. It is offered to prove the matter asserted (circumstantial evidence), that he robbed the bank c. Witness hears they ought to put Higgins in jail and throw away the key i. Out of Court statement ii. Person expressing belief that someone is guilty: it is offered to show that that witness was guilty of the crime; prosecutor will draw the inference that Higgins is guilty, thus offered to prove the matter asserted (circumstantial evidence) d. Thus, it doesnt have to directly prove the matter asserted to be offered to prove 3. Written Statement = verbal statement a. Purported witness writes that he saw Higgins Robs i. Out of Court Statement: written or spoken treated the same ii. Offered to prove the matter asserted


What if Witness himself claims to have seen Higgins rob? NOT hearsay because in court statement Example
4. 1. P claims that D punched her in the throat and she can no longer talk. D wants to introduce statement said on the P the day before court that D did it (thus proving she can speak). a. Still an out of court statement b. Is it offered to prove the matter asserted? i. No. Point isnt what she said but that she just spoke. So, not asserted for the truth of the matter asserted Written = Spoken Not hearsay if it doesnt matter whether the statement it true or false (which is why witness can say they heard woman speak) Need to know the purpose to know if it is hearsay a. If just to prove the fact that it was uttered = not hearsay b. Not admissible if statements are being admitted to establish that their contents are true


Some More Rules

1. 2. 3.

II. FRE A. FRE 802: Hearsay is not admissible (unless exception) B. FRE 801: 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 1. Statement = oral or written asserted or non-verbal conduct if intended to assert something a. Non Verbal Statement i. Example (a) Witness is incapacitated. Police asks witness while in hospital if D did it and he nods. (b) It is non-verbal conduct because it was asserted to prove D did it hearsay (but exception) C. Process: 1. If something is claimed hearsay, to get admitted: (ON EXAM) a. It is not hearsay b. If it is, it is an exception III. Policy


Downloaded From A. 4 Dangers of Testimony 1. Misperception- witness may have misperceived what he claimed 2. Memory- witness may have forgotten/misremembered 3. Misstatement/Misunderstanding- Flaw is some way witness communicates to court 4. Mendacity = lying a. 4 dangers can occur with out of court statements: idea is that these 4 dangers can only be reduced when statements are heard in court B. Solutions: 3 Way In Court Process Reduces Testimonial Dangers 1. Cross Examination (in court witness cannot dispel inaccurate out of court testimony) 2. Demeanor Evidence (cannot see demeanor evidence for hearsay) 3. Oath (not oath for hearsay) a. Ex: i. Deposition = hearsay even though under oath IV. Process A. Example 1. Witness says D is the murder a. What inferences do we need to make? i. 1st Inferential Jump: Person testifying believes D is the murderer (really believes) ii. 2nd Inferential Jump: Witness is right b. What dangers Exist i. 1st: Misstatement- didnt hear witness right + Mendacity- no lying ii. 2nd: Misperception- witness is just wrong + Memory- witness forgot c. Are Dangers Cured by Cures? i. Yes, because you can cross examine because he is on the stand B. Example 1. Hearsay: Witness testifies he heard Bill say D is the murderer (out of court statement) a. What inferences do we need to make? i. 1st: That in court witness believes that Bill said he was murder (a) Danger: Mendacity (b) Danger: Mistatement (slurred speech, etc) ii. 2nd: Given witness truly blieves, witness must be right (a) Danger: Misperceived (b) Danger: Memory iii. These Can be Cured by Cross-examination; demeanor; oath (a) But this only gives us a greater certainty that Bill said D was murderer (b) But we need to make more inferences to show D is actually the murderer b. What Further Inferences do we need to make i. 3rd: Bill actually believed D was murderer (a) Danger: Mistatement (b) Danger: Mendacity ii. 4th: Given Bill really belives, D must be murderer (a) Misperception (b) Memory iii. Cross-examination of in court declarant does not help b/c we cannot cross-examine Bill and tell if Bill is lying/correct (a) Testimonial protections only get you to whether Bill actually said D is the murderer! No way to tell whether Bill is lying C. Example 1. Facts a. Guy in sports car pulls up next to truck. Truck is blocking the view of the cars light. Truck says to guy that the light is green. Car goes and gets hit. Guy in car wants to testify that guy in truck said light is green 2. Hearsay? YES a. 1st Inference: whether sports car driver really believes guy in truck said its green i. Danger: Mistatement ii. Danger: Mendacity (a) Cross-examination cures these b. 2nd Inference: Given car really believes, Whether car driver is correct i. Danger: Misperception ii. Danger: Memory


Downloaded From (a) Cross-Examination cures TWO MORE INFERENCES THAT THE LIGHT IS GREEN 3rd Inference: the truck driver really believed the light was green i. Danger: Misstatement ii. Danger: Mendacity (a) Truck driver may have been lying to car driver: need cross to get at this 4th: given the truck driver really believes light is green: i. Danger: Misperception ii. Danger: memory (a) Cross of car driver wont get at whether truck driver is wrong

c. d.


V. ASSERTIVE Conduct/Words A. Assertive Conduct 1. Treated just like verbal hearsay a. Ex: can lie by nodding B. Non Assertive Conduct = NOT HEARSAY Admitted 1. To be hearsay, action must be intended as an assertion 2. Hypo a. Facts i. Hypo of Car and Truck driver. Instead, truck begins pulling his truck into the intersection. Issue is whether light was green. Car driver wants to say the truck driver began driving into intersection ii. Issue: Was movement of truck intended as an assertion, if not intended as an assertion not hearsay? (a) Argue: just moving not intended as an assertion (b) Argue: Truck driver was trying to trick car = assertion b/c conveying info to car driver = hearsay kept out 3. Policy: Non-assertive Conduct (non-hearsay) a. Mendacity: No danger of Mendacity b/c you arent trying to assert something b. Misstatement: still a danger b/c witness may misinterpret/misunderstand the non-assertive conduct c. Misperception: Still a danger (truck driver may have really believed light was green, but was wrong) d. Memory: still a danger e. THUS, the ONLY danger eliminated is Mendacity/lying C. Non-Assertive Words: Words as Conduct a. FRE 801 i. Here, it is written, as assertion (that I dudes wanted to do business deal) out of court statement ii. Is it offered to prove the truth of the matter asserted??? (a) Courts differ (b) These words have performative Aspects (words are intending to do business deal) 2. Example: Non-Assertive Conduct (like words with performative Aspects) a. Want to deduce who won the superbowl. A had bet with B. B bet Cults would win. A pays B. b. Wright: hearsay b/c you can infer that since A paid B that Cults won excluded i. Statement offered for the truth of the matter asserted c. Dangers = NONE i. Misstatement: NO ii. Mendacity: NO iii. Misperception: NO iv. Memory: NO d. Conduct is hearsay only if INTENDED to be assertive i. Court Now: payment was not intended to be assertive; it was just a payment NOT hearsay 3. Example a. Issue is whether boat was seaworthy. Evidence is that captain got on the boat with family. i. Under Wright; it would be hearsay b/c Wright defines as a statement any inference that you can make from conduct ii. FRE 801: not hearsay, because captain getting on boat was not intended to be an assertion 4. Example a. Secretary of Agriculture is in a dispute as to whether a chemical to eliminate bugs is safe. Secretary drinks the chemical. Is it hearsay if you want to introduce this as evidence it is safe? b. Hearsay? i. YES: b/c it is conduct INTENDED to be an assertion


Downloaded From ii. Out of Court statements that appear to be reliable is still hearsay! Example a. Testimony that person in bank was shaking during robbery offered to show that person was scared b/c the robber gets enhanced sentence b. Hearsay? i. Hearsay? NO b/c it was conduct not meant as an assertion (not meant as an assertion = NOT hearsay under 801) Words with Performative Aspects a. If Words have performative aspects not hearsay by most courts b. Does NOT apply to Conduct; only words c.




i. Independent indicia of reliability ii. The proposition to be proved, not stated explicitly, but obviously on mind of out-of-court declarant d. Wright letters i. Independent reliability: Yes, b/c more likely person really wanted to do business deal and checked out dead dude ii. Proposition that dead dude was sane was not stated, but letter writer probably thought was sane D. Absence of Speech 1. Caine a. Facts: i. Guy dies in hotel room. 2 possible causes: chair catches on fire or faulty gas heater. Hotel wants to introduce evidence that it was a chair that caught on fire: wants manager to get on stand that no one ever complained of heater in room b. Testimonial Risks i. 1st: guy on stand isnt lying can be addressed by cross ii. 2nd: if true that no one complained: still danger that there was a problem but no one complained (misunderstanding), iii. Mendacity: no danger that people are lying- treated as conduct c. Courts: i. Not hearsay and can be admitted d. Class i. Court was confused: said you could cross about whether people complained not hearsay = wrong reasoning ii. Good holding: Right reasoning: people not complaining were not trying to assert something 2. Hypo a. If investigator asked a guest whether heater was screwed and guest said he loves the heater. b. Hearsay? i. Yes, statement offered for the truth of the matter asserted c. Difference: i. Here the is danger guest is lying ii. No statement: no danger of lying VI. Indirect Hearsay A. Indirect because witness is not actually quoting what someone told her out of court, but that is how she learned about the knowledge 1. Courts allow this in if it is not a contested issue in trial B. Hypo 1. Witness says I was born in CT on Nov 1, 1960. 2. Hearsay? a. Yes, because someone told you that you were born then or that birth certificate told you b. Birth Certificate is hearsay too! 3. Rule 602 applies and is probably a better argument than hearsay (instead you can argue lack of personal knowledge) C. Rule 602: Lack of Personal Knowledge 1. 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. a. Ex: Person testifies he is 16 to get out of K. Co wants to refute. They could claim FRE 602 D. Triple Hearsay 1. US v. Check a. Facts


Downloaded From i. Detective hires an informant to catch a crooked cop. Detective tells informant to arrange a drug deal. The informant tells the detective about the drug deal. At trial, informant doesnt show up. Atty wanted detective to say only what he said in response to the informant (so he wouldnt say what informant actually said). Prosecutor wanted to draw the inference that cop did deal. Court: i. Hearsay: a veiled account of what the informant said out of court; offered for the truth of the matter asserted = indirect hearsay Class i. Triple Hearsay (a) Detective on the stand about what he said out of court (Hearsay even if testify about what you said) (b) Detective to informant Informant to Defendant Detective to informant



Ex a. Trying to appraise the Mona Lisa. Appraiser doesnt show up. You just want say what you said to appraiser i. Double hearsay (a) Me just saying what I said (b) Me trying to report what appraiser said 3. Ex: a. How do you get hearsay of informant in? i. Door open by the defense council if asked about motive for arrest- : it may not matter whether true or false detective just arrested b/c informant told him about the deal, whether or not true comes in VII. Machines and Animals A. Ex 1. Issue is time of murder. Witness wants to testify he looked at watch and it was 8pm. Is clock telling you time hearsay? 2. Issue: is it an assertion by a person? NO not hearsay B. Ex: 1. You have a complicated burglar alarm and machine tells you the identity of the robber. Hearsay? 2. Hearsay, b/c person who programmed the computer is in some way stating something C. Ex: 1. Drug sniffing dog barks near bag and that is the main evidence to convict of cocaine 2. Issue: A person? YES, b/c animal has been trained. Most courts would require the trainer to testify a. Indirect statement of trainer through the dog VIII. Not Offered for the Truth of the Matter Asserted! A. Prior Inconsistent Statement 1. Issue was whether light was green. Witness says it was red. D wants to cross about witnesss prior statement that it was green. D is trying to prove that light was green. 2. Is it offered for the truth of the matter asserted? a. Must argue relevant regardless of whether true or false because can not come in to prove the truth of matter asseterted b. Argue: I dont care which is true, I just want to show witness said different things at different times 3. Danger: that jury will use prior statement to conclude light was green. Judge will give a limiting instruction 4. If you are the P, you should bring it out yourself B. Independent Legal Significance 1. Problem 3-D: Independent Legal Signficance a. Witness informant indicates D said something ambiguous: I might have sex with you for money. Prosecutor is trying to prove massage parlor solicits prostitution b. Issue: is statement offered for the truth of the matter asserted? i. No, b/c fact that mere words were uttered, someone can go to jail whether true or not c. Suppose there is a requirement of intent: i. Element 1: uttered the words; Element 2: intent (a) Can prove legal requirements independently (like character evidence examples to prove intent) can use statement to prove mere fact words were uttered d. Example: crime just to yell fire: testifying someone yelled fire is not hearsay b/c doesnt matter if it was true 2. Problem a. Tenant has K with landowner to give a 40% of the crop. T puts it in a bin and says grain over there is yours. Bank forecloses on the grain and takes it. Owner sues to get grain back. P wants to admit the statement b. Is it offered for the truth of the matter asserted? i. No, Argue: the words have independent legal significant; dont matter whether true or false; ii. the words give the owner entitlement to the grain whether true or false, and BC K says so 3. Problem



Downloaded From Above. What if bank investigator talked to tenant and tenant said that grain still belongs to me. Is it offered to truth of matter asserted? i. Yes, b/c these words dont change anything and have no independent legal significance, ii. Bank is offering statement to show they have entitlement (truth of the matter asserted and it matters whether tenant was lying) c. Not Hearsay if it doesnt matter whether true or false!!! Other Ways Words are not Offered for the Truth of the Matter Asserted; Their meaning = irrelevant 1. Problem a. Crash. If wife survives for any time no money. Husband wants to testify that he walked to burning car and wife said I am alive. b. Is it offered for the truth of matter asserted? i. NO, not hearsay: not offering to show what she said is true; fact she said something is why its admitted 2. Problem Im from the gas Co Effect on Hearer or Reader a. Guy smells gas. Dude shows up and says he is from the gas co. Dude lights a cig and the place blows. Guy wants to sue gas co for negligence and gas co raises contributory negligence that went too close. b. Contributory Negligence i. Guy should Argue not hearsay: argue it doesnt matter its true or false: it didnt matter whether he way lying. Those words are relevant: By just saying those words no contributory negligence c. If Issue whether guy was actually from the gas Co i. It is hearsay goes to truth of the matter asserted Object: -- Verbal Objects 1. D had a matchbook from bar. Want to prove he was at bar. 2. Is matchbook hearsay? a. Inference 1: that bar exists and that matchbook came from there i. This is hearsay: matchbook asserts it exists ii. Get around: Testimony that the matchbook comes from the bar b. Inference 2: that possession increased the probability he was actually there i. NOT hearsay: it increases chance he was there: only 1 inference; not offered from the truth of the matter asserted; possession, regardless of truth on matchbook indicates he was at bar 3. FRE 902(7): Self Authenticating is like a hearsay exception (could use this) a. Wouldnt need someone to authenticate a candy wrapper if issue is manufacturer Problem 1. Woman dies. P, husband wants a wrongful death suit. D wants to show they had a crappy relationship and wants to introduce will that disinherits and says he is cruel and selfish. 2. (no hearsay exception for a statement and arguing that we just want to show that out of court person believed something, not whether it was true!) 3. Q: does disinheriting have relevance in this case argue: that not offered for truth of matter asserted, just offered to show that a legal step was taken to disinherit a. Can also argue that it doesnt matter statements saying spouse is horrible is true/false; mere fact the words were uttered shows the relationship was bad 4. Can also argue that it was hearsay Problem 3I (child describes room to a witness) 1. Facts: Child molestation prosecution. P wants to introduce witness testimony of childs detailed description of the room that matches the room of the D. D claims description is hearsay 2. Evidence of contents of memory: not offering to prove the truth of the matter asserted: that that is the way the room actually looks; but, they are offered to prove the fact that they are there NOT HEARSAY a. The fact that they are there = circumstantial evidence she was in the room- regardless of they were true or not b. Doesnt matter whether anything is true; only matters that they are uttered; room is strange, only way she could utter is if she was in the room c. Like if someone smells like a room. Only way to pick up the sensory input is by being there. 3. Example: suppose someone can recite Shakespeare. Proof that the person has studied Shakespeare (fact that he has in his memory those words) 4. Example: Issue is whether person ever lived in Germany. You hear D say a bunch of German shit. Can you introduce a witness testimony of the jargon? a. Doesnt matter the truth; fact that you could speak in mind circumstantial evidence lived or studied German How Not to be Tricked Using Contents of Memory 1. Example: Witness is killed. Another witness heard that person say D is the murderer. P wants to introduce and argues not hearsay b/c it is the contents of the memory of the witness that it was their belief D was the murderer. a. This is hearsay: trying to show that the out of court declarant believed what they were saying a. b.







Downloaded From H. Prior Inconsistent Statement of Witness: 1. Intro a. For impeachment, it is not for hearsay: not showing for truth, just that they are speaking inconsistent statements 2. Should statements be introduced for the truth that they said in the past? a. General Rule = NO b. But, a jury can use for the improper purpose of believing it for the truth of the matter asserted thus, that side would not want to put that juror on the stand allow that hearsay to come in 3. Should Rule be Changed a. Yes? You can cross examine that witness. b. No? Demeanor and oath are not available at the time statement was made 4. FRE 801(d): Prior statement of witness can be admitted for truth if it was under oath a. Thus, this is rare b/c most of the time not under oath b. If only evidence is prior statement not under oath and it comes in to impeach a witness directed verdict b/c not sufficient (but if other evidence jury can misuse and use for truth of matter) 5. FRE 801(d): it is hearsay but rules say its not class: this is hearsay, just a hearsay exception IX. Structure of 801 A. Other Approaches to Hearsay (not the way the rules are) 1. Hearsay as uncross-examinable statement Approach: out of court statements if you have in court the person who said that out of court statement (deferred cross) 2. Hearsay as a Rule of Preference: This would admit statement of a testifying witness, but would also let it in if someone is not available a. But how do you determine when someone is unavailable 3. Hearsay Allowed in if shown to be reliable (this actually how the rules work out) a. Look at motives X. Words with Performative Aspects A. Courts allow words in if: 1. Indicia of reliability 2. Matter to be proved only in back of declarants mind a. Only applies if words are used (if words look to see if meant as assertion) B. Wright Case 1. If person accepts business deal, then there are real consequences to the letter writer (so evidence that the person would have checked that person out) + matter to be proved was not directly stated (about a business deal, not competency) = performative aspects to what was stated C. Singer (139) 1. Issue was whether D lived at certain house. Evidence was landlord sent an eviction letter to the D sent to a certain house. 2. Class: Address is an out of court statement (statement person lives at address) BUT different from walking up and asking LL where does D live 3. Here: a. There is an indicia of reliability: if guy wants to evict, you have to send it to the right place. Makes no sense to evict and send to the wrong house; this would also harm LL i. Nature of the statement: matter to be proved is in back of declarants mind (not a blatant statement) ii. Thus, not hearsay b/c it has performative aspects iii. If you ask: dont know what LLs motives are 4. If not mailed: does not have the same indicia of reliability b/c maybe he didnt know the right address (although you could still argue)) D. Hypo 1. You walk up to the witness and you said tell me where D lives and I will kill you if you get it wrong. Dont tell me now, I will come back in 2 days. You want to testify the conversation. 2. Here there is indicia of reliability, but not in the back of the mind Courts would say there arent performative aspects (just a direct statement) hearsay E. Hypo 1. Secretary swallows chemical and says this shit is safe. a. Indicia of reliability but not on the back of his mind (direct statement) b. Could be lying b/c direct statement F. Hypo 1. Police raid a house and arrest dude for dealing and stick around and just answer phones. They get 300 people calling for drugs. P wants to introduce calls to say dude was dealing 2. Hearsay?


Downloaded From It is out of court statement; offered to prove that the person expects to be able to buy drugs i. Thus, not directly offered to prove that dude sells drugs ii. It is on the back of declarants mind (didnt directly state dude sells) iii. Indicia of reliability: wouldnt want to call wrong number to buy drugs (legal penalty) 3. Independent Legal Significance: for the words? a. For independent legal significance has to be relevant to the case: we are not prosecuting the person buying drugs (those are the ones committing the crime)! b. Example: Issue whether reporter libeled someone. Reporter is paid by the word. Can story come in? i. Words have independent legal significance b/c amount paid is bound in K, but this is not relevant to the case G. Falsity of the Matter Asserted (Lying and Hearsay): Problem 3J- my husbands in Denver- (offered to prove that they are lying)- cts always view this not offered to prove the truth of the matter asserter) offered to prove the falsity of the matter asserted) 1. Facts a. Woman falsely tells police husband is out of town. Officer wants to testify wife lied. Trying to convict husband 2. Hearsay? a. It is an out of court statement b. Is it offered to show the truth of the matter asserted? i. NO! It is offered to show the falsity of the matter asserted of the wifes statement to show the wife believed husband was guilty (a) Most courts would say falsity of the matter is not hearsay 3. Authors think this is stupid a. Maybe wife believed he was gone, maybe police misheard her, maybe lying b. All testimonial dangers are there! (but let in) 4. Suppose lying to the police is a crime. Do you let in b/c of independent legal significance? a. NO! No significance in this case (if she was being prosecuted for lying yes, but not here) 5. Lying is usually not hearsay a. ASK SHEPHERD ABOUT THIS: Now husband is being persecuted for some crime-- independent legal significance. i. Point is there is ind legal significance--- is wife being prosecuted for lying to the police- Something thats not hearsay bc there ind legal significance (a) Ex: not to be tricked: there is some reporter that is paid a dollar per word. In one story George shepherd is the murderer. Now at trial. Prosecution wants to introduce the story.. Objection hearsay.. Offered to prove ge shepherd is the murderer. (i) Ind legal significance:- wrong? Bc the contractual arrangement- but have no ind legal significance in the case here but not.. (b) DONT MURDER ME BRUTUS--- is asserts that Brutus is the murderer.. or s a demand, or as a question, I just noticed that you are murdering me brutus ALL HEARSAY (c) Argue that there were performative aspects (i) This person is gato- indirect statement- exception is performative aspects a. 1: indicia of reliability in the words: Words involved (not here) b. 2) whats expressed is not the main focus of what you are doing (satisfied) H. Problem 3K 1. An airplane lands on Ds property and he claims that he did not know there were drugs in it. The D wants to admit a public statement that I am letting an airplane be stored on my property 2. Still Out of Court Statement: if I am testifying what I said out of court 3. Not offered for the truth of the matter asserted: a. We are not trying to prove that the plane was on the property b. We are offering just to show the statement was made (shows indirectly he was not feeling guilty about the plane being there suggests there were not drugs) i. Words here dont matter if true or false I. Using Statements to Prove a Matters Assumed US v. Pacelli 1. Facts a. There was a killing of a witness. D had already been arrested. There was a meeting where they all talked as if D was the murderer: no one said he was innocent and made a plan to send some witnesses to FL. Prosecutor wants to introduce evidence of family meeting as evidence of his guilt 2. Court a. Implied hearsay: family is indicating what they believe indirectly/what D had said 3. Class a.


Downloaded From a. Indirect Hearsay i. Those at the meeting didnt know what happened, but spoke and acted on basis of rumors equals indirect hearsay like that ii. Like Check: Detective hired an informant and informant to testify without saying what other person said but just wanted his reaction to what other person said iii. (court said this = hearsay) Lack of Statement = non-hearsay: Like Cain: it would have seemed normal to complain about heater no one complained no assertion not hearsay i. What did not happen and what was not said is persuasive: if they thought he was innocent, they would have said so: absence of complaint is not hearsay (non-assertive conduct) Performative Aspects = non hearsay:




i. Independent Indicia of Reliability + state of purpose is not the main state ii. No Statement iii. Those at the meeting behaved as though D did the deedas though commonly understood. This behavior amounts to performative aspects (behavior not meant as an assetion) iv. Similar to Singer d. Direct Hearsay i. Those thought he did it and conversations putting witnesses in hiding expressed those beliefs: hence their words = hearsay ii. Like: they ought to put Higgins in jail for this 4. When arrested 1 D says to the other I didnt tell them anything about you. Govt argues not offered for the truth of the matter asserted (ask shepherd) a. Direct Hearsay: Apparent message is that the other is guilty and he wont tell = hearsay b. Performative Aspects: gesture of solidarity: indicia of reliability + on back of mind c. No offered for truth: we infer from statement that other dude was involved, but D was merely stating a fact that he didnt tell the police. d. Implied: express assertion contained implied Betts v. Betts- statements that are relevant whether or not they are true do not implicate the hearsay rule. 1. Facts a. A child was killed from internal bleeding. Her sister was placed in foster home where that child said dont put me with my step Dad, he killed my sister, and he will kill me. In a custody battle, P wants to admit testimony from foster parent of childs statement bf has been acquitted 2. Issue: do statements that are relevant whether of not they are true implicate the hearsay rule? 3. Hearsay? a. no, Argue: it doesnt matter if statement is true or false; not trying to prove that step Dad killed sister; trying to prove state of mind of child in a custody case---not good to put a child in a home where that child think step Dad is a killer i. looking at the best place for the child to liveand if true not a good place for the girl to live if lying completely then its still not a good place for the girl to live (bf wont be happy being accused)(at minimum its going to strain the relationship ii. doesnt matter if its true of falseeither way may not be the best place for the kid to go iii. Look at underlying law! 4. What about testimony of the child crying? a. Question: must be intended as an assertion i. Crying can be intended as an assertion: argue both ways! ii. Also only hearsay if the issue in the case is if D was a murderer iii. Here, argue: doesnt matter if tears are fake/true: if child is willing to cry not a good placement of the child! (i) If just crying and the tearsand sobbing- (on words just crying- just conduct- but conduct can be a statement) a. Ones that are meant as an assertionso for the cryingthe judge would have to decide (ii) She has been coached- and the lawyer told her to be really sad--- if that was the sit then the crying would be meant as an assertion.. then it wouldnt be an assertion (iii) The statement the bf killed my brotherout of ct statement--- yes.. offered to prove the truth of the matter asserted? (iv) In every hearsay statement---- hearsay would be eliminated if that were correct (hearsay state of mind exception)def hearsay because offered to prove the truth of the matter asserted


Downloaded From XI. Hearsay Quiz (FRE 801ac)- is an out of court statement offered for the truth of the matter asserted? Always need to know what its being offered for treating 801d as a hearsay exception--- normally a. The moon is made of green cheese- if for the substance of the moon yes--- if offered to show a person is incompetent? No because an out of ct statemen but not offered to prove the truth of the matter asserted B. Page 153 1. As proof that B lacked testamentary capacity in April, evidence that several times in March he told friends he was Woody Allen. a. Non-hearsay- it is an out of ct statement- offered to prove hes incompetent--? b. Doesnt matter if the statement is true or false (if he thinks he is Woody then incompetent; if he doesnt then it also shows he is incompetent); just that he is willing to say it\ i. Either way it shows he is incompetent whether or not hes lying 2. As proof that C assumed the risk of accident on account of faulty brakes in riding Ds car, Ds testimony that I told C before he got in that there is something wrong with my brakes a. NON HEARSAY- It doesnt matter if statement is true; only importance of this- didnt matter whether brakes were messed or not- either way you are on notice 3. In Es Personal Injury suit, as proof F was an agent of D store, Es testimony that F said: Im sorry, I was running an errand for my E, store a. HEARSAY- matters whether true or not: why is it hearsay? Look at law of agency? If an agent could become an agent simply by stating itif that was the law of agency then these words would not have ind legal sig. but an agent cant not do that you and the principle have to agree to it just an out of court statement offered to prove the truth of the matter asserter ) i. Suppose the law was that a purported agent can create agency just by saying it (an agent can not do that) then just the fact that they said that does matter ii. Look at underlying law (law is that a purported agent cannot unilaterally create agency) 4. As proof G stole a car, evidence that police stopped him and that his girl H falsely stated this car belongs to my mom a. NON-HEARSAY: Out of court statement, offered for the falsity of the matter stated, lying not hearsay 5. As proof H was scared when J pulled a gun, evidence H began shaking and sweating a. NON-hearsay- Sweating and shaking is not an assertion--- and not words--- not meant as an assertion therefore not hearsay 6. As proof it was 12pm when K enteredskipped! 7. As proof N committed the robbery, testimony from O, I picked him out of lineup a. HEARSAY:- it would be hearsay also even if he pointed' at the person. b. If it was testified- I picked that person out of the line up out of ct statement offered to prove the truth of matter asserter (that it was the def) 8. As proof P knew French (had never met before), evidence that q said to p- that after short conversation very nice to meet you a. Not hearsay: i. Argue not statement: non-assertive conduct- its not offering its truth so much as a customary thing you do after meeting a person, like holding a door open. If so then you would argue its like conduct and not a statement ii. If it is a statement, argue: - aspects- indicia of reliability (offered for something different than to just say she is good at French)AND not the main part of the statement 9. As proof that r was unusually accomplished in French, evidence that in her first year of college she was accepted into a fourth year course? a. NON HEARSAY- non assertive conduct i. Indicia of reliability ii. Not the main state of mind of the person doing it? (NOT the mains statement here) indirect (a) Pro the performative aspects would work here. (b) Conduct not meant as an assertion 10. As proof D participated in criminal venture under duress, evidence that co-participant R told him We will kill you if you dont help us a. NON HEARSAY- Not offered for the truth of the matter asserted: doesnt matter if person is lying! Just matters that statement was made i. Effect on the listener.. all that matters is that the statement was made whether or not it was true.. ii. Also ind legal significance iii. Just offered to prove the statement was made 11. As proof that S favored increasing penalties for drunk driving, evidence that she joined MADD, coupled with proof that the principal aim of the org was to increase penalties--- probably treated, as conduct- question would be is this conduct meant as an assertion? a. NON HEARSAY- Is there an assertion?


Downloaded From There is an act: must be intended as an assertion- could go either way (a) If it was a public act = an assertion (b) Private = less of an assertion ii. Is joining the org a statement or conduct. Is the conduct intended as an assertion?. probably not. Just wanted to support the group iii. Go back to hypo: suppose its barack Obama I am not signing up for MADD hearsay? Out of ct statement? Yes? Conduct. Offered to prove the truth of the matter asserted? Video is a statement (made out of ct) offered to prove the truth of the matter asserted? Here probably yes its a press conference to show his support of the group and when made and would be hearsay As proof that D owned a 32 pistol, testimony by officer that when he asked Ts father, the father went to a drawer where T lived, pulled out a 32 and handed it to the officer a. Hearsay: it is assertive conduct- his nodding was assertive conduct- he nodded to indicate that the def owned a gun. As proof that officer V acted in good faith in arresting W, offered by V in defending against the claim brought by W for violation of his rights, evidence that the prosecuting atty told V you have probable cause to arrest W a. Hearsay (indirect statement) : not offered for the truth of the matter asserteddoesnt matter whether statement of prosecutor was true or false, just that it was made, so I had probably cause to make arrest b/c prosecutor told me he was guilty i. Either that an out of ct statement --ii. Other way as an indirect statement that its raining right now. Fill this one out a. NON HEARSAYb. When the police officer is charged with harassemt it does not matter if its true or falsec. Its an out of ct statement--- if the pros attorney uttered those words then the def gets of the hook at that matter is that they were uttered like the gas co question As proof that St. Johns beat Georgetown in basketball, evidence that Z, who had bet on Georgetown, paid off his debt a. NON HEARSAY- Not intended as an assertion (non-assertive conduct)- not out of court statement i. If no words involved just payment of a check (no words involved) is it meant as an assertion? no just going about life ii. If words were involved: didnt think they would win, heres the check (a) In a situation where you cant tell- if the words involved seem like conduct it brings in performative aspects. (i) Should they be treated by law like conduct (performative aspects) a. Indicia of reliability (yeah) want to be sure he lost and is paying debt bc he lost b. Not main purpose of the person saying it- (indirect statement of the person saying it (main focus was to pay debt, incidental words) As proof that X committed a prior bank robbery, evidence that she was prosecuted for that crime and that a jury had found her guilty a. HEARSAY: It is an out of court statement; a conviction is an out of court statement b. Offered for truth of matter asserted: that he committed crime c. IF issue was whether he was convicted of the crime (not guilt)- then not offered for truth of matter asserted: doesnt matter whether jury was lying; just that statement was made matters i. Fact of conviction vs. Truth of conviction (a) Out of ct statement indication that they are guilty---- (that they committed the bank robbery and is hearsay) ii. Change hypo- convicted of one before and you get convicted again- trying to prove they were convicted before and deserve enhanced sentence--(a) In this situation: non hearsay- bc in this sit we are not trying to find out of they were guilty just if they were convicted..just that they were uttered.. the words guilty were uttered and have ind legal significance, regardless if they were lying. By saying guilty (b) If offered to show if they really did the bank robbery (hearsay) (c) If issue was just whether they were convicted then the words guilty- have ind leg significance--- focus on what something is being offered to prove As proof that Y went to New Orleans on Tuesday, evidence that on Monday he said, Tomorrow, I am going to New Orleans a. HEARSAY: it was offered to prove that he intended to go to NO: testimonial dangers are present i. Out of ct statement--- I am going to NO is it offered to prove the truth of the natter asserted yes (offered to show that he really intended to go to New Orleans ii. I intend to go to NO- that statement s offered to show that they intended to go to NO (circumstantial evidence that you follow through) As proof that his brakes were bad, evidence that Z said, I think I ought to reline my breaks before anyone drives it i.









Downloaded From HEARSAY: out of court statement, that it was his belief that his breaks were bad, thus for the truth of the matter asserted i. It is offered for his belief that his breaks were bad ii. Performative aspects are not at issue here iii. It matters that the person believed it distinct PROBLEM 2 from the previous that the person was on notice in that situation all that matters is that the person was on notice (a) they ought to put that guy in jail offered to prove that the person thought that person should be in jailtherefore hearsay and that circumstantial evidence that the person should be in jail. 19. As proof that B was selling porno, evidence that he received a letter from C enclosing a check and saying please send me that dirty book a. NON-HEARSAY-Remember, we are not prosecuting person ordering thus there are no legal ramifications to ther person receiving the order (order has not legal effect) b. Here: performative aspects: indicia of reliability (other person risks prosecution); at back of mind c. Normally you would think this is hearsay--- (involves words and they were out of court, but it also seems like conduct, you are askin something to be done to you.. are these words that should be precieved of conduct i. NEED: (a) Indicia of reliability- dont want to mislabel the letter. Whats implied in the statemtn is that porno is for sale. he main purpose of the letter is to purchase porno not to inform that porno is sold just main purpose it to purchase NH because performative aspects 20. 21. As proof of the manner in which X was injured, evidence of a videotape in which X reenacts the events that led to her injury, offered in proof by X a. Hearsay: it is a video tape of someone telling you what happened i. Assertive conduct--- trying to communicate to the jury what happened. Conduct meant as an assertion ii. Clear if the person out of court said heres what happened, but just as much an assertion if its an intented as an assertion 22. As proof that E did not have permission to drive the car to CA, evidence that owner F had told E not to drive it out of MA a. Not hearsay: just matters that words were uttered (not for the truth of the matter asserted): he did not have permission merely by those words, whether true or not i. As long as its said. It doesnt not matter if they are true or they were ment. Just by being uttered it changed legal relationships in this case.. IND LEGAL SIGNIFICANCE ii. Assuming here that the way you indicate permission 23. As proof that tenant G terminated his month-to-month tenancy on oct 1, evidence that G sent owner H a letter earlier that stated: Oct will be my last month as tenant. I am vacating Nov 1 a. Not hearsay: doesnt matter whether true or false; independent legal significance i. The tenant is on notice. ii. Words themselves. iii. The letter has independent legal significance iv. Out of ct statement not offered to prove the truth of the matter asserted. Nonetheless, by uttering the words, whether they are true or false. v. Performative asects is a last ditch effort; there is an out of ct statement.. an envelope that a person lives in a certain place conduct feel to it. Need two things: Look at and see if there is an indicia of reliability and its indirect 24. As proof that the stairs in store were adequately lighted, testimony by floor manager that in 6 years several customers complained that they were huge, but no one had mention lighting a. No assertion! Evidence of non-complaint it NOT hearsay (Cain) b. Evidence of lack of complaining is not a statement. Not the proof of the matter asserted. Offered to show the lighting was adequate.. (cain case- space heater) evidence that no one complained in the courts view that its not treated as a statement and therefore it is not HEARSAY c. Never use performative where there are no words or no statement25. As proof that J had been in the law library before, evidence that on entering the library she said to the attendant May I please have the key to the locked cage in the basement, so I can look at Starkie on Evidence? coupled with proof that in fact that book is shelved in a locked cage a. NOT HEARSAY: Not offered for truth of matter asserted: see from statement that she has in mind the layout. Because it is unique and it matches evidence of contents of memory COMPARE TO problem 3I b. Although argue someone relayed it to her 26. As proof that the hit and run driver drove a Porsche, testimony that the logo on the rear of the car said porsche a.


Downloaded From Hearsay: out of court statement (someone wrote porsche) offered to show it was a Porsche. i. Although, it will be self-authenticating (so would be an exception) and would come in b ii. Same as if some took a spray can and wrote Porsche it could be false you could spray paint your minivan iii. Look inside the violin and it says strativerious and now its offered to prove its a strataverous. So its too would be hearsay 27. On the Q whether T had paid rent for the month of April, testimony that in handing LL a check in the right amount T said to LL, This is for Aprils rent a. NOT HEARSAY--Independent legal significance: has the effect of allocating rent for certain amount (would have to look if that is the law); so not offered for truth (words have legal consequences) b. Out of ct statement only imp thing here is that it was uttered 28. On the issue set out in 27, testimony that on day after giving check to LL, T was heard to say, I paid my April rent a. This is hearsay: T is just describing and it is offered only to show rent was paid in April. There are no legal consequences here (offered for the truth if the matter) b. Its relevant on the issue but its relevant only if its true: hearsay 29. As proof that the Qs bf R was Qs assailant. Qs statement to a nurse in the hospital emergence room, for gods sake dont let m bf near me a. Non-Hearsayi. Not an assertion. no conduct meant as an performative aspects because no conduct meant as an assertion ii. Circumstantial evidence that he did something bad to her iii. That matters that she said it. It matters that it was true or false iv. Indirect statement that he must have done something bad to her, ok, then does it matter if he did something bad to her v. State of mind exception but only use if the statement is hearsay 30. As proof that Co was a bad credit risk, evidence that DP give Co a poor credit rating a. Why is it offered? To show co is bad credit risk hearsay! b. Out of ct statement offered to rpove the truth of the matter asserted c. Contrast with 31 31. As proof that Bank acted reasonably in refusing to refinance Cos debt, evidence that DP give Co a poor credit rating a. Not hearsay b. Truth doesnt matter! Bank just wants to show that the statement was made by DP; whether true or false, fact that statement was made, made it reasonable to deny refinance c. Here its not hearsay- out of ct statement but not offered to prove the truth of the matter asserted. Does not matter if its true or false 32. As proof that R was seriously ill, evidence that he was being kept in intensive care a. Not hearsay b. Not an assertion-no conduct meant as assertion; even if you had testimony on the stand about it (person is subject to testimonial protections) c. NO PERFORMATIVE ASPECT B/C NO WORDS (written or spoken) d. Not even a statement and not offered to prove the truth of the matter asserted 33. As proof that S in an honest man, evidence that he handed the store clerk a 10 for $7 purchase and, on receiving incorrect change, S returned the extra $ and said, I think you have made a mistake a. NOT HEARSAYb. Not really offered for the truth of the matter asserted (that would be to show that the clerk made a mistakeit is to show that he is honest) c. Independent legal consequences: he transformed ambiguous action into something specific i. Characterizes his actions and makes them honest d. (I dont know why this isnt performative aspects) i. out of ct statement but not offered to prove the truth of the matter asserted ii. by handing the 10$ back he was in fact giving it to the cashier ind legal significance iii. Circumstantial evidence that hes an honest person and if u did an honest thing its circumstantial evidence that you did the right thing 34. As proof that V is violent, testimony that he is reputed in his community to be such a. Reputation = hearsay (but hearsay exception) b. Out of ct statement offered to prove the truth of the matter asserted SUMMING IT UP: Not admissible if statements are being admitted to establish that their contents are true a.


Downloaded From

Hearsay Exceptions- all non hearsay does not automatically get admitted- other rules can keep it out. And if its hearsay
does not mean automatically excluded. There are exception if it seems reliable then its admitted (for hearsay exceptions- still need to find an exceptions) In a criminal case you have to show the hearsay exceptions apply and they the confrontation clause doesnt apply I. Intro A. If Non-hearsay: doesnt mean it is admitted! 1. Must still be relevant and cannot be unfairly prejudicial B. If it is hearsay may still be admitted II. FRE 801d: statements that are NOT hearsay (exception A. Intro 1. Defines certain as not hearsay 2. But, it is hearsay, but just excepted 3. These apply only if declarant is testifying B. Prior Statements by Witness: FRE 801d1- (shepherd will deal with them in 801d1 as just hearsay but

covered by an exception) 1. Prior Inconsistent Statement

a. Intro: i. You can cross examine on a prior inconsistent statement [FOR IMPEACHMENT] (a) Not offered for truth of matter asserted! Doesnt matter if true or false- just to show that the witness blows hot and cold and say one thing here and another thing thereoffered to impeach NOT hearsay! (b) Jury will still use this for the truth of the matter asserted (c) If this prior inconsistent statement is the only evidence directed verdict! b/c cannot offer for truth of the matter asserted ii. Why Have this exception? (a) This allows a statement to be shown for the truth of the matter asserted (b) If this prior inconsistent statement is the only evidence can survive directed verdict iii. Can offer not only for impeachment, but also for the truth of the matter asserted Prior Inconsistent Statement ELEMENTS IN YELLOW: FRE 801d1A- allows you to get a prior inconsistent statement for substance i. You are allowed to cross to show that they you bear the burden to show the light was blue.. but you have no evidence to show that so you are offering the inconsistent statement and they are a liar.. dont care if the light was blue there is no evidence that the light was blue NOT FOR SUBSTANCE JUST TO SHOW THAT THEY WERE LYING ii. However you can get a directed verdict because if its the only evidence its a problem iii. If you want to get it in for substance you need to satisfy 801(d)(1)(A) in yellow below (b) Declarant testifies at trial (now on the stand) (c) 1: And is subject to cross-examination concerning the statement, (d) And the prior statement is/was (i) 2: Inconsistent with the declarants current testimony and (ii) 3: Given under oath subject to the penalty of perjury (prior statement had to be under oath to) (iii) 4: At a trial, hearing, or other proceeding, or in a deposition Cross Examination i. Prior inconsistent statement did not have to be subject to cross examination (e.g. grand jury proceeding); just have to subject to cross exam NOW (a) Testimonial Protections of prior statement: demeanor and cross exam is not present, policy says oath is enough Other Proceeding i. State v. Smith- was it a proceeding- ct says its a proceeding- therefore it can come in for substance judge rescues the prosecutor because he really had no other evidence--- this case is a min case--- maj rule- is that this kind of whore house is not a proceeding. That would eliminate the requirement altogether ii. Neednt be a court proceeding but there needs to be a verbatim transcript (where the things are taken down word for word)- if there is not verbatim transcript then you wont know what really went on and if they made the statement.. iii. Only applies if its an inconsistent (a) Facts: (i) Victim is assaulted. She went to police station and wrote a statement in her own words that identified the D as the assailant. She signed in the presence of a notary under oath. At trial, she changed her testimony and identified a different person as the assailant.





Downloaded From (ii) Prosecutor wants prior signed statement in as hearsay exception because it is his only evidence and needs to be offered for the truth of the matter asserted (iii) (Class: need for more than impeachment; could be offered for impeachment) (b) Issue (i) Whether signing in front of a notary fits in as other proceeding allowing it in under FRE 801d1A (ii) Class a. Declarant is now on stand subject to cross examination; prior statement was inconsistent; b. Prior statement was under oath; not at trial or hearing; other proceeding? (c) Court (i) Not every signed statement in police department will be a proceeding (ii) Reliability is Key a. Was the prior statement made at all? i. Clear statement was made; she admits b. Minimal guarantees of Truthfulness (was it true): because in her own words, under oath in front of notary; subject to penalty of perjury (d) Class (i) Most courts will EXCLUDE station house affidavits; NOT a proceeding! a. Important aspect: when actions are recorded iv. What if affidavit was signed at home? (a) Something formed in police station may make it more formal v. INS Interrogation of someone at border under oath, recorded (a) Stronger case this is a proceeding (taped = more formal and clearer statement was actually made!) vi. Preliminary hearing is a proceeding vii. Grand Jury is a proceeding Inconsistent Statement i. I Got Amnesia Problem 4-A- the person saying they have forgotten (a) Facts (i) Dude testified to grand jury that he participated in robbery. He is a witness to implicate D. At trial, he says he cannot remember, but can remember things like witness protection; seems he is faking. (b) Class: (i) Can be used for impeachment; but we want to use for substance of the trial (ii) Defense asserted was wrong; they stated: a. Prior statement is not inconsistent: not implicating someone else; just doesnt remember b. Not subject to cross exam b/c he cannot remember i. Class notes: use 801d1A- is it inconsistent to say the following? How can you cross him about the statement if you cant remember. It is deemed inconsistent if a detail is missing or absent or different then its deemd inconsistent, but if the witness lacks memory can there be cross about the statement? Ct says the narrower one.. all the def needs to be able to do be able to testify anout the contents, just about the statement in generaland thats good enough to satisfy 801d1A as long as the def attorney can make some headway its enough--- I dont remember saying it but I remember I was in the witness protection program ct allowes because just has to be cross about prior statement ii. Bottom line: unless they say I cant remember anything- then not be able to subject to cross and therefore 801d1a will not apply iii. If you let people get away with this then guilty people will go free iv. How do you use 801d1A here-? (c) Inconsistent Statement (i) Details do not have to conflict (dont have to implicate someone different) (ii) Courts: inconsistent if 1 statement has more details than another = inconsistent = different a. Amnesia will be inconsistent by most courts b. So will evasive answers, silence, or changes in positions (reluctance) c. (Although a minority of courts say real amnesia is not inconsistent) (d) Subject to Cross (dealing with silence) (i) Not subject to cross exam at grand jury doesnt matter has to be cross-examinable now (ii) Courts: a. Doesnt have to be cross of events that occurred before b. Just need to cross on something c. If witness cannot remember anything with respect to things surrounding the statement made not subject to cross



Downloaded From i. 2. (But it may come in under exceptions of FRE 804 = unavailability)

Prior Consistent Statements FRE 801d1B

a. ELEMENTS i. Witness is on the stand and subject to cross-examination concerning the statement ii. Prior statement must be consistent iii. Prior statement offered to rebut charge or recent fabrication of improper influence or motive (IF USED FOR SUBSTANCE!) (a) Must have some door-opening by the adversary: to rebut (b) Thus, adversary has to be careful they dont make charge of recent fab or improper motive iv. NO requirement prior statement be made under oath (just inconsistent) v. If using for substance, must be to rebut the above vi. If not using for substance, can use to rehabilitate b. Examples of Charges i. Charge prosecutor gave you motive to lie ii. Covers implied charges: (a) To expert witness: isnt it true you are being paid c. Rebut i. Statement must be uttered before the supposed influence or motive ii. Hypo (a) Jane is on trial; 1 month ago there was a murder, at that time witness was dating Jane; 2 weeks before trial, witness says Jill is murderer. At trial, witness wants to say Jill is murderer (i) Not admissible: it does not rebut the claim that there was improper motive/influence since still would be influenced by the dating (ii) It would be admissible if statement was made before they started dating d. Tome v. US (169) i. Facts (a) Prosecution of father for sexual abuse of daughter. After a custody battle and after daughter moved in with mom, Daughter told some witnesses that dad sexually abused her (b) At trial: defense says she is lying to live with mom ii. Court (a) Statements were not admissible because the statements were made after the custody battle already began (the improper motive/influence) iii. Class (a) Reasons other than a charge of improper influence/motive/recent fabrication and D said isnt it true that you are just a forgetful person impeachment (i) Court: a. If you want to use statement for substance: FRE 801d1B: governs; thus cannot use prior consistent statement for a charge of memory loss; need charge of improper motive (b) Witness Rehabilitation (Not for substance)- dont care if statement is true/false just admit to show its the same: Ex charge that witness is forgetful (i) Most Court: YES, you can use the consistent statement for witness rehab (not for substance) Prior Statements for Identification: FRE 801d1C a. Intro i. Not: in court pointing at the Defendant (not hearsay b/c in court) ii. IS: in court & witness wants to testify that she pointed out the Defendant in the past: it is hearsay (a) Testimony of lineup b. ELEMENTS of prior statements of identification i. On stand, subject to cross (not subject to cross when identification was made) ii. Testify statement of identification iii. After perceiving the subject c. Policy i. Identification made at trial is inherently unreliable (deal, memory loss) d. Line-Up (criminal) i. Rule says that prior identification may not be admitted if lineup is after the indictment and defendant was denied counsel e. State v. Motta (179) i. Facts



Downloaded From (a) Cashier at coffee house was robbed and gave description of the assailant and a week later she met with an artist who drew a picture of the assailant. The picture was introduced at trial. Also, the police presented cashier with 20 pictures and she pointed out the D ii. Artist Sketch (a) Hearsay? YES (i) Out of Court statement: description to artist + artist wrote them down (2 levels of hearsay) (ii) We would need a hearsay exception for each level of hearsay a. If woman adopts the statement (says yes, that looks like the D) now 1 level of hearsay and now dont need artists testimony b. 801d1C gets her statement of identification (i.e. the drawing) in iii. D Argues that prior identification can only be used to rehabilitate (ex: impeach witnesss identification at trial) (a) Court; NO can use both as corroborative and substantive proof of identity Could use 801d1B too! Arent you lying now to pay off the police no I made the statement before the motive (But would still come in anyway under 801d1C Like authentication of Photograph: dont need photographer there, just a witness to say it is a fair and accurate representation of the photo Need person who made identification to testify at trial i. Police officer present at identification is not sufficient b/c NOT THE DECLARANT (a) Declarant must be subject to cross ii. But you could have both! Memory Loss subject to cross? i. Still subject to cross if you can ask about general circumstances surrounding the statement Testimony Prior statement was wrong i. Ex: The identification before was wrong, I was paid off (a) Comes in! B/c subject to cross

f. g. h.

i. j.


Admissions By Party Opponents

1. Ex: a. After crashing into tree, dude in accident says Shit, it was all my fault I crashed into tree. b. Hearsay? i. Yes: out of court statement used to show liability: truth of the matter asserted c. Comes in under FRE 801d2A FRE 801d2 a. Admissions by Party Opponent Statement Comes in if: ELEMENTS i. Admission Offered against a party and is (a) Partys own statement or (b) Statement party has manifested an adoption or belief of truth (party agrees) or (c) Statement by an authorized person or (d) Statement by a partys agent or servant w/I scope of agency or employment or (e) Statement by a coconspirator of a party during the course and furtherance of a conspiracy ii. Contents alone are insufficient to establish the above authority iii. Cannot be a statement offered by the party that made it iv. Must be a PARTY v. No oath requirement vi. Doesnt have to be anything against interest vii. Can be used to the truth of the matter asserted Policy a. Indicia of reliability i. Easy to say things that are good for you; usually dont impose liability on one self Self Serving Statement? a. YES, doesnt have to be against owns interest b. Ex: If someone thinks they cannot get ride in ambulance unless they admit fault so admitted fault just to get into ambulance (saying b/c outcome is in your own interest) Binding? a. NO, comes in but can be discounted/explained away; b. Doesnt estop the litigant from saying the opposite i. Ex: people who hurt people usually apologize, whether its their fault or not Problem 4-B a. Facts







Downloaded From Dude leaves truck at a repair shop. EE causes explosion and dude sues shop. Dude wants to admit testimony from insurance adjuster that will say owner told him the fire started in the paint shed when EE put down torch. Owner said this to get insurance ii. Hearsay? (a) Yes: 2 levels (i) Owner reporting what EE told him (b) Admissible: (i) Perons own statement offered against him (ii) Self serving statement (thats ok) (iii) Admitted but can be rebutted iii. Adjuster can testify, person making statement does not have to be on stand (a) Doesnt need personal knowledge 7. Conclusory Statement of Law a. Admissible if out of court i. On stand usually not admissible; but can testify to out of court statement conclusory statement of law ii. Ex: Safe and Proper my fault 8. Drunk or Injured a. If drunk comes in b. Injured comes in (court allowed statement of dude whose tongue was sewed to his cheek) 9. Sleep a. DOESNT come in 10. Statement of Child a. Probably comes in (there is no exception for young kids) b. But, there will be a question of weight (counsel will argue child doesnt know about fault)- if real young 11. Guilty Pleas a. Problem 4C i. Whalen strikes Parker in the face and the police arrest Whalen. Whalen pleads guilty in a criminal trial where he states he is in fact guilty and understands the same as conviction. Parker now brings civil suit. (a) Should guilty plea be admissible? (i) It is an admission of a party opponent; the partys own statement (no oath requirement) (b) Partial Summary Judgment? (i) Can be used for probative value; as truth of the matter asserted, but rebuttable ii. Some Jurisdictions require that the elements be the same for the criminal and civil trial (a) Reluctance because admit guilt to get a lower sentence (b) Criminal usually comes in b. Non-serious matters? i. Time: many people will plead guilty to get it out of their hair ii. But usually admitted b/c rebuttable (some states/counties have ordinances not allowing payment to be an admission of guilt to encourage payment) c. Nolo Contendre: i. NOT admissible (so D will go to jail but not admissible) 12. Spill Over Confessions a. Example: Suppose George Washington said I couldnt tell a lie, Me and Thomas Jefferson cut down a tree. i. It is hearsay ii. Admissible against George in his trial iii. Not admissible against Thomas in his trial because George is not a party (just hearsay like any other nonparty witness) iv. What if they are tried together? b. Bruton v. US (190) (THIS IS CRIMINAL CASE) i. Facts (a) Evan confessed: Bruton and I committed a robbery. (b) Trial Court: Hearsay against Bruton and admitted against Evan, the confessor (i) Trial court gave jury instruction that the confession could not be used against Bruton in any way (ii) Both were convicted (c) 8th Cir (i) Reversed conviction of confessor, Evans, b/c confession should not have been used against him, but not Bruton reasoning the trial courts instructions insulated him from any harm ii. Supreme Court (a) Reverses: Jury cannot be relied on to ignore the confession when determining guilt i.


Downloaded From (i) Not a violation of Federal Rules of evidence, but a constitutional concern (Confrontation Clause) (ii) Admission Cannot be admitted against the party who did not make it iii. Class (a) Admissible against Evan (b) Not admissible to Bruton: because not offered against the party that MADE the statement so doesnt fall in hearsay exception (c) If this was a civil case: NON-confessing party would just be entitled to a limiting instruction under FRE 105 (i) For Criminal Case: (1) Is there a hearsay Exception; (2) if NOT, look for a Constitutional Concern (d) Spill Over Confession: when confession implicates declarant and someone else (i) Must have a separate trial a. Prosecutors hate this because is takes up resources c. Problem 4D i. Napton works for Ace and he crashes the co truck into B. Napton leaves the co, and after he leaves, he says he was speeding and the brakes failed. B sues both the former employee napton and the ace. Do the 2 statements (speeding and brakes) come in (THIS IS A CIVIL CASE) (a) This is a civil case: Bruton does not apply (may have a limiting instruction) (b) Ace is not an Agent: former EE: For agency, the statement must be made DURING the employment relationship (c) Brakes Fail : (i) Not Admissible Against Ace: Relevant against Ace, but not admissible against Ace b/c not made by Ace (ii) Not admissible against Napton: relevance hurts Ps case against Napton (iii) Inadmissible: Only reason to have this in is to use against Ace (d) Can Napton admit his own statement? (i) Must be used against a party opponent (ii) Not offering a statement by a party opponent: he would be trying to admit his own statement (must be used against adversary) (e) I was speeding (i) Not relevant against Ace if issue is failure to maintain vehicle, but maybe relevant under respondeat superior; most courts would say it cannot be used against Ace a. To prove vicarious Liability: must use evidence that is admissible against Ace; this is not admissible against Ace (ii) Admissible Against Napton (iii) Outcome: would come in with a limiting instruction a. If this was the only evidence Ace would get directed verdict b. BUT could argue FRE 403: prejudice against Ace (but probably lose b/c civil case) d. Choice for Prosecutor if spill over-confession i. Separate trials ii. Same trial; different juries iii. Redaction (a) Easier to do if written statement (b) If too few people: jury can figure out who (so usually doesnt work) (i) If jury would have link the blanks in the confession with other evidence (c) Example: I and ----- cut the cherry tree D. Adoptive Admissions- 801d2d 1. Requirement: a. If party has manifested an adoption of truth (issue: did that person say/do something to manifest an adoption) 2. Example: a. Were you speeding? and D says, yes: b. Did you rob the bankdarn tootin3. Silent Adoption- failing to object a. Test: by silence if you have manifested an adoption of truth b. US v. Hoosier i. Facts (a) Girlfriend of the D said to witness, you should see all the money bags we have. Defendant didnt say anything in response. (b) ISSUE: is that an adoptive admissions ii. Court says yes it is an adoptive admission and is admissible as an exception to the hearsay rule


Downloaded From (a) Ds silence was an admission (b) Court reasoned that if he was innocent, he would have denied the bags of money iii. Class (a) A factual inquiry as to whether a D would have denied (proclaimed innocence) if not guilty c. Offer that you accept if you dont reply i. Very probable that you just threw away ii. Out of court statement accept if you dont reply for the truth of the matter asserted d. More extensive the dealings more likely a court will find silence to be an admission i. Agreements in letters (Ex: I need an extension on filing the appeal. If you dont reply than you grant the extention) (a) Not admissible under Federal Rules of evidence (b) But a judge can still consider evidence that is not admissible: if judge knew parties often used these kind of letters can still consider (judge is gatekeeper) BELOW ARE CONTRASTING EXAMPLES a. EX: Offer from real estate company in the mail.. it used to be a response and we will deemed to accept the offer unless they dont hear from you and you will be deemed to have purchased the land i. Adoptive admission: NO YOU HAVE TO DO SOMETHING. Not in contract or evidence ii. Would not be natural for you to say anything b. EX: suppose you agree with opposing counsel that you will get an additional week to submit an answer to the complaint. I got a appointment is it ok if I turn it in a week later it that ok HE SAYS yes you send a letter just to confirm if you disagree with this please contact immediately. you hear nothing adoptive admissions i. No you cant. Case law says otherwise ii. Judges are NOT BOUND BY THE RULES OF EVIDENCE iii. So judge can consider this letter.. and if there is a course of dealing iv. Although not admissible in evidence this is not a trial so the judge can look at it c. Ex: Suppose you are required for insurance you have to submit a doctors report to insurance. By submitting it are you adopting the truth of it i. NO. you are not deemed to be an adoption bc you may have no idea what is in it ii. HAVE YOU MANIFESTED A BELIEF IN THE MATTER e. Personal Knowledge- if there is an adopted admission in silence you HAVE TO HAVE PERSONAL KNOWLEDGE--i. Tacit (silent) Adoption Needs Personal Knowledge ii. Explicit Adoption: Dont need personal knowledge (a) Ex: owner of the shop who was not present admits that EE burned down the store no knowledge could not silently adopt (b) EX: A paper is due on april first at the end of the semester the class doesnt say anything it will be deemed to have personal knowledge and therefor silence there is deemed an adoptive admission (i) Person has to have personal knowledge.. and a manifested believe in the matter for silence to be ok as an adoptive admission iii. Post Miranda silence is not a tacit admission f. Silence before Miranda i. Could be a tacit admission (assuming D doesnt know about Miranda rights before arrest) ii. This doesnt make sense: most know Miranda rights g. After arrest, police not involved i. What if after Miranda rights, in police car 2 Ds are in back and 1 says I knew we would never get away with it and the other D stays silent ii. If police officer not involved no Miranda protection tacit admission (a) Interaction is between 2 Ds; not between 1 D and 1 police 4. Mandatory Filings a. Suppose you file a claim report from your Dr for insurance benefits. Do you adopt the Dr.s report? i. Issue: are you manifesting agreement by sending the report? (a) Not if sending is mandatory 5. Government a. Different rules: many times statement of an agent is not statement of the govt b. Ex; If police files an affidavit of an informant to the court i. It is an admission (adopted by prosecution b/c filed with the court) MISSED 1 week


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Evidence Class 21 Hearsay Exceptions

Admissions by speaking agents- 801d2c- made by a person who was authorized to make such a statement on the subject--- have to be an agent at the time the statement was made (if they were authorized at the time it is deemed to be your admission) Intro Often words of an agent commit the principal and are therefore verbal acts rather than hearsay because independent legal significance Other times they are said to prove something they describe actually exists or happened = hearsay Ex: There is a tractor in the barn that is included in the deal Not hearsay for the tractor is included in the deal (indep legal??) If trying to prove there is a tractor in the deal Hearsay for there is a tractor in the barn If offered to prove there is/is not a tractor in the barn However, courts will treat the hearsay as an admission by party opponent Lady gaga ex: If you as lady gaga agree on as a price--- as an agent authorized to speak on behalf of the principal Dont even need a hearsay exception? It is hearsay. its an out of court statement, it doent matter if its true it matters that it was uttered? By saying they you would do it for 250 through agency rules when you uttered the words you made a contract so its not hearsay and you dont need an exception Covered by hearsay exception but you dont need it because its not hearsay EX: Dean and you agree for 250 later on he calls you up.. he says what price did we agree on. Was it 500 you say no it was 250. Dean gets on the stand and says we agreed to 250 Why is that hearsay this time? It matters this time. Because there is no ind legal significance not creating the contract. That already happened earlier Out of ct statement offered for the truth of the matter asserted Exception? Yes. You are authorized by lady gaga to speak on her behalf. To fit this IT HAS TO BE MADE IN THE SCOPE OF YOUR AUTHORITY You as a client hire somebody to be your lawyer and you say I can not tell a lie my client lied Now your adversary want to admit that statement is the court transcript hearsay? If they try to get the ct reporter on the stand repeating what you say it is hearsay Instead if its the transcript? It is hearsay and does a hearsay exception apply. Does the transcript of the earlier ct case (in proceeding 2 a transcript of proceeding 1) come in. Hearsay? Yes it is hearsay? Yes out of ct statement. And it reports what someone said out of court. Exception? Agent? Yes. Speaking on behalf of you.? YES so you would be out of luck.. maybe malpractice yes. But it comes in under the exception Problem 4-F Couldnt he see the boy? P sues a bus driver who runs over boy. P also sues the wrong bus co and in pleading says mirrors were screwed. Case against bus co is dismissed. In trial against driver, driver wants to admit the superseded pleadings b/c of the mirror pleadings admissible against party who filed them The couple says in a pleading---They alleged the bus company is liable because the mirrors were in the wrong place.. sum jd because the wrong bus company. Can the bus driver introduce evidence that the couple said it was the bus fault and not the company? Admitted? Hearsay? Exception? You are allowed to plead in the alternative so the jury will get confused so we will not admit normally other than that they come in.. just the rule of pleading in the alternative is tricky so it does not come in Ex: Bus company president sends a memo that says if you get into accident you are forbidden to say anything There is an accident and the bus driver says Im sorry i was driving while texting 801d2C- no not authorized but was made by the parties agent--- anything you say in the course of you being a bus driver then it comes in in court stops the scheme of the president telling the driver never to say anything Notes on Admissions in Judicial Proceedings Pleadings from prior lawsuits and pleading superseded in the pending suit are generally admissible against the party who filed them; so are answers to interrogatories. Not an automatic victory- because the person making the statement can try to explain it away. But f you make an admission in a pleading it is an automatic win


Downloaded From Admissions filed in request to admit are not policy is to promote efficiency by encouraging people to admit with the reassurance that the admission will not come back to bite them in a subsequent proceeding. Evidence say yes but civil procedure says you cant use it in a later case Expert testimony experts generally expected to be within the partys control Admissions by Employees and Agents Admissions by Employees and Agents FRE801(d)(2)(D) admissibility of statements of employees and agents, within the scope of agency/employment Multilayered hearsay under 805 each layer of hearsay has to fit an exception Ex: A, an EE, wants to testify what B said C said. 801d2D will reach both C B; B A There is no personal knowledge requirement *******Government admissions are an exception to the hearsay exception agents cannot bind the sovereign of a government If a private company it can come in But a public company like the government--- employee cant bind the sovereign Statements by Agents/Servants Mahlandt v. Wild Canid Survival & Research Center (WOLFBITE CASE) FACTS: An almost four year old child was walking along a fence on the other side of which a wolf was chained. Wolf was was being kept at the home of the Director of Education while he took her to schools and institutions for educations purposes A neighbor heard screams. He did not see any biting. No one saw injury The Director of Education came home. He later went to the offices of the company and left a note for the president saying the wolf had bitten a child. Later he found the president and told him the wolf bit the child. There were notes in a bd meeting about the consequences of the wolf having bitten the child. Looked like fence marks on the child; boys father agreed Issue: Were the statements admissible? Holding: Yes Rationale: The statement pinned on the door is an admission of party opponent, and comes in under FRE 801d2A against him. Yes hearsay but there is an exception It comes in against the company under 801d2D. Defendants argued that the statement was inadmissible because it was in house, but there is no in house exception for 801d2D. In the scope of his employment- and covered by 801d2d There is no requirement that a communication be to an outsider to be admissible. There is also no requirement that the declarant have personal knowledge. The board minutes are admissible against the corporation under 801d2C [statement authorized by a party as an agent in the scope of their employment], but are not admissible against the Director of Education. Would also come in under 801d2D What about wolf guy? They guy who was keeping the wolf. The wolf guy has not authorized the company to speak on his behalf Used 403 to exclude the thing all together arguing the danger of unfair prejudice is too high The trial court further excluded the evidence under 403, finding the statements were not reliable due to lack of personal knowledge. This is not a requirement, and therefore the exclusion of the note and the statement are not justified under 403. On the other hand, because the minute are only admissible against the corporation, and are repetitive with other evidence, the judgment of the trial court in applying 403 to exclude the minutes was correct. Modern rule: normally references to statements about statements by others are admissible. Fact that statements came through multiple declarants doesnt matter since all were agents speaking on activities within scope of agency Sometimes the statements of an independent contractor can come in through adoption. Not usually an agent or servant Board minutes are not admissible against wolf keeper because board is not an agent of him. Statement by agent or servant must be within scope of duty Within the scope of duty can include: Admission matches job description (investigate accidents) Admissions at a social occasion Some statements may be excludable on other grounds not valid expert E-mail is admissible against the company if matter is about something within the scope of duties Even if matter was not meant for outside eyes


Downloaded From Problem 4-G I was on an errand for my boss Employee I got distracted reading the purchase order on my clipboard Company claims driver was not an agent speaking of a matter within the scope of his employment Company claims - cant use the statement to determine whether the statement is admissible; FRE104a judge can decide & judge is not bound by the rules of evidence: conditional relevancy Is it hearsay? Out of ct statemtn and offered for the truth that he was negligent. And in the scope of his employement. Admission by a party opponent if the truck driver is sued If employer is sued? Use the statement itself before you do you need to show the requirements Can you use info in a statement to show that the statement satisfies the hearsay exception? Thats the bootstrapping The bootstrapping rule in the rules of evidence dealt with admissibility as non-hearsay of statements of conspiracy in United States federal courts. The rule was, in a criminal prosecution for conspiracy, the court, in deciding whether to allow the jury to consider a statement of conspiracy, cannot hear the statement itself, and that the allegation should be supported by independent evidence.

Coconspirator Statements- standard if proof Is in co-conspirator is PREPONDERANCE OF EVIDENCE (SUP CT CASE sas for evidentiary issues---- in civil and criminal case unless the rules specifically say something diffenent---- like with character evidence- can come in only in criminal cases FRE 801d2E: Co-conspirator statements are admissible if: ELEMENTS: WHO DECIDES (THE JUDGE): STANDARD: IS THE PREPONDERANCE OF THE EVIDENCE 1) Declarant and Defendant co-conspired (COVERTURE) 2) The Statements were made during the course of the venture (pendency) 3) And the statements were made in Furtherance thereof Prosecution of co-conspiracy is not required Benefits of conspiracy to prosecutor: Venue can be anywhere any part of the conspiracy took place Join multiple defendants Possibility of conviction even if substantive counts fail Useful evidence conventions Co-conspirator statements often have hearsay and non-hearsay significance (verbal acts) Co-conspirator is sort of like agent Advantages Disadvantages Judge Statements admitted when Judge and jury may disagree proof is substantial about whether there was a conspiracy; judges view has decisive effect (on conviction or acquittal) Jury Conviction could rest only on hearsay the judge considers unreliable/if foundation is connected Problem 4-E Is saying leave me alone when someone accuses you of robbing the bank adopting the statement 104 preliminary questions about admissibility are decided by the court (the judge) Subdivision b the relevancy of evidence depends on the fulfillment of a condition of fact Has a prima facie case been established such that a reasonable jury could support the condition of fact? In this problem, is there some condition of fact that needs to be established? Is the statement relevant if the person did not adopt it? NO therefore, this is a 104b issue; however, the judge still has a role to play; the judge has to consider whether the jury could reasonably find there was an adoption This is a complicated issue the best way to find out what will apply is to look up the cases (for your jurisdiction and issue) Hypo: you are the agent for Janet Jackson; you tell Dean Partlett that she will perform in the bus station for $1000 and a box of donuts; Dean Partlett says we have a deal; she doesnt show up, and the law school wants to sue are your words admissible? YES you dont even need a hearsay exception because your words have independent legal significance; by uttering the words you have bound her


Downloaded From Hypo: later on, after the agreement has been made; Dean Partlett calls you up and asks Was it donuts or celery? and you say Donuts Can the law school introduce this later statement; now this statement doesnt have independent legal significance; its offered for the truth of the matter asserted; so it would need a hearsay exception 801d2C you are authorized by Janet Jackson (the party) to make a statement concerning the subject Many of these exceptions are aimed at statements that are held against you but statement is made through someone else (adoption, agent, co-conspirator, etc.) Suppose Janet hires a lawyer in court the lawyer gets up and says I cant stand this anymore; there was a contract lets just talk about why damages should be small. Is this statement admissible? Yes: the lawyer is her agent; whatever she says counts as if the client had said it. Problem 4-F The driver wants to introduce the allegations against the bus seller to show the plaintiffs asserted that the accident was the fault of the bus design. Is it admissible? Yes this is a statement by the lawyer, who is the plaintiffs agent (you hire someone to say stuff; they say stuff; its like you said it) However, in reality under CP rules, youre allowed to plead in the alternative and wait for discovery to find out which is true (as long as you dont know one of the things you were saying was false) so not an admission and in many jurisdictions would not be admissible If they are not pleadings in the alternative, they are probably admissible Judicial admissions what if something is an admission? Can not be admitted in later cases; the policy is to make people willing to make admissions in the current case (make them more cooperative) because they arent worried about what an admission might mean down the line-- Policy: You want to encourage admissions so an admission in one case is not admissible in another case. What if the plaintiffs had said out-of-court that the mirrors were at fault? Would that be admissible against the plaintiffs? It is hearsay; it is admissible under 801(d)(2)(a) it is the partys own statement, but it is not legally binding the jury can weigh all the evidence and decide for themselves (the plaintiff can attempt to explain it away) Now suppose they made such an admission in the pleadings (and there were no pleading in the alternative) such a statement is legally binding Suppose you put an expert witness on the stand and they testify in a way that they eviscerate your case Is this an admission by you? There are arguments on both sides (is the expert an agent?) but the one that is accepted is that you wouldnt put an expert on unless you agreed to what they say in effect they are speaking for you; many courts would also say that their testimony is dispositive and binding

801d2D statement by a parties agent Ex: The general counsel of Greyhound sends a memo to all the bus drivers stating, if you ever in an accident, do not say anything to the police, insurance adjusters. It is not within your scope of employment to talk. Now suppose Joe Busdriver falls asleep and gets in an accident. He says Im so sorry, I fell asleep. Is his statement admissible? Its not admissible under 801d2C (was made by a person whom the party authorized to make a

statement on the subject) the scope of his agency does not include making statements [not authorized];

but it is admissible under 801d2D (was made by the partys agent or employee on a matter within
the scope of that relationship and while it existed) the statement is concerning the matter within the
scope of agency or employment (he was hired to drive the bus; he said something about it; he is still an agent it fits within the exception even though the employer forbade him to say anything) policy: stops the president or employer from forbidding the employee from every saying annoying to avoid liability Government: The rules are different with respect to the government if a low level employee of the SSA says something, the statement would not be admissible in a murder trial (by strict application of the 801(d)(2)(D) exception it would be the case is US v. Smith and the SSA person is an agent of the US) but most of the time the admissions exception does not apply to the federal, state or local government

Problem 4G I was driving for my employer and I was negligent. Both the employer and driver get sued; the employer asserts that the driver was not acting within the scope of employment. I was negligent comes in under 801(d)(2)(A) against the driver nothing fancy What about against the employer? Bootstrapping problem (should the proponent of the evidence be able to use the statement itself to claim the hearsay exception should apply?)


Downloaded From 104(a) what kinds of evidence can a judge use? Second sentence the court can use otherwise inadmissible hearsay because it is not bound by the rules of evidence except those with respect to privileges. So the judge can use the hearsay to determine whether a hearsay exception applies! However, look at the end of 801d2 there has to be other evidence besides the statement to prove authority or agency, so the statement alone is not enough! Co-conspirator exception 801d2E Loaded terms coconspirator/during the course/in furtherance of Conspiracy is a powerful tool for prosecutors Suppose youve been charged with robbing a bank; the prosecutor wants to admit the results of a wiretap talking of two other people talking I agreed to be part of the conspiracy, too, and George is going to be the driver of the getaway car. Is it hearsay? Yes its an out-of-court statement offered for the truth of the matter asserted (George is a co-conspirator) The policy is the same as the agency exceptions co-conspirator is a partner in crime Not every statement comes in: Statement by the co-conspirator (coventurer) During the course of the conspiracy (pendancy) In furtherance of the conspiracy (furtherance) Coventurer says - Heres the money to pay Sue to be the driver of the getaway car. 1) Coventurer; 2) during the course of conspiracy; 3) moves it forward (pays money to help the conspiracy) comes in Coventurer says Gosh, Im so happy Sue is part of our conspiracy. Meets 1) Coventurer requirement and 2) during the course of conspiracy, but does not further the conspiracy doesnt come in! ERICS NOTES CLASS 2? MISSED Bourjaily v. United States Informant sets up drug deal with D L told informant that he would set up a deal with another person In tapped call, Lenardo arragned with informant details about transfer of the drugs D arrived at the transfer time and arrested Gov twants to introduce the phone calls where the informant discussed the details of the deal i.e. Attempting to use statements by L as an admission against D all (d)(2) co-conspirator exception in effect, L was speaking on behalf of D same principle as agents acting on behalf of a partnership i.e. situation when one persons words are attributed to someone else ELEMENTS for exception: (1) was L a co-conspirator of D? [coventurer requirement] Yes, there was a conspiracy to deal drugs (2) pendency Was during the conspiracy (3) furtherance Yes, they were setting up a place to meet What if statement said: Im happy that D is part of our conspiracy o Would NOT be in furtherance of the conspiracy o i..e didnt move the conspiracy along at all but HERE: it WAS in furtherance of the conspiracy who decides what evidence can get in? 104(a) issue where judge just decides admissibility? Here: only for judge There is NO conditional relevancy argument Or 104(b) issue for jury? Standard of proof? NOT beyond a reasonable doubt standard of proof is ALWAYS preponderance of the evidence standard for determining admissibility i.e. evidence rules apply the same in criminal and civil cases the substantive standard of proof in criminal trials is beyond reasonable doubt (more than 51% how much more not sure) Standard of proof in a civil trial is preponderance of the evidence (51%) certain evidence rul;es have exceptions


Downloaded From e.g. RULES for character evidence-character evidence may not be used by prosecution in criminal case unless D opens the door first what evidence used to show that the co-conspirator exception was applicable is it permissible to use hearsay statements to show that they fit within a hearsay exception? i.e. can you use co-conspirator statements (normally inadmissible) to SHOW that the evidence is entitled to the exception??? Can you use hearsay evidence in general to show that a hearsay exception applies? When judge makes admissibility determination, can judge use hearsay 104(a) talks about how the judge can use ANYTHING to determine admissibility JUDGES(= not bound by the rules of evidence) Court reserves question of whether it is appropriate to use ONLY the co-conspirator statements to show the ONLY basis for the exception applying Now resolved 801(d)(2) [last sentence] cant rely ONLY on the statements themselves Here: was there additional evidence? Yesfact that D actually showed up i.e. L: I arranged for D to show upthen D showed upapplication of the co-conspirator exception was based on statement AND him showing up summary (1) judge decides whether the exception applies (2) standard: preponderance of evidence (3) judge can use hearsay statements themselves to determine whether the exception applies (but there does need to be other evidence for the exception to apply (bc judges are not bound by the rules of evidence)

Order of proof? When are issues resolved re: whether an exception applies? James Hearing- trust me ill do it later- sometimes yes sometimes no Suppose that the conspiracy is also one of the substantive charges (need to prove beyond a reasonable doubt) Sometimes judge takes prosecutors words for it Unless pros starts proving the conspiracy before proving that the exception applies Judge will often defer to prosecutor Pros only (usually) has to put the evidence up oncei.e. not once for showing substantive conspiracy AND again to show that the exception applies More efficient BUT what if the pros does NOT convince the judge that the exception applies? o Jury sees all sorts of evidence it shouldntresult? Mistrial o But judges often allow it anyway Problem 4-H 216- 3 statements (A) One co-c says: I just wanted you to know that another C fronted money for the trip (1) coventurer (2) pendency [during conspiracy] (3) furtherance? NO statement does not further the conspiracyinstead, is just a description of what is going on mere narrative IS NOT furtherance. Its not moving it forward. Would not fit. (B) C wants to convince someone to buy drugs: you can go south and make the buy- the conspiracy ends when they get arrested (1) coventurer? Yes, one talking to another co conspirator (2) pendency Yes, it is happening (3) furtherance? Here: YEStrying to sell drugs. The statement is made to move it forward and would be in the exception (C) co-C arrested and says: another C was going to make the buy, I was just trying to help out (1) coventurer? YES (2) pendency? NO Conspiracy deemed over when someone arrested Dont need to reach furtherance question Against WHOM would this statement be admissible? Against the declarant 801d2Apartys own statement (not w/i co-con exception)


Downloaded From But: b/c after arrest: not admissible against other Cs What if there is no conspiracy charge? Can the exception still be applied? YESeven if no substantive conspiracy charge, the pros can still use the exception to get evidence in Just have to show by preponderance of the evidence Suppose a substantive conspiracy charge in a case is DISMISSED for lack of evidence? Still possible for the prosecutor to employ the co-c exception to get evidence admitted? YEShow can this be? i.e. judge already determined that the there was no conspiracy *****BUT: substantive claim requires beyond a reasonable doubt (BRD) , whereas the hearsay exception only requires a showing based on the preponderance of the evidence (POE)*** Ds gone south to make the buy do you want to buy the drugs? Argument that this isnt even hearsay in the first place? Speaker incurs criminal liability by merely speaking the words These are words that further a conspiracy i.e. lots of things you can say that make you a co-C that can come in even without a hearsay exception the exception only deals with statements if issues about whether something has independent legal significance for recognize: like many other situationsfocus first on whether something is hearsay in the first place o THEN: even if it IS considered hearsaydoes it fit into a hearsay exception? Unrestricted Hearsay Exceptions 803- dont care if declarant is on the stand or not (exceptions where the courts does not care if they are on the stand or not) No more pretext based on 801(d) [statement that fits within a hearsay exception it is NOT hearsay] Here803 concedes that some hearsay statements may be admissible nonetheless (1) present sense impression (2) excited utterance Rationale for letting these statements in: indicia of reliability o 2 ELEMENTS has to describe the event had to have been made while the declarant was receiving the information or immediately after Made immediately at time of event or immediately after Remember 4 problems caused by hearsay 1) Misrepresentation/Misperception Eliminated by the indicia of reliability here? NO 2) Memory Reduce danger of memory problem by being made at time of event? YESodds that you forgot are impossible because you are saying something right when you see it 3) Misstatement This danger is still hereyoure just blurting something out without thinking about how to say it carefully 4) Mendacity Low odds that youre lying because there is no time to filter what you are thinking Less danger of lying THUS: misrepresentation and misstatement remain, but memory and mendacity dont factor inrules consider this sufficient to admit the evidence If you offered evidence pursuant to the res gestae exception Res gestaecommon law term for the these exceptionsthe statements are considered PART of the event


Present Sense Impressions A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter Nuttall v. Reading Co. (3d Cir 1956) Husband died when he went to work sick Wife sued employer for forcing him to work sick o ISSUES (1) what employer said to him? (2) what was said made him feel compelled to work?


Downloaded From Victims often make statements (as here) Some evidence that the P wanted to offer here? Why are they forcing me to come in? This would help satisfy both elements of the claim Issue #1: is this hearsay? Yesout of court statement offered to prove the truth of the matter asserted (the boss said that he was forced to come to work)(and the boss was the one that said it) (1) out of court statement? Yes (2) offered for truth o The statement basically says exactly what the claim requires o The wife is offering a statement that her husband said o Offered to show that the employer said something to him that made him feel compelled to go to work o Wife reports: husband told me I have to come in o 2 levels of hearsay (1) wife on stand describing what husband said (2) husbands statement offered to prove what the employer said o What hearsay exception applies to each link here? (1) present sense Made while perceiving the event? Not really, because he said it after hanging up the phone BUT: ok under immediately thereafter language (2) him reporting what someone else said Is this hearsay? No just the fact that he said it not offered for the truth just offered to sho the statement was made YESdoes it matter whether it is true or false [fact that boss said: you MUST come in now]? Only matters that the statement was madenot offered to prove that the boss WAS going to fire him if he didnt come in If it IS considered hearsay: party opponent exception o Even if it was hearsay ( though its NOT). You could get is in as an admission of a party opponent (ASK SHEPARD HOW THIS IS AN ADMISSION-what is he admitting to or is it anything a party opponent says) This case is reminiscent of Check officer not testifying to what the informant saidbut what his reaction to what the informant said Here: wife not testifying to what employer said to husband, but only the husbands reaction to what the employer said Would this also come in as the statement of a party opponent? i.e. if the dead person could sue if the suit was technically on behalf of a dead victim could P get the statement in? NOnot an opponent! cant just admit your earlier statement Point of that exception is only to allow an adversary to use your statements, not for your own use Second part of statement: Hs statement to W: I feel compelled to go into work Hearsay? Yesmaybe H was lying, etc Offered for the truth of the matter asserted i.e. offered to show that he felt compelled.. EXCEPTION? BUTthe present sense impression exception allows the statement Describes what the boss said Made immediately after having heard the statement by the boss and fits in the exception Third statement: H went into work and told someone else that he couldnt believe he was thereI felt so pressured to come in Admissible as a present sense impression? No had time to reflect (1) describes event/condition describes feeling of compulsion (2) NOT made while perceiving the event OR immediately thereafter Thus: NO present sense impression Does there have to be corroborating evidence ? NO NOT REQUIRED How long is immediately thereafter- 2 hours too long.. 2 minutes ok. In-between its up for grabs


Downloaded From What if you see someone driving fast and you say man, they must be drunk Admissible? YESno requirement of personal knowledge Just have to (1) see a stimulus; and (2) describe it right away What about bootstrapping issues? Suppose that you were reported to have said earlier: that car is going really fast! What if only evidence that present sense exception applies is your statement? o Can the statement itself be used by judge to determine whether the exception applies? YES RULE: judge CAN use the statement (alone) to determine whether the exception applies What if person finds out who poisoned him just before dying, but 2 hours after being poisoned? 2 hours is too long

Excited Utterance Exception- good examples below. MOST OF THE TIME BOTH WILL APPLY BUT SOMETIMES only one will appply 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 ThusELEMENTS: (1) event/condition that excites declarant (2) statement made while under the stress of the excitement i.e. must have made the statement WHILE still excited difference between present sense impression exception and the excited utterance exception? Situations when only one of the two applies?? Ex: something startles you and you say wow, a baseball is coming right at my head This would satisfy BOTH exceptions When would both NOT apply? What if declarant perceives a duck traveling in a pond and says that is a blue duck Present sense impression? o Yes, Excited utterance o No not a statement that excites the declarant Situations in which the excited utterance exception would apply, but NOT the present sense impression exception? Ex: get mugged Later describe event to police officer o Present sense? Nonot statement made during or immediately thereafter o Excited utterance? Yesstill freaked out by person pulling a knife As long as the stress of the excitement continues, the exception can apply United States v. Arnold

Facts: Defendant threatens his girlfriends daughter with a gun Girlfriend calls 911 and tells police what is happening She also tells police what happened when they arrive She also identifies the perpetrator when he comes home again During this entire time, the victim is distraught I. Issue: Whether statements made to police and on 911 tapes can be admissible under the excited utterance exception. II. Holding: Yes III. Reasoning:Three things are required for a statement to be an excited utterance a. Must be an event startling enough to cause excitement; b. Statement must be made before there is time to misrepresent and c. Statement must be made while person is still under the stress of the excitement caused by the event. i. In this case: all of the statements made by the distraught victim met these requirements. The window of time that can pass can be relatively long so long as the victim is still excited Excited utterances exception applies?


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Present sense impression applies? o This is a situation where both applies Statements by bystanders? o Yes it fits. Events excited the person saying it and made shortly thereafter Time limit for excited utterances? o Mugged but the next day you are interview by police Present sense impression? Not made while perceiving the event or immediately there after Excited utterances? Probably, esp If you are still shaken up. At least for a day o Supposed someone goes unconscious and then upon waking they yell Jim was the one that cut off my arm. Excited utterances? Yes still affected by the event o Does the declarant need to be competent ? most say to fit the exception you dont have to be competent (which you would no be able to testify). Most say you can get it in no requirement of competence

Example: Someone assaulted and goes into coma and 20 hours later awakes and says: D assaulted me! Within the exception? Yesthe utterance has not been influenced by reflection Present sense impression? NO: not made at time or immediately thereafter

Problem 4-I 238 Guy says: I just had a chest pain after lifting something at work a few minutes ago Taken to doctorhas a heart attack Issue: whether something at work caused the attack Is it a present sense impression? If describing something that previously happened at work (lifting the barrel and having chest pains) The event that is relevant is the lifting WHILE being at work Thus: this exception wont worknot during or immediately thereafter (2 hours had elapsed) Excited utterance (1) event that excited the declarant (2) statement made while under excitement? This was extremely scary for him If, when he came home, he was still stressed out about itmaybe satisfies this element and the exception will apply o BUT: if he comes home and is no longer excited, then it would NOT satisfy the element (and therefore would not satisfy the exception) Evidence Class 23 Hearsay exceptions State of Mind exception: elements FRE 803(3) Then-existing physical condition (like present sense exception) Then-existing mental or emotional condition Suppose: the issue is whether the def sold drugs. Def says Well I thought I was helping with a sting operation. Prosecutor says baloney. Def went to mom to say im a,m so happy to be helping the police out: YES. Hes talking about his emotional condition Drug sting: statement is offered three month after the def purported to sell drugs to somebody Mom the proudest moment of my life is when I helped out in the drug sting...: at the time not three months after. Had to be what you are feeling now and not what you felt in the past Declarants later conduct Facts concerning declarants will Applies to three thingsCAN NOT BE A THING REMEMBERED OF BELIEVED (OLNY IF THE THING IS INDEPENDLY RELEVANT) 1) Then existing physical condition 2) Then existing mental or emotional condition 3) his later conduct 3) something/facts concerning the declarants will (exception for stuff about somebodies will---


Downloaded From guy executes a will and leaves everthing to his son. He has two sons before will is drafted I am going to leave lots of money to my son IKE--- offered to prove when will says son he means IKE- forward looking and intend to give to ike after he write the will im happy I gave all my money to IKE now backwards looking normally be inadmissible because not fitting the exception--- backwards looking0 never the less admissible BECAUSE IT HAS TO DO WITH A WILL requirementsneed to be reliable backwards looking suppose you have a witness that want to testify that bill is the murderer objection not offering for the truth of matter asserted using for at that point his state of mind was that bill was the murderer. What was going on in their brain exception? MUST BE WRONG.. if you allowed it to succeeed then it would work for every time. So it cant be right,,, WHY? Little clause the state of mind can not be a memory or belief to prove the thing that was remembered or believed NEED IT TO BE INDEPENDENTLY RELEVANT prof Shepard sent me a bad employment letter would be a backward looking state of mind assertion cant use it for this--- right now I am feeling like not hiring you because of what shepard say (thats present state of mind) but you can offer it to show that professor shepard sent the letter to you. Cant do that. No asking what they are doing no, but what they did in the past need some other use of what they said ----rationale for that clause: -----can you see why they have the clause in the exceptionbut not including---- if it was not there it would completely eliminate the hearsay rule.. you cant use it for a fact remembered or believe to prove the fact remembered or believed- something in the past that they are remembering and the hearsay exception does not apply Risk of misperception is small; risk of bad memory very small Risks of candor and misstatement remain some courts do not allow depending on perceived sincerity Physical Condition must describe how he feels as he talks (not describe it later) Mental or emotional condition mental state of parties or non-parties (for example, unhappy customers where issue is loss of good-will); only applies to present mental state (what he says on Wednesday about his mental state on Monday doesnt normally qualify for the exception unless it reflects his state on both Monday and Wednesday; must be very careful about timing) Sometimes this exception involves facts (Landlord denying lease due to faulty Dun & Bradstreet report state of mind was that potential tenant was a poor credit risk) Remember sometimes facts are non-hearsay circumstantial evidence of state-of-mind Problem 4J He Says Hell Kill Me If the charge is extortion, the statement is admissible because fear is a component of the crime, but could only be admitted to show fear, not to say that defendant asked for money; not so for murder; if the defendant claimed self-defense it would be relevant to say that victim was trying to stay clear of defendant. Notes on Proving State of Mind by Fact-Laden Utterances Fear is an element in extortion would have jury instruction for that purpose Fear is not an element of murder (sometimes admitted to show motive) Statement must not be backward looking (he poisoned me not admissible to show victim did not commit suicide; I dont want to die from poison probably would have been) Threats against defendant can be admissible Subsequent Conduct What a person said is often admitted as proof of what she did Intent is a complicated matter (In November I say I plan to ski in Utah in January I assume there will be snow, I can stay with my friend, etc.) People may describe intent using facts (My friend will let me stay at her house, and shes going to go skiing) HYPO--Suppose there was a law school, where ass placement director fibbed to us news about placement statistics and prosecution of the law school for criminal mail and wire fraud and also prosecution of placement director. Also prosecution of us news for knowingly reproducing the info that it was false. Suppose you have the underling person of placement director admitting it. Can you think of ways that ths tatemetn of the underling def could come in againt the law school or against the deans In practice how would this work? Several def law school dean placement director. Could it come in against the placement director? Admission by a party opponent. Could it come in Against law school? 801d2D- could come in under agency, Could it come in against the dean? Oh we didnt know about this this underling was doing all this terrible stuff. Maybe its a conspricyhas to satisfy the 3 requirements. Substantive crime of conspiracy.. have to show the dean and the director were in cohoots


Downloaded From ELEMENTS FOR conspiracy EXCEPTION Declarant and Defendant co-conspired (COVERTURE) yes 2) The Statements were made during the course of the venture (pendency) probably not because its over 3) And the statements were made in Furtherance thereof--- probably not confessing does not further the conspiracy. What about us news? Indirect agency might work. Problem 4K Fright Points the Finger Virginia told her neighbor Im afraid Donald is going to kill me. Current state of mind; not at the time of death Im going to take the train to Denver to stay with Mother a while intent to go to Denver has no bearing on whether she was murdered A few months before her death, Virginia left home and took refuge in a shelter for battered women state of mind a few months ago, not now; not conduct meant as an assertion not hearsay!! Class notes State of mind exception Then-existing physical condition (like present sense exception) Then-existing mental or emotional condition Facts concerning declarants will Declarants later conduct

The idea is that your current statements that what you are feeling are more reliable than your later statements (no time to lie, no chance you have forgotten) Theres a chance that youre lying or mis-stating Theres no requirement that the person be on the stand Was the person acting as an informant - Mom, Im really happy to be helping the police lock up evil drug dealers. fits the exception hes happy to be helping law enforcement; vs. Mom, dont turn me in, I hate being a drug dealer but its the only way. Mom, I was really happy last week to be helping the police lock up evil drug dealer does not fit the exception proves a fact remembered or believed The issue is whether five weeks ago you believed you were acting as an informant Right now, I enjoy being an informant for the government. fits the exception, but is it relevant? Prosecutor will argue that if he believes hes an informant now, it increases the odds that you were an informant five weeks ago The further there is in time between the two points the less willing the court is to admit it Im happy now to have been an informant five weeks ago probably doesnt come in I feel very threatened by Jim right now current state of mind; fits exception it is hearsay (out of court statement offered for the truth of the matter asserted) Danger when we have mixtures of state-of-mind and fact Hypo: Prof. Shepherd gives someone a lousy recommendation Dont ever hire this person. Student wants to admit the statement by an employer I am not hiring you because of the crappy reference letter. Employers state of mind is relevant fits the exception; but the problem is it assumes Prof. Shepherd wrote the letter. So, if youre offering the statement to show that Prof. Shepherd wrote the letter, it is not admissible (Cannot include a statement of memory or belief to prove the fact remembered). There would be some kind of weird instruction Consider the letter for the employers state of mind but not to show there was such a letter written; judge would have to do a 403 balancing analysis.

Prosecution wants to introduce the statement Jim was the murderer under the state-of-mind exception (belief of out-of-court declarant) cant do that because it would gut the hearsay rule (all hearsay one of the inferences is the statement is the belief of the out-of-court declarant) Exception is not supposed to cover backward-looking memory, only current feelings of the declarant (whats in his head now) Problem 4-J hell kill me if I dont pay him, already did Statement cannot be admitted to show Neff threatened to kill him if he did not give him $5000 statement of memory or belief to prove the fact remembered or believed (backward looking statement) Extortion: The prosecutor would offer it to show the victim felt threatened - that is an element of the crime. Judge has to be careful about letting the statement in because it includes information about what Neff did that the jury should not consider to decide what Neff did there would be an inscrutable jury instruction.


Downloaded From Murder: If the charge is murder, fear is not an element and the entire statement would not be admissible. Probative value is low and the danger of prejudice is high. What about present sense impression--- need to be an event and shortly thereafter? Impression that you are scared? Maybe its his current state- reason you are stressed? No that was several hours ago what you feeling now but not a while back WHAT ABOUT THE PERSON IN THE Murder CHARGE CLAIMING SELF DEFENSE--- Maybe then it makes the fear relevant. It would suggest the fear of the victim is relevant. Excited utterances- startling even and still subject to the stress of the event? Seems so. He seems still under the stress of being. CAN BE MORE THAN ONE EXCEPTION Seems better than state of mind exception with a murder charge in this example HYPO: Murder prosecution but the defendant claimed self-defense; if the victim was afraid it reduces the likelihood that the victim started the fight (and therefore is relevant against the self defense claim defendant may have opened the door) ------COULD IT BE ADMITTED TO SHOW THAT NEFF THREATENED HIM NO CANT OFFER TO PROVE A FACT REMEMBERED OR BELIEVED the im scared part is admissible shows his state of mind element of the crime is that the victim is scared memory of belief (is it looking backward) no its right now (right now he is scared not only that hes scared but also shows why hes scared? Ct ewill have to weight the pribabtive value to the prejudice the probative part is so important that the ct will let it in and give a limiting instruction Shephard case doctor accused of poisoning his wife; prosecutor wants to admit the statement that the wife said Dr. Shepherd had poisoned me. It is hearsay; it does not fit the state of mind exception; exception does not cover statement of memory or belief to prove the fact remembered or believed. Inadmissible to show he poisoned her; prosecution wanted to use it to show she was not suicidal judge excludes it because the danger of unfair prejudice is too great t I have a zest for life on her deathbed that would be admitted (fits the exception - not backward looking, only addresses current state of mind) she wants to live but is regretting she has been killed buy her husband.. offering to show she has a zest for life Example: Murder prosecution; defense wants to introduce testimony that the victim threatened the defendant I will kill you if they said that, they are likely to follow through; therefore the defendant really did act in self defense (inference is toward the future); could you also argue that it isnt hearsay at all not offered for the truth of the matter asserted just matters that it was uttered at all (maybe it wasnt true); defendant had reasonable fear Can you use the state-of-mind exception as proof of acting in conformity with their expressed intent? Yes I will kill Dave can be used to show the person is more likely to have followed through and actually killed Dave I wish I was still aliveshows that presently she wants to be alivewould be admissible WHAT if murder and they claim self defense and the victim said i will kill the defendant relevant? More of less probable that the victim did threaten the def and did attack the person hearsay? Statement made out of court offered to prove the truth of the matter asserted. To prove they were gonna kill the person. So hearsay admissible under an exception? Backwards looking? Not looking backwards current state of mind. Motive intent or planits saying what you feel right now.(LIKE THE Victims DESIRE to KILL SOMEBODY. CORE EXAMPLE OF thing THAT FITS THE STATE OF MIND EXCEPTION look at the point the statement was madecan you make an inference after time they made the statement intent to do something with somebody else is tricky I intent to go meet professor Adeahea at Kroger. Can you use the statement? See HILLMON CASE PROBABLY NOT GOOD LAW Mutual life insurance co v. Hillmon Case pg 240 IMPORTANT CASE one of the holdings is not good law; up in the air in a lot of jurisdictions A husband buys lots of insurance; names his wife as beneficiary; body found at the campsite; wife claims it is her husband and tries to collect; insurance companies refuse claiming body is Walters; not Hillmon Insurance companies want to put Walters and Hillmon together traveling west; want to introduce letters from Walters to his girlfriend Im so happy to be traveling west with Hillmon. Can use the exception to show person later acted in conformity with statement I intend to go west. Can they use the letters to show Hillmon went west? This court says


holding is probably wrong..


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Current courts would probably say no because this a backward looking statement in the past Walters met

Hillmon, talked with him, they agreed to go west (statements by the declarant stating memory or belief about things that happened in the past that its stated in a forward looking way would not matter to most current courts). Supposed: I intend to go out west--- was only statementshows present state of mind.. at that point admissible to show that he intended to go out west.. to show he followed through. 2nd thing- to show that walters went out west but also that he went out west with the husband not just that he went out west but went out west with someone else. o Backwards looking? Yes several backwards looking inferences I remember meeting him, and going out west with him doing all these things o CORRECT ANSWER: Right analysis is that the hillmon part is inadmissible under exception US v. Pheaster 544 F.2d 353 (9th Cir 1976) Facts: A 16 year old left his friends at a table in a restaurant. He had told some of them that he intended to meet Angelo in the parking lot to get some free marijuana. He disappeared and was never seen again. The next day his father got a ransom demand for $400,000. Three attempts to pay the ransom failed. Procedural History and Outcome Here: The trial court finds defendant guilty of conspiracy to kidnap and various uses of the mail to demand money and convey threats. This court affirms. Issue: Was the testimony of the friends about the victims statements admissible under the state of mind exception? Holding: No Rationale: The Hillmon doctrine creates controversy and confusion. Here the declarants state of mind is used to infer proof of other matters which are at issue; if the performance of a particular act is at issue, his intention to perform that act may be shown. Here the declarants statement of intention required action by another person, the defendant, for the intent to be fulfilled. The statement I am going to meet Angelo in the parking lot and get marijuana states two intentions that of the declarant that he will meet Angelo in the parking lot but also that of Angelo to come to the parking lot and give marijuana to the declarant. The comments of the House Committee on the Judiciary is clear that the intent was to limit the Hillmon doctrine; however, it was not error to allow the testimony of the victims friends to be introduced. im going to the parking lot- admissible I got to go meet angelo does it fit the exception?- probably not. Would have to make a bunch of inferences--- backward looking- (ive met him in the past, we had discussion, were going to meet) state court tends to follow HILLMON federal courts tend to admit ONLY IF THERE IS OTHER CORROBORATING EVIDENCE Notes on State of Mind as Proof of Conduct o What someone says he intends to do can read on what he actually does o Intent is a distinct and material fact. o Pheaster uses victims statements to prove what defendant did o Both victims vanished does that affect the use of the testimony? o No other evidence places Angelo in the parking lot would it be better if there were? Courts often require additional evidence (but if declarant is unavailable statement may be admitted in NY, not admitted in FL) o In spite of the proposed limitation of Hillmon, many courts that apply the FRE endorse Pheaster o In Shepard, Justice Cardozo tries to contain Hillmon intent must cast light on the future, not memory on the past o Annunziato (illegal payment from a contracting company) statement by the son that the father said defendant wanted money was admissible even though backward looking when it joins with other evidence to show intent SHEPHERD--- understand the backward looking aspects of the statementand therefore understand the correct reading is that probably not allowed but In practice sometimes let it in the nonetheless some will only let it in

IF ON TEST im going west- fits exception of 803(3) I saw shepherd murder dean adeah? no its backward looking statement--- so would not fit I intend to go to Kroger with prof adeah probably not fitting exception techninically backward looking statement indicating I met him you talked and you agreed to go somewhere.. know the right answer is backward looking BUT also recognize there are some courts that will let it in if there is corroborating evidence Problem 4-K 1) Im afraid my husband is going to kill me. It would be admissible to show she was afraid of her husband, but that is not relevant in a murder prosecution backward looking (inference is that he did something in the past that made her afraid) also fear is not relevant


Downloaded From It would not be smart for the husband to claim self defense because that might open the door to let the statement in (she is less likely to threaten him if she is afraid of him)- then the fear may become relevant2) Im going to take the train to Denver to stay with Mother for a while. Inference shes going to Denver because shes scared; shes scared because he did something; inadmissible forbidden backward looking inference (that because she packed her bags he must have done something bad). Could use as a motive when she tried to leave in the past it enraged him; but the judge would have to weigh the 403 factors 3) Taking refuge in a battered womens shelter hearsay? No not Conduct meant as an assertion? not hearsay so you can make inferences from that.. when talking about exceptions make sure its hearsay before you need an assertion

Exceptions I. Forward Looking A. I met jim: something that happened before: exception forbids this backward looking inference 1. Allowing backward looking inference eliminates hearsay rule (forward looking is okay) B. Exception 1. Unless it relates to peoples will a. If relates to peoples will backward looking inference is okay 2. Ex: a. Will says I leave everything to wife and son. There are 2 sons, and now there is a battle. Various statements are trying to be introduced. b. Before will: I love son A and hate son B, so I will leave everything to A i. Hearsay: out of court statement offered for the truth of the matter asserted ii. FRE 803(3) (a) Is it backward looking? NO, it is forward looking. The event occurs after the statement was made. (b) Comes in without FRE 803(3) c. After will: I am happy I left everything to son A b/c I hate B i. This IS a backward looking statement and falls under the exception of FRE 803(3) (a) Usually cannot have a statement of memory of fact or belief d. What if he signs the will and then says I don t know if I should have done that b/c I was pressured i. It IS backward looking, so it comes in under FRE 803(3) II. Statements for Medical Diagnosis or Treatment 803(4)- when you are going to get treatement you want to make sure you are accurate there is an indicia of reliability. 1. NEED TO SHOW ELEMENTS a. the statement for the purpose of medical diagnosis (going to a doctor to get his info for trial) or treatment b. Must be pertinent to that treatment or diagnosis (only things that have something to do with your treatmentgoing to doctor and confessing to murder does not count) B. The Exception 1. There can be statements for purposes of medical or diagnoses or treatment (EITHER) 2. Can be medical history, (past or present) symptoms, or cause C. Why reliable? 1. Because it would be against declarants interest to lie to Dr (would get bad treatment) D. Limits 1. Blake v. State a. Facts i. Girl was examined by Dr and told Dr that she was assaulted by step-father. b. Class i. Not controversial the fact that she was assaulted comes in, it does ii. The issue is that the identity of the assaulter is not necessarily pertinent for the purpose of diagnosis or treatment iii. In general, courts do not allow identity in iv. Exception: child abuse context; (rare) (a) If the identity is pertinent to the emotional state (b) In child abuse, you must remove the child from the child abuse environment most courts will admit identity of assaulter v. Exception (a) Could also expand for psychiatric illness resulting from injury (b) Danger: everything said to psychiatrist will be relevant to treatment and be admissible vi. Renville 2 Part test for laying a foundation


Downloaded From (a) declarants motive in making the statement is consistent with the purposes of promoting treatment or diagnosis (b) the content of the statement is reasonably relied upon by a physician in treatment or diagnosis vii. ct says that the name of the assailants identity is pertinent to the emotional state---- esp in a child abuse case they didnt want to release her back into a hostile environment (a) limited to things you normally say to your doctor viii. MAJORITY WILL LET ID IN A CHILD ABUSE CASE IN SOME SAY NO--ix. Supposed 35 yr old woman comes is and says my husband shot her.--- not admissible because they have a choice and are not a child so they will chose not to go back there No treatment Necessary as long as for diagnosis Dr doesnt have to treat a. Hypo i. Guy is lifting barrel and had chest pains. He came back and told wife who had taken a course on hearsay admissions. She tells husband to go a specific Dr who is paid to testify at trial, but no treatment. Dr listens then sends guy to another dr for treatment. Are statements to Dr who doesnt treat admissible? ii. YES, if for diagnosis. If the Dr had diagnosed him, but didnt treat him iii. Normally would fit the exception and is pertinent 3. No personal knowledge requirement a. Hypo i. Guy goes to Dr and says you need to give me chemo therapy b/c I was told by prior dr that I had lung cancer. Would the statement by patient come in even though patient had no real knowledge that had cancer? ii. Yes, because reliable since told to the Dr for diagnosis or treatment 4. Does not have to be a statement by the Patient/one being treated (no knowledge)- idea is that if the person brings them into the hospital you are careful when you say things to a doctor a. Hypo i. Someone brings an unconscious child in for treatment who seems to be battered and he claims he fell down the stairs. Is this admissible? ii. Yes, even if it seems person is trying to cover up child abuse. There would just be cross on whether statement is truthful 5. Can be statements among Physicians if related to treatment/diagnosis? a. Can be one dr to another, and the 2nd dr can testify since no personal knowledge requirement. Yes it is admissible. As long as its pertinent. 6. Psychiatric Issues a. If a statement by the non-treated to the Dr that the patient has a habitual liar problem admissible b/c for diagnosis or treatment about medical history b. Issue is that everything can be tangentially related i. SOME COURTS SAY YES ITS ADMISSIBLE BECAUSE HES A DOCTOR AND ITS FOR MEDICAL TREATMENT AND IT IS PERTINENTii. Maybe a privilege might keep it out but normally comes is III. Past Recollection Recorded 803(5) pg 260- most apply whether or not the person is testifying (applies to most 803) A. Intro 1. Past 803 exceptions are admissible whether or not declarant is able to come into court 2. FRE 803(5): allows recorded statement in only if the declarant is on the stand and in court declarant cannot remember a. If you give the witness a piece of evidence to refresh memory and it refreshes dont need to admit the evidence under 803(5) b. When the refresher fails, then you need to admit under the exception in the face of forgetful witness c. Inconsistent statement? FRE 801(d)(1) i. Courts stretch the definition that the testimony was of different scope to make it admissible as inconsistent ii. However, this must be a prior statement under oath! iii. This hearsay exception has no oath exception B. Requirements FRE 803(5) ELEMENTS 1. Witness lacks present recollection of the matter to testify fully and accurately (bc if they remember then the exception does not apply but if they testify that they dont remember then you can use the exception) 2. Statement accurately reflects knowledge he once had 3. He made or adopted the statement, AND 4. He did so while the matter was fresh in his mind C. Will get read into evidence, but a written statement will not itself be given the jury D. Ohio v. Scott 1. Facts 2.


Downloaded From D allegedly shot at some people and then went to see girlfriend. She then signs a statement that says her boyfriend came to her and told her that. At trial, she wont testify that her boyfriend told her he had shot people. 2. Issue a. Is the prior signed statement admissible? 3. Court a. Witness lacked present recollection i. Prosecutor: was your memory better that day? Witness says yes ii. Prosecutor did not follow up and say so you dont remember anything before THIS IS GOOD. Once she says I remember clearly exception wont apply. Prosecutor didnt push things b. Statement accurately reflects earlier knowledge i. If witness said I was lying then exception would not have applied (a) --------For a a prior inconsistent statement wont work because it was not made during a hearing c. Was made by witness, and signing = adoption i. Even if someone else wrote, signing would be adopting d. Made when fresh b/c a day after 4. Dissents Concern a. Jury will excessively rely on a written statement: addressed under the FRE: gets read to they jury but not actually given to jury (danger is more weight given to a written statement then to an oral statement) E. Who decides (issue of FRE 104(a)): Judge? JUDGE DECIDES- when tryint to figure it out look it up in 104a and 104b F. Prior Inconsistent Statement: 1. If prior one is under oath FRE 801(d) may apply 2. If not under oath FRE 803(5) G. Prior Consistent Statement and difference between a past recollection recorded.. would not fit because no motive for bias because they cant remember 1. 801 was used to buttress 2. Here, there is no recollection so its different (more of an inconsistency) H. Statement Accurately Reflects Earlier Knowledge? 1. If person doesnt remember, how can we tell? 2. Sufficient if witness says I dont remember, but I usually carefully read if I signed 3. But, need more info than the statement itself a. Not enough that it is signed with a statement that this reflects my knowledge b. Need testimony by witness I. Adoption 1. Signing is sufficient J. When witness denies truth of prior statement 1. May still be let in when judge believes witness is lying on the stand 2. These cases are usually criticized because this is creating a new hearsay exception 3. Under the rules, you can ruin this exception by testifying prior statement was false IV. Business Records Exception FRE 803(6) HUGE EXCEPTION**********(applies only when the ultimate source is in the business- and can have many level of retyped hearsay as long as custodian testifies) A. Intro 1. Business Records + Personal stuff (if relates to your business) B. FRE 803(6) ELEMENTS 1-5 1. Must be kept in the course of regularly conducted business activity a. Therefore, must be done over and over again b. If Enron made a report during their scandal not regular activity c. Reports on patients if youre a dr is regular (but source is not within!) 2. Ultimate Source of Info: Made by a person with knowledge: source of info must be within the business i. If source is someone outside business need another exception ii. Ex: If patient goes to Dr and there is a report info cannot come from patient even though there is a business record (a) Business Record apply for the truth of the matter of what the dr wrote down/asserted: that the patient said his leg hurt. NOT: to let in the fact patient actually hurt leg. This would come in under the 803(4) [Statements for medical diagnosis] (b) This would hold true if someone retyped the notes (c) Hearsay upon hearsay is okay as long as ultimate source is w/I business (retyping) 3. Memo made at or near the time of what is reported or events described a.


Downloaded From Foundation testimony (FOR ALL EVIDENCE) a. Only need testimony of custodian of records or other qualified witness b. Ex: If memo has been retyped many times, you dont have to have testimony from each saying they retyped accurately; only need a custodian of records to testify to process (could have 12 levels of hearsay) 5. Trustworthy C. Rationale 1. Decisions are made based on records, and there is an incentive to create accurate records. Anti competitive to have bad records (market idea). D. May have many hearsay layers 1. Ex: a report can be re-reported and then included in an over-arching report that is then put an executive summary given to CEO. Ultimate source of info is from within the business. Trustworthy b/c CEO is basing decisions on the summary E. Petrocelli v. gallison 267 difficult application normally a medical record kept by a doctor would be admissible1. Facts a. Medical malpractice case, and P claims Dr cut nerve. There were entries in medical reports saying nerve had in fact been cut. It was unclear how nerve was cut. District Ct excluded these statements and Appeals ct affirmed 2. Court a. Here, the source of the statement was NOT the DR. There was no evidence Dr examined the nerve himself. The source was unclear i. If source was the Patient telling the Dr does NOT fit in the exception (a) Difference between a medical report and what the doctor put in (i) The ultimate source of the information has to be a person within the business--- HERE, unclear who wrote it in the report (if it came from the doctor or the patient- and if its unclear and may cause prejudice you can use 403 to keep it out (b) How would you get it in if the patient was the ultimate source ii. Ex: patient came in and told me what that the nerve was cut by a prior doctorIf doctor was testifying need an exception--- USE 803(4)- for purposes of medical treatment or diagnosisin conjunction with 803(6) (a) If the doctor was not on the stand but you have his report---- need exception to get in that the doctor told the doctor that and you need another to show for the truth of the matter asserted (i) ******* exception: need the business record exception and the exception for the purposes of medical diagnosis and treatment a. didnt work here because they proponent of the evidence kept saying only the business records exception applies (ii) patient telling the doctor but (probably telling the doctor what some other doctor told them) not a problem iii. BE CLEAR ON THE PIGGY BACKING (allowed by rule 805)- if each part conforms with some rule then hearsay within hearsay can be admissible 3. Class a. If Dr had indicated in the record that he examined the nerve and saw it was cut would fit in the exception (wouldnt even need the DR to testify for foundation; just custodian) b. P could have used FRE 803(4): get the document to show that patient told Dr nerve was cut c. Calculated Risk by the Plaintiff??? i. Used Business Records, as opposed to medical diagnosis, b/c it show Drs belief ii. If report is merely repeating what the P said not really probative evidence iii. If P can show that there is evidence that Drs themselves thought nerve was cut strong evidence. So if it gets in under Business Exception shows that court believed dr was source d. Normally would be a successful strategy to use combination of 803(6) and 803(4) e. Strategy: Use 803(4) to get in patient history and 803(6) to get in Dr opinion f. Court could have said i. The info was untrustworthy since source was unknown ii. 403 Danger of Prejudice to Jury g. Dr probably wouldnt cooperate in medical malpractice deposition F. Hypos 1. Defendant Dr is trying to introduce evidence of a record: another Drs report saying P came in telling him source of pain was from weight lifting not prior surgery a. 803(6) to get record in b. Admissions doctrine b/c being introduced against party opponent (in prior example: it was OWN statement so doesnt come in) c. 803(4): statements for purposes for medical treatment or diagnosis 2. D Dr told another Dr that nerve was cut and other Dr wrote this in report. P wants to introduce 4.


Downloaded From Business records exception get in under 803(6) i. Other Dr usually wont testify friend Dr so it will be hearsay b. For purposes of diagnosis 803(4): statements--- may even work if you were talkig to him at the dinner table the issue would be if he writes it down whether its a business records c. To get in 2nd Level of hearsay in (dr to dr): admission by party opponent 3. What if Dr examines patient and based on that, Dr says I think its a cut nerve, but I am not sure--- person is not within the business a. Uncertainty? Statement does not have to express certainty ----- if the doctor is just gonna testify for diagnosis and not treatment---- piggy backing wont work--- can be admitted but need doctor on the stand REMEMBER (footnote) bc most of the time you are going for treatment 4. P consults a Dr not for treatment in anticipation of litigation. Can Dr testify on stand about what P said? a. 803(4): purpose of diagnosis or treatment (not just for treatment) 5. Could P put in a report that the same Dr wrote for patient in anticipation of litigation a. No, if P goes to Dr and Dr writes a report for litigation does not get in under 803(6) business record exception. There is danger that Dr will write what P wants to hear. Can only put on stand subject to cross b. Hangs on trustworthy requirements 6. Patient didnt say anything just shows the doctor a festering wound--- ok its leprosy and then writes it in the report can you get the report in a. Business record exception is ok here. As long as source is within the business. Source is the doctor. IF THE PATIENT HAD INDICATED SOMETHING TO THE DOCTOR THEN YOU WOULD NEED SOMETHING ELSE G. Investigative Reports a. Norcon i. Facts (a) Oil Co Defendant hires an investigating co to investigate allegation. Investigator interviewed people within co and came up with a report ii. Issue: (a) Can the plaintiff introduce the report? That is favorable to the company..Admissible? def argue that it should be inadmissible because the report just writes down what the def employees have said- and therefore hearsay. b. Class i. In regular course of business of security co? Yes; In regular course of business for oil? NO (a) Security co is only relevant if their reporters were the ultimate source of info; they were not; the source was the co EEs. so 803(7). So by itself the business records exception would not work. ii. Business record exception is only admissible to show that the EEs in fact said that not that statements were true iii. Admission by Party Opponent 801(d)(2) EEs speaking within scope of agency c. Hypo i. What if oil co was offering the statements b/c they exonerated the co (FAVORABLE TO THE DEF- and now the def is offering it) (a) Not admissible to show statements truth b/c not a statement by party opponent, but their own EEs (b) 803(6): just gets you to show existence of statements d. Minority: Can also argue that report was part of the normal course of business: hiring someone else to make report is same as using own EEs. If own EEs made report all would fit in the business records exception; so same should be for hiring outside firm (nevertheless some courts would still say since investigatory reports are not regular not in regular course of business). i. If job is to regularly conduct investigations more likely regular course of business e. *****Most courts say investigatory reports by the def company are not admissible: not regular; not trustworthywhen offered to exonerate the def company. rationale- when a doctor writes a report there is an inventive to be truthful f. If the plaintiff is offering an investigatory it for when the def company - usually are admissible- admissions by party opponent or business records a.

V. Public Records and Reports FRE 803(8)- government analogy to the business records exception- a lot of times you can use the business records exception too but the government analogy allows some additional uses A. Intro 1. More reliable b/c decisions are made based on records more reliable


Downloaded From 2. Govt likes this b/c their own reports come in and dont have to have their EEs come in and testify 3. Info can come from someone outside the govt (in police report), unlike business record B. 3 Kinds of Public Record Documents 1. Describe Activities of the office or agency 8038Ai a. Like business records exception: records that describe what goes on in business 2. Matters observed by govt officials: matters pursuant to a duty imposed by law- 8038Aii a. Ex: OSHA investigator observes cracks (if thats your job) 3. Factual findings pursuant to authority 8038Aiii a. Govt investigators are like mini-juries b. Exceptions to criminal cases i. Can only use against the govt; NOT against the criminal defendant (confrontation clause) ii. Govt Cannot put in statements of police officers in criminal proceedings; criminal defendant can use it against the prosecution but prosecution cant use it against the defendant (reports admitted are ones not made by law enforcement personnel) (a) The factual finding can never be used against a def in a criminal proceeding (i) Matters observed can be used against a criminal def unless hey are a law enforcement personnel (b) If criminal case against the def then be concerned (c) If civil confrontation clause does not apply 4. In Criminal case: Can never use the matters observed by police officers/law enforcement personnel against a criminal D only against the government! 5. There is a trustworthy requirement as well C. Baker v. Elcona Homes Corp. 1. Facts a. Crash between truck and car. Cars family (of dead passaangers) sues truck co. D wanted to admit police report that concluded that Ps car had run through red light. i. Factual conclusion of officer & and report that truck driver said the car ran through the red light can you get report in? 2. Court a. Police report admitted as factual finding (not a criminal case!) 3. Class a. Lower Court made a mistake and admitted as a recorded recollection on FRE 803(5) i. Recorded recollection Requirements: (a) Witness once had knowledge about the incident but now has insufficient knowledge to remember fully ii. Police officer states that officers knowledge was refreshed after looking at report thus, 803(5) does NOT apply ONCE HE WAS REFRESHED THE EXCEPTION DOES NOT WORK iii. CANT BE ADMITTED INTO EVIDENCE- ONLY READ INTO EVIDENCE- COURT CAN READ IT BUT THE JURY CANT TAKE IT WITH THEM TO JURY ROOM b. FRE 803(8) public records exception : i. Cannot be matters observed: police officer didnt see anything (a) If police officer was at intersection than it is a matter observed ii. Can be admitted as a factual finding (a) UNLESS untrustworthy- FOUND IT WAS ALRIGHT BECAUSE THERE WAS NO REASON FOR THE COP TO BE BIASED- SO IT COMES IN- IS IT BINDING---- NO THEY CAN ARGUE THE POLICE OFFICER IS WRONG- BUT THE EVIDENCE WAS ADMITTED (i) Motivation (ii) Whether hearing done (iii) Experience (iv) Timeliness of investigation: did it happen quickly (v) Skill of Office (vi) Bias of officer iii. Hearsay(a) 803(8)(B): matters pursuant to duty imposed by law (i) gets the report of the officer in; (ii) However there is hearsay statements of the truck driver in the statement (that the driver said the light was red) a. Report only gets in fact that driver said statement; does not go to the truth of the matter asserted! b. If issue was just whether driver could speak (didnt matter what he said) c. Since driver is not on stand need another exception


Downloaded From (b) DO NOT USE 801(d)(1)(B): Prior statement by witness; consistent with the declarants testimony and is offered to rebut an express or implied charge of recent fabrication; declarant must be available at time of trial. Does not work because the def is trying to get it in. (i) HOWEVER, court got this wrong! b/c first statement must occur before motive arose; moment accident arose that is where motive begins only if offered to rebut a claim of improper motive and after accident the motive had arisen to lie to get him and company off the hook. (c) Since D wants the statement in; if plaintiff wanted it in use FRE 803(d)(2): admission by party opponent, (i) Truck driver statement does not come in. (d) Think about ways to get it in if its not offered by party opponent iv. Private hospital on what patient told them is inadmissible- no because not public records--v. If a VA doctor hired by government doing an investigation then admissible because the public records allows in factual finding even if based on information outside the government.. Rationaleis that government are doing this all the time and dont want the investigation to be wasted. (a) If the patient said to the doctor that the nerve was cut. And then the doctor did a investigation and then wrote a report. The doctors report comes in but the statement by patient does not (b) Public records exception allows the doctor to make factual finding (public records exception) but the statement from patient is inadmissible (c) To get the patient statement in you COULD try using the medical diagnosis or treatment with the car crash example the truck drivers statement is harder (maybe excited utterance) vi. Difference between business records and public records (factual findings outside the business inadmissible) D. Criminal Cases- exclusionary language in public records exception--- cant be admitted against the def factual finding in civil case would be inadmissible in a criminal case. a. Earlier if prosecution tried to admit a factual finding the exclusionary language in public records exception would keep it out now confrontation clause keeps it out 2. Melendez-diaz v. Massachusetts a. Facts: Defendant is caught with cocaine Forensic lab tests the substance and issues a certification that the substance that the defendant was caught with was in fact cocaine (need information from chemist and his results that say its cocaine) Defendant has no chance to cross-examine the statement b. Issue: Whether a forensic lab report is considered a violation of the right to confrontation. c. Holding: Yes i. Is the chemist a law enforcement personnel? Cts say he is law enforcement personnel. Investigation by police officer (taking the substance) also need the testimony of chemist so the court says he is the law enforcement personnel. So exclusion in b applies and cant be used against defendant ii. In c: can only be used against the government, not against he defendant iii. Important that they all count as law enforcement personnel iv. Business records exception instead--? Can be applied also to government? Yes? (a) Business records exception? It fits here instead of looking at the public records exception because of the exclusions in b and c d. Reasoning: The report was written with the intent of providing evidence in the prosecution of a crime. Thus, the evidence was testimonial and, without the chance to cross-examine by the defendant, is inadmissible. e. Disposition: Conviction reversed. f. Dissent: There is no historical precedent for requiring this and it makes for an impractical and wasteful requirement that will both create enormous expense and let many guilty defendants go free on a technicality. 3. Hypo- the defendant said something in a prior litigation? How do you get in a transcript of what the def said? How do you admit that? a. 2 levels of hearsay i. 1) you have the statement of the court reporter ii. 2) statement made by the defendant outside of court b. exception that would apply i. admission by party opponent c. if you dont have the court reporter but just the transcript i. then another level of hearsy--- just their written report


Downloaded From (a) public records matter observed if offered in a criminal prosecution the court reporter (excluded because offered against the def?) (a) is the court reporter a law enforcement personnel NO the court says no court reporters are not law enforcement personnel BUT A CHEMIST IS LAW ENFORCEMENT (b) Still be admissible under the public records--- chemists report is excluded because it was held that the chemist is law enforcement personnel. But the court reporter is not.. their report can come in.


Oats a. Facts i. Criminal drug case. P wants to introduce report of chemist saying drug was heroine b/c the chemist didnt show up to trial. ii. No chemist D cannot cross examine iii. Govt tried to get it in under Public records 5. Class a. Is it hearsay? i. It is an out of court statement (written); offered to the truth of the matter asserted (that the substance was heroine) b. FRE 803(8)(C): Matter Observed: NO i. Allowable only in civil actions or criminal cases against the govt ii. This doesnt work because it was offered against the defendant c. FRE 803(8)(B): Factual Finding: NO i. Matter observed or Factual Finding? (a) This is a factual finding, probably not matter observed ii. Nevertheless, matters observed by police officer or law enforcement personnel are not admissiable against the defendant (a) Is the chemist law enforcement personnel? (i) Court: chemist is a law enforcement personnel b/c the chemists job is part of the cast of characters whose job is the prosecute d. FRE 803(6): govt business? Not here i. Class: 803(6) can be used against the govt, BUT the prosecutor was trying to avoid use restrictions against the criminal Defendant ii. COURT: intent of legislature was to limit these records used against criminal defendant iii. Use restrictions also apply to FRE 803(6) business records e. FRE 807: If no exception applies; catch all f. Can use other hearsay exceptions against criminal Defendants 6. Non-Law Enforcement a. Ministerial Duties: Hypo i. Police officers job is to write license plates down by the border. D is accused to crossing the border and P wants to introduce report of officer that had Ds plate # in ii. Not part of investigation excluded from 803(8): no incentive of officer to have bias here b. Hypo building inspector is usually not LAW ENFORCEMENT i. Building inspector that said building wasnt in code ii. Courts: usually not law enforcement c. Hypo i. Court reporter typing at hearing and P wants to admit transcript into trial ii. Class (a) 2 Levels of hearsay = 2 hearsay exceptions (i) Court reporters statement which was out of court (ii) What the defendant actually said (b) 2 hearsay exceptions (i) 803(8)(B also ii dont get confused): duty to report; court reporter is not law enforcement a. This gets transcript in to show D said it b. Does not get it in to show D is in fact guilty! (ii) 803(d)(2): admission by party opponent 7. D offers Police Report a. Can be offered against the Govt 803(8)(C) b. 803(8)(B): can use exclusion (only excluded when used against D) E. Always argue NOT TRUSTWORTHY (timeliness of investigation, skill of officer, hearing, etc) VI. Learned Treatises FRE 803(18)



Downloaded From A. Intro 1. Treatises are totally hearsay; can it be used for the truth of the matter asserted. B. FRE 803(18) 1. In general, treatises are admitted only in relation to expert testimony a. 2 elements: i. Expert relies on direct; or is brought in under cross examination ii. Book is reliable authority 2. Same limit for past recorded recollection a. Cannot be used as exhibits: can be read to jury ONLY VII. Hearsay Exceptions; Declarant Unavailable: FRE 804- ones that on contrast to 801(d)(1)- let them in because the declarant is unavailable- you want them n but you cant because they are dead. A. Intro 1. 803: doesnt matter if declarant is available (can be unavailable) 2. 801(d)(1): declarant MUST be available (803(5): declarant must be on stand) 3. 804: MUST be unavailable a. 5 Situations we admit- need to prove 2 things (a) 1) you need to show they are unavailable (b) 2) you need to be in one of the 5 categories in 804b B. Unavailable: Definition 1. It is the testimony that must be unavailable (can be alive) 2. Situations: 804(a)(1)-(5) i. 1) Some privilege asserted (self-incrimination or dr confidence) 1. suppose the prosecutor gets someone on the stand and they invoke 5 th amendment a. (ex: That qualifies that the statement is unavailable) ii. 2) Persists in refusing to testify despite court order a. (ex: if the guy refuses to testify even though the judge tells him to he is deemed unavailable) iii. 3) Testifies lack of memory of the subject matter of declarants statement 1. Ex: says the cannot remember what they testified to earlier 2. 801(d)(1): a. Can be available under 801d1 (available for cross is they could testify to a prior statement they made generally going on even if couldn not remember the details) and unavailable under 804d3 (there prior statement might come under 804d3 because thet cant testify to the subject matter of the statement) i. Ex: I dont remember the details of what I said before 1. 801d1: dont know all details of subject matter but must still be cross examinable about circumstances 2. 804a3: lack of memory of subject matter iv. 4) Death, physical or mental illness (but must be unable to testify!) 1. Got the flu- like in oats need to be really unavailable for months not for a couple of days. In oats he would not be unavailable FOR PURPOSES OF 804 v. 5) Absent from hearing or was caused to be unable to procure attendance by process or using other reasonable means (CANT BE TRACKED down in a foreign jurisdiction ect)- have to attempted to use other reasonable means 1. like if you live inside the state (I dont like going outside the perimeterNO- not reasonable means.. if the witness says no you can subpoena. Could also serve pay them or offer them dinner ) 2. if outside the state a. Wont respond to subpoena ii. Party is NOT unavailable if party opponent caused witness unavailability (a) Witness testifies in preliminary hearing that mobster is innocent, and then govt gets the guy to testify later that mobster is guilty. Witness disappears. At trial, mobster wants to introduce statement that he is innocent (i) 804b6- Statement Offered Against a Party That Wrongfully Caused the Declarants

Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness, and did so intending that result.
a. b. If the mobster kills the witness what they said comes in because their unavailability was caused by person. A person that kills the witness can not take advantage of 804a (cant admit) or 804b the other party can use the statement that the dead party made- can only be used against and can not use by the person who made them unavailable)


Downloaded From c. Needs to be proved by a preponderence of the evidence by the judge under 104(a) Reasonable Means a. Hypo problem 4-L i. Person is from Australia and arrested for drugs in Puerto Rico. Prosecutor dismissed charges but made a motion to take deposition. Prosecutor wanted to introduce deposition against another Defendant. Witness didnt want to come back after being let go back to Australia (a) Issue: Is person unavailable? (i) 803(a)(5): unable to get attendance by process or other reasonable means i. Would have to check if there was a treaty; if not cannot subpoena (b) Issue: did govt use reasonable means to get witness to show up i. They let her go; didnt detain her; may didnt even contact her; offer to pay to fly her back (only contacted embassy) ii. Maybe govt figured that they can shape the deposition testimony the way they wanted to they took a risk (and they eventually lost) ii. Court says: Reasonable means requires actual effort (pay expenses, contact, explore, etc)- does not seem a diligent attempt to get her (a) Also suggested that the government may have procured the absence. At the depositon they got them to make statements that implicated others but it was wishy-washy, and there was not much incentive to get him back because you cant cross a deposition but you can cross someone there. (b) If you dont try really hard to get them into court then you cant use their testimony or statement b.


Barber v. Page i. Facts (a) 2 Ds, 1 agrees to a plea deal where he would waive his 5 th amendment right and testify. He testified at preliminary hearing. Lawyer did not cross examine him at the hearing. Lawyers client was brought to trial. The dude who testified was now in federal prison in another state. P wants to introduce dudes testimony ii. Court (a) FRE 804 (i) Possibility of refusal is not the same as trying. State did not try to get the prisoner in court = not using reasonable means to get attendance (ii) Why did they say the testimony was unavailable- the court said they did not use reasomable meanswhat have they done? They recognized he was out of the jdiction, but they did not try to get him (you could write a letter to the jail, you might have an agreement) 4. 804(b)(6) a. Forfeiture by Wrongdoing: i. If you kill witness: (a) You cannot use witness testimony yourself (b) Prosecutor can use against you ii. Used even if it doesnt fit into 5 definions of availability? b. Can prosecutor get in prior testimony of witness who was killed by the mobster in the case against the mobster: YES C. Former Testimony Exception: FRE 804(b)(1) 1. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in 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 2. Rationale: Somebody testified in court and are unavailable now, but they testifies before and the person against whom It was offered their lawyer had a opportunity to cross before this is in court and the pros can cross examine. i. To get a transcript of a prior proceeding you could to get the court reported on the stand to say they remember to tersify about a present recollection (so would need an exception) under 804b1 ii. Most of time dont have court reporter on the stand. To get it in we need another exception under public records exception 803(8) andin addition you would use 804(b)(1) (a) 2 levels to get transcript itself under 8038 (b) Second level would be 804b1 iii. If the prosecution was offering the statement by the defendants statement from a prior statement you would use the admission by a party opponent 3. Hypo a. Trying to get in prior testimony of another witness (not the Defendant) in a transcript i. 2 levels of hearsay: court reporter writing + what person actually said ii. 803(8)(b): public records exception gets court reporter in iii. 804(a) + 804(b)(1) Gets actual statements in for the truth of the matter asserted


Downloaded From iv. Cannot use admissions by party opponent b/c NOT a party opponent (if D, then could use that exception!!!) ELEMENTS a. Proceeding or Deposition (usually a broad definition) ex: court like endeavor where there is a verbatim transcript. Most courts say a police interview is not a proceeding b. Cross Examination: all that is required is the opportunity to cross they dont have to actually do it. i. If given opportunity and didnt must have had the same motive to cross examine (factual inquiry) ii. Satisfied if cross examined before (a) Must be offered against the same party at both trials OR predecessor in interest iii. 801 vs 804 (a) 801: be on stand NOW (b) 804: had to be on stand BEFORE; now unavailable iv. if the states of the case are too small then there would be no motive to cross and would not be a problem c. case a: smith case b: jones i. no you need to have the opp to corss. But if smith was a predecessor in interest then it would be satisfied onlt in a civil case.. rules does not apply in a criminal case. d. Same Person or Predecessor in Interest had opportunity to cross i. Lloyd v. American Export (minority rule!) (a) Facts (i) Fight between Lloyd and the come to be P on a boat. Coast Guard holds a hearing over whether to revoke Lloyds shipping license. Lloyd testifies the P started the fight. It is unclear whether P cross examined Lloyd at his hearing, but coast guard did. P sues Lloyd and Lloyd has disappeared. D wants to introduce Lloyds testimony against P (b) Issue: Whether Coast Guard is a Predecessor in Interest to Plaintiff? (c) Court: same motive = predessor in interest (MINORITY rule!) most cases do not come out like this MAJORITY RULE: Need: the same motive AND tit needs to be you or your attorney or a predecessor in interest (legal meaning is privity and very limited) Notes case is another minority case (d) Class (i) FRE 804 a. Unavailable? i. Lloyds lawyer has an incentive not to produce Lloyd b/c he said something really good earlier. However, P tried really hard to find him used reasonable means unavailable b. Former Testimony Exception? i. In another proceeding? Yes ii. Cross-examination? Yes iii. Same Motive to Cross (Minority rule) ? Yes, because Coast Guard had same motive: to find Lloyd guilty iv. Coast Guard a Predecessor in Interest?* If you have same motive you are a predecessor in interest (ii) Predecessor in Interest Majority Rule: same motive is insufficient; need some legal relationship (iii) Other Arguments a. Since D was at trial he had opportunity to cross so dont have to worry about predecessor in interest! ii. Majority Rule: Predecessor in Interest (a) Hypo (i) Bus crash. P1 sues bus co. Witness testifies for D. D wins. Witness dies. P2 sues bus co. Bus co wants to introduce testimony of witness that is now dead, (ii) Class a. Unavailable and not party opponent b. Former Testimony? i. At trial, there was cross, same motive to cross b/c same issues in both cases. ii. BUT THIS plaintiff did not have opportunity to cross iii. Testimony not offered against same person iv. Testimony not offered against a predecessor in interest (no legal relationship) v. Not admitted (b) Hypo (i) P1 sues D1. Witness testifies for P1 then dies. Case is resolved. P1 sues D2. P1 wants to introduce testimony of witness from 1st case



Downloaded From (ii) Class a. Not admitted b/c, although D1 crossed, D2 did not have opportunity to cross and not predecessor in interest (c) Hypo (i) P1 sues D. P1 has W testify and then W dies. P2 wants to sue D and use Ws testimony. (ii) Class a. This comes in it fits the exception this is the main example of when it fits the exception. D. Statement under Belief of Impending Death FRE 804(b)(2) 1. In a prosecution for homicide in a criminal case or in a civil action or proceeding, a statement made by declarant while believing that death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death 2. Requirements a. Application: i. Only in homicide criminal cases ii. All civil Cases b. Declarant believes he is dying i. What if someone recovers? Recovery is okay. Only have to believe they are dying ii. JUDGE decides declarant believed he was dying\ iii. Personal Knowledge? Most require Maybe not? (look up) 3. Other Exceptions? a. Excited Utterance may apply 4. Shows there are lots of different exceptions will apply 5. Shepherd case--- guy poinsones his wife- talks abot if she really thought she would dieshe thought she would recover. Did not apply because she did not think she would die E. Statements Against Interest: FRE 804(b)(3) 1. A statement which was at the time of its making contrary to the declarants pecuniary interest (MIGHT LOSE MONEY) or proprietary interest (YOU MIGHT LOSE OWNERSHIP), or make declarant subject to civil or criminal liability (criminal liability=penal, civil=liability)or to render invalid a claim by the declarant against another, so that a reasonable person in declarants position would not have made unless believing to be true. SOCIAL INTEREST NOT INCLUDED. Has to be when made 2. Statement tending to expose declarant to criminal liability and offered to exculpate (defense uses the statement) the accused is not admissible unless corroborating circumstances clearly indicate trustworthiness a. CIVIL CASE DONT NEED corroborating CIRCUMSTANCES. i. Provide evidence of the trustworthiness- can be a scam- they 3. Intro a. Unavailable b. 801(d)(2) Different from Admission by Party Opponent: because these statements can be made by non-party i. Admission by Party Opponent also does not have to be against your interest can be self serving ii. Admission by party opponent can also be available 4. In General a. Not only about the substance of the statement/not only about the truth; But, whether the statement was actually made b. Doesnt matter to whom (friend or spouse)/just look at substance of statement c. For criminal, must have legal consequence 5. 6. Policy a. People are less likely to lie and more likely to be careful when making statements that can hurt Requirements a. Statement at time of making was contrary to declarants interest i. Knowledge (a) If declarant doesnt know statement is against interest no exception (b) If declarant does know exception may apply b. Social interests are not covered by this exception Must look at legal right to recover a. Hypo: Tonight ive been trying to save money so ive been trying not to use deodorant. i. Not against any interest but social interest and that is not included in the exception. (a) Being exposed to embarrassment doesnt count



Downloaded From b. Hypo: Convicted of abuseing small animals. Before it was known. B4 spouse knew they say I support them in everything they do. i. Not at the tie it was made. Bc at time it was made they did not know they were abusing animals Hypo i. Suppose I claim prof owes $500. Statute of limitations was 1 year. After limitation runs, You admit prof only owed 100 ii. Against Interest? (a) No, because not against legal right, b/c no legal right to recover anyway Hypo i. Cos Investigator makes report that nuclear plant was at fault in an accident. She dies ii. Against her Interest? (a) Not against pecuniary interest; not against individuals EEs interest (it was his job) Hypo i. After crash, dude gets out of car and say You are not liable. Dude dies. P wants to sue Dudes co ii. Totally conclusory (a) If a statement by a Party Opponent comes in iii. May not come in under this exception (a) Some courts do NOT let in Conclusory legal statements Hypo: Against Interest Exception i. Witness in murder prosecution. Witness says something that may cause the witness to be prosecuted. Suppose witness says I am guilty of committing a crime I committed along with the D. ii. Class (a) Implicating self and someone else = collateral statements (not part of your prosecution) (i) May not be against own interest: trying to spread the blame Williamson i. Facts (a) Witness says I am guilty, but other guy is too. Witness refuses to testify (unavailable despite court order). ii. Issue: (a) What part of this statement is statement against interest iii. Court (a) I am guilty is statement against interest (if implicates you against interest) (b) Other is more guilty not generally admissible; not really against own interest (may be in your own interest) iv. Class (a) Part where you accept guilt = against interest (i) Only part where literally incriminating is admissible and other parts can not come in. (b) Blaming other = maybe in your own interest (c) Minority (i) Second part (other is more guilty) is admissible: makes you liable for the crime PLUS conspiracy crime = subjecting criminal liability to two crimes (d) Majority (i) Subjecting yourself to conspiracy charge is insufficient to prove against ones interest (ii) Kind of like spreading the blame and therefore not really against your interest a. Rationale- could be viewed as in you interest because spreading the blame (e) Difference from Co-conspirator Exception??? (I am guilty, but the other guys is too) (i) Must be trying to further the conspiracy (unless trying to conceal) (ii) Must be during the conspiracy (here it is over) (iii) So, no!! Hypo i. Husband and wife: I hit him with a bat; not to a police officer but said to wife (a) Part I did it is against own interest- if said to spouse still against interest even though indirectly. (b) If said to police officer: def against interest because he would be arrested (c) Jim and I: isnt trying to shift blame (KEY: must be trying to shift blame and NOT TO POLICE) ii. Key: curry favor and shift blame Criminal D: Corroborating Circumstances i. Hypo (a) Someone says I did it. That dude dies. There is a prosecution of another person. D wants to introduce dead dudes statement (b) Class









Downloaded From (i) Normally admissible (ii) When offered by criminal defendant that is trying to introduce a statement by someone else, Not admissible unless D shows corroborating circumstances showing trustworthiness of statement a. Trying to avoid scam where you just try to find a dead guy b. Judge has to be convinced that there are corroborating circumstances. ii. Hypo (a) Lots of drugs found in a truck. 1 guy runs out and says its all my fault and other dude didnt know anything. He was sleeping in the back. That guy becomes unavailable (pleading the 5 th). The other guy is prosecuted. Can he get in other dudes statement (b) Class (i) It is a statement against interest (no blame shifting) (ii) Corroborating circumstances??? a. Police heard him: corroborating circumstance statement was actually made b. Evidence suggests that he is lying i. Could argue: not against self interest b/c they switch who gets in trouble ii. Majority of courts: fact that police heard is sufficient corroborating evidence! iii. Hypo: To friend/Spouse (a) You make incriminating statement to friend: dont tell anyone I did robbery. You dont believe he will ever tell anyone (b) Class (i) If you tell police obviously incriminating, but here it is to friend/spouse (ii) Courts focus on the substance, not context. It doesnt matter to whom statement was made (iii) This will be incriminating iv. Immunization: Hypo (a) You have been immunized. You get on stand and take all blame. You get killed and the statement is trying to be introduced. (b) Class (i) Not against self interest b/c there are no legal consequences or pecuniary interest a. There are self interests: not to be killed by mob (ii) Social consequence is insufficient j. Remember: Must be unavailable according 804(a) k. If the statute of limitations has run- it does not fit the exception because the SOL has run and you cant be prosecuted Statements of Personal and Family History: FRE 804(b)(4) 1. Intro: a. Testifying to who your dad is, is hearsay 2. Rule a. Statement concerning declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption is admissible even if declarant had no personal knowledge b. A statement concerning forgoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage


G. Forfeiture by Wrongdoing by making the declarant unavailable: FRE 804(b)(6) 1. Rule a. Admissible if the statement is offered against a party that has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. Reason for murder must be to keep them from testifying i. Extends to even a long talk trying to get person not to testify 2. Like FRE 804a a. Cannot use statement that was good for you if you kill, etc b. Here, cannot kill someone and to remove the statement 3. Hypo a. Appears that D threatened witness at preliminary hearing and there was a threatening letter sent to witness. Witness refuses to testify at trial. Witnesss atty went to judge and asked statement to be admissible without telling the Ds atty. b. Issue = procedure of exception c. Class i. Hearsay exception: admissible b/c offered against D who threatened d. What Standard of Proof for entry i. Doesnt matter that statement itself can lead to conviction


Downloaded From Criminal standard and civil standard = preponderance of evidence (not beyond reasonable doubt!): ALL EVIDENCE = PREPONDERANCE OF EVIDENCE e. Ex Parte Hearing without Defense Present? (a) This is okay, b/c the whole issue is that Witness has been threatened hearing can be done in secrecy (protecting witness) f. Judge Decides: FRE 104(a): judge not bound by normal rules of evidence i. He doesnt need any real proof that statements are true VIII. Reputation as Character A. Reputation as to Character Among associates or community 1. Reputation evidence is hearsay upon hearsay 2. Must still satisfy FRE 404 and FRE 405: this just eliminates hearsay objection IX. Confrontation Clause (6th amendment) like the hearsay rule for criminal cases A. RULE: The accused shall be entitled to be confronted with the witnesses against him in criminal prosecution 1. Applies only in criminal cases 2. Only Defendant can benefit from the clause (prosecutor cannot assert) 3. Applies both in federal and state court (Warren SC: 14th Amendment incorporated the 6th Amendment) B. Intro 1. If hearsay: then D cannot confront the witness b/c out of court 2. Hearsay exceptions implicate the confrontation clause C. Background 1. Sir Walter Raleigh: no witnesses in court against him. Convicted by out of court statements by declarants who were probably tortured. The witnesses were actually available and prosecution worried that witnesses would recant. a. Why was this trial unfair (same reasons we prefer in court testimony) i. No cross examination opportunity ii. Jury Didnt have opportunity to see demeanor evidence (a) Nevertheless, this isnt reliable. People seem nervous even when telling the truth. Poker players say you need experience iii. No oath iv. Accuser should have to look the defendant in the eye***** Tougher 2. 6th Amendment is the solution a. Supreme Court has been all over the place: i. Used to say out of court statement didnt violate the 6th Amend if it fitted in a hearsay exception (easy to get in) ii. Warren Court expanded 6th Protections iii. Then swung back to restrict it: if any cross examination 3. If there was any cross examination satisfies the 6th (STILL GOOD LAW) a. Earlier okay: Prior proceeding there was cross okay b. Cross examine now okay c. Still must fit in a hearsay exception!!! 6th isnt it i. Validates (a) FRE 804b1: unavailable Now (b) FRE 801d18: prior testimony 4. Then swung back: if it fit a hearsay exception satisfies the 6th a. Roberts i. Facts (a) Defense counsel was able to cross in a prior proceeding. That witness became unavailable ii. Court (a) Confrontation not a bar b/c counsel had opportunity to cross before iii. OLD Test: (a) Prong 1: (i) Declarant must now be unavailable (but in FN-can come in if available) (b) Prong 2: (i) Confrontation Clause requires strong indicia of reliability, which can be satisfied by a firmly rooted hearsay exception. iv. Class: (a) This is not an additional requirement on top of hearsay rules (b) Opened the flood gates of hearsay (most exceptions are firmly rooted) (c) Issue: what is indicia of reliability? D. 6th Amendment Today- confrontation clause ii.


Downloaded From 1. 2. 3. 4. Must satisfy BOTH 6th Amendment protections AND fit into a hearsay exception If Declarant is available no confrontation clause issue [Prior inconsistent statement subject to cross; UnavailableFormer Testimonyhad to be subject to cross] If there was any cross (earlier or presently) no confrontation clause issue Crawford (2004) a. Facts i. Crawford stabbed a guy that he claimed had already raped his wife. Crawford says it was self defense and wife said he just stabbed him. Evidence was a recorded statement by wife to the police that it was not self-defense. She also said that she had led the husband to the guy (This is hearsay even though recorded!) ii. Prosecution wanted recording under Statement Against Interest Exception (a) Since she said she led her husband implicated herself and exposed herself to liability (at the time it was made it was against here interest) iii. Why was wife unavailable? Marital privilege b. Lower Court i. Focused on presence of independent indicia of reliability and if it fits in hearsay exceptoin c. Supreme Court i. Eliminated 2 prong test ii. Rule- ways to surmount the rule (get past the rule or the exception) (a) Confrontation Clause applies only to testimonial hearsay (i) Testimonial:- statement thats reasonably expected to be used in court to prosecute somebody a. Testimony in prior hearings b. Statements to the police (paradigm of the clause) in an investigation with intent to prosecute (not statements to obtain help for ongoing emergency) c. Depositions d. Affidavits (ii) Not Testimony a. Anything else: statements to friends, conversations b. Example: Sam tells Bill that Jim is the murderer. Bill at trial testifies about what Sam said. i. Need to know whether Bill is a police officer ii. If Bill is just a friend not testimonial not covered by Confrontation Clause then only must fit a hearsay exception (b) Excluded unless defendant has a chance to Cross Examination before or opportunity to cross At time of statement or at trial d. Here; i. It was testimonial b/c statement given to police. No cross of wife (unavailable b/c of spousal privilege) e. Hypo- potential victim of assault. Statement of victim to friend says you did it. And then on the stand the friend says you were the perpetrator i. Statement by victim to the friend (a) Hearsay?- yes (b) Exception?- yes (c) Nevertheless less do you keep it out? (i) No testimonial even though it will be relayed to the police ii. Hypo: (a) Statements by child abuse victim to mother.. and says the father is abuser. Can mother testify what child said.. child is now unavailable (i) Child does not expect it to be used in a prosecution (ii) Child probably does not even know what a prosecution is iii. Hypo (a) What about a child victim goes to a doctor and tells them and then is unavailable (i) Most courts say it is non testimonial (ii) Same thing if you tell a friend (b) If in conspiracy- can the co conspirator being in the other statement (i) No not testimonial (c) If you lie to police (i) It comes in and is not testimonial (d) If you kill a witness that said something to the police (i) Exception applies- 804b6 (ii) Confrontation clause- seems testimonial a. Crawford court says no


Downloaded From b. If you kill a witness you cant use the confrontation clause Class i. Now CC is a separate hurdle ii. Prior court cases fit in with this (just change reasoning) except dying declaration (a) Dying Declarations come in!! (b) Dying Declaration to police officer (i) Is testimonial and no opportunity to cross, nevertheless we allow them in. iii. If not testimonial 6th doesnt present as a hurdle just must fit in within a hearsay exception 5. Davis (2006): what is testimonial, if not testimony, what happens (EMERGENCY DOCTRINE) a. If not testimonial confrontation clause doesnt apply and the statement can come in b. Facts i. Appeal of 2 cases. 1ST- Someone called 911 and spoke of domestic violence. She is now unavailable. 2ND-After victim was injured, she called 911. They came and visited her and she talked to them (a) Class (i) Must first find a hearsay exception: Excited utterance or present sense perception (ii) Is it Testimonial? c. Court i. 2 reasons police interview (a) Protection (b) Investigation ii. Discussions relating to ongoing emergency Not testimonial AND 911 Call can come in (a) IC THE MAIN PURPOSE IS TO GET HELP THEN NOT TESTIMONIAL iii. If no danger gathering info for future prosecution testimonial 2nd case: testimonial b/c emergency was over iv. STILL NEED TO PASS THE HEARSAY HURDLE (a) EXCITED UTTERANCE (b) PRESENT SENSE IMPRESSION v. If 2 purposes for the call one during emergency and one for another purpose then its NOT TESTIMONIAL 6. Effect of Crawford: a. If testimonial 6th has a lot more impact (before if fit exception was okay under the 6th in Roberts) i. CC is much more obtrusive b. If not testimonial does nothing at all (under Roberts it would sometimes have an effect) E. Summing Up 1. If testimonial need prior or deferred cross examination a. Hearsay exceptions where the out of court declarant )things that come under hearsay would also be ok under confrontation clause because they are on the stand. (would use one of the ones below and argue its an emergency) (a) If not an emergency then testimonial and the confrontation clause applies to bar the statement unless the person is on the stand i. Prior inconsistent statement ii. Prior consistent statement iii. Statements of identification iv. Past recollection recorded 2. If not testimonial doesnt automatically come in, but normal hearsay rules come in a. Not testimonial- no confrontation clause and dont have to appear and be crossed b. If testimonial- confrontation clause applies and you need to be on the stand and cross f.

examinable Chapter 6 Competency

I. Historically A. Couldnt testify if: 1. Mental incapacity 2. If you didnt believe in God, if you were a felon, a child 3. If you were a litigant 4. Spouses of parties 5. Really if you were involved with the case B. Effect: those with the best info couldnt testify II. NOW A. FRE 601: General Rule of Competency


Downloaded From 1. Every Person is competent to be a witness except as otherwise provide in these rules. State law applies in civil claims- a witness without competency is hard to imagine a. Mental incapacity will come in on cross b. Felons can testify and their conviction are raised on cross as impeachment c. Litigants can testify and their motive to lie comes in on cross d. Jury is given decision as to whether to believe

III. Policy A. Old: 1. Expediency 2. Maybe cross is ineffective B. Jury Trust? 1. We dont trust them with hearsay, but we do here inconsistent IV. FRE 601 A. US v. Lightly: 1. Facts a. Assualt. 2 Ds and one was deemed insane. The other Ds atty wanted to put the incompetent on the stand to blame him for the assault and the incompetent would have corroborated the statement. 2. Court a. Every witness that is competent enough to take the oath and difference between right and wrong competent to be a witness b. May be incompetent to stand trial or to be a Defendant and still testify (just not stand trial) 3. Class a. Potential scam? The one who admits fault is the one who is criminally insane i. Prosecutor can try to show scam on cross b. Mentally competent to testify are there other ways to exclude i. 401 and 402 relevant ii. 403- danger of unfair prejudice iii. V. Rules to Exclude Testimony of the Incompetent: A. FRE 601: no, says all are B. Relevance: argue irrelevant b/c what they are saying is gibberish C. FRE 403: unfair prejudice outweighs probative value: if so confusing and wont help jury D. FRE 603: doesnt understand the oath exclude E. No personal knowledge F. FRE 611: judge has general discretion if testimony is waste of time G. Class 1. Dude who consumed opium on stand was deemed competent comes out on cross a. Ct says nonetheless he is still competent to testify VI. Oath: FRE 603 A. Intro: doesnt have to be on God- can be an affirmation B. Refusal: 1. Fowler: Cannot testify a. Facts: i. Prosecution of tax protestor. Guy refuses to take oath. Prosecutor says if you dont take oath then you cannot testify. b. Issue. Did the trial court err in refusing to allow him to testify because he would not swear or affirm

that he would tell the truth? Held. Justice Gee issued the opinion for the United States Fifth Circuit Court of Appeals and found that the trial court did not commit error d. Discussion. The Federal Rules of Evidence clearly require that in order to testify every witness must swear or affirm to tell the truth and submit to cross-examination
c. Court: (a) Cannot testify because of refusal to take oath or affirmation (b) If not under oath you can lie and not be charged with perjury- exception if you lie to government C. If you swear under oath penalty of perjury and no rule that the witness be told that D. Promise to WHOLE truth dont have to: hearsay exceptions exclude the whole truth VII. Children Witness i.


Downloaded From A. Basic Rule: can testify as long as they can understand the oath (FRE 603) B. Ricketts v. Delaware (455) Fact Summary. Darrell Ricketts, Defendant, was convicted of raping the five-year

old daughter of the woman he was dating. The victim was able to testify at trial that the rape occurred using dolls and drawings. 1. Synopsis of Rule of Law. Witnesses are presumed competent to testify. 2. Facts. Defendant, Darrell Ricketts, was convicted of raping a five year old girl. The victim was the daughter of a woman Defendant dated. During the bench trial, the victim testified, through the use of dolls and drawings, that Defendant anally raped her as her mother slept. The trial court found the witness competent because she demonstrated she understood the difference between truth and a lie. 3. Issue. Did the trial court commit error by allowing the victim to testify without the required foundation to determine her competency? 4. Held. Justice Moore issued the opinion for the Delaware Supreme Court in holding that the trial court did not commit reversible error. 5. Discussion. The Court notes that the presumption that witnesses are presumed competent to testify is not different when a child witness is involved. The victim demonstrated that she knew the difference between the truth and lie and she testified that she promised to tell the truth. Thus, this was sufficient to establish competency to testify.
a. Judge is supposed to conduct voir dire to investigate whether child is capable of telling the truth under Delaware law (a) Some States (i) Still deem child incompetent before a certain age (b) Subpoena To child? YES (c) Must testify both on direct (for prosecution) and on cross or otherwise cannot testify (d) Only witness to crime is child who doesnt understand oath Defendant walks ii. Is it possible for any witness to testify on direct but then be excused from cross--- NO- if you testify in direct you MUST be able to be cross examined iii. What if you cant understand the oath- the child cant testify and the def goes free

VIII. Lawyers As Witnesses A. Rules of professional responsibility may prohibit a lawyer from testifying B. However, no rule of evidence keeps lawyers testimony out, and judge may not be the enforcer to rules of professional responsibility: they can just report it 1. Judges differ: a. Allow report to bar because they violated the professional conduct b. Dont allow C. Inconsistent Testimony to Lawyer 1. Hypo: what if the lawyer was told one thing in an interview and then the witness gets on stand and says something different. Probably not go by yourself because you would have to get on the stand bc you are the only witness. BRING YOUR SECTARY with you. a. Options i. Lawyer can take stand (bad) ii. Take a paralegal to the interview and put themselves on stand IX. Competency of Jurors as Witnesses- normally not supposed to be witnesses A. FRE 606a: At the trial: 1. Member of jury cannot testify as a witness before that jury in the trial of the case in which the juror is sitting B. No prohibition of testifying in front of judge, outside presence of jury; just in trial itself 1. Problem 6-A a. Juror is told not to read paper. He does and also takes a bribe and talk to the defense atty. Judge, before the trial, excuses other jurors and questions the juror b. No prohibition of questioning juror in front of the judge; only prohibition in front of the jury i. If there was a conviction you dont want to know aobut it. After verdict its too late C. If main witness is on jury idiot should have been weeded out during voir dire process D. FRE 606b: inquiring into the validity of verdict or indictment 1. Upon inquiry into the validity of a verdict, A juror may not testify TO JUDGE as to any matter or statement occurring during the course of the jurys deliberations (after trial!!!) a. Once jury starts deliberating no more testimony of juror to judge b. In Hypo above, deliberations hadnt started okay c. So if you dont catch juror misconduct before deliberations tough luck


Downloaded From There is a Narrow Exception: extraneous prejudicial information OR outside influence (i) Very little is either of these. Interprets them narrowly (b) Tanner (i) Facts a. During trial, jurors were on a big party. During recess they were getting wasted and doing drug deals. Jury convicted defendant. Consumed beer, preferred mixed drinks, smoked marijuana, cocaine. (ii) Issue a. Whether testimony of this behavior can be admitted under FRE 606b (iii) Class a. Lawyers didnt object b. Under 606b: General rule is no revisiting i. Exception: juror can testify to extraneous prejudicial information or whether any outside influence was improperly brought to bear but not here. c. Policy- need an end to the litigation if you have a problem you need to catch it while its happening cant wait til its too late. (iv) Court a. Newspaper: external influence b. Bribe: external influence c. Drugs: NOT external influence (just like flu) d. Policy: had opportunity during voir dire and could also take action during trial once trial is done case is over Problem 6-B a. Guy convicted of narcotics possession at trial in which he did not testify in his own defense. After trial judge gets letter from a juror stating jurors violated judges instructions not to consider refusal to take the stand in deciding guilt. Can the letter be considered? b. Rule: that jury cannot make the inference of guilt when a D does not take stand. During deliberation they convict solely b/c D did not take stand. Juror wants to testify later. c. FRE 606b: juror CANNOT testify b/c during deliberations and the case was over Problem 6-C a. Large math error in deliberations 800k mistake. After they realize. Will judge have authority to turn that around? b. FRE 606b: NO external influences no relief. c. Motion for new trial: but cannot use testimony that there was a math error Problem 6-D a. Jurors secretly go to crime scene and take own measurements b. FRE 606: this is an external evidence. Info from outside jury room judge can mistrial Problem 6-E a. Prosecution for bombing and issue whether he wanted to scare or trying to kill people. Juror, during deliberations, says he is a bomb expert and tells them all about bombs. b. FRE 606b: i. In the middle: expected people will bring personal knowledge into jury room. But, if you are an expert this probably would be viewed as prejudicial reversal (a) Judge will say you should have asked about this before trial or at vior dire process. ii. The issue will be whether he is a total expert or just based on personal experience iii. Court could also react that it should have been fished out during vior dire (but he could have lied) Summary: once deliberations, jury member cannot testify as to what happened in jury room or i.






at trial cannot challenge the verdict

X. Competency of Judge as Witness A. FRE 605: the judge presiding at trial may not testify in that trial as a witness. No objection need be made to preserve the point 1. Judge can not be submitted to a deposition or affidavit. That would be inadmissible 2. Ex: Ambiguous Rulings a. Affidavit of judge interpreting his order is EXLUDED; cannot have testimony i. Can have judge, as judge, revisit his order XI. Personal Knowledge Requirement


Downloaded From A. FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that a witness has personal knowledge of the matter. Evidence to prove may, but need not, consist of witnesss own testimony, subject to 703.- use this when they dont admit they are repeating what some else said- argue lack of personal knowledge 1. 2 objectionsa. 1 hearsay b. 2 no personal knowledge because they are just repeating what someone else said i. BUT THE REAL OBJECTION IS HEARSAY B. Who Decides: combination of judge and jury: Conditional relevancy 1. Witness must show prima facie case C. Does it govern Hearsay? 1. Ex: testimony: I heard Jim say Dean Partlett is great to be offered that she is great. a. Objection: hearsay b. Objection: lack of personal knowledge- keeping out hearsay if they do not admit they are repeating what some else said i. Both say you cannot repeat something someone else said, because you lack personal knowledge c. Witness can just have personal knowledge that Jim actually said the statement; But then it must be shown that Jim has knowledge of Dean Partlett i. Thus, personal knowledge for both layers of hearsay statement 2. Exceptions: a. Admission by Party Opponent: no personal knowledge requirement b. Statement of Family History 3. Practical Use a. Personal Knowledge: used when they purport to know something, but you find out they heard from someone else i. Ex: The light was green. On cross they find out witness didnt see it, but heard from someone else move to strike for lack of personal knowledge (or hearsay, but use this) ii. Ex: If someone admits that they heard from someone else hearsay D. Problem 6-F 497 1. Part time tax preparer is charged with filing false tax returns. Testimony of auditor that there was overstated tax deductions. Investigator had talked to individuals whose taxes were prepared to figure this out 2. 2 Objections: (i) the appropriate objection is lack of personal knowledge if he claims to know (ii) if he says heres what the guy said (heres what I was told- then the appropriate objection is HEARSAY b. No Personal Knowledge: relying on what other people said c. Hearsay: IRS agent is just testifying to what he was told out of court. i. Exception? (a) Maybe Expert Testimony (b) NOT Public Records and Reports FRE 803(8)(C): must be used in civil action against Govt; not criminal against D (c) Thus, probably excluded

Direct and Cross

I. Intro A. Direct 1. Cannot use leading questions (questions that suggest an answer) on direct 2. No: Isnt it true? 3. Tactic: Lay a foundation: Tell us where you were at murder you were at scene, what happened? 4. Usually, dont want to use leading b/c unpersuasive

II. Direct A. Exception: When allowed to use leading question on Direct 1. FRE 611(c): When a party calls a hostile witness, an adverse party, or witness identified as adverse party, can use leading questions 1. If cannot get testimony any other way a. Ex: Cannot get child to say something 2. Uncooperative Witness/Adverse Witness or they are hostile 3. When Stupid not to: when a point that is undisputed (or would be a waste of time) 4. When a witness cannot remember the answer to question a. Refreshing the Recollection (FRE 612?)


Downloaded From i. They told you before jim is the murderer and on the stand you ask them and they can not remember do you remember the name of the murderer if you write name down and ask witness to read the paper; this is leading, but allowed b. i. Refreshing the Recollection Baker v. State i. D wanted police officer to testify that a victim said D is not guilty. But, police officer cannot remember what happened. D wanted to refresh recollection with a report written by someone else. Trial court kept it out incorrectly and said they could only use documents he created to refresh (a) Trial court confused difference in requirement for admitting into evidence and refreshing (b) How would you get the other officer that made the report in? business records exception (you would view the police department as a business. Matters observed in the business (the victim saying something) WOULD NEED SOMETHING ELSE so also use the public records exception (both would get it in to show that it was made but not for the truth of the matter asserted AND excited utterance OR present sense impression. (i) What about a recorded recollection (ive looked and it does not refresh my recollection) (ii) Instead what they did was trying to refresh one police office with the report of another police officer a. It can be used to refresh police officer 2 but not admitted into evidence b. Has to be your own record for 803(5) c. But here its not his record so you have to just show it to him d. What ever is gonna refresh Introducing into Evidence vs. Refreshing i. Introducing into Evidence for Truth of the Matter Asserted (a) Hearsay? Yes (i) Public Records Exception: Must be a factual finding (NOT HERE) a. I heard D say he did it (underlying statement are not admissible) vs. I conclude that D did it (admissible) b. If all that matters that person said it ok, but it wont go to the truth of the matter asserted (ii) Dying Declaration (iii) Business Records Exception (NOT HERE) a. Applies to govt; but, but source must be within the business. Here, ultimate source is the victim (iv) Past Recollection Recorded a. Put on officer that wrote report have the memory fail say he was ok when he wrote it then use to refresh b. Cannot have 1 person report it and have another person on stand c. Judge here was ruling on this and got it right but ruled on refreshing! ii. Refreshing: (a) Can use anything: can write on a piece of paper (say this) (i) But dont try to fresh by saying Say this (ii) Refreshing is a disaster b/c of cross! a. Prep the witness! FRE 612: Writing Used to Refresh Memory i. If a witness uses a writing to refresh memory for the purpose of testifying, either while testifying ii. or before, if the court in its discretion determines it is necessary in interest of justice: (a) 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 into evidence those portions, which relate to the testimony of the witness. (i) If claim not related court can examine in camera (ii) The adversary can introduce it on cross iii. Party opponent can ask to examine it iv. Party opponent can then try to get the writing into evidence (a) On cross: isnt it true atty just handed you this paper and 2 mins ago you didnt remember (b) Ends of being a disaster for the person trying to do (i) What should they have done? THEY SHOULD HAVE PREPARED THE WITNESS IN ADVANCE v. Coaching Witness (a) Coach Witness (i) Intro a. Atty can tell what to say, but witness can only except if true (ii) If you give a script to witness opposing counsel gets to see (b) Raytheon 506 (i) Facts




Downloaded From Atty gave witness a binder of documents to review, none were privileged. Atty claimed work product b/c he worked to select the info. b. Adversary wants to see the binder c. Other side claims he waived work product by showing (ii) FRE 612 a. If you show witness work product opposing counsel gets to see it (iii) Court a. Interest of justice (b/c shown to witness before) to opposing b. Work product waived and the adversary gets access to it c. MAJ courts approach the issue this way(c) Before vs. During (i) If before: court uses discretion to decide to let the other side see it (ii) If during testimony: comes in and the other side can see it (d) Subject to Discovery (i) Orally: cannot discover (ii) Written: Discoverable (iii) Incentive: Atty will read/summarize the documents then witness can say they didnt read any documents in preparation of trial (big waste of time but thats what the law says) III. Cross Examination pg -506 A. Intro 1. Considered a right, otherwise testimony is striken (probably mistrial) because the instruction probably wont work bc you cant make the jury forget you showed them a blue horse 2. But, Hearsay exceptions allow witness statements w/o cross B. What if court improperly excludes Cross 1. Civil: only if harmful error 2. Criminal: automatic mistrial if D was denied right to cross IV. Excluding Witness A. Sequester Witness: means other witnesses dont get to sit in court and listen to witnesses 1. Inconsistent Testimony a. PREP WITNESS B. FRE 615: Exclusion of Witness 1. At the request of a party the court shall order witness to be excluded (sequestered) so that they cannot hear the testimony, and may make the order of its own motion 2. This rule does not authorize the exclusion of (exceptions to who can be excluded) a. An opposing party (you are entitled to remain in the court room- you are the one on trial) b. An officer or EE of a party which not a natural person (Company) designated as its representative by its Atty or i. An official of the corporation can be there even if they are gonna testify closest thing to the person is the agent c. A party shown by a party to be essential to the representation (a victim)i. Complicated case and you or your attorney dont know much about it you can keep an expert with you to help d. A person authorized by statute C. Hypo 1. Judge sequesters witness, but then atty shows witness a daily transcript of what has happened in trial 2. Class a. Violates the spirit of the sequestration order b. Cannot find out other ways of what happened at trial a.

I. Intro A. Various ways of casting doubt on a witness B. Extrinsic Evidence vs. Intrinsic Evidence 1. Intrinsic: - only talk with and ask questions of the witness on evidence a. Usually evidence that comes out on cross b. If only intrinsic is allowed: can just cross c. Ex: Isnt it true that you are totally lying right now? yes didnt have to introduce anything extra 2. Extrinsic Evidence: a. Doesnt come from witness himself; Comes from someone else: other persons testimony


Downloaded From b. Ex: the witness has a bias, or lacks mental or sensory capacity C. 2 Broad Categories: 1. Non Specific Impeachment a. Just try to show generally that you shouldnt believe what witness is saying 2. Specific a. Attacking something specific the witness said was false b. Ex: prior inconsistent statement D. Non-Specific 1. 2. Bias: show witness has incentive to shade the truth: is there a benefit to shade the truth (whether or not actually lying) In order to use under 801 prior consistent statement need a claim of bias or recent fabrication a. Rule: i. Can always cross on incentive ii. Can you both intrinsic and extrinsic evidence (a) Related (b) A friend of party b. Hypo i. Suppose you get witness to testify that witness is related to the D: (a) This is intrinsic evidence: ii. If person denies can admit birth certificate (a) This is extrinsic evidence c. Violates the Confrontation Clause in criminal case if you are not allowed to impeach on bias (Supreme Court) d. Implicit in the Federal Rules (common law): not in federal rules i. US v. Abel 523 (a) Facts (i) D was on trial for robbing bank. Prosecution put on witness that implicates D. D puts on witness that he heard witness say he was going to lie to get favorable treatment. Prosecutor wants to impeach the witness put on D by showing both are part of Aryan Brotherhood. (ii) Prosecutor crosses witness on this (would have been intrinsic evidence) witness denies prosecutor has another witness testify (this is extrinsic evidence!) (iii) Argument membership in gang shows bias: they are likely to help each other out (b) Court (i) Impeachment for Bias is implicit in federal rules a. FRE 607: part of attacking credibility (ii) Defense argue Rule that being member of a group, cannot be convicted of crime a. Court: showing someone is bias, you are not convicting them of a crime. You can impeach them for bias even though they you cant be convicted of a crime (iii) Defense argues FRE 608(b): when trying to show something did something in past, can only admit intrinsic evidence (not extrinsic) (so, gang membership shouldnt come in) a. Court: if its inadmissible for one purpose, doesnt mean that it is inadmissible for another; to show bias, can use intrinsic and extrinsic evidence i. 3 forms of non specificii. For bias iii. Sensory perception iv. Character for truth (608b- but says nothing about for baisb. There are lots of things that are not supplanted by the FRE. So its possible that there was a rule that was adopted before the FRE. (iv) Defense argues FRE 403: probative value > prejudice a. Court: trial court took proper precaution; prosecution was not allowed to talk about the actual name of the gang i. Not really gonna win. Up to the sound discretion of the trial court. Reviewing court wont second guess the trial court. (v) 607-any party inclidin the party that calls the witness can be used to attack credibility (vi) 611- what can happen on cross- the matters raised on direct and issues affecting credibility of the witnesses. (vii) Bottom line- if you try to impeach for bias- what di you cite. Not in fed rules of evidence. There are common law rules that continue on even though not explicitly stated in the federal rules of evidence e. Completely truthful person can have a motive for bias


Downloaded From Ex: Mother Teresa would have a motive for bias in a prosecution of the Pop, even if she never acts on the incentive, can show the incentive exists f. Plea deals i. Prosecution witness has been offered a plea deal with a reduced sentence. ii. How will jury find out about that? (a) Prosecution will want to offer it! (b) If there is a chance bad info will come out you should bring it out yourself g. Problem 8-a- def wants to point out that the expect h. You can find out they were paid, but you can not find out what percentage if your pay comes from testifying. i. Can ask them about amount of income from this case. j. Can find out that you are in continuing employment k. But can not testify about other clients. l. In general there is cross about financial i. Within sound distraction of trial judge ii. Tendency is to allow more intrusive testimony m. How do you find out about bias? i. Both sides are entitled to find out all kinds of personal info of witness ii. Sometimes this is limited in criminal cases to protect witnesses n. PROBLEM 8a Expert Witness i. Ex: You call expert and other side wants to show that expert has testified for your side in the past, has only testified for defense, and that 90% of income comes from expert (a) Shows bias: incentive to shade the truth b/c your income/livelihood depends on it (b) Who would offer? (i) Lawyer presenting the witness should bring out the bad facts/bias ii. Limits when showing bias? (a) Can ask about payment amount for the case (b) Can ask whether testified for this lawyer in the past or the defendant (c) Cannot ask the fraction of the income (d) Cannot ask if you only testify for one side (defense) (e) Can show extrinsic evidence o. Non-Experts can be paid too i. Cannot have a contingency fee based on outcome of the case! ii. Defense can impeach based on witness protection program (a) May not want to because it shows that witness needs protection 3. Sensory Capacity (non-specific) (witness cant see or has a ban memory) (nothing in the rules about it like bias) a. Can impeach by cross examination or extrinsic evidence b. Not in the rules, but common law rule c. How i. Actual defect in sensory ability (drunk, insane, deaf) (a) Most insane people can testify, this is how it comes out that they are insane (b) That witness was in a Mental institution would be excluded by this and 403ii. Can show environmental conditions (noisy, dark) = lack sensory capacity to testify d. Can you insist that the witness take Mental Exam? NO but can use for parties but not witnesses. i. Ex: Adversary wants to cross witness on sensory capacity, suspecting witness is insane and wants a mental exam. ii. Technically, judge could order, but they dont iii. Litigant witness will be more likely forced to have a mental exam (avoid: dont testify) e. Dont have defendants testify (litigant witness) (a) Way to avoid? Dont testify (b) Criminal defendants dont testify so all the impeachment shit doesnt come in (prior convictions, not to show propensity of guilt, but to show lying!) Character Evidence for Truth or veracity (non-specific) a. Outline: i. Non-specific impeachment (a) Bias (extrinsic ok) (b) Sensory Perception (extrinsic ok) (c) Character for truth if you testify you become a witness (it opens the door) i.



Downloaded From 1. Cross them about non-conviction specific acts (no extrinsic) only on cross but if thet deny it you can not put on a witness to show that are lying (intrinsic evidence allowed but no extrinsic evidence allowed bc it would open the flood gates) Convictions (extrinsic ok) a. If violent there can be witnesses that they are violent and peaceful b. Can also have character for truth covered by 404 Reputation (extrinsic ok)


b. c.

3. Intro i. Show in general that the person is not truthful 3 ways i. Cross Examination on non-conviction misconduct ii. Actual convictions iii. Character Testimony


Cross Examination on non-conviction Specific Acts misconduct i. FRE 404: in general, character of a person is not admissible for proving action in conformity therewith (a) FRE 404(a)(3): Exception: evidence of the character of a witness for truth in FRE 607-609 (i) Other character evidence is about party or victim (b) 404a2- if defense opens the door, the pros can rebut ii. judge can limit impeachment: (a) FRE 611- the judge just has control of was testimony occurs. Can protect from harassment of undue embarrassment iii. Suppose you dont want this stuff to come out. What do you do? You dont testify because if they do there can be cross about this non conviction misconduct iv. Specific Instances of Conduct: FRE 608(b) (a) Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witnesss character for truthfulness (b) May not be proved by extrinsic evidence; only on cross (i) Why? Turn the trial into a trial about the witness (c) Only probative for truthfulness, not guilt (d) Examples: (i) isnt it true you usually beat your dog not admissible possible to have an honest dog beater you can be a violent awful but truthful person (ii) isnt it true you had sex with many people? not admissible barred by sexual history FRE and not relevant to truth (iii) you testified my client is the murder, isnt it true you lie on your tax statements? admissible b/c probative of truth (since dishonest before, may be dishonest here) (e) What if person denies past behavior (and is lying): cannot bring in extrinsic evidence (i) Cannot bring in other witness (ii) Spin it so youre denying that you lied on taxes (f) What if attorney makes shit up (i) Grounds for mistrial: b/c probability that jury will believe (ii) Must have substantial bases to ask questions (iii) Just talk to judge before hand and tell them the basis for the stuff- to make sure there is a substantial basis for asking. (g) What if Uncertain? (i) Wont come in v. Manske: pg536 (a) Facts (i) Prosecution has 2 witnesses in drug case. D tries to impeach: (ii) by showing isnt it true that you are getting leniency for testifying a. This is Bias (if denies extrinsic evidence would come in) (iii) Then tried showing non-conviction misconduct (b) Issue (i) Could D ask on cross: isnt it true that you have intimidating other witnesses in other cases (ii) This is nonconviction specific acts 608b a. Whether threatening a witness has anything to do with truthfulness? (c) Class: acts must show that acts show a character of truth for non-conviction specific acts (i) Convictions vs. Nonconviction Specific Acts


Downloaded From a. Downside: no extrinsic b. Upside: can ask things you cannot ask if a conviction! c. Court may let you use either (d) Court (i) Most probative: doing something dishonest/forgery/perjury/embezzlement (all courts agree) (ii) Not allowable: things dont show propensity for truth (all courts agree) a. Ex: violence i. : You like to kill squirrels: there can be honest squirrel killer b. Ex: beating spouse: can be honest (iii) In the middle: Courts differ a. Ex: Stealing stuff (most courts say no): stealing is not probative of truthfulness b. Most courts want some specific lie (iv) Here: middle Category; stealing to this court shows propensity of truth and threatening of death is probative of truthfulness allowed cross (e) Issue: (i) Argued witnesses were trying to frame the defendant: bias. Can there be extrinsic evidence (f) Court: (i) When showing bias, there can be extrinsic evidence (no foundation needed) e. Impeachment by Prior Convictions i. FRE 609(a): (a) Extrinsic evidence ok (evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to FRE 403) ii. Danger of Prejudice? (a) Danger that jury will convict based on prior wrongs (b) However, under 404 405, jury cannot use for the truth of the matter iii. How do you get in? (a) For Character of Truth: to show that the witness is lying iv. Policy? (a) This is why Defendants dont take the stand (both convictions and non-convictions specific acts will come in) and dont want to convict on past acts: good system? (b) Better that its easier to convict a past convicted D? v. When Can you get in? (a) Convictions for Dishonesty: Always comes in: if conviction involved dishonesty or false statement, regardless of the punishment (NO BALANCING TEST); (i) subject to time limit (ii) Does not matter if it is the criminal Defendant (b) What is a crime of dishonesty? (i) Lying on tax, perjury, embezzlement (ii) Not: hitting with axe (iii) Maybe: theft, shop lifting (most courts: No) (c) Does crime have to be a felony? No; misdemeanors come in too vi. Crimes for Dishonesty: (a) COME IN- NO BALANCING vii. Crimes NOT for dishonesty (a) Impeaching a Witness (criminal or civil)/Non-criminal D (i) Must be a felony: punishable by death or imprisonment for 1 year (ii) Test: admit unless the danger of prejudice (to criminal defendant) must substantially outweigh the probative value (subject to FRE 403) (iii) Presumption: of admission a. Danger must substantially outweigh (b) If Criminal Defendant (i) Felony; 1 yr (ii) Doesnt come in if he doesnt testify (iii) Admitted if the probative value outweighs prejudice


Downloaded From (iv) Presumption: excluded; (c) Time limit: if crime is more than 10 years old FRE 609(b) (i) Balancing Test if it comes in: probative value must substantially outweigh prejudicial effect (opposite 403) (ii) Presumption: presumption of exclusion (iii) From the date of conviction or the release of the witness from confinement imposed for that conviction, whichever is later a. Ex: Released from jail after serving 55 years recent conviction (iv) Applies to crimes of lying viii. Probative Value vs. Prejudice (a) Highly Prejudicial: (i) If the prior conviction is for exactly the same crime being charge (ii) Horrible Crimes (b) Prejudice for Non-party Witnesses (i) Prejudice is prejudice to the criminal defendant, not the witness (ii) Prejudicial if that witness knows the criminal defendant then guilt by association (c) Probative Value (for character of truth): show tendency to tell truth (i) Least Probative: a. Violent and drug crimes (rape, murder) b. More distant the crime in time (age of conviction) c. Witness didnt take stand (ii) Most Probative: a. Lying b. Crimes near in time c. If witness took the stand (punished for taking stand); conviction after you testified jury found you lied ix. Summary (a) Automatic Admission (i) Recent conviction involving dishonesty (b) Presumption of Admission (i) Recent convictions against non-criminal defendant (c) Weak presumption against admission (i) Recent convictions of criminal defendant (d) Strong Presumption against admission (i) Old convictions for everyone x. On Appeal: Conviction can come in on appeal: FRE 609(e) (a) Why? Convictions are almost always affirmed (b) What if appeal is successful? (i) If used against Criminal Defendant mistrial xi. Lipscomb: there is a hearing before (a) Adversary has the burden of proof to prove the balanceing test xii. Doesnt matter whether punishedjust punishable and convicted xiii. Balancing Test HYPO PROBLEM 8b (a) D is prosecuted for robbing. P puts on a witness and Defense puts on 2 witnesses: non-D and defense. All had prior conviction for robbing bank. (i) Prosecution witness: a. Presumption of admission (non-criminal d) b. Prejudice: low- conviction of the prosecution must prejudice the defendant; prosecution witnesses dont prejudice D c. Probative Value: a little probative; in the middle area i. This is admitted: only excluded is unfair prejudice substantially outweighs probative value (ii) Conviction against Non-D a. Same test: presumption of admission (non-criminal def) b. Danger of Prejudice: substantial- guilt by associationi. D has an associate that was convicted of bank robbery


Downloaded From Probative Value: a little probative i. Only excluded if prejudice substantially outweighs: Presumption of admission: but more on the line (could go either way) (iii) Criminal D a. Weak presumption against admission: admission only if probative value outweighs the danger of prejudice b. Probative value: same as above c. Prejudice: high (higher than above b/c danger to the defendant) i. Here: excluded xiv. What can you reveal (a) To the judge: everything (b) To the jury: only can know of the conviction; NOT the details (i) Which is why prosecution may want to use non-conviction specific acts: to get the details in xv. Non-conviction specific Acts vs. Convictions (a) Non-conviction Specific Acts: can get details to jury (b) Conviction: can only get kind of conviction to jury (i) Courts differ on whether you can choose xvi. Problem 8-C (555) history of lying (a) P testifies; D wants to admit 2 convictions to impeach the Pl. D argues: (i) Jury is just entitled to know P is an ex-convict: a. Class: this is essentially arguing, b/c this is a bad person should lose b. Must bear on truthfulness: impeachment as to their tendency to tell truth (ii) Conviction for Manslaughter a. 1st: FRE 609a2: not a crime of dishonest (if were admitted) b. 2nd: Weigh probative vs. prejudicial (here intro against PL in civil case) i. Normal FRE 403 balancing test: presumption of admission: exclude only if prejudice substantially outweighs probative value ii. Risk of Prejudice: risk is high b/c manslaughter case iii. Probative Value: low probative iv. Close case: would probably be admitted! b/c presumption is comes in! (iii) Conviction for Forgery a. FRE 609a2: crime of dishonesty or misstatement comes in w/o balancing b. < 10 years old (9): so dont look at 609b xvii. Problem 8-D: Five-Time Loser (a) D is prosecuted for armed assault. D elects to testify. Should the following come in for impeachment (i) 6 mo prior, non-felony for falsifying register a. FRE 609a2: crime of dishonesty comes in, whether felony or not (ii) Conviction of marijuana, suspended sentence (2 years ago) a. Doesnt matter whether he was punished b. Since criminal D: weak presumption of exlcusion: probative must outweigh prejudice c. Probative: low b/c not crime of dishonest and not theft (lowest b/c drugs); but recent d. Prejudice: high prejudice e. Probably stays out (iii) Conviction of grand larceny a. Same b. Probative: probative value is higher b/c middle category c. Probably comes in (iv) Conviction of armed assault 8 years ago a. Same b. Probative value (remember probative only to whether he is telling truth; NOT GUILT!!): LOW: armed assault is lowest category (nothing to do with dishonesty); also old c. Prejudicial: since its the same crime as charged HIGHLY prejudicial jury may misuse (forcidden inference: more likely to do now) (v) Conviction for forging a bank application 12 years ago; released 10 before trial and less than 10 from indictment a. Crime of dishonesty, but OLD b. FRE 609b: i. Is it time of release to indictment or to trial c.


Downloaded From Most courts: release until time of indictment (prevents incentive to delay trial or rush to trial) c. Majority: would be less than 10 years come in b/c crime of dishonesty d. Minority > 10: i. Weight prejudical vs. probative ii. Probative: highest, but long ago iii. Prejudicial: low b/c unrelated to armed assault iv. Still would probably come in b/c so probative xviii. Problem 8e (a) Bad acts (b) Raise 609 for impeachment: could only disclose name of offense and conviction: NOT DETAILS!! (c) FRE 608: can proecutor just cross examine on misconduct (i) Courts differ: a. If allow: courts say Ds should not benefit from past conduct b. Not allow: 609 for that purpose xix. Luce (542) (a) A D will file a motion in Limine (pretrial hearing): (i) Motion before trial prohibiting the Prosecutor from allowing prior convictions using balancing test then D can take the stand w/o worry prior convictions will come in (b) If judge wont rule D wont take stand (c) If D is convicted can he appeal of judges hearing prior to trial? No D has to actually get on the stand and be impeached for the ruling on the motion in Limine (d) If D doesnt take stand motion in Limine is not reviewable: (i) Just preliminary ruling; too speculative (cant do balancing test w/o hearing Ds testimony (ii) Also, judge would never rule on them b/c of danger of reversal 5. What are the ways of impeaching: a. Bias b. Sensory Perception c. Character for truthfulness i. Cross Examination on specific Acts ii. Convictions iii. Evidence from Character witnesses d. Evidence from Character Witness (adversary put on character witness) i. FRE 608(a)(1): Character evidence for truthfulness (reputation or opinion)(a) Can rehabilitate: (i) Put on own character witness: FRE : once adversary open the door can put on own witness to rehabilitate to testify to truthfulness (ii) Attack on Cross: FRE 608b2: can attack truthfulness/impeach just like any other witness (prior conviction) and ask about specific acts about own witness of truth (iii) So character witness is like any other witness (b) Ex: (i) George Washington is my substantive witness. Adversary puts on witness to say he has reputation of being a liar. a. I can put on another witness saying George is truthful OR b. Cross examine the character witness: i. And ask about specific things of truth concerning own probative witness: are you aware he confessed after he cut Cherry tree ii. Bring out things in that witnesss past to show he is untruthful: attack his truthfulness (have bias, lack sensory, character for truth) (c) Why would you not bring in specific act to rehabilitate own witness? (i) Because it opens the door for that witness to sling back a bad specific act ii. Psychologists (a) Courts dont allow psychologists to testify party is a liar II. Specific Impeachment A. Kinds 1. Prior Inconsistent Statements 2. Impeachment by Contradiction B. Intro: 1. Focus on specific thing witness did/statement made by witness ii.


Downloaded From C. Prior inconsistent statements 1. FRE 801d1: under oath in proceeding comes in for truth of matter asserted; 2. Can come in on cross not for substance (just to show blow hot and cold) 3. How do you offer a prior inconsistent Statement (FRE 613) not for substance a. The examiner can just spring it on the witness; b. Adversary can request to see basis c. FRE 613b: can put in extrinsic evidence of prior statement if witness denies, but witness being impeached must be given the opportunity to explain the prior inconsistent statement d. Opportunity to Explain i. Hypo: (a) Suppose primary witness has left and was killed: can impeaching witness testify or does his testimony come in if they adjourned prior to explanation? (i) NO: guy is dead no opportunity to explain (b) Suppose witness is still sitting in court room (i) Then guy can be recalled to explain (c) If guy had gone home (i) Testimony would be excluded (d) If you want to ask someone about inconsistent statement, must ask them while they are on the stand; not recall; ask on cross Scams of Prior Inconsistent Statements a. Intro i. Not admitting it for the truth of the matter; just to impeach his truthfulness ii. Danger jury will misuse: for the truth b. Webster i. Facts (a) Prosecutor calls witness who testifies the D was not guilty (bad for P); P impeached the witness with a prior inconsistent statement ii. Issue (a) Can you impeach your own witness? iii. Rule (a) Yes, under FRE 607: credibility of a witness can be attacked by any party iv. Scam? (a) Suppose adversary calls the witness: can impeach (b) Suppose adversary doesnt call witness: you are only calling to impeach them; you shouldnt have called them in the first place b/c dishonest this only trying to get jury to make the improper inference of guilt, not truth v. Court (a) Good faith rule: if the prosecutor knows witness will only say something bad for him, then improper to put him on to impeach (b) Test: did the party know the witness will say only things adverse? (i) No advanced knowledge can impeach c. Mixed: good and bad? i. Yes, if you know witness will testify to both good and bad can put on and impeach d. Harris i. Facts (a) Failure to give Maranda warnings or they just keep on asking after. Then D confessed. These are inadmissible at trial for substance b/c of violation. ii. Issue (a) Can prosecution use statement to trial (D gets on stand and claims he didnt do it?), not to show he sold drugs, but that he shouldnt be believed? iii. Policy (a) Harm if let in: jury will use for truth of the matter asserted (highly prejudicial) and bad incentive for police officers to violate Miranda and force Ds not to testify (b) Benefits: prevent D from lying iv. Court: (a) Permissible to use even illegally gathered evidence to impeach what D testified to on direct; not to prove guilt, but to show he shouldnt be believed v. Class



Downloaded From (a) Another reason why Defendants dont testify (unconstitutional statements come in) (b) Can the prosecutor induce the D to lie then impeach him with this testimony: yes, as long as cross is reasonable (then it is okay to impeach on cross with illegally gathered evidence) (i) Must still be within scope of direct Impeachment By Silence (Prior inconsistent Statements) a. Intro i. Contradiction (before) if you testify before in detail and now you dont remember ii. Here: before you were silent and now you are talking (a) Can prosecution offer fact that you didnt say anything before to offer that you are making shit up now b. Jenkins i. Facts (a) D admitted he killed someone and said it was self defense on stand. He was running from the police. He didnt assert this when arrested. P wanted to introduce this ii. Class (a) In some circumstances: Constitution says silence cannot be used as substantive evidence; here the issue is to impeach (show you said something different), not substantive evidence iii. Court (a) Yes, you can use prior silence to impeach; even if not Constitutional to admit for substantive purposes iv. Thus (a) Can use pre-arrest silence to impeach (Ex: while running from the police) (b) CANNOT use post-arrest silence (Ex; NOT after read Miranda!) (i) This is because you are specifically told you dont have to talk and that it wont be used against you ambiguous why D is being silent v. Ex: what if you have a horrible background and been arrested 5000 times. When read Miranda, this isnt news to them doesnt matter: post-arrest silence cannot be used


D. Impeachment by Contradiction 1. Intro a. When you can prove that something someone specifically says on stand is not true; not by introducing prior inconsistent they made, but by introducing other evidence b. Different from prior inconsistent statement c. Specific b/c attacking something specific that they have asserted 2. In General a. If too tangential to truth collateral matter doesnt come in for impeachment by contra 3. Hypo a. Murder prosecution. Eyewitness says he saw D shoot the victim and I saw it while I was walking home from work. What if there is another witness who can testify he saw the witness leaving from an illegal poker game. (probably doesnt bear on truthfulness so probably wouldnt be able to ask, but whatever) b. If witness denies, can you put on evidence? c. Policy i. Get caught up in collateral matters ii. Prejudice the jury? 4. Only purpose for contradictions purpose is to impeach: generally do not come in! a. Unless: i. Tell Tale exception 5. 5 Situations You CAN impeach by Contradiction a. 2 ways you can ALWAYS impeach by contradiction: i. If the contradiction proves a substantive point (a) Ex: D says I did not kill victim. can put on evidence to show; proving substantive point and impeaching by contradiction ii. If contradiction attacks credibility some other way (a) Ex: witness says I have perfect eyesight and saw D kill. D can put on witnesss Dr to say that she is legally blind: Impeaches b/c lying and b/c of sensory perception (b) Ex: witness for D says I have never met D, but I was walking and I saw D try to save victim. to impeach by contradiction, P can put on a witness saying witness and D are daying: Impeaches b/c of contradiction and because of bias (c) THUS: must be relevant to some other form of impeachment b. Exception to general rule that collateral statement statements purely to contradict do not come in:


Downloaded From Collateral statements that are tell tale: contradiction that a truthful witness would NEVER say: Tell tale (so obvious and important = no mistake and obvious lie) (a) Ex: dude coming home from poker game instead of from home> (i) Doesnt prove substantive point, attack credibility in some other way, not tell-tale that someone would never say collateral matter (b) Ex: 2 witnesses. Different recollections of the kind of tree at the site of the crime. If you want to introduce (i) Tree doesnt prove substantive point, doesnt attack in some other way, not tell tale (easily mistaken) c. 2 other ways i. Impeachment by noncollateral otherwise suppressed material evidence, if adversary OPENS THE DOOR (a) If not collateral; but gathered unconstitutionally ii. Impeachment by noncollateral otherwise improper character evidence if adversary OPENS DOOR (a) Ex; D in civil assault case testifies: I am peaceful and I have never hurt a flea. Should D be able to testify in this way? Can P counter with his prior bad acts of murder? (i) Not usually. D can testify as to own character, but not to specific acts (never hurt a flea = specific act): here D has put on improper specific acts (ii) What can P do if D put on improper character evidence? Can put on impeachment by contradiction since D opened the door (iii) Normally, P could not put specific prior acts to show D is guilty. (iv) Here: impeachment by contradiction is allowed a. Adversary opened the door b. non collateral (B/c prior bad act is an important issue) c. Would have otherwise been improper character evidence (v) So P will allow D to testify to bad act so they OPEN THE DOOR and allow impeachment by contradiction (specific acts) (vi) Thus evidence comes in that would not have otherwise come in (b) Ex: Suppose this D testifies: I always smile and I never frown. Can adversary have 94 witnesses saying they have seen him frown (i) Door not opened b/c it is collateral to the assault issue excluded still (c) What purpose can adversary use this contradiction? (i) Prior acts are only for impeachment, not substantive issue a. Here: would not go to substantive issue of guilty of assault b. Here: would only go to credibility (d) What if P opens the door himself: (i) Ex: While on cross isnt it true you never hurt a flea (ii) Traditional Rule: cannot open door yourself (D had to open the door) (iii) NOW: witness has to be careful not say on cross Hypo a. D says he was in Portland on July 14, a week before robbery. D wants to put on a witness saying D was in his restaurant. Can P put on a witness saying they saw him at the murder. Defense is that he was in Portland during robbery i. Does contradict what D witness said ii. Not a substantive issue (a week before- not day of) iii. Doesnt attack in some other way (maybe could argue weakly) iv. Not tell tale v. Key: this is a very collateral issue so many of the exception do not apply b. What if witness for P says D was never at restaurant. Defense is that he was in Portland i. Comes in as impeachment by contradiction because it proves a substantive point (a) Shows witness is lying and D wasnt in Portland ii. Suppose its collateral: this IS tell tale: if owner says D is in restaurant all the time and hes not lying witness Hypo (2B) a. Coach is prosecuted for sexual abuse for 2 students. i. Can P put in evidence that D has been convicted for sexual abuse at 2 other schools? (a) FRE 413/414: this propensity evidence comes in b/c sexual abuse case even if not impeachment by contradiction ii. Suppose no FRE 413/414: D testifies I am peaceful, and I would never molest a flea. (a) If P objects is it sustained: YES, D can introduce character evidence, not specific acts. This is specific acts excluded (b) Why would Prosecutor NOT OBJECT b/c it allows impeachment by contradiction of otherwise improper character evidence b/c adversary opened the door P can show these convictions now i.




Downloaded From (i) P cannot argue: he did it before so he will do it again (ii) P can argue: should not believe D because he has molested before US v. Havens: Getting statement in on CROSS a. Intro i. Traditionally On cross cannot open the door yourself; this case changes this b. Facts i. D cut up a shirt for drug smuggling. Customs officers opened Ds suitcase without warrant and find shirt. D moved to suppress the shirt in a motion in limine. ii. D testifies on direct: I had nothing to do with draping drugs on anyones body (a) Could this have gotten in on direct? YES (i) Can you argue that t-shirt does contradict even though D never mentions it yes (not raised here) (ii) impeachment by noncollateral otherwise suppressed evidence iii. Issue: (a) P asked on cross: did you have t-shirt in suitcase: he says no and then tries to show contradiction and get in shirt (b) If prosecution opens the door himself can this be door opening iv. Court (a) Even if statements are licited on cross if it is normal cross examination comes in (i) Cannot lie on cross v. Class: (a) Remember: only goes for impeachment; not substantive Thus: impeachment by contradiction would usually come in under some other rule; but is significant a. But, it changes the order of presentation: D can introduce this evidence during Ps case in chief (dont have to wait) b. Allows use of evidence that would otherwise be barred by some other rule (LAST 3 EXCEPTIONS) i. Character evidence rule ii. Gathered unconstitutionally



Expert Witnesses I. FRE 702: A. If Scientific, technical, or otherwise 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 may testify thereto in the form of opinion, if 1. Testimony is based upon sufficient facts or data 2. The testimony is the product of reliable principles or methods AND 3. The witness has applied the principles and methods reliably to the facts B. Very broad: KNOWLEDGE C. EX: 1. If legal issue was when to sign up for classes. I could be qualified as a witness b/c knowledge and experience D. Must assist the trier of fact 1. Ex: Issue of whether women should step around grates a. Most courts: even if jury knows something about it expert comes in b. Danger: jury will ignore their common sense E. Basis 1. Own personal knowledge a. Ex: I saw the D hit the victim with axe, and its my opinion as a Dr that force was sufficient to cause death. this personal knowledge and expert b. Ex: I think tire is defected b/c I tested and its screwed 2. Based on facts the expert is told about at trial/hearing a. Expert can just hear testimony 3. Based on hypotheticals a. Issue is whether hypo mirrors actual facts of the case 4. Based on facts reasonably relied on by experts in the field, regardless of whether they would otherwise be admissible a. Ex: Dr relies on medical treatise (would fit in hearsay exception for treatise) b. Ex: Dr relies on training class for MRI machines (this would be hearsay)


Downloaded From c. Ex: Can rely on what professor told him years ago d. Only issue; whether reasonable 5. Need not be admissible 6. Can you sneak in evidence? a. HYPO i. : D tells psychologist I am totally innocent. He doesnt want to testify b/c of prior convictions. D wants to get this in by putting on Dr. Asks Dr whether D was depressed. He answers YES. D asks why? Dr answers that he is innocent ii. Admission by party opponenet: NO b/c offered by defense, the same party iii. Issue here: can he testify as to the basis of his opinion? Jury will use basis for the truth it suggests b. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial value i. Presumption of exclusion 7. Basis: cannot merely repeat what someone else told them a. HYPO 9-C i. Ps Expert testifies that the cause of the air in the blood was that a tube came out. Expert says basis of opinion that he read in chart that the tube came out (written by someone else) ii. Class (a) Hearsay Exception: business records (source has to be within the business- here it is) so would be admissible otherwise (but for some reason in real case this wasnt used) (b) So, if otherwise inadmissible, can Dr act as a conduit (i) Rule: cannot give basis if merely repeating what someone told them (ii) Rule: if using own judgment (examined, studied, interviewed) comes in 8. Expert can rely on multiple levels of hearsay 9. Basis of expert can be based on testimony of an interested party! 10. Criminal Case a. Basis i. May possibly not be based on hearsay: D argues confrontation clause: D has right to cross F. Problem 9-D 1. Dude charged with drunk driving and tests .24. Test was done in an improper way and must be excluded. Can Dr go on to testify that dude was intoxicated. Testify basis was .24. a. In Favor of admission: general, rule expert can base opinion on otherwise inadmissible evidence b. Argument against: statute says it stays out c. Outcome: strong presumption of exclusion stays out + using expert as conduit 2. Good atty: base opinion on LOTS of stuff to make it look like youre not trying to scam the court G. Form Of Expert testimony 1. FRE 704; expert can testify to ultimate issues 2. 2 Exceptions a. Cannot testify to unexplained legal conclusions i. Ex: Expert cannot just argue based on a code/statute thats the attys job (D was drunk under the statute) b. Cannot give opinion as to whether D did or did not have the mental state or condition of constituting an element of the crime charged or defense thereto H. Can Testify to things Uncertian (some courts disagree) 1. Ex: 70% chance something happened I. How do you put on expert testimony 1. Tell court has expert will assist trier of fact 2. Then qualify witness: ask witness qs to show witness has specialized knowledge that would allow them to make the conclusion a. Ex: If witness is going to testify to marijuana smell must testify they really know what it smells like 3. Adversary can conduct voir dire: try to poke holes of witnesss crudentials a. May choose not to if expert is good 4. Questioning a. FRE 705: 1st question can be bottom line question/opinion; no foundation for expert answer is needed once qualified as expert (normal witness you would have to lay foundation) i. But, wouldnt want to do it that way b/c jury will want to know experts reasoning ii. Why? Saves time; iii. This forces opposing side to hire an expert to rebut this approach J. Court Appointed Experts


Downloaded From FRE 706: court may appoint expert that it thinks is neutral a. Why? Look like hired guns K. Scientific Evidence 1. Hypo: a. Lawsuit arising from cancer from watching TV. P sues manufacturer and stations for putting on good programming. P puts on expert that has degree in hydrology but is a chiropracter. Expert claims that under top secret techniques he has proven watching TV causes cancer. Existing academics dont accept him 2. Hypo a. Lawsuit where P claims plane crashed b/c of defecting alimeter. Accepted that sun revolves around the earth (200 years ago). Expert says earth revolves around sun. 3. Rule a. Prior Rule: had acceptable to mainstream neither of these would have been accepted b. Daubert i. Facts (a) Whether morning sickness drug causes birth defects. All studies showed there was no connection. Ps tried to put in non-mainstream stuff, not generally accepted. Can they? ii. Court: (a) FRE overruled prior rule (b) Rule: broad standard c. Daubert Rule i. Must be valid science (scientific knowledge) ii. Evidence must fit the case: must be used for appropriate purpose iii. No excessive prejudice (FRE 403) iv. Judge decides (a) Daubert hearing not with jury d. Valid Science: judge decides i. Whether science is generally accepted ii. Whether technique can be tested iii. Error Rates iv. Other factors e. Effect: i. Less scientific testimony allowed now than before f. Comotire i. Daubert applies not only to scientific knowledge, but also specialized knowledge = basically everything! L. Statistical Significance (Dont get hoodwinked!) 1. In science, accepted that 95% certainty (beyond reasonable doubt) In court, relevance = preponderance of evidence = more probably than not (>50%) or even less; just makes it more likely 1.