EVIDENCE I. INTRO: A. Tanner Case (Rule 606(b) see pg. 71): 1.

. In a case of mail fraud, a juror calls the defense attorney and tells him that some of the other jurors were drinking during the trial. In order to get a new trial, the defense attorney wanted to talk to the jurors to see if they had similar experiences of drinking. (keep in mind this is post trial after the verdict has been rendered against the defendant) a) The trial judge says that he is not allowed to have the juror testify, no you cant talk to the other jurors, and no you cannot have a new trial. 2. Next, another juror comes forward and says that he was drinking too. a) If the defense attorney had handled this properly, he would have gone back to the judge with the information and spoke to him again, instead, he called some detectives and spoke to the other jurors. 3. Judge says: a) That juror cannot testify b) You cannot talk to other jurors c) No new trial 4. Justice OConnor a) If we allow attorneys to question and search for jury misconduct we would basically destroy the jury deliberation system. Too many policy objections to allow it. Sometimes we have to turn a blind eye. We need to balance fairness with efficiency. b) We give strong protections to jury deliberations (even if the jury is drunk and doing coke). Once the jury signs off on the jury form, the case is closed. B. California was the first to establish a code of evidence. 1. In comparison to the federal rules of evidence a) Fed: written with a high generality. 11 Articles and 66 Rules (1) Some rules have dozens of subparts but they are much simpler b) California: much longer and more subject to the trends and political situations. C. Trial Process 1. Opening statements (party with the burden of persuasion first) 2. Presentation of the evidence 3. Cross examination 4. Re-cross D. Rule 611(b): 1. Cross Examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (1) Pg. 25; Problem 1A (a) Can you ask about someones social relationship with the plaintiff or defendant? i.e. a witness to a car accident. (i) It should be limited to the subject matter (i.e. things that were talked about on direct) but we are also allowed to ask about things that would go toward the credibility of the witness. (answer: yes) (b) What about asking if the driver was looking out the back window? (ii) Maybe, because once you talk about the accident, you can talk about anything involved. Here they have asked about more than what was asked on direct. Maybe the defense attorney might be forced to call the witness in his own case. (iii) It gives the party the ability to control the direction/scope of their own case. (iv) Probably would be outside the scope but might be allowed in under a broad approach (c) What about asking if the plaintiff had been drinking before the accident?

(v) Even a judge would take a transactional approach (whereby anything relating to the accident would be allowed) would probably not allow it to come in through cross-examination (although this could go to credibility again since they were drinking together maybe a relationship there) (2) Ultimately, if the judge wants to hear it, it is admissible. The odds on winning at appeal on an error of allowing evidence to come in are not that great. This is because it has to be shown that it was a harmful error. b) Federal rule different that state rules. c) 17 states (including Texas) are not limited to the scope of direct. (1) In those states you may want to be more careful in what witnesses you call because they can be asked anything. B. Rule 103(a): Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, 1. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific grounds of objection, if the specific ground was not apparent in the context. 2. Offer of proof: In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent form the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. a) So basically, (a) reflects the harmless error principle. b) (1) says that there has to be a TIMELY objection. c) (2) says that you have to make a record of what is being excluded and why it shouldnt be. d) Motions in Limine: Usually not enough to preserve error, you still have to object at trial. (1) This is because you dont really know what is going to happen at trial. (2) Thus not really definitive, are they? 3. Problem 1-B; p.g 46 a) If one of the co-plaintiffs made the objection but the other didnt join in and they lose the case, can the one that didnt join make the appeal? (1) Unclear??? RELEVANCE 1. Fist ask if it is relevant 2. 2nd ask if it is excluded by 403 B. FRE 402: 1. All relevant evidence is admissible, except as otherwise provided by the Constitution of the US, act of congress, these rules, other rules prescribed by the Supreme Court pursuant to statutory Authority. a) All evidence, unless something tells you not to admit. C. FRE 401: 1. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (i.e requiring a tendency to prove or disprove a consequential fact) D. Types of Evidence 1. Four Categories of evidence: a) Real Evidence actual physical evidence of the crime or event in dispute. b) Writings any documents or writings in dispute c) Testimonial any time a witness takes the stand and tells you stuff. d) Demonstrative charts, graphs, photos, diagrams, etc. 2. Two Other ways to distinguish:

a) Direct evidence: (1) Evidence that if accepted as genuine or believed to be true, necessarily establishes the point for which it is offered. b) Circumstantial evidence: (1) Evidence that, if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so. (a) Example: Mens Rea (b) State may rely, in criminal case, on circumstantial evidence as long as the totality of the proof shows guilt beyond a reasonable doubt. (2) Problems with circumstantial evidence? (a) Usually appears weaker to jury. (b) Challenge in assessing the sufficiency of the proof for the jury. (c) Raises questions on coordinating the responsibilities of the judge and the jury. 3. Relevance: a) Divided into two parts: (1) Relevant & Material (a) Relevant if it tends to establish the point for which it was offered. (b) Material if that point bears on the issues in the case. (2) If both things are found, the evidence is relevant. (a) Facts dont have to be in dispute in order to be relevant CASE OLD CHIEF v. UNITED STATES: CHARGE IS Felon in possession of a firearm & Assualt with a deadly weapon and using firearm in a crime of violence. PROSECUTION wants to use evidence of a prior conviction for assault causing serious bodily injury. DEFENSE wants to stipulate that he had had a prior felony conviction, but keep from the jury what that conviction was for. COURTS RULING: Should have excluded name and detail of the offense. RATIONALE: The prosecution is entitled to prove its case by evidence of its own choice. A criminal defendant may not stipulate or admit his way out of the full evidentiary force of the governments case. HOWEVER, in this case, defendants legal status as a convicted felon when that conviction was based on events that have nothing to do with the case at hand. - Character evidence says that you cant admit prior acts to show what type of character they have to show that their current behavior is in keeping with the current behavior. - The prosecution made the felon in possession charge only to make is known to the jury that he already has a felony under his belt for the same thing. - The defendant offers to stipulate to the fact that his prior conviction satisfies that aspect of the felon in felon in possession. - If the defense brings in evidence to show good character, you can bring in evidence to show bad character (they have opened the door) - Independent parties with the ability to dictate the scope of their case, the prosecution gets to decide the witnesses the party autonomy needs to be preserved - P argues that the defenses concession takes away from their story and their ability to decide how to present its case (Justice Souter seems sympathetic to this but then he changes his mind) 4. Establishing relevance: a) If adverse party raises a relevance objection, the judge may ask proponent to justify the proffered evidence, even its relevance seems apparent. Just to get it in the record. (1) Thus, prosecution and adverse party should both have arguments ready to go for relevance or not. b) Evidential Hypotheses: three parts:

(1) One or more general premises, which are general propositions about the ways of the world or human nature. (2) One or more specific premise linking the proof to the general premise (3) Conclusion. c) Deductive and Inductive arguments both contained: (1) Deductive: one in which the premises necessarily leads to a particular conclusion. (2) Inductive: One in which the conclusion does not necessarily follow, but the premise strongly supports the conclusion. (3) Problem 2-A: Page 60: (a) Driver seen going fast well before the accident occurred. BUT Under 401, if the evidence has ANY tendency to make something more probable, it can be in. Might be weak evidence, but it is still relevant. Because it has some tendency to help prove something. (4) Problem 2-B (a) A chunk of concrete fell onto a car from a bridge that was under construction without any witnesses, however there is a witness that saw a few boys running 4 blocks away in a direction away from the bridge. While this is a very weak piece of evidence, it does give some other probable evidence as to why the concrete fell. (This shows how low the threshold is. There is a distinction between sufficiency of evidence and admissibility) 5. Rule 210 a) "Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. 6. Rule 362 and 403 (such common objections) a) The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. 7. Relevance as a Threshold: Standard of Probative Worth: a) FRE 401 requires a tendency to prove or disprove a material fact? How strong must the tendency be? (1) Make the fact more More probably true: Too strict, would exclude too much. (2) Make the Fact More probable than any other: Sliding scale where evidence would be scrutinized strictly at the beginning of the trial, and less stringent at the end when probative worth would be more apparent. (3) Make the fact more than Minimally Probative: Rejects the first two, and suggests that the standard of legal relevancey is more strict than logic or reasoning. (4) Make the fact More probable than it was before: Most lenient standard. THIS is the one in 401. b) Weight v. Sufficiency: (1) Weight; (a) Aggregate probative worth that the factfinder assigns to the proof in the case. (b) Jury question, and only a jury question. (2) Sufficiency: (a) The minimum sufficient evidence to statisfy the standard of proof that applies. (b) Judges get involved with this one (JML, RJML, etc) 8. Problem 2-C (63): a) Man flees when the police arrive to arrest him for armed robbery and the prosecution wants to offer that as evidence of flight as consciousness of guilt, however, he argues that he was fleeing because of a previous outstanding warrant. Can his flight be offered into evidence?

(1) You have to show that a reasonable juror could find that he was running as a result of his consciousness of guilt. (2) There just needs to be enough evidence in addition to the flight to get it in. (a) (Could argue the proximity in time and b) Is evidence of flight relevant? (1) Flight leads to an inference of guilt, but then again. Depends on the flight. (a) There is see the cops and run flight, which would be highly probative. (b) Then there is, the guy went home, and left to parts unknown before the cops arrived to arrest him flight. (i) Inference of flight might be persuasive if other evidence exists. (c) Courts usually say that relevance depends on the reasonableness of the assumption that the defendant knew he was under investigation. (ii) Of course, this assumption becomes less reasonable depending on the amount of elapsed time between the crime and the supposed flight. c) Similar types: (1) That accussed used a false ID or alias, (2) Destroyed concealed evidence, (3) Fabricated evidence or suborned perjury (4) Killed threatened or impeded witnesses for prosecution (5) Sought to escape detention (6) Attempted suicide (7) Sought to bribe public official. F. FRE 403 PRAGMATIC RELEVANCE (is it excluded by 403) 1. Although relevant, evidence may be excluded if its probative value is SUBSTANTIALLY outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (i.e. how valuable is the evidence vs. how much prejudice) (1) If the two are completely equal, you admit the evidence! This is a test of inclusion. b) Note: Balancing test: (1) Probative value v. Substantial prejudice, etc. c) Probative value: (1) Tends to prove something important or disputed. (2) Two ways to approach this: From Old Chief two: (a) First: Can view the evidence as a insland: Estimate its probative worth and prejudicial value in a vacuum, considering the evidence and only the evidence. (b) Second: Can look at the evidence under all the circumstances, including other evidence, and decide whether to deny it because there is another available, less prejudicial means of proviing the fact. (i) Example: Old chief means that Fed courts dont admit names of prior convictions for felons. (a) Note that states are not bound by this ruling. Can still admit the names of convictions if they choose. d) Problem 2-E: (1) Man says he accidentally killed wife with a knife. Can evidence that she previously stayed at a shelter to hide from his abuse be admitted? (a) Is it relevant? (ii) Yes, it goes to his state of mind and the background of their relationship (b) It is probative or too prejudicial? (iii) High to medium probative value because abuse establishes a pattern of the relationship (iv) Definitely prejudicial because it might be improper character evidence. (v) Since both are high, it should be admitted.

CASES:

State v. Chappel: So defendant was on trial for murder. Prosecution says Dee killed the victim, and the defendant says, thats fine, but Im not Dee. Prosecution introduces photos of the victim. Bloody, gruesome photos. Tending to prove manner and circumstances of death, but not identity. A typical it wasnt me case. DEFENSE: Argues that photos are prejudicial, Prosecution says they are relevant. COURT SAYS: Photos are relevant, but they have little probative value because they dont tend to prove the defendant was the killer, Dee, only the gruesome manner of the death. (In under 401 and out under 403) Old Chief II: So same facts as before. Old chief on trial for felon in possession of a firearm. Two possibilities under 403: Item of evidence can be viewed as an island, with estimates of its own probative worth. OR you can look at evidence and compare prejudicial tendencies with other available alternative evidence. Here: Old chiefs admission that he was convicted of a felony would be not only relevant, but CONCLUSIVE. Also much less prejudicial. COURT DECIDES that it will allow D to stipulate to former conviction, and exclude what the conviction was for. - This is a different crime than most because it is a status crime. Being in possession is legal unless you are of the status of a convicted felon. The Court decides to force the concession onto the prosecution in this case because of the status crime- should not be the norm.

III. ADMISSIBILITY AND AUTHENTICATION: A. Preliminary Questions 1. Rule 104: a) 104(a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (1) Thus, the judge can look at the evidence, and is charged with making a decision on what to let in and what not to let in. (they make the preliminary determination of the facts) (2) This is just to determine admissibility, not to weigh evidence. (3) Perrins example: Marital Privilege: (a) Say there is a question as to whether A and B are married, so that A can invoke marital privilege not to give evidence against B. (b) Judge decides whether they are married or not. (i) Why not jury? (a) Inefficient, they would have to deliberate and vote on the issue. (b) Evidence for marriage might taint the main case. (c) Limiting instruction wouldnt really work because that just emphasizes things. (d) Could impanel a prelim. Jury to decide just that fact, but thats a huge waste of time and effort. b) 104(b) When the relevance of evidence depends on fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of fulfillment of a condition. (when there is some condition this goes to the jury) (1) JURY Question here. (a) Tell the jury that its their job to consider whether the evidence should be considered, and what weight they are to give it. (b) These are questions of WEIGHT. How much probative value does the evidence have? (c) As long as there is sufficient evidence to create a fact issue, it is up to the jury

(d) The one trying to get the evidence in is going to argue that it is a question of weight (2) Judge screens the evidence, and decides whether a reasonable person could find the fact asserted to be true based on the evidence. (a) Question of personal knowledge is for the jury, not the judge (ii) (i.e. I saw the accident because I was standing right there but the defense says that they were actually across the street in a McDonalds. Did the witness actually see it?) (iii) The jury has been trusted to make the determination as to if the person is lying or not and if they are, they can disregard it on their own. (b) If you find that X happened, then the evidence is relevant and you should consider it, if you find that X did NOT happen, then forget the evidence that was presented. I made that up, but it seems weird. B. Authentication: How to get stuff into evidence: FOUNDATIONS a) Everything in evidence has to be shown to have a foundation to be allowed in 2. Matter of conditional relevance under 104(b) a) Books: Evidentiary foundations b) CA evidentiary foundations. C. Tangible Evidence 1. Rule 901: a) 901(a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims PROOF METER 1. No Evidence 2. Fact Issue as long as it is in this box, you can probably get it in under 901(a) b) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (1) THIS is apparently a 104(b) issue: (a) This is in fact the murder weapon, or cocaine, or contract, etc. (b) Sufficiency places this under B. (c) Have to present enough evidence so that a reasonable person could find that your hypothesis is true based on this. (d) The whole idea is that if they dont believe the evidence is what they say it is, they wont consider it. D. Demonstrative Evidence 1. Bringing in another ax that we know isnt the one actually used but it used to demonstrate what type of evidence was used. a) For demonstrative evidence you have to ask (1) Do you have personal knowledge? (2) Is this a fair and accurate depict or represent the ax that Mr. Johnson used when he attacked you that day? 2. If you want to use demonstrative evidence from the persons house (i.e. you want to bring in an ax as an illustration as the ax the used but you get this one from the persons house and let the 3. Conclusive Proof

jury know, the defendant is going to make a 403 objection that it is unfairly prejudicial) CASE: US v. Johnson: D supposedly attacked another man with an ax. Prosecution wants to introduce the ax used in the assault. Man identifies it with some hesitancy, says he is pretty sure that is the ax that was used. DEFENSE: Argues that it was not authenticated properly, because you cant distinguish that ax from all the others. He also says that the ax is a different condition than that. COURT says that it is sufficient that a reasonable jury could decide that it WAS in fact, the ax used. Lower court didnt abuse its discretion in allowing the ax into evidence. US v. Howard Arias: Coastguard found weed in a boat in VA. D claims that one of the DEA agents didnt testify, so the chain of custody was broken. In this case it was the guy who took the weed from the Coastguard to the DEA. Thus evidence shouldnt be admissible. COURT SAYS: The hell it shouldnt. There are links on both sides of the chain, and one missing link isnt necessarily enough to make it so that a reasonable juror couldnt decide that it was, in fact the coke under 104(b). thus, evidence can enter, and its just a little weaker of a case because of the missing link. a) Chain of custody (1) Fungible one baggie of cocaine looks just like another. How do you distinguish the one on the defendant to some other random one (a) How many links do we need? (iv) You dont have to have every single link because the standard is have we shown enough evidence that a reasonable juror could conclude that this is the same (b) This is a 104(b) question (2) Note on the above case, JOHNSON: An Axe is somewhat fungible, but not in the same way as cocaine or weed. For those types of things you really need chain of custody evidence to show that that bag of blow is the same one that was taken from D when he was arrested. (3) What if you wanted to use a similar ax? (a) Demonstrative evidence: (v) Give it a number, let other side see, take to witness and show, ID as exhibit whatever, then Does this fairly and accurately represent the ax you were attacked with? Magic words. Demonstrative ax is in. (4) Problem13(a) on 859 (a) Chain of custody problem: Taylor gives bag to Ursula, who gives bag to chemist, VIC, vic determines that it is coke. Taylor picks it up from Vic. Who do you need? (vi) Probably taylor. Probably need vic too. But you dont really need Ursula. (vii) Ursula makes a short trip from Taylor to Vic. Custody isnt long. (viii) You probably need the first two links in the chain b) 901(b): Contains some very useful illustrations. (a) Here are examples of possible ways to authenticate evidence: (ix) Testimony of witness (x) Non-expert opinion on handwriting (xi) Comparison by trier or expert witness (xii) Distinctive characteristics and the like (2) Writings: (a) 904(b)(4): Can use circumstantial evidence (evidence of knowledge of events in writers or recipients life) along with specific characteristics of the letters (spelling errors, turns of phrases, etc) to authenticate. (xiii) Circumstantial evidence:

(a) Addressee, salutation, senders signature, content of the letter referencing facts. (xiv) Non-expert opinion on handwriting (based upon familiarity before trial) (xv) Comparison by trier of fact or by expert witness (xvi) Distinctive characteristics and the like (a) Consistent misspellings. (b) Letterhead and proven signature might even be enough. Though that might not be true anymore since its so easy to make letterhead. CASE: US v. Bagaric: Letter in racketeering case. Contents of letter corroborated by other circumstances: For instance, guy signed his name, addressed letter to recipient, content of letter talked about things going on in their lives or business, cant remember. COURT Says thats sufficient to create an issue of fact for the jury to decide, whether it actually is the letter the prosecution says it is. However, there was no apparent attempt to authenticate the letter by the prosecution. (b) Problem 13(b): Land Sales Contract: (xvii) What are some of the ways it could be authenticated under 904(b)? (a) Public records (7) (b) Personal knowledge (1) (c) Handwriting ID of signature by non-expert (2) (d) Ancient documents? (if over 20 years old and found in a place where you would expect them to be found) (8) (i) 901(b)(8) (See 41 for hearsay exception: 803(16)) c) Email and Electronic Communications (1) Problem 13(c): (a) 13 year old disappears. They find her in Vegas with Morris Tate, 28 years old. Also find emails in her computer with the name, the Wizard. (b) If the girl is on the stand, she can say she received the emails, and replied, but cant authenticate the emails as being FROM Morris Tate. (2) Solutions: (a) Look to the IP address (but then there is circumstantial) (b) You really only have to find that a reasonable juror could find that this was the right person (xviii) She can testify that he told her he was the wizard later? (xix) Can see if it was from his IP address. (xx) OR REPLY DOCTRINE: (a) Apparently, if someone sends you a message, and you reply, and then they reply to your message, its them. (b) Has been used with email. d) Tape Recordings: (1) What do you have to authenticate? (a) Can authenticate persons voice is on the machine (xxi) Problem 13(d): Sale of heroin, listening devices planted in the room and an undercover officer is one side of the conversation. (a) Have to call: (i) Undercover officer, to establish that the recording is an accurate recording of the conversation he had while in that room. (ii) It really depends who is available (iii) Any time you have the person available during the recording, they can authenticate the recording even if they didnt have anything to do with the recording process

(iv) You can also call the person that operated the recording to authenticate it (b) Independent knowledge is ALWAYS sufficient to satisfy the authentication requirements (xxii) If the parties cant agree on the transcript, the court will have to make their own transcript (2) Archived recordings elements for admissibility: (a) Have to show: (i) That the device was cable of taking testimony. (ii) Showing that the operator was competent. (iii) Establish the authenticity and correctness of the conversation. (iv) Show that additions or deletions have not been made (v) Show the manner of the preservation of th recording. (vi) Show the identification of the speaker. (vii) Showing that the testimony elicited was voluntarily made without inducement. CASE Turnage v. State: This was the one with the conversation between the incarcerated inmate and a person on the outside. All inmate conversations are recorded. D challenged admissibility of one such recording, saying there was no foundation. Have to get technician up there, and tell about how the conversations are recorded and logged, and about how the conversations are later retrieved. Prosecution shows all the elements, except for how they knew that defendant was the person speaking. Perhaps it just doesnt get raised. Technician cant testify to that though. Have to have a guard or someone who knows his voice authenticate that. b) Photographs: (1) Problem 13 (e) covers this. (2) These are demonstrative evidence, used to represent something else. (a) Dont have to call the photographer, just put someone up there familiar with what the photo depicts and as: Does this fairly and accurately represent X on the day of whatever. (b) ASK (i) What is this? (ii) How do you know? (iii) Does this fairly and accurately represent X (the intersection at the time of the accident). (2) If changes: Do they affect something important/is it a material change? b) X Rays: (1) Different than photographs (a) Also demonstrative evidence. (b) Have to show scientific process for establishing that the image is in fact a picture from inside the subjects body. (the real issue is with record keeping) (c) Peope to Call: (i) Hospital administrator: (a) Record Keeping is important: (b) Have to talk about hospitals method of keeping track of X rays. (c) Show easily retrieved: (d) Much like a business record. (b) Radiologist: (i) Also: Have to have radiologist interpret the X ray, or Orthopedic person. (b) Technician

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(i) Have to have technician who took X ray testify as to proper process and whether it was followed in taking the X ray. (ii) That machine was working right, that machine is reliable etc. (iii) You can probably dispense with this now days, unless put at issue.. b) Computer Printouts: Problem 13 (g) (1) Reflects electronically stored data: (a) Main issues: (i) Hearsay (but usually business records) (ii) Authentication: (a) Show data can be trusted (b) Reliability of process (info entered in a reliable/accurate way) (iii) Clerical person can testify. (a) Does the computer work properly? Only deal with this if placed at issue. c) Phone Conversations: (1) 901(B)(5) (a) Voice Identification (i) Hearing the persons voice one time is sufficient. (ii) COMPARE WITH HANDWRITING: CAN BE LEARNED IN PREPARATION FOR LITIGATION. (iii) Take to the persons cell, or play recording, or whatever, just get the witness to hear his voice once. (2) 901(b)(6) Phone conversations: (a) Self Identification alone is insufficient, must have something more. (b) If the call was made to an assigned number, and person on the other end Identifies themselves as the same person, youre good. (i) Ex: You call the listing for a guy named chip, and the person on the other end says, this is chip. CASE Us. v. Pool: This is the case where defendant called a DEA agent and asked for a bigger boat to bring in marijuana. Evidence is phone conversation with DEA agent. Question is how do we know that the person on the other end of the line is who we are saying it is. RULE: A phone call from a person identifying himself as X is insufficient to authenticate the call as actually coming from X. The problem in this case is that the DEA agent had never seen Chip before to know that was his voice. He CAN learn it afterward to make the identification. SELF-IDENTIFICATION IS NOT ENOUGH (i.e. just because the person on the phone said it was Chip, doesnt mean that it is) (c) 13H Law Student problem (i) Phone conversation with ORourke at country club: Student calls and the asks for ORourke. Guy gets on phone and says This is ORourke. Not enough in itself because number wasnt assigned to ORourke. But can have guy listen to ORourke at deposition or something and ID the voice on the other end. (ii) ALSO: 901(b)(4): Distinctive characteristic? (a) Knew about the job offer when cancelling it. (iii) OR 901(b)(1): Can call the person who gave the phone to the guy and ask whether the person he gave the phone to was ORourke. (iv) CanNOT use 901(b)(6) because that means that the number was assigned either to the persons home or business and authenticated by self-identification. d) Rule 901(b) you need someone else to testify about what is what or who is who 2. Self-Authentication: (a) AS A SIDE NOTE: State evidentiary rules have no effect on fed. courts b) For these categories, no authenticating proof or testimony is needed.

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(1) The object proves itself. c) FRE 902: Extrinsic Evidence of Authenticity as a condition precedent is not required with respect to the following: (1) READ THIS RULE CAREFULLY. (2) 12 Exceptions that need to be learned. d) Examples PAGE 874 (1) 13-J: Death certificate: (a) 902(4): Certified copies of Public Records: (i) Document must be certified by an authorized person. (ii) Attach a separate document (iii) Must fit under certificates complying with (1)(2) or (3). (iv) 902(1): (a) Documents bearing seal of US, a state, etc. etc. (v) 902(2): (a) Document WITHOUT seal (b) Have officer with a seal and official duties, CERTIFY UNDER SEAL that the signer has the official capacity and that the signature is genuine. (c) So if there is no seal, you have to get one. (vi) 902(3): (a) Foreign officers: Execution on document. (b) Must be accompanies by: (i) Final certification as to geniuniness by executing or attesting person. (ii) OR foreign official with the power. Or US official at embassy, or Diplomat of foreign nation to us. (vii) So basically, the Federal Rules of Evidence required you have to have something under seal or a copy of the seal to get it in without authentication. (a) OR attached to the document, a separate certification that has a seal. (b) Have to certify that signature on document is genuine IN ADDITION TO THE SEAL HOLDERS CAPACITY. (viii) BUT REMEMBER: the Federal Rules of Civ Pro require FRCP 44(a)(1): (a) Official record may be evidenced by copy that is attested by officer having custody that the signer had capacity, but NOT that the signature is genuine. (ix) If you can satisfy either, it is enough. (b) 902(5): (i) Books or pamphlets or other publications purporting to be issued by a public authority. (c) 902(6): (i) Newspapers and periodicals are self-authenticating. BUT still might not be admissible. Just dont need to lay a foundation. (d) 902(7): (i) Trade inscriptions: Authenticate something as having been made by who it says it was made by. (a snickers doesnt need an expert saying what type of candy it is) (e) 902(11) (i) Domestic records of regularly conducted activity that would be admissible under BUSINESS RECORDS EXCEPTION with certificate with SIGNATURE OF CUSTODIAN showing activity: (a) Was made at or near time of occurrence, by a person with knowledge or at least information transmitted by a person with knowledge. (b) Kept in course of regularly conducted activity. (c) Was made by the regularly conducted activity as a regular practice. (i) CROSS REF: (Business records exception 803(6): 37) (f) 902(12)

(i) Same as 12: EXCEPT: (a) Must be made in a manner that if the signature was false, it would subject the signer or maker of record to criminal penalty in the country in which it was signed. (b) Proponent must provide written notice to adverse party & document. (i) CROSS REF: (Business records exception 803(6): 37) (2) Computer Animation: Problem 13(L): Demonstrative evidence (a) Have to ask: Does this fairly and accurately represent shaken baby syndrome. (b) Not substantive proof, just to help jury understand, and opposition can ask for limiting instruction. (i) You cannot use the animation as evidence of what actually happened. (ii) The judge will probably give an instruction to otherwise (c) If you want to show something as demonstrative evidence, you have to show that the act is consistent with the laws of physics and nature

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IV. BEST EVIDENCE DOCRTINE: A. Best evidence rested on Five concerns: 1. Written word has special sanctity in legal affairs, justifying more stringent proof. 2. Any method of proving content of writing other than writing itself is inferior. 3. Photocopy methods have not always been available, and copies are viewed with suspicion. 4. Production of the original ensures completeness and prevents segments from being removed from context. 5. Examining the writing may help resolve disputes over authenticity. B. Rule 1002: 1. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by these rules or an act of congress. a) Not BEST evidence, really. b) Just says you have to present the original in those categories. c) Comes from fallibility of human memory and a desire to limit forgeries. C. Rule 1003: Duplicates: 1. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. a) Can still exclude if: (1) Authenticity of the original in question: means changing a 5 to a 6, say, and photocopying it. (2) Would be unfair to admit duplicate instead of original. b) Due to the quality of copies these days, this is not that often a problem c) Duplicates are any repeat of the original, except for handwritten things D. Note: When something can be either a thing or a writing, it is up to the court to decide which it is. 1. This matters, because chattels marked with Identifying marks: Are they writings? CASE: US v. Duffy: This is the case where the guy steals a car and drives it to AZ from FL. Leaves it there. Laundry found in the car, shirt says Duf on the tag. ISSUE: Is that a writing? RULE: When a thing can be either a thing or a writing, the court must decide at its discretion. RATIONALE: This doesnt implicate concerns of the best evidence rule. Low risk of faulty memory of what was written on the shirt (three letters, very easily remembered) See page 884 on this. ALSO: The shirt was collateral evidence of the crime. BUT Perrin though that it was not collateral, because it directly connected him to car. Rather it was circumstantial. 2. Questions/Notes: a) Best evidence rule applies to musical score, if what is contained in the score is what is at issue. (1) Trying to prove contents of score. (2) Live performance of a score? No. (3) Recording of a performance of the score at issue? Present the recording IF the contents of the recording are at issue. (4) Depends heavily on issue. 3. Analysis: a) What exactly is at issue in the case? (This is why collateral matters) b) Is the thing at issue contained in a writing or recording? In other words, are the contents of the writing or recording or whatever at issue? c) If they are, then you have to produce that. 4. Problem: 14(b) a) Dr. Has records of birth mother of adopted girl. Understanding is that daughter will never know ID of mother. Dr. gives the child her adoption documents. Daughter contacts

mother and causes anguish. Mother offers copies of adoption record Dr. supposedly gave daughter. Dr. says best evidence requires that the original be produced. (1) It was THE copy that violated Dr. Patient confidentiality (i.e. the document that caused the actual anguish). The exact one given to the daughter, so in this case the copy was actually the original. (a) Because of rule 1003, a duplicate is admissible unless there is an issue as to authenticity 5. 14(D): a) Woman gets anesthetic and dies when she throws up in mask. Dr. didnt see that the records showed she had eaten one hour before surgery. Made the nurse change it from a 1 to a 9. The nurse made a copy of the original before the change. b) 1003: Duplicate admissible to the same extent unless: Genuine question raised about authenticity of the original, or it is unfair to bring in copy in lieu of original. (1) Here: Original had been introduced by hospital, with a 9 (2) Copy of the unaltered original is what we want to introduce. (3) Defense says issue of authenticity o the original. (4) Rule 1008(c): Jury decides whether another writing or photograph correctly reflects the content Argument is that the copy accurately reflects the copy of the original. (a) You have to put yourself in the position of the judge. What if you agree with the defense that the nurses copy is a forgery? This is up to the trier of fact. The jury (if in a jury trial) gets to determine which is the real one and which is not. 6. FRE 1004: Escape Clause for 1002: a) The original is not required, and other evidence of the contents of a writing, recording or photograph is admissible if (1) The originals are lost or destroyed. All originals are lost or destroyed, unless the proponent lost or destroyed them in bad faith. (2) OR No original can be obtained by any available judicial process or procedure. (3) OR At the time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing. (4) COLLATERAL MATTERS: The writing, recording, or Photograph is not closely related to the controlling issue. (a) Basically, if the original is lost but you do have an accurate copy, you still dont HAVE to admit the copy. 7. FRE 1005: Prevents disruption of public record keeping systems by making it unnecessary for litigant to produce copies of the original public record. a) The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with 902 or testified to be correct by a witness who has compared it with the original. *** If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.*** (1) Problem 41-E Can an officer testify to the fact that certain pornographic videos were pornographic and obscene? No, when there is a question of obscenity in a video, the jury has to actually watch the video. (2) Problem 14-F You can have an officer testify about what is going on in a video, you have to actually show the jury the video. 8. RULE 1006 You can introduce evidence in the form of a chart or summary if it is easier for the jury to understand. a) Obvi the summaries and charts have to be accurate and the underlying documents available to opposing counsel to check and object to the chart or summary. 9. Rule 1008 (see above in #5)

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a) When admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. HOWEVER, when an issue is raised (a) Whether the asserted writing ever existed (b) whether another writing, recording, or photograph produced at trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determin as in the case of other issue of fact. (1) So JURY DECIDES when the issue is: (a) Whether the asserted writing ever existed (b) When the dispute is over which is original (c) When the copy purports to correctly reflect the contents E. How do we define a Writing, recording or Photograph? 1. An original of a writing, recording, or other reacord means that the writing, recording, or other record itself or any counterpart intended to have the same effect by a person executing or issuing it. a) Photograph: Applies to the negative or any print from the negative. b) For Data: Includes a printout or other receivable output of a record of data or images stored in a computer or similar device, if shown to reflect the data or images accurately. F. BEST EVIDENCE IN OPRATION: 1. Doctrine applies: a) When someone is testifying as to the content of the writing or photograph, b) However if the witness is not relying on the writing or photograph when giving their testimony (and this is independent knowledge) the best evidence rule does not apply. c) When substantive law forces the content of writing into the forefront (1) EX: Parole evidence rule or statute of frauds. d) Under the circumstances, the party choses to prove the content of the writing, even if they might have used other means. 2. Does not apply when: a) Situations in which the matter to be proved has been incidentally recorded but in which neither substantive law nor party strategy actually forces the writing into prominence. b) Problem 13-G (1) When, during a drug bust, there is a DEA agent in the next room recording the conversation and listening to it in real time. He can testify as to what he actually heard while listening over into the next room without the best evidence rule applying because it was live and he is not relying on the recording. (a) However, if there is a 5 second delay in the audio, now he is listening to a recording while he was in the next room and you do have to actually offer the recording to the jury to listen to. (2) Look for independent knowledge (a) If they have independent knowledge of the actual situation (not a recording) then the independent evidence rule doesnt apply. c) Problem 14-H (1) A farmer cannot testify as to what the veterinary report said on his sick chickens, he must actually show the report. (2) However the vet can testify as to the condition of the chickens, but he cannot testify as to the lab reports that he learned about their illness from without actually showing the lab reports d) Problem 14-J (1) If the insurance company is showing that there is no police record of the reported burglary. Thats fine because you dont have to prove the absence of a writing. The person who looked for it is just testifying as to his personal and independent knowledge about how he went and looked and couldnt find anything. e) Experts are also allowed to testify to things within their expert opinion.

CASE

Meyers v. United States: Perjury case in front of senate subcommittee: arguing trial court should have excluded evidence under best evidence rule. KEY QUESTION: Was what exactly he had testified to during his hearing. D arguing that ONLY the transcript of the subcommittee hearing should be used to show what was said during the hearing, because TC allowed use of shorthand notes from someone present at the hearing. COURT SAYS: BEST EVIDENCE is limited to when CONTENTS of a WRITING are to be used. Testimony is spoken word, not writing. Doesnt have to be official transcript. They should be allowed to testify to what they heard because there is no best evidence rule as to not allowing people to testify as to what they heard and saw. It wasnt that he was testifying to what the transcript said, he was testifying as to what he heard. Dissent says: Dissent doesnt argue whether best evidence was used properly, argues that the evidence was presented in to prejudicial a fashion. Sylvania Electric Products v. Flanagan: 1965: Plaintiff is trucker and hauler of sand. D needed ledge removed for construction project. P claims that D and he had an ORAL Agreement to supply the trucks. D refused to pay. JURY FOUND FOR P. Ds argument on appeal: that admitted evidence in violation of best evidence rule: EVIDENCE WAS: , invoices, copies of bills, etc, based on TALLY SHEETs. P claims that Data in the exhibits was BASED on the tally sheets, but didnt know whether he had them all. Never produced ANY Tally sheets. BEST EVIDENCE OF PERFORMANCE IS TALLY SHEETS. RULE: Secondary evidence is not admissible unless the proponent of the testimony shows that a reasonable and diligent search has been made for the original without success. Here P failed to show that he performed such a search. 3. Note: If the documents cant be found after a reasonable and diligent search, can bring in other documents based on the originals. a) JUDGE determines what is reasonable and diligent. (1) Generally, not enough that the papers werent found in their usual spot. (2) Have to search ALL of the documents to make sure. (3) Party need not search EVERY possible place, because then search would be interminable. (4) BUT have to search every place where there is a reasonable possibility they may be found.

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V. HEARSAY: an out of court statement offered for its truth A. FRE 801: 1. (a) A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by the person as an assertion. 2. (c) Hearsay is a statement, other than one made by the declarant testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 3. A statement is not hearsay if: a) The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (1) (A) inconsistent with declarants testimony, and was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition, or (2) (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (3) (C) one of identifications of a person made after perceiving the person; or b) ADMISION BY A PARTY OPPONENT: The statement is offered against a party and (1) (A) Is the partys own statement in either an individual or representative capacity. (2) (b) a statement of which the party has manifested an adoption or belief in its truth (3) (C) a statement by a person authorized by a party to make a statement concerning the subject (4) (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship (5) A statement by a conspirator of a party during the course and in furtherance of the conspiracy. (6) The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under (C) the agency or employment relationship and scope thereof under (D) or the existence of a conspiracy and the participation therein of the declarant and the party against whom the statement is offered under (E) B. Reasons to exclude: 1. Absence of cross examination 2. Absence of demeanor evidence 3. Absence of the oath. C. Concerns: 1. Misperception a) Even a well situated witness can misinterpret or misunderstand what he sees or hears. 2. Faulty memory a) A statement that follows closely on the heels of an observed event might be affected by something like a memory problem. b) OR a statement long after might just be based on fuzzy memory. 3. Misstatement (ambiguity) a) Cross examination can get at the limits of intended meaning of what the witness had to say. b) But if person no subject to cross, we just have to take statement as it is if we admit it. 4. Distortion: Either conscious or unconscious. a) Insincerity or lack of candor (i) LINKS:803(1)32, (2) 32 (3) 33, (4)35, (5)36, (6)37, (8) 39, (18) Error! Bookmark not defined. D. STATEMENTS: 1. What is a statement? a) Assertive conduct. (1) Any reasonable definition of hearsay must embrace assertive conduct when offered to prove the point asserted. (2) Conduct, ONLY if the conduct was INTENDED as an assertion. (a) Nodding yes, or shrugging shoulders.

(b) Coded signal of some kind: (i) Evidence that a lantern had been lit in old north church would be hearsay if offered to prove that the british were coming by land. b) Nonassertive conduct? (1) Even evidence of nonassertive conduct implicates most of the hearsay risks, if the evidence is used to show the person thought, felt, or intended something. CASE Wright v. Tathum: ENGLISH CASE: Crazy jack. ISSUE is whether he is competent to make a will or something. STATEMENT: Letters were sent to crazy jack by business associates, talking about important business matters. Proponent wants to introduce the letters as evidence that jack is not, in fact, crazy, because people trust his soundness of mind enough to conduct business with him. COURT IN THIS CASE: EVERYTHING is hearsay. Ship captain taking family on ship used to prove that ship was supposedly safe: HEARSAY. Risks: Captain may have missed something (Misperception), may have forgotten something (Faulty memory), may have wanted to kill family and knew ship wasnt safe (Ambiguity), insincerity? (Slim, because he is on board) WITH CONDCUCT: BIGGEST RISK OF INCINCERITY is at its lowest, if the person relies on it. 2. Statements continued a) Under 801: A statement is only a verbal or written assertion, or Conduct intended as an assertion. (1) Conduct NOT intended as an assertion is not a statement, and is never hearsay. b) Two Other Requirements for Hearsay: (1) Statement has to be an OUT OF COURT Statement. (2) And must be offered to prove the truth of the matter asserted. c) What about a lack of a statement: Cain v. George: (1) On the one hand: (a) Lack of a statement is circumstantial evidence that the events a hypothetical statement would be about never occurred. (2) On the other hand, Implicates some risks: (a) Misperceptions: (i) Guests could not know there was a problem (b) Could have forgotten about it. (c) Could have just thought it was not worth telling the owners about (ambiguity) (d) Insincerity, not very strong. (3) ABSENCE of a complaint, most courts hold, is not hearsay because of the obvious lack of a statement. (a) This would be nonassertive conduct, conduct is the act of not complaining. d) Just joining a group is not assertive conduct, however, if you join an organization with a very specific purpose (i.e. MADD) it could possibly be seen as hearsay (although it probably is nonassertive conduct) just make the argument on both sides and probably end up saying nonhearsay. 3. Perrins Triangle. Belief (of Declarant) H

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Action

Conclusion

(or utterance) a) Any time you can go from Action to conclusion: Not hearsay b) If you have to go Action to Belief to Conclusion, hearsay. E. OVERVIEW OF WAYS TO GET STATEMENTS IN 1. Nonhearsay a) not used to prove truth of the matter asserted. 2. Hearsay, but admissibile because not hearsay. a) Used to prove truth of matter asserted, but declared not hearsay. b) Rules 801(d)(1) & (2). 3. Exceptions. a) Twenty Nine exceptions. F. NONHEARSAY USES OF STATEMENTS a) Six statements that are not offered for the truth of the matter stated 2. IMPEACHMENT: a) 3C: (1) Abby sues burton for property damages (2) Statement: ON THE STAND: Bystander says: Burton ran the red light. (3) Defense wants to cross on statement to insurance adjustor by bystander that the other car ran the red light. (a) PURPOSE: (i) To cast doubt on credibility of the witness. (ii) NOT to prove the truth of the matter asserted (though it tends to do that). (iii) Dont have to rely on the belief or understanding of the declarant to show the inconsistency, especially if he admits to making the statement. (iv) Thats also kind of key: Just trying to show that the statement was made. (b) CAL EVID CODE 1235: Prior inconsistent statements are admissible for the truth of the matter asserted. (4) Anytime you have a witness who has said anything different than what they are saying at trial, you have the right to offer those previous statements to show their inconsistencies and impeach their character. 3. VERBAL ACTS: Have independent legal significance under substantive law. a) It matters what the person said, but the mere fact that the person said it has legal significance. (1) If you are just trying to know if someone can speak of if someone is alive, them speaking at all can be a verbal act. b) View it as an interaction between substantive law and what was said. (1) Some examples: (a) Threatening people (orally) (i) Assault, intimidation, threatening a witness (b) Conspiracy or solicitation. (c) Offer and acceptance (d) Extortion (e) Libel/Slander (f) Perjury, forgery, misrepresentation. (g) Anything where words in and of themselves have legal significance. c) 3D (1) Any way you like Undercover agent who will tell that while posing as a patron, masseuse asked him if he was interested in a good time, and he said, that depends on when where and how much, and she says any way you like. She objects: HEARSAY! (a) Is Any way you like being offered to prove the truth of the matter asserted? (i) No just being offered to prove that she said it.

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(b) Verbal act: Solicitation. d) 3E: (1) Landlord lease part of farm to C for payment. 40% of corn that person could grow is to be the payment. (a) Farmer borrows from bank, and gives bank security interest in his part of the crop. He defaults (b) Bank forecloses, and Lord sues for conversion. (c) LORD Says that Farmer told him that the corn in the double crib was his corn, the payment. (i) HEARSAY? (ii) NO VERBAL ACT: Verbal PART of an act, rather. This is actually performance. Conduct is pointing out the double crib, and the words explain what the conduct means. (d) Statement Two: LOAN OFFICER: Farmer said the corn in the crib was his. (i) Hearsay: No independent legal significance. (e) Verbal act analysis: Are we using the words for what they DO, as in transferring ownership, or what they say, as in indicating ownership. 4. EFFECT ON THE HEARER OR READER a) 3F: Gas leak: (1) Person notices a gas leak. Guy dressed as gas co. employee shows up at his house, and says, Hi, Im with the gas company, we heard there was a leak. Smoked a cigarette near the line, and it blew. (a) Statement could be used to : (i) Show the owner was acting reasonably in allowing the gas company guy to inspect and fix his pipe. (ii) Can you use the statement to show the guy was an employee of the gas co? (a) NO: offering statement to prove that the guy was in truth an agent of the gas company. (b) That is the matter being asserted, thus, hearsay. (c) THIS IS ALWAYS TRUE when agent describes agency relationship. (d) Have to have other indicia. (b) Other statement: Could you show me where the leak is, we have reports of a leak in this area: (i) Not hearsay: admitting it for EFFECT ON THE HEARER OR READER to show their state of mind. If the guy is sued for contrib., this would be important. b) Agents: (1) Agents are not allowed to describe the scope of their agency. (2) Principles, on the other hand, can, because those words have independent legal significance. They are admissible as hearsay (Verbal Act). (a) BUT if you can establish that the person is an agent, then you can use his words in a suit against the principle, because it is an admission under 801(b). 5. 3G: VERBAL OBJECTS a) Verbal Object: (1) Object with identifying mark on it. Can be self-authenticating (trade inscription) b) Conspiracy problem. Prosecution has several pieces of evidence (1) First: Book of matches found in defendants possession that say EAGLES REST BAR AND GRILL. (a) It is asserting that it is from the eagles nest bar and grill. (b) Have to show: (i) That books of matches like that can only be found at the Eagles nest. (ii) Do that by AUTHENTICATION. Have the bar owner come in and testify? No (iii) Dont need to : 902(7) Can self-authenticate through Trade inscription. (a) Not likely to be a forgery.

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(iv) Might be able to get judge to take judicial notice if that isnt enough. (c) Verbal Object: (i) Object with identifying mark on it. Can be self-authenticating (trade inscription) (d) Second: Mug with an Indians mascot: Fightin Illini with the nickname Witter written on it. (i) His nickname is Witter. What are the odds that someone that doesnt have the nickname would have that mug? (a) Need: (i) Independent evidence that he goes by that nickname, then you can admit it as a verbal object. (ii) Like luggage with tag on it and someones name. Unlikely a person will have luggage with a different persons name on it. (e) Third: As proof that conspirators knew each other: (i) Server says he saw D at the bar with another person, and pointed them out to an officer. (ii) The officer then says that he knew that person to be the co-conspirator charged. (iii) VERBAL MARKER: 6. VERBAL MARKER: (a) Using words to mark another person, place, thing, direction, etc. (b) You always have two witnesses testify at the trial from present memory about what happened on that prior occasion. (i) I.e you have a server testify that she say the man (defendant) at the bar with Stacy. (ii) We use words to mark something else and a second person is able to come testify as to why that is significant (c) NEED: Two people: (a) One that made the statement or engaged in the assertive conduct. (i) Person that did the marking. (b) Two: Second one explains the significance of that conduct. 7. NONHEARSAY CIRCUMSTANTIAL EVIDENCE OF STATE OF MIND. a) 3H: Ana Sofers Will. (1) Ana hit by a bus, and husband bring s wrongful death action. Can recover for loss of companionship and income. (a) Evidence: IS the will: Says that she was dissatisfied with him. And basically hated him, and leaves him one dollar. (b) Nonhearsay statements circumstantially indicate a present state of mind regardless of their truth, and hearsay statements indicate a state of mind because of their truth. (c) Can we use statements to: (i) Prove bad relationship based on the mere fact that they were made? (a) Dont have to use to prove he actually treated her bad. (b) Can use it to prove that SHE THOUGHT SO. (ii) Belief of declarant: (a) THIS IS NONHEARSAY CIRCUMSTANTIAL EVIDENCE OF STATE OF MIND. (b) Not hearsay, not trying to prove that he treated her badly, just that she was unhappy. (2) We can use this as evidence regardless of whether it was true because she believed her. (a) Doesnt come up that often because of the state of mind exception to the hearsay rule.

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Betts v. Betts: Little girl doesnt want to live with stepfather because she is convinced he killed her brother. Girl not testifying, instead they try to introduce statements that she made. He is killed my brother and he is going to kill me to and he is mean. Court says: Nonhearsay Circumstantial evidence of state of mind. Ultimate question is what is in the best interests of the child. If she doesnt want to live with him, not really in her interests. Even if what she is saying is totally false, it means it would be tough for her to live with mom and stepdad. Child might not be competent witness, so you have to find another way to get statement in. b) Circumstantial evidence of state of mind v. Effect on the listener: (1) Can ONLY be used when declarants mental state is at issue. (2) Effect on the listener: only look at the statements effect on the listener, doesnt matter what declarant Is thinking. c) Here is where all those hearsay problems are. See notes, page 35. And do them. d) We dont care about her capacity to testify, we care only that she made the statement which reveals something about her mental capacity at the time.

G. HEARSAY EXCEPTIONS: NOT HEARSAY a) 801(d) Exceptions: (1) Eight exclusions. (a) Defined as not hearsay but offered to prove truth of matter asserted. Different than non-hearsay. (i) They are hearsay but they are allowed in (b) These statements are believed to be preferable to actual live testimony of witnesses. b) 801(d)(1): (1) A statement is not hearsay if: the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing , or other proceeding, or in a deposition, or (b) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or [goes to 801(d)(2).] (a) Three exceptions (i) Prior Inconsistent statements (ii) Prior consistent statements to rebut recent fabrication allegations (iii) Identification of a person made after perceiving the person. (2) 801(d)(1)(A): Prior Inconsistent Statements: COME IN TO PROVE TRUTH OF THE MATTER ASSERTED. (different from impeachment bc you are trying to say that the first one is the truth, not what they are saying in court: 97) (a) CA Code: 1235: Evidence of a statement by a witness is not inadmissible by the hearsay rule if the statement is inconsistent with the testimony at hearing and is offered in compliance with 770. (i) This means it can be brought in on the merits. (b) Federal Rule: (i) Inconsistent with declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition. (ii) Requirement: (a) Witness testifies at trial. (so she is subject to cross) (b) Prior statement is inconsistent with testimony. (c) Given under oath in some sort of proceeding.

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(i) Other proceeding has to be consistent with the nature and identity of trial or hearing or deposition, and you cant have something totally unlike that. (ii) Interrogations: Has been said that these are similar to Grand Jury testimony, which fits. There, the defendant is not present. (iii) BUT GRAND JRY is very formal, judge is there and jury is there to ensure disinterested third party review, not present here. Witnesses testify, and are asked questions. (iv) VERY different from interrogations. (v) Fed courts do not allow. (vi) One exception: immigration officer, but officer must NOT be the investigating officer. (d) SOAnalysis: (i) Look for some third party other than the people involved in the investigation. (ii) Look for witnesses sworn, record made, third party presiding. CASE: State v. Smith: This is the case where the pimp beat up his ho. She gave a statement in front of a notary, under oath, at an interview with the cops, in which she IDd her attacker as the pimp. At trial she said it was someone else. Not enough for prosecution to show that she is lying, Prosecution actually needs her statement to get in to prove identity of the guy. Other proceeding under 801(d)(1)(A)? She is subject to CROSS, statement is INCONSISTENT, and she was under OATH. BUT was the statement at a proceeding? Proceeding has to be consistent with nature of trial or hearing. WA Supreme Court allows it, but in federal court you cant do that. (iii) Problem 4(A): Break in or robbery: 801(d)(1)(A) (a) Conspirator goes states evidence and testifies before a grand jury. Takes fifth at trial and prosecution grants immunity. Says he cant remember because he was high on valium. (b) ISSUE Is whether statement that he cant remember is inconsistent: (i) There is no statement (ii) Faking loss of memory is inconsistent, but you have to have some kind of proof. (iii) CA RULES: Have to show feigned memory loss before you can use their prior inconsistent statement. (iv) Fed Rules: Memory loss is treated as inconsistent, at least in Texas. (c) Subject to cross examination if they cant remember anything? (i) Note 3(A) on 164: US v. OWENS: (a) Officer injured by inmate, couldnt remember anything. (b) Is he actually subject to cross? (c) Just have to show: (i) Witness is in the chair, (ii) Under oath (iii) Willingly responding to questions. (d) Even if he cant remember the impeaching point itself. c) Prior Consistent Statements: 801(D)(1)(B) (1) Consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. (improper is anything that could put a bias in you) (a) US v. TOME: Prior CONSISTENT statement must have been made BEFORE the improper influence or motive arose to be admissible.

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(a) Consistent with common law rule, where pre-motive statements only were admissible (b) In tome it was a child witness, and statements were made by mom, babysitter, etc about childs previous collaborative statements. (c) Kennedy says advisory notes silence discloses intent to adhere to common law, when in other places where they changed the law they discussed it. Scalia says advisory notes are not law and shouldnt be relied on. (d) Note that in Daubert v. Merrel Dow: Silence in advisory notes meant change from CL rule. (e) Dissenters argue that this deals with relevance, and because they are probative statements they should be allowed in. (f) Breyer says timing diminishes probative force, but doesnt diminish reliability. (ii) See notes on 174. (a) ONLY CONSISTENT STATEMENTS THAT (b) Rebut allegation of improper motive or fabrication. (iii) Faulty memory? Wont get in for truth of the matter asserted. (a) Gets in for non-hearsay rehabilitation of witness though. d) Statements for Identification purposes: (1) 801(d)(1)(C) (a) One of identification of a person made after perceiving the person. (i) Statement outside the courtroom IDing person engaged in criminal conduct. (ii) TYPES: (a) Statement of ID after person has PERSONALLY PERCIEVED the person. (b) Why not just have them point out person in court? Because its really easy to pick out defendant in court. (i) Lower probative value than out of court ID. (c) Allowed in as SUBSTANTIVE EVIDENCE that person committed the crime. (2) Composite sketch case State v. Motta: (a) Sketch (i) Argument one: Not really a statement? (a) BUT a sketch is an assertion that the person looks like the sketch. It is the VICTIMS statement, or witnesses, not the sketch artists. (ii) Second argument: (a) Not allowed in under res gestae exception: (i) Allowed in all things that were part of the occurrence, but that exception doesnt exist. (iii) Prior statement of identification: HAVE TO SHOW: (a) Have to show: (i) Statement based on Vs prior perception. (ii) Victim will be on the stand at some point. (iii) Dont have to call the sketch artist. (b) A person who didnt make the statement can testify that the statement was made, as long as the declarant will be available for cross. (iv) Look for: (a) Sometime before trial, Declarant had opportunity to, and did, ID the defendant, and that that person will testify. 2. 801(d)(2) Exceptions: Again treated as not hearsay but actually are hearsay. b) The statement is offered against the party and is (A) the partys own statement in either an individual or representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject or (D) a statement by the partys agent or servant concerning

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a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone to sufficient to establish the declarants authority under subdivision (C), the agency or employment relationship and the scope thereof under subdivision (D) , or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). (1) - Whew. a) 801(d)(2)(A) Admission by Party opponent. (1) The statement is offered against the party and is: the partys own statement in either an individual or representative capacity. (2) Problem 4(b): (a) Plaintiffs car burn up in shop because employee got too close to it with a welding torch. (b) Carter, the shop owner, said: The fire started when the worker left the welding torch on the ground, too close to the fumes. This was said to insurance adjuster. (c) Witness: Adjustor: (i) Potential problems with this statement: (a) Lack of personal knowledge on carters part. (i) Rule 602: All witnesses must have personal knowledge. (ii) Affects reliability (probative value). (b) Effect of Context on reliability: (i) Motivation might be different in talking to his insurance adjustor. Selfserving, may want to make sure his claim is covered, and probably doesnt think the guy will testify. (ii) Probative value: Lower when people are saying things just to get what they want. (ii) Do these reliability concerns have any effect on admissibility under admissions doctrine? (a) NO, admissions are based on adversarial nature of the system. (b) If the opposing side says something they are stuck with it. (c) Not at all concerned with liability (iii) Irving Younger Definition. (a) Admission is anything the other side ever said or did (as in an assertion) that is relevant. (i) Anything. (ii) As in legal conclusion: If he says: Person was the proximate cause, and through respondeat superior, I am liable. (iii) Lay witnesses cant do that (we dont allow them to speak like that because those are opinion statements) (3) Requirements: (a) Statements have to be volitional. (b) Have to have some kind of cognitive ability. (c) Examples: (i) Deathbed admission with tongue stitched to check. (a) Appears to be volitional. Gets in. (ii) Sleep talker? (a) NO DOESNT GET IN because not volitional (d) Admissions doctrine is REALLY BROAD because we have few concerns about reliability. (i) The other side said it. So our side can use it. (e) HOWEVER: CAVEAT: (i) Can ONLY be used against the Party who said it.

(a) So in a codefendant situation, one defendants admission cannot be used against another defendant. (i) Burton: Each party decided to have case decided on its own merits and based on his own statements. (ii) Also: Confrontation clause implicated in criminal cases where codefendants admission is used against a person but co-defendant doesnt testify. No opportunity for cross. (b) So how do you fix this? (i) Separate trials, and have the other defendant come in as a witness (ii) OR you can try them together and redact the parts of the statement that implicate the nondeclarant defendant. (iii) OR you can try together but impanel different jury (Cumbersome) (c) Exception: CoConspirator statements: under 801(d)(2)(E) come in against all coconspirators because that is an element of the crime. (ii) Problem 4(C) (a) Based on Kobe case: (i) KB accused of sexual assault: (ii) Considering plea, but then you have to admit in open court that you did it. (iii) SEE rules 404 and 405, later in outline, on this stuff. CASE: Burton v. US: Two defendants arm post office. On defendant confesses, and says burton and I committed the robbery. Issue is whether that confession is admissible against BURTON. Trial court admits it but gives a limiting instruction. RULE: ADMISSION AGAINST ONE DEFENDANT MAY NOT BE USED AGAINST ANTOHER WHO WAS NOT PRESENT AND IN NO WAY PARTY TO THE ADMISSION. Declarant doesnt testify, so confrontation clause is implicated. Court says limiting instruction is inadequate. D has the right not to testify, and if he doesnt then 5th amendment and confrontation clause clash. (4) Problem 4(D): Natpton DRIVER is in an accident with his employers truck I guess. (a) He is not an employee of the shipping company anymore (i) And says: the brakes just failed, and I was speeding. (ii) Defendants NAPTON & Ace: (a) Brake failure would show Companys culpability (i) Cant admit that statement, if he was no longer an employee (b) BUT Speeding, is admission of negligence on DRIVERs part.. (i) Would get in against him. (ii) BUT could it also come in for Ace under respondeat superior? (iii) NO because it wasnt made during his employment. (iv) Cant be an admission by Ace. (iii) Resolution: Would probably get a limiting instruction because there is no confrontation clause issue in a noncriminal case. 3. 801(d)(2)(B): Manifestation of adoption or belief in truth. (1) A statement is not hearsay if it is offered against the party and is (B) a statement of which the party has manifested an adoption or belief in its truth. (a) Can be adopted by words or conduct. (b) Test is apparently: Whether in the range of probable human behavior, a person acting in such a way would mean to adopt the statement by his conduct? ASK PERRIN. (i) For Silence: whether a reasonable defendant would have spoken up to deny whatever statement is being made. (ii) Have to show: (a) That D heard the statement

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(b) Knew what it meant. (c) And whether a reasonable person would have acted differently if he did not mean to adopt the statement. (iii) NOTE: Once you are mirandized, silence is NOT an admission. Cannot be adopting if exercising your right to remain silent. (a) BUT pre Miranda may be okay. (i) Situation where one d talking to another and other remains silent, might be an adoption. (ii) OR pre Miranda: person might know of right. (iii) Note 2 after Doyle case: JENKINS v. ANDERSON (iv) Things happening between arrest and Miranda. (c) CHECK NOTE 5 on 194. CASE: US v. Hoosier: day before a bank robbery, D tells his friend he intends to rob a bank. A few days after the robbery, Witness runs into D and girlfriend. They look well to do, and girlfriend says: this is nothing, you should have seen the stacks of money in the hotel room. D says nothing. Is his silence an adoption? TEST: WHETHER a reasonable defendant would have responded after hearing the statements. D could have spoken up, told her to shut up, or told witness that it was really cool. Court also notes that Witness and D were friends and D trusted Witness enough to tell him about the robbery before. Doyle v. Ohio: This is the one where an informant sets up a sting for two guys. Informant says they were supposed to sell him drugs. When the deal happens, the cops arrest everyone. Ds claim they were there to buy, not sell, and the guy just threw some money in through the window. Prosecutor: Why didnt you say that when you were being arrested? Argues that reasonable person would have spoken up. CLAIMS PROSECUTION SHOUD BE Able to use silence to impeach their story. ADMITS you cant use it to prove guilt. SCOTUS: Says you cant do that. Miranda warns person that they have right to remain silent and that if they say anything it can be used. EVERY POST MIRANDA (Court actually says post arrest) silence is ambiguous. DISSENT Stevens says there is no evidence they were exercising Miranda rights, and that D should have burden to show that the silence at the time was because of Miranda warnings. CHANGE FACTS: If D was silent, and at trial says: we told the police our story, and here it is. Then you can use to impeach. (2) Problem 4(e) on 199: (a) Jessup hears an exchange between Ivers and friend: (i) Are you the one who stuck up first seacoast bank the other day? (ii) Ivers: Will you please leave me alone? (b) Change facts: (i) You were the one who robbed the bank arent you, I was there and it was you (ii) Response, will you please leave me alone? (c) Are either of those an adoption? (i) Who decides? (a) Judge? Or Jury? I dont know. (b) Judge decides whether a reasonable juror could conclude that there has been an adoption. Then you give it to the jury to decide if there WAS an adoption. 4. 801(D)(2)(C), (D), & (E). Vicarious Admissions (1) If one person says it, it is imputed to that persons principle or to the person on whose behalf it was made. b) 801(d)(2)(C): Speaking agents: (1) A statement is not hearsay if it is a statement made by a person authorized by the party to make a statement concerning the subject.

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(a) Not an employee, like respondeat superior, but a person authorized to speak for the party. (b) Think PR person. (2) Example: Statements by a partys lawyer in representative capacity: (a) Live Pleading v. Superseded Pleading: (i) This should get in. IF you do admit it, the declarant party can: (a) Offer evidence to rebut the pleading or Contradict it (b) Superseded pleading is NOT binding on the parties. (3) Only two types of admissions are biding (these are judicial admissions): (a) Live pleadings (i) Cant introduce evidence inconsistent with the complaint or answer. (ii) The objection for this is variance from the pleadings. (iii) Rationale = notice, fairness, etc. (b) Admissions under FRCP 36. (i) Request to admit (ii) (as in discovery admissions). (iii) Points that are admitted are conclusively established, but only in the case in which they are used. Not in another case. (4) All other admissions are subject to contradiction, rebuttal, etc. c) 801(d)(2)(D): Admissions by Agent or servant within scope of agency. (1) A statement is not hearsay if the statement is offered against the party and the statement was made by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. (a) Several Requirements here: (i) Made by partys agent or employee (ii) Concerns a matter within the scope of employment or agency. (iii) Made during the existence of the agency. (b) In determining whether the statement should be in under agency, you can look to the statement itself to see if it indicates agency. Kinda bootstrapping but allowed. Under 401a the rules of evidence do not apply to the judge hearing the evidence so that they can determine. Although there does need to be independent evidence. (c) California takes the opposite approach and does not let these circular statements in. They require that you have enough evidence without the disputed statements, you are not allowed to admit the statements into evidence. (d) Do we have enough evidence that a reasonable juror could conclude that the person was an agent at the time. d) Interrelationship Between 801(d)(2)(C) & (D): (1) D contains every statement that can get in under C. In other words, C is a subset of D. (a) But NOT the other way. (b) Broader than d2c (anytime a statement fits within C, it also fits within D) CASE Mahlandt v. Wild Canid Survival: Basic facts: Wolf case: Three year old somehow got in fence where very gentle wolf kept. Wolf right in his face, did not see any biting. Poos, employee of research place owned house. POOSs SON said to mother of danny: Wolf got Daniel. He denies that. MR POOS went to office and left note to boss: Sophie bit a child. NOTE IS ONE ISSUE. Then found BOSS and Said Sophie bit a child. SECOND ISSUE. Then board of directors meeting, Poos not present, but there was a great deal of discussion about legal aspects. Plaintiff offered an abstract of the minutes. ANALYSIS: MR POOS: (1) Employee of center.(2) wolf in his care, part of scope, (3) saying that the wolf bit a kid. D ARGUES: Lack of personal knowledge: CT: Not required because of adversary system. IF he had said, my son told me Sophie bit a child: then multiple layers of hearsay, son not an employee, and wouldnt get in. Why? Looks more like he believes it when direct statement than when he says his son told him. OTHER ARGUMENT BY D: Rule shouldnt apply to

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statements within the company, i.e. these were in-house statements: CT: Doesnt matter if its within the company , as long as company said it. MEETING MINUTES: Board says the same things. ALSO this couldnt be admitted against PUSS. CT: MEETING minutes are further removed from incident, multiple hearsay, limited admissibility. We already have the statements by Poos: Doesnt get in. 5. 801(d)(2)((E): Conspiracy: a) A statement is not hearsay if the statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. b) Three requirements built right into the rule. (a) Existence of a Conspiracy: (i) Evidence that there was a conspiracy (ii) Preponderance under Bourjaily, and can include statement. (b) Made during the Pendancy of that conspiracy: (i) Statement made during the course of the conspiracy (c) Statement made In Furtherance of that Conspiracy (i) Statement was made in trying to advance the goals of the conspiracy. (a) CROSS REFS: 55 c) Problem 4H is a good one to review. (1) No (2) Yes (3) No, the arrest is the conspiracy and statements could not be admitted as a part of that original conspiracy d) You can use the conspirator admission rule whether or not conspiracy is actually charged in a given case! (1) The Substantive law is based on law of agency, all conspirators are agents of each other. (2) Can be used in civil cases as well! (3) Statement made by one person can be used as a statement made by another person. This is a huge tool for criminal liability. Anything they say to one another gets used against each of the others. 6. 801(d)(2): Final Clause: The contents of the statement shall be considered, but are not alone sufficient to establish the declarants Authority under (C) (D) or (E). (1) Some kind of independent evidence is necessary. (a) Also: SOME bootstrapping, to a degree, is allowed, but cant get over bar on its own. (2) Standard: Preponderance of the evidence. (a) Bourjilay establishes that for purposes of admissibility decisions, standard is ALWAYS preponderance, whether judge decides or jury decides. (b) Judge always has preponderance. (c) What weight and whether to consider it = jury, and in criminal, has to be reasonable doubt. (i) CROSS REFS: (Witness tampering: 803(b)(6) 48; (3) Sample Analysis Problem 4(g): (a) Truck Driver in accident: (i) Statement: Sorry this happened, I was making a delivery for my boss and was looking at my clipboard. (b) Statement alone is insufficient: Other evidence needed. (i) Uniform (ii) Name of company on truck, (iii) Paychecks.

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CASE

Bourjaily v. United States: [Page 214] Conspiracy to sell cocaine with Greathouse and D. Greathouse is an informant. Called Lonardo to set up deal: tape recorded, and he talked about a friend. So they agreed to meet at a hotel parking lot, lonardo would transfer the drug from Greathouses car to a the Friend. Deal went through, then FBI people arrested Lonardo and Petitioner after Lonardo put drugs in petitioners car. CHARGES WERE CONSPIRACY and the EVIDENCE WAS THE PHONE STATEMENTS ABOUT THE FRIEND. ISSUE Was whether the existence of the conspiracy must be proved by the preponderance o f the evidence. D argues that he could not cross examine Lonardo, his right to confrontation was violated. COURT AFFIRMS SAYING PREPONDERANCE STANDARD WAS PROPER: Three part test for co-conspirator statements: (1) Evidence that there was a conspiracy involving declarant and nonoffering party, (2) statement was made DURING the existence of the conspiracy, and (3) that it was made in furtherance of the conspiracy. Standard is preponderance. Because admissibility is a completely separate issue from the merits, the reasonable doubt standard doesnt apply. Question TWO: Can statement itself satisfy preponderance standard: Was precedent before FRE that said it could NOT bootstrap. Court considers if that holds. COURT SAYS: Rule 104: appears to allow court to consider any evidence it wishes, unless it is privileged. Because its only a presumption of unreliability for hearsay statements, and evidence taken together can be greater than the sum of its parts., court can consider hearsay statement as part of the circumstances.[Confrontation Clause Analysis: 54]

b) California Analogs: (1) Two: (a) 1222 (authorized admission provision) (b) 1223 is conspirator provision. (2) In CA: the JURY decides the Bourjaily question: Whether the declarant is an agent. (a) So judges role is to determine whether a reasonable jury could conclude that there is an agency relationship. (i) Federal you have to prove by preponderance. (ii) In CA just a showing. H. HEARSAY EXCEPTIONS: 1. In total: 29 hearsay exceptions. a) Two factors to think about: (1) How Reliable are the Statements? (a) Are the four hearsay concerns somehow reduced by these situations, and therefore the need for corss reduced? (2) Need: (a) What are the other options? (b) Is there any other way to get the evidence in front of the jury? (3) Some rely heavily on reliability, and others rely heavily on need. (a) If there is a really high need than the concern about the reliability is reduced and vice versa. 2. IN-CLASS UNRESTRICTED EXCEPTIONS: The book says There are 23 of these. a) Unrestricted because: They come in regardless of whether the declarant is available as a witness. (1) Witness may be perfectly available, but you dont have to call. b) All under Rule 803: The following are not excluded by the hearsay rule (802), even though the declarant is available as a witness. (1) Present Sense Impression 803(1) (a) A statement describing or explaining an event or condition made while declarant was perceiving the event or condition, or immediately thereafter.

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(normally cases under this exception are like where someone is watching a car accident and they yell out what they see as it is going on) (i) Requirements: (a) Must describe an event or condition (b) Must be contemporaneous (while happening or immediately after) (ii) Concerns: 18V.CFM (a) Misperception: Minimal effect (b) Faulty Memory: LOW risk (c) Misstatement: minimal effect (d) Distortion: LOW risk: little time to fabricate. MAIN REASON its reliable. (iii) Explanation: (a) This is usually means the person is narrating a play by play. (b) Or a Holy shit that guy just whatever... Case: Nutall v. Reading 221 & Page 58 of notes.This is the one where the guy was talking on the phone, which his wife heard. Statements were things like, Im not feeling well I cant come in today. Im really not feeling well, Why are you forcing me to come to work, Then, hangs up, to wife: well, I guess I have to go in. Alleging that employer forced him to work knowing he was sick. Using it to prove that they were making him go to work and that going to work made him die cause and effect. Hearsay, but present sense of the conversation, and immediately after for wife. She never heard him say anything. Trying to show employer was cause of him going to work. DESCRIBES COERCION AS IT IS HAPPENING and immediately after. Five minutes after convo: too long. (dont forget that there is the other issue of authenticating the phone call in the first place) Were his or her statements made during the condition or immediately after? It is the fact that the person doesnt have time to reflect after the fact. (2) Excited Utterance: 803(2): (a) 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. (i) Requirements: (from Arnold) (a) Must be an event startling enough to cause nervous excitement. (b) Statement must be made before there is time to contrive or misrepresent. (c) Statement must be made while person is under stress. (i) This is all about time (ii) Concerns: 18 (a) Misperception (b) Faulty Memory (c) Misstatement (d) Distortion This is the main one. People cant fabricate because excited. (iii) Explanation: (a) This doesnt necessarily HIEGHTEN the value of the statement, only lowers risk of fabrication. (b) Problem: 4-I. Page 60 of notes. (iv) Startling Event: (a) Judge decides whether there was a startling event by the preponderance of the evidence based on all of the circumstances and for ALL of the elements, [individually?] (b) There must be independent evidence that supports the existence of a startling event.

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Case:

United States v. Arnold: This is where woman calls 911 and says D just threatened her with a gun, cops arrived, she is shaken, then Arnold gets home and she flips. She made her statements three times (original 911 call, when the police arrive, and when Arnold came back home) Applying the elements: MAJORITY: Says three statements taken together show excitement. BUT they were all from one phone call. DISSENT says thats no good. ALSO majority says Finna means he IS fixing to shoot me. Present tense. DISSENT says it can be either. (3) Then Existing Mental, Emotional, or Physical Condition 803(3) (a) A Statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or believe to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will. (i) Requirements (a) Contemporaneous: Then existing condition. (b) Condition = Mental, emotional, sensation, physical. (c) Not statement of memory of belief unless will. (ii) Concerns 18 (a) Misperception neutral (b) Faulty Memory Low because contemporaneous condition (c) Misstatement Low because no time to fabricate. (d) Distortion neutral. (iii) Explanation: (a) Heightened reliability because of the contemporaneous nature. (b) One concern: statements tend to be fact laden. (i) Not fact laden: My leg hurts. (c) Another concern: people often couch mental conditions as facts: (i) Ex: I am going to the store in one hour. (ii) Means: I intend to go to the store in one hour. (iv) Watch Out: Relevancy! 403 analysis: (a) The particular issue in the case will be important. (b) Example: from 4J: Neff is after me again, and hell kill me and my family if I dont pay up. Problem 4-J on 239. Quade says that Neff is going to kill him because Quade is avoiding paying him for protection. He says he needs help and doesnt know what to do. Quade is then found stabbed to death in the park. On charges for extortion and murder, can those statements be offered against Neff? (i) Extortion: if you offer those statements to show fear (that is a mental condition) that is relevant to that purpose, however we cant use this statement to show past acts of extortion and the jury may try to use the statement as such. Mental state of victim is important. Effect on victim matters. Probative value is really high. Have to say this evidence is admitted to show evidence of state of mind but you may not use this as evidence as proof of the facts stated therein. (ii) Murder: Mental state of victim is not an issue. Thus statements like this will probably fail 403 because low probative, high prejudice because might take statement as proof that he killed the guy. Takes a series of inferences to get to the idea that it is likely neff killed him. (iii) Murder with Self Defense: Then probative value is higher, because could be that Neff only killed victim to save his own life. Victims state of mind important, Showing Im going to get him before he gets me.

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Probative is higher than murder (High end of moderate), but lower than extortion. Thus, not substantially outweighed, probably Admit it. (v) Scope: (a) Hilmon: (i) Can use statements of intent to do some future act if the declarants subsequent conduct is a material issue in the case. (ii) If you have statements showing their future conduct that was an issue in the case, you can use them under 803(3) (b) Pheastaer: Requirements to use to prove third party intent/conduct: (i) Declarant has to be unavailable. (ii) Corroborating evidence of other persons intent besides statement. (iii) Heightened reliability. (c) Legislative history of 803(3) (i) Intended to leave Hilmon intact. (ii) Perrin thinks Hillmon is limited to the declarants statement of intent to prove the DECLARANTs subsequent conduct. (iii) Because house committee says declarant only, not a third party. (d) Problem 4K on page 64 of notes & 251 of book. Case: Mutual Life Ins. v. Hillmon: Hilmon tried six times to a jury, made to SCOTUS twice. This is the case where Hillmon supposedly died, but it was alleged the body was this other guy Walters. 20 people saw body, and no one said it was hillmon. They think Hillmon murdered this other guy to collect ins. money, so insurance company is trying not to pay. Walters wrote letter: SAID that he was going to go with Hillmon to start a sheep ranch and Hillmon promised him all kinds of money. IS THE LETTER ADMISSIBLE TO SHOW WALTERS, NOT HILLMON, was the one killed?: is it a contemporaneous statement of intent or plan (state of mind)? The trial court said business records, but SCOTUS says its not because not kept in ordinary course of business. SCOTUS: heightened reliability because contemporaneous, shows he probably did intend to go with Mr. Hillmon. COURT SAYS: You can use these kinds of statement when the declarants subsequent conduct is a material issue in this case. BUT you can only use it to show conduct of Walters (that he went with Hillmon). Case: Larry v. Phaester: Larry hanging out with friends in diner. Leaves, saying he is to meet ANGELO in the parking lot for some FREE WEED. Stupid kid never comes back. ISSUE: Cant this statement be used to show that the meeting between Larry and Angelo took place? ANALYSIS: Two Statements: (1) that he intended to go to parking lot, and (2) that angelo is going to be in the parking lot to meet him (we are assuming Angelo intended to be there, and acted on that). HEARSAY RISKS: Risk of misperception: Larry could have misunderstood Angelos intent. ALL risks are present. The only piece of evidence in this case is the statements made by Larry to Angelo. COURT: Allows it in anyway, but with limitations: (1) The declarant should be dead or otherwise unavailable, and (2) the testimony concerning his statements should be relevant and possess a high degree of trustworthiness (you have to show that it is reliable). Limitations: Unavailable: Corroborating Evidence: Heightened Reliability. (vi) Will exception for State of Mind: (a) Can use a backward looking statement of state of mind in on situation: Testators statement, before death, clarifying their will. (i) Clarify terms of the will. (ii) Execution of the will (iii) Revocation of the will. (b) Can be used for present state of mind, OR state of mind at the time.

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(i) Example: One year after executing: I included that term Children and meant it to include all of my children and step children. (c) Rationale: (i) Deemed to have heightened reliability because testator is always dead, and you need that testimony. (ii) AND its the best evidence of what the will actually means. (4) Statements for the Purpose of Medical Diagnosis or Treatment: 803(4) (a) Text: Statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or eternal source thereof insofar as reasonably pertinent to diagnosis or treatment. (i) Requirements: (a) Must be made to Medical Person: (i) Physicians, nurses, etc. (b) Must be motivated by getting treatment. (i) This is the Declarants motivation. (ii) Also Dr. must be eliciting statements for purposes of treatment, not for prosecution. (c) Must be reasonably pertinent to medical diagnosis or treatment. (i) This last one applies for Special rules for statements of fault. (ii) Blake v. State, below. (ii) Concerns: 18 (a) Misperception (b) Faulty Memory Not really applicable. (c) Misstatement (d) Distortion - Risk lower, because person wants to fix their problem. Strong motivation for truthfulness. That motivation is why motivation is relevant for requirements. (iii) Explanation & Scope (a) This can apply to statements of PAST medical history, if pertinent to treatment, etc. (b) Only applies to statements for the purposes for treatment. (c) Doesnt usually apply to identification of the wrongdoer, or person who caused injury. (iv) Watch Out: Child abuse exception: (a) State v. Blake rationale: Physician said the information was important for treatment because ID of perpetrator determines the frequency and extent to which testing and treatment are given. (b) This trend is present in many courts, and TYPICALLY it is limited to when the abuser is a member of the household. (v) Pertinence: Whether a doctor or nurse in the same or similar circumstances would reasonably need to know the information to provide effective treatment. (vi) Shrinks: (a) Medical doctors: And courts HAVE interpreted rule broadly to apply to them. (b) BUT everything can be reasonably pertinent to treatment of the mind. (c) Needs to be more readily verifiable. (vii) Diagnosis or Treatment: (a) Used to be that it only applied to treatment but the word diagnosis has been added. (b) Diagnosis includes when you go to primary doc, and they refer you to a specialist. (c) HOWEVER experts prepping for litigation can come in.

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(i) BUT the problem with that is that statements in preparation for litigation, declarant has motivation to fabricate. (ii) That is mitigated by fact that person would have to submit to the other sides examination, and can cross examine the doctor and the plaintiff in a civil case. CASE State v. Blake: Blake was convicted of two counts of sexual assault on his stepdaughter, statement was made by sixteen year old victim to a doctor examining. It said what happened and identified Blake as her attacker. ISSUE: Whether statements made to physician for diagnosis and treatment for sex assault should be extended to ID of attacker. Doctor says, who attacker is determines frequency and extent of treatment, therefore important. COURTS TEST: Two parts: (1) Motive of declarant in making the statement is promotion of treatment or diagnosis, and (2) content of statement is reasonably relied on by physician in treatment or diagnosis. Court says Its present here. [For Confrontation Clause Analysis: 54] (5) Past Recollection Recorded: 803(5): (a) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witnesss memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. (i) Requirements: (a) Forgetful witness: (i) Must say, on stand: I dont remember, or I dont recall. (b) Statement About facts which the witness had first-hand knowledge. (c) Showing that there was a prior statement, made or adopted by witness. (d) Made when memory was fresh. (ii) Concerns: 18 (a) Misstatement (b) Faulty memory (c) Misperception (d) Distortion (iii) Explanation: (a) The key is forgetfulness ON THE STAND. (b) Best evidence is if they had previously spoken about testimony and recorded it. (iv) Foundation: (a) Rule requires only that person cant remember exactly or cant remember everything. (b) Doesnt need to be a complete lack of memory. (c) Just have to show SOME forgetfulness. (v) Watch Out: (a) Past recollection Recorded: (i) Hearsay exception that allows past statements for truth of matter asserted. (ii) Testifying based on recording. (b) Present Recollection Refreshed: (i) Tool to help witness remember (ii) Stimulus to jog memory, then they testify based on that memory.

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CASE:

Ohio v. Scott: Guy was blinded by a shotgun blast to the face, and by D. D chased guest of Guy and was arrested. WITNESS: conversation day after arrest, gave statement. Said D told her that he had just wrecked a car and shot a guy. Asked for help, and she said to tell the truth, and he said he was. She went and got cops. Testimony on stand: Recounted some details, said she said something else but couldnt remember what. Court says that Past Recollection recorded works in Ohio (6) Business Records Exception: 803(6) (a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or circumstances of preparation indicate a lack of trustworthiness. The term Business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (i) Requirements (Five) (a) Memoranda, report, data compilation. (b) Must include actions , events, conditions, opinions or diagnoses? (c) Must be made at or near the time of what the record report (i) Two day old report in case below was okay. (d) Must be made by a person with knowledge, or transmitted by a person with knowledge (i) Person with knowledge means: INSIDER to the business. (ii) Source of the knowledge. (e) Must be made in the regular course of business (ii) Concerns 18 (a) Misstatement (b) Faulty Memory (c) Misperception (d) Distortion (iii) Explanation (a) Greater reliability of these records stems from their regularity. (b) Strong incentive to ensure that they are accurate because the business relies on them (iv) Watch Out (a) These statements have to be made by an insider in the business, someone involved in the business. (b) What is the origin of the info? (i) If the origin of the info in the record is someone outside of the business, you have to find some other exception. (ii) I.e. if you go to a doctor and tell them yourself what your medical history is this is not in under this exception but it is in under the previous exception. (iii) Example = case below. Doctors record indicated surgery problem, but that was told to him by the guys wife. (c) Accident Reports: What purpose was it made for? (i) Are accident reports made during regular course of business or in preparation for litigation?

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(ii) If negative, then company would claim work product protection, so COURTS ARE SUSPICIOUS of accident reports that exonerates. (iii) Note 3 on 27677. (iv) It is important who makes the report (Interested/involved party, or disinterested third party?). See note 4 (27677). (v) Unless the Record indicates a lack of trustworthiness clause. (a) Shifts the burden of proof to the party opposing admission of the evidence. (i) So there is an objection: Hearsay (Opposing) (ii) Then Proponent has to establish that it fits an exception. (iii) Then other party can prove lack of trustworthiness. Case Petrocelli v. Gallison: Man has hernia surgery a few times, then pain. Dr. supposedly cuts a nerve in FIRST surgery. Wife says the doctor told her: There is nothing we can do, I cut a nerve, and What do you expect, if you cut a nerve its going to be painful. Dr. Denies this. Wife brings in two medical records: One is second post op report the day after surgery, which said left nerve was severed in prior operation. TWO is from later Dr. visit: Hernia is well healed but worried about pain from left nerve. ANALYSIS: Is a memoranda, has to do with diagnosis/event. Made in regular course of business. FIRST report was made day after 2d surgery, SECOND was roughly contemporaneous with Dr. visit. MADE or TRANSMITTED by person with knowledge. Is the ISSUE: Looks like these statements to the 2d surgery Dr. and the Post op guy: BY THE WIFE. Not an insider. Statements stay out. P Argued that the records should reflect the opinions of the reporting doctors, but its unclear whether statements came from them. Norton v. Kotowski: Alleged wrongful termination case, where people in AK were getting drunk on a boat. Posehn allegedly harassed Kotowski and fired her for drinking on the job. She says many were drinking, and she was the only one terminated. Norcon was employer: Purcell Security conducted an investigation. FORD works for Purcell: writes memo in normal course of investigation for Purcell, interviews Norcon workers who talk about the drinking. NOROCON: Says, double hearsay, and Purcell is NOT part of the Company. KOTOWSKI: Argues that Norcon employees had business reasons to give accurate and truthful reports, (they were supervisors and safety employees). Also, those people are agents of the company, and therefore it is an admission. PERRIN: Should these companies be treated as separate? No probably not, because Purcell & Norcon working closely in almost a joint business venture. . (7) Absence of entry in records kept in accordance with the provisions of 803(6): 803(7): (a) Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the source of information or other circumstances indicate a lack of trustworthiness. (i) This is basically the flip side of 803(6). (ii) Used to prove something didnt happen. (iii) Did not cover in class. (8) Public Records and Reports: 803(8): (a) Records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings against the

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Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of the information or other circumstances indicate a lack of trustworthiness. (i) Requirements: (a) Activity of an office or agency: (i) What it regularly does: (ii) Ex: Sherriff with Service of process. (iii) Court transcripts are like this. (b) Matters observed pursuant to a duty imposed by law as to which matters there was a duty to report. (c) BUT NOT (Excluding): (i) 8(b) In criminal cases: matter observed by cops or other personnel. (ii) 8(c) in criminal cases: findings resulting from an investigation pursuant to authority granted by law. (iii) 8(c)In civil case against gov, records of fact findings made by gov. (ii) Concerns: 18 (a) Misperception (b) Faulty Memory relatively contemporaneous. (c) Misperception (d) Distortion Low, except possibly in the criminal context, but those are excluded. (iii) Trustworthiness again: (a) Factors: (for Gov. record) (i) Timeliness (ii) Qualification of person making statement. (iii) Was there a hearing? (like SEC hearing, but not in cases where no hearing) (iv) Any bias on the part of the officer or recorder? (iv) Ratioanle: (a) When the government is trying to put someone away, it shouldnt be done by records made by the government. 8(b) excludes. (v) 8(b) v. 8(c): (a) 8(b) (i) Criminal cases: (ii) matters OBSERVED by cops or investigators. (iii) Excludes evidence offered by EITHER PARTY. (b) 8(c) (i) Criminal cases. (ii) Civil cases against the gov. (iii) Fact findings made by gov in investigative role. (iv) ONLY excluded if offered BY GOVERNMENT. (vi) This v. Business Records: (a) Pretty similar: (b) Perrin: Generally if you cant offer under one exception, you can use another. (c) BUT CONGRESS intended an ABSOLUTE BAR for admissibility of this kind of record. (d) You CANNOT circumvent this exception. If it is a Government Record: It MUST satisfy this. (vii) Examples: (a) Border crossing, taking down license plates. (i) Is that a matter observed? Or factual finding? (ii) Perrin says Matter observed so 803(8)(B)

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(iii) Inadmissible (iv) BUT argument for? Not preparing for an investigation, just housekeeping at border. No adversarial context. Routine, so it might fit under 803(8)(A). BUT courts have viewed as a (B) matter. (b) Drug tests by gov. Chemist? (i) Viewed as a (C) matter: Because investigating the drugs, not observing them. (ii) You dont watch drugs to see if they are drugs, you test: Investigation (c) Police reports? (i) (B) matter, so cant be offered by D or gov in any criminal prosecution. (ii) But argument is consistent with the aims of the rule and due process. CASES: U.S. v. Oates: This case was drug case, guy being prosecuted for heroin. Retired chemist examines heroin, but cant make it in to trial to testify, so Prosecution gets ANOTHER Chemist to testify based on his report. So, Oates working for government, and law enforcement at that, and government made record. COURT: Should fit under 8(c) because its a fact finding. 8(c) only excludes when it is offered by the government. Government cannot introduce. OTHER exceptions? Business records? (9) Learned Treatise 803(18): (a) To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. (a) Particular application to expert witness testimony. Certain kinds of material in a learned treatise ought to be used to help the jury understand what is beyond their current knowledge (ii) Requirements: (a) Expert Testimony (i) Direct expert relies on it. (ii) Cross called to the attention of expert (impeaching, sort of). (b) (Publication?) sub-requirement (i) Periodical, treatise, pamphlet, or even industry standard. (ii) Point is it can be really short. (iii) NOTE: public publication might not be necessary: Let report by private co. to DOT into evidence in crashworthiness case. (c) (Subject Matter) sub-requirement, broad (i) history, (ii) medicine, (iii) or other science or art. (d) Foundation: Established as reliable authority by: (i) Expert himself (ii) Another expert (iii) Judicial notice. (iii) Limitations: (a) CAN read into record, CANT give to jury to take into room. (b) Expert must rely, or brought to attention on cross. (c) Reliable. (iv) Arguments for Traditional Approach (used to be you could only use to impeach) (a) Technical material confuses stupid jurors. (misperception?)

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(b) Too easy to take out of context (distortion) (c) Treatises inferior to live testimony. (d) Technical knowledge evolves quickly, so it might be obsolete. 3. TOUCHED ON UNRESTRICTED HEARSAY EXCEPTIONS: (1) These we just talked about. (a) Worth a read, and know them, but dont dwell. (2) (9) Records of Vital Statistics: 803(9): (a) Records or data compilations, in any form, of births, fetal deaths, deaths, marriages, if the report thereof was made to a public office pursuant to requirements of law. (3) (10) NOT IN CLASS (Absence of Public Record or Entry: 803(10) (DIDNT EVEN MENTION). (a) To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence of a matter which a record, report, or statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902 testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. (4) (11) NOT IN CLASS (Records of religious organizations) 803(11) (a) Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. (5) (12) Marriage, Baptismal, and similar certificates 803(12) (a) Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. (6) (13) Family Records: 803(13): (Perrins favorite) (a) Statements of fact concerning personal or family history contained in family bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones or the like. (7) (14) NOT IN CLASS Records or documents affecting an interest in property 803(14) (a) The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. (8) (15) NOT IN CLASS Statements in documents affecting an interest in property 803(15) (a) A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document. (9) (16) Statements in Ancient Documents: (a) Statements in documents in existence twenty years or more the authenticity of which is established. (i) See also: 9 for authentication 901(b)(8). (10) (17) Market Reports, commercial publications: 803(17) (a) Market Quotations, tabulations, lists, directories, or other published compilations , generally used and relied upon by the public or by persons in particular occupations. (11) (19) Reputation Concerning Personal or Family History: 803(19)

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(a) Reputation among members of a persons family by blood, adoption, or marriage, or among a persons associates, or in the community, concerning a persons birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption or marriage, ancestry or other similar fact of personal or family history. (i) Because you dont have personal knowledge of your own birth. (12) (20) Reputation Concerning boundaries or general history (in land): 803(20) (a) Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or Nation in which located. (i) Like 9/11. (13) (21) Reputation as to character: 803(21) (a) Reputation of a persons character among associates or in the community. (i) See Character Evidence (_____________). (14) (22) NOT IN CLASS Judgment of Previous conviction: 803(22) (a) Evidence of a final judgment, entered after a trial or upon a plea of guilty, (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown, but does not affect admissibility. (15) (23) NOT CLASS Judgment as to Personal Family or General History, or boundaries: 803(23): (a) Judgments as proof of matters personal, family, or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation. (i) I dont think this will be a worry. I. HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE (a) Not so much driven by the reliability but driven by need and expressing a preference of getting the hearsay as opposed to losing the evidence all together b) UNAVAILABILITY: 804(a): Unavailability as a witness includes situation in which the declarant (a) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or (b) Persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or (c) Testifies to lack of memory of the subject matter of the declarants statement; or (d) Is Unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (e) Is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the Declarants attendance or testimony)by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purposes of preventing the witness from attending or testifying. c) 804(a)(5) (1) Is absent from the hearing and the proponent of a statement as been unable to procure the declarants attendance . . . by other reasonable means. (a) Requirements (i) Absent from the hearing (ii) Proponent is unable to procure by process

(iii) OR other reasonable means. (a) Court says that you have to not only reasonably try and get them back into court but you have to have made a reasonable means beforehand to make sure that they dont get away in the first place. (iv) You have to at least try! (2) Unavailability problem: Problem 4-L Page: 298. The gov. let her go (a) Masters and Jane Shell smuggling cocaine, government detains Jane and they find drugs. Masters not carrying but also detained. Attorney took Janes depo because shes Australian. *** THIS RARELY HAPPENS*** They get permission from Court, and Masterss lawyer is there when they do. Then Gov gives her back her tiket and send her on the way. At Masterss trial, cant get her back, and need that depo to be in evidence. (b) Defense: Objects: (i) Sheel unavailable because gov. let her go. Returned passport and put her on plane. Unabilable because of the procurement or wrongdoing (last clause) of gov, and purpose was to have her unavialble. (c) Prosecution (i) Says that provision contemplates at least negligence. Says they couldnt just jail her or deny her the right to return home for two months. Took depo with YOUR permission. (d) ISSUE is whether government used reasonable means: (i) All they did was check with US embossing in Australia. (ii) They could have: (a) Paid for ticket, put her in hotel & Cover meals, pay for her time. (b) Wouldnt WANT her back though because have depo and no further opp. for cross. (iii) Its not just getting person back, its also keeping them here. (3) What is reasonable effort? (a) Subpoena the person, if they can be. (b) If beyond Subpoena power, you have to make some kind of effort. CASE Barber v. Page: Barber & Woods being tried together and have the same lawyer. Woods testifies. Barbers lawyer has opportunity to cross but doesnt. He confesses & Incriminates barber. Woods is incarcerated in Texarkana. Government Says his is UNAVAILABLE BECAUSE OF INCARCERATION and leaves it at that. DID NOT: Ask warder. Writ of Habeas from Fed. judge, no writ from state judge. COURT: THE possibility of a refusal is no the equivalent of asking and being rebuffed. d) 804(b): HEARSAY EXCEPTIONS: The following are not excluded by the hearsay rule if the declarant is unavailable as a witness. (1) Former Testimony 804(b)(1). (a) Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in the interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (b) Requirements: (i) Hearing or deposition or prior proceeding. (a) This means adversarial thing, both parties there, etc. (ii) Has to be against the same party or predecessor in interest (a) Predecessor in interest: See Lloyd v. American Export Lines. (iii) Has to have been opportunity to develop. (iv) Had to have been a similar motivation to develop.

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(c) Predecessor in interest: (i) Look at the similarity of the interests. (ii) Common nucleus of fact? Were they trying to determine the same thing? (iii) THEN motivation to develop. Why are they acting? (d) Motivation: (i) Public interest v. Private interest? (a) I.e.: Safety of all v. pecuniary gain. (ii) Some courts: require Privity. (e) AC NOTES: If it appears that in the former suit a party having a like motive to cross-examine about the same matters as the present party would have, was accorded an adequate opportunity for such examination, the testimony may be received against the present party. (f) Perrin: Lawyer hate this. Want to examine themselves & Think the could have done a better job. CASE Lloyd v. American Export Lines: Lloyd and Alvarez got in a fight on a ship. Lloyd Sued American export lines, because Alvarez has no money. American export counterclaims, and impleads Alvarez, saying its his fault, and Alvarez says its Lloyds fault. LLOYD AT SEA WHEN COURT DATE HAPPENS. So he is dismissed, but Alvarez still counterclaiming v. American. PRIOR PROCEEDING: Coastguard hearing where CG brought action against Lloyd to determine whether he would keep license. Testimony by both Lloyd and Alvarez. Cant get Alvarez, because he is available. ISSUE: Whether the Coastguard can serve as Mr. Alvarezs predecessor in interest. Predecessor in interest steps: First: Similar interests involved: Coastguard in prior proceedings and Alvarez here: Both interested in determining what happened, and who was liable: Common nucleus of operative fact, same common core & common interest. PAGE 306: Judge talks about community of interests. SO SAME INTEREST, BUT SIMILAR MOTIVE? CG: public interest, while Alvarez = private interest. Coastguard acting for safety of all, Alvarez acting to recover money. But all includes Alvarez, so they let it in. CONCURRENCE: Predecessor should mean privity: Legal or contractual relationship. Would have let testimony in under catchall. You are offering previously given testimony offered against the same party that it is given here. Although here the parties to the proceeding are different. It was the Coast Guard against Lloyd and here it is American against Lloyd. You have to determine whether the predecessor of interest is satisfied i.e. whether in the prior case, there was a predecessor that represented Alvarezs interest (did the Coast guard represent him). (g) Hypos: (i) Bus collides with car: Passenger 1 brings suit. (a) Witness testifies on behalf of bus saying bus was going slow. (ii) Passenger two brings suit, but witness died in interim. (a) Can you bring it in against passenger 2? (iii) Analysis: (a) No privity. (b) Ps lawyers didnt have opportunity to cross. (c) BUT very similar motives to cross, and the plaintiff in the first case had the opportunity. (i) You have to look at if it is fair to the second guy. Like, maybe the previous attorney did a terrible job and didnt realize that the witness was actually blocked by a 10 story building from seeing the accident or maybe the witness had a long history of mental illness. (d) Lawyer wouldnt like this. (h) Note 6 on 611:

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(i) Salerno case: Rico claim alleging price fixing in construction industry in Manhattan. Concrete suppliers called themselves the club. An alleged member of the club not included in indictment, representative testified at grand jury and denied everything. Now defense wants them to testify or get the testimony in. The government doesnt want that, so they refuse to give immunity. (a) Unavailable because self-incrimination. (ii) Same parties? (a) Gove: motive not the same as at a grand jury at trial. (i) Grand jury is to investigate, and dont ask all the questions. (ii) Trial: Using everything and asking every question, including impeachment. (iii) You can never admit grand jury testimony against a current defendant under the former testimony exception (b) Defense: (i) Claims adversarial fairness requires it. And should ignore the plain language of B1, because government is NOT granting immunity so the person WONT testify. (iii) Majority Written by Thomas: (a) Says similar motive. Remands, and trial court decided government lacked a similar motive. (b) The earlier you tell a witness all the bad stuff you know about them, they can explain it away so prosecutors dont ask all the questions in front of a grand jury. You dont have the same motives in front of a grand jury as you do at trial. (2) Statement Under belief of impending death (Dying Declarations): 804(b)(2): (a) In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. (i) Requirements: (a) Criminal: homicide. (b) Civil: any kind of action or proceeding. (c) Person must believe that they are about to die. (i) This means you can recover and use in civil cases, but not in criminal. (d) Has to be statements related only to the cause or circumstances of the declarants impending death. (ii) Notes: (a) This comes from the idea that if you die with a guilty conscience you go straight to hell. (b) Declarant can live in civil, but not in criminal (because there is no homicide if alive). (iii) Is this still valid? (a) Mental condition is not great on your deathbed. (i) Body shutting down, in distress, EXTREME distortion. (b) Not everyone shares same or any religious conviction. (3) Statements Against Interest: 804(b)(3) (a) A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible

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(b)

(c)

(d)

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(e)

unless corroborating circumstances clearly indicate the trustworthiness of the statement. Requirements: (a) Civil: (i) Pecuniary interest (ii) Proprietary interest (iii) Liability interest. (b) Criminal liability interest. (i) Exonerating statement: requires corroborating extrinsic evidence. (c) Reasonable person wouldnt make it unless it was true. (ii) Rationale: (a) Statements like this wouldnt be made unless it was true. (iii) Notes: (a) California rule includes social interests, that would subject one to ridicule, embarrassment, or humiliation. Amendment (Dec 1. 2010) (i) Currently criminal liability statement showing declarant did it, and exonerating defendant requires corroborating evidence. (ii) NEW RULE: A statement tending to expose declarant to criminal liability is not allowed unless corroborating evidence shows its trustworthiness. (iii) SO NOW: EXCULPATORY AND INCLUPATORY statements need extrinsic evidence. Broad or Narrow for Statement: WILLIAMSON (i) Is the statement the full story or narrative? (broad) (a) This would let in much more. Because not every remark is incriminating. (b) Some might exhonerate. (ii) Or is it the single individual discrete remarks. (narrow) (a) This lets in less, because the individual remarks have to be incriminating. (b) Parts of story that are exculpatory get excluded. (iii) Further: contemplates only statements directly against interst: (a) Effective way to lie is mix truth and falsity. (b) Kennedy says three types: (i) Against interest (gets in) (ii) Collateral neutral (Debate over this). (iii) Collateral self serving. (not in motive to lie.) (c) Rule is only against interest, per OConnors majority in Williamson. (d) Kennedy and three others would take broad approach & allow collateral neutral. When do you have to use this? (i) When a witness refuse to testify. AND (ii) That witness is not a party, otherwise its an admission. (iii) Once you start talking about someone elses guilt, its not really against interest anymore. (a) Thats why kennedy says exception is now gone. Because nonparty talking about third partys guilt is the only way its relevant, unless its exhonerating. & Rule clearly contemplates both types.

CASE:

Williamson v. United States: Page 318 book, 80, notes. Harris pulled over and found cocaine in his suitcases. Initial Story: Belonged to Williamson, and they were to be delivered later. Later story, Williamson was in the car ahead and came back and saw him pulled over, so he was tipped off. Refused to record the statement or put it in writing. The only have testimony of the agent. Harris is NOT a party. WILLIAMSON is. ISSUE: Whether statement inculpating Williamson and Harris can be used against Harris. RULE: Test is

whether a reasonable person in declarants position would not have made the statement unless it was true. Analysis: WHAT IS A STATEMENT? Everything the guy said in one block? Or individual ideas, so many statements. Its the single part, single remark. Insofar as the statements blame Williams they lessen blame for Harris. Therefore, incentive to lie. Oconnor would keep out. They go for the most narrow interpretation of 804(b) that only the statements that are directly against the interest of the declarant. The stuff that he said about his co-conspirators is not admitted. Concurrence: Strong interest to curry favor (which is why Kennedey would keep out. He thinks this will be the end of law enforcement and the exception is dead with the majorities opinion). - We think here that what he was doing is try to curry favor but putting the blame on Williamson so really he doesnt have any incentive to be truthful at all. Those statements are in his interest he is minimizing his own involvement and maximizing the involvement of others. (f) Problem 4-H on 327. (i) Gavin & Torrens driving in a truck with weed in it. (ii) Stopped, and Torrens tells cops the weed belongs to him. Gavin had nothing to do with it. . Torrens pleads guilty, gavin is tried. (a) Is the statement inculpatory? (i) Yes: (ii) Against interest would be: Weed belongs to me, I wanted to get rich quick. Thats what happened. (iii) Nuetral: Doesnt belong to gavin, he had nothing to do with it. **Heightened reliability (iv) Self Serving: Its his weed. (didnt happen)/ and need are the factors (b) Gavins Lawyer: to always be considered (i) Should be admissible because it makes Torrens look worse, with hearsay** (ii) not trying to curry favor. (iii) Not shifting blame, actually maximizing his guilt. (c) But then again, when he starts talking about others it doesnt count. (i) He gave up some leverage, but eliminated possibility of conspiracy on top of other charge. (d) May still be against interest and can be admitted. (i) Some courts say its admissible when it would strengthen or bolster liability. (4) Statement of Personal or Family History: 803(b)(4): (a) A statement concerning the declarants own birth, adoption, marriage, ancestry or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (b) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the others family as to be likely to have accurate information concerning the matter declared. (i) Rule of necessity. (5) Got moved. (6) Forfeiture by Wrongdoing: 804(b)(6): (a) A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. (i) Generally (a) This lets EVERYTHING in, reliable or not. (b) Idea is a person shouldnt benefit from their misconduct. (i) They should not benefit from making someone unavailable (ii) They forfeit their rights to the confrontation clause

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(a) We dont have to show that they knowingly relinquished their rights, this is a forfeiture where your conduct is the type that makes you lose it (b) You cant object on the confrontation clause and you cant object on hearsay (c) Even if the hearsay doesnt fit into any other hearsay exception, it doesnt matter, it is all in. (iii) Misconduct. (a) 104(a) question (i) Judge decides whether the party engaged in wrongdoing and got witness not to testify. (ii) Standard = preponderance of the evidence (Bourjaily). 30 (b) At hearing: (i) In Camera Review. (ii) Defendant doesnt get to be there. (iii) Defendants lawyer MIGHT be let in, but he cant tell D what went down. (iv) Does there Have to be Intent to cause witness not to testify? (a) Example: Tender years: molested child afraid to testify against perp. (b) Court Says: (i) Interpreting exception that way would strip an entire class of Ds of rights through confrontation caus. (c) There has to be an intent by D to cause the witness not to testify. (i) See People v. Moreno 128 S Ct. 678 & Companion case: Giles v. California. Page 82 of notes. (d) Another Example: Murder: (i) Guy on trial for murder, therefore statements of murdered GF should get in because he prevented her from testifying for wrongdoing. (ii) SCOTUS says no way. (b) California: (i) 1360: Exceptions for minor victim statements (ii) 1370, Statements describing physical injury or threat: (a) Requirements: (i) Purports to narrate describe or explain threat or physical injury. (ii) Made by wintess (iii) Made near the time of infliction (not present sense impression, Near = five years) (iv) Statement would indicate trustworthiness (THIS is the Key) (v) Made in writing, recorded, or made to nurse, etc. (b) Probably wont satisfy confrontation clause because there is no mention of cross examination. (iii) 1380: Elder abuse. 2. CATCHALL 807 a) A statement not specifically covered by rule 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the court determines (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any of the evidence which the proponent can procure through reasonable efforts; and (c) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with fair opportunity to prepare to meet it, the proponents intention to offer the statement and particulars of it, including the name and address of the declarant. (1) Elements:

(a) Not covered by any other exception. (i) Has to be reliable like other admissible hearsay. (b) Must pertain to a MATERIAL fact. (i) Meaningless because all evidence must be material. (c) Reliable. (i) How credible are the statements (ii) Who are the statements made by (d) Needed under the circumstances. (e) Interests of justice: (i) This one is strange. (ii) ALL evidence is in the interest of justice. (iii) Dont worry about. (f) Notice requirement. (2) Catchall is about reliability and need: (a) These are the only two things. (i) So look to the hearsay concerns: (a) Misstatement (b) Faulty Memory (c) Misperception (d) Distortion. (3) This is the last resort exception when you dont have another option (4) Used most in two kinds of cases: (a) Child Abuse: (i) Fed rules never adopted tender years exception. (ii) So they use catchall. (b) Grand Jury testimony offered by prosecution. (i) Grand jury process: (a) Participants: Prosecutor, Jurors, & Witnesses. (b) NOT defense. (ii) Grand jury testimony is never admissible under former testimony because it fails Crawford (person not subject to cross examination). (iii) Gets in because Reliable: (a) Person under oath. (b) Being examined (c) Recorded reporter. (iv) *** You only need this if the declarant (witness) is unavailable and not by wrongdoing of D. (v) Crawford: Means you cant get this testimony in unless there was some opportunity to cross examine. (5) Perrins question: (a) Should we really use catchall if the statement doesnt fit the other exceptions? (i) Might it mean the evidence isnt really up to snuff? (6) Some Heightened Reliability Factors: (a) Propensity of declarant to tell the truth. (b) Whether statement made under oath. (c) Assurance of personal knowledge (d) Time lapse between statement and event. (e) Motivations of declarant. (f) ADDITIONAL (i) Corroborating evidence (a) Note that SCOTUS has said this doesnt matter for credibility because you can reverse engineer statements from facts. (ii) Reaffirming or recanting statements of declarant.

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(iii) Credibility of reporting witnesses and their availability for cross. CASE: State v. Weaver: This is the case where the babysitter was on trial for injuring(shaken baby syndrome) a baby. Statements by mom to three friends at dinner saying she accidentally had baby hit head on glass table. CONTEXT: Three people came forward saying mom said baby fell and hit head. Should their testimony be admitted? FACTORS: Statement made several weeks after event. Declarant AVAILABLE, Statement made shortly after incident. Firsthand knowledge of declarant. Unambiguous and explicit. Response to open ended question, not result of interrogation or investigation. Similar account made to others on separate occasions, statement corroborated by extrinsic evidence. BUT Women say the affadavits are products of collective memory since they were taken two years later. But the mom told these women two weeks after the death of the child that she had hit her babies head when she was putting on its snowsuit. Could argue close to non-party admission, BUT she is available. They came forward WAY later (why, if they knew case was going on?). BUT didnt know weaver, and no motive to put friend in trouble. Court says let jury decide and weigh it. Court admits.

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3. HEARSAY ANALYSIS: a) Is it hearsay? (a) Definition comes first (i) out of court statement driven by notion of an assertion (a) typically conduct is not assertive, but it can be. Just do the analysis (ii) offered for the truth of the matter asserted (a) there are a number of categories of statement that are by definition not added for the truth of the matter asserted (i.e. impeachment, effect on the listener, verbal acts, verbal markers, circumstantial ev. of state of mind) b) Does it fit an exception? (1) Is it not hearsay? (a) 801(d) - Admissions doctrine along with all the other exceptions (2) If not, is declarant available? (a) 803 exceptions (b) Look to the contemporaneousness of the statement (3) If not, does it fit exception? (a) 804. (b) Have to show the declarant is unavailable (c) If they arent, then show why it should be allowed in c) If none of these, catchall. (a) 807. the residual exception our last pathway to get the statement in (2) Look at circumstances. J. CONFRONTATION CLAUSE: 1. Overview: a) In a criminal case: D has a right to confront the witnesses against him. b) No matter what, you have to go through the hearsay analysis to figure out whether it is admissible or not and then if it is a criminal case, you have to then (after all that) do the confrontation clause analysis (a) You always have to look at the confrontation clause (2) Constitution (6th Amendment) uses the word Accused. Only criminal defendants. c) Accused: (1) How to interpret? (a) One extreme: Only witnesses testifying in court. (i) This would mean only witnesses that appear. (ii) Wouldnt apply to hearsay if person not in court. (iii) No one has ever taken this view.

(b) Other extreme: (i) Any declarants statement made under any circumstances. (ii) Would exclude a ton of hearsay. (iii) Never taken this view either. (c) Middle road: (i) Some hearsay admissible despite hearsay concerns, some is not. 2. SCOTUS CASES: a) Ohio v. Roberts: First case 1980. (1) Two requirements to satisfy the confrontation clause: (a) Reliability (i) Hearsay has to be reliable. (a) Sufficient adequate indicia of reliability (ii) Admission through a firmly rooted exception: (a) Perrin says the court never defined this, but note in White v. Something or other says it is: (i) One that is in FRE: (ii) NOT the catchall (court says not firmly rooted) (iii) Not part of the against penal interests exception. (b) Need (i) Has to be a clear need for admission of hearsay. (ii) Unavailability of declarant. (a) Looked like this mattered until White v. Illinois: (i) Statements of child to doctor admitted under diagnosis and treatment. (ii) Court says if it comes in under firmly rooted exception (FRE) then you dont have to show unavailability. (2) So the court has collapsed Confrontation Clause into the Fed. R. Evid. (3) Scalia & Thomas dissent: (a) Says you should limit confrontation clause to testimonial statements by witnesses. (b) Majority dismisses that. b) Crawford v. Washington: SCALIAs REVENGE (a) The husband stabbed a man that he said was attempting to rape his wife. Her statements however were a little unclear and made it sound as if the victim was not did not actually have a weapon (she said that his hands were open). She doesnt testify at trial because she invokes the marital privilege. Can those statements come in? The possible hearsay exception for this would be the Against Interest exception. This statement comes in as hearsay and now the question is whether this violates the confrontation clause. (2) This case now governs. (a) Facts: (i) Crawford on trial for stabbing a guy. HE says the guy tried to rape his wife and he thought the guy was armed, so it was self-defense. (ii) Statement: (a) Wife says: Guy raised his empty hand, and Lee lifted hand over head to strike husbands hand down. (i) Wife is unavailable due to spousal privilege. (b) Statement was made at police station to the police. (i) Might fit the against interest exception. (b) Lower courts: (i) Wash TC: Admits. (ii) Ct. App. Excludes. (iii) Sup. Ct. Admits. (Says interlocking confession that is inherently reliable). (iv) All for different reasons.

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(c) Sir alter Raleighs case: (i) Cobham made written statement implicating Raleigh, Raleigh demanded to have him testify. By 1791, strongly recognized right to confront. (3) SCALIA SAYS: (a) Confrontation clauses rests on two assurances: (i) Directed against a civil law mode of interrogation (a) Ex parte examinations and statements. (ii) Guarantees an opportunity for CROSS EXAMINATION. (b) Testimony? (i) Page 367: An accuser who makes a formal statement to officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. (a) Word formal might come back to haunt him. (ii) Definitions: (a) Extrajudicial statements contained in formal testimonial materials including affidavits and depositions. (b) Prior testimony that defendant was NOT able to cross. (c) Similar statements that declarants would reasonably expect to be used prosecutorially. (i) This is the tough one. (c) Once something is testimonial: (i) You have to show the declarant is unavailable. (ii) Defendant had a prior opportunity to cross examine. (a) Mere opportunity is enough. Not doing so at the time is their fault. 3. Davis v. Washington: SCALIA again. Thomas Concurring and Dissenting. (1) Two Cases: (a) Both involve domestic violence. (b) DAVIS case: 911 call: Woman calls frantically saying that this guy is beating her up with his fists. (i) Hearsay category: Excited utterance. (ii) Calls during the violent episode, describes what is happening in the present tense. Then guy leaves, and operator pumps her for information. Cops get there and they are able to talk to her more. (iii) Scalia says that because these statements occurred during a 911 call they are not testimonial. If you have an ongoing emergency then the statements are not testimonial. (c) HAMMON v. INDIANA: Companion. (i) Cops arrive at the house for domestic violence call. (ii) Take woman aside, separate her from man. And take her statement on what happened. (iii) Says this one is testimonial because it is not happening during the actual event. (2) SCALIA SAYS: Testimonial: (a) Davis (i) not testimonial. (a) Ongoing emergency in this situation. (b) Guy still at the house causing problems as the operator is talking. (c) Turns testimonial once she starts asking other questions and the guy leaves. (b) Hammon: (i) Was testimonial (a) Emergency had dissipated when cops arrived. (b) Separated..

(c) RULE: A statement made during an ongoing emergency saying what is happening is not testimonial. (i) Scalia creates an exception to confrontation clause. (d) Emergency: (i) Look at the facts and circumstances from the DECLARANTs point of view. (a) What would they objectively understand and expect statement to be used for under the circumstances. (b) 911: Making statements because you need help, and describing as they are happening. (3) THOMAS SAYS: (a) Sees robbers resurrected. (b) Neither one fits in confrontation clause. Both statements are made by people in tough situations, dealing with the realities of the present situation. b) Michigan v. Bryant: NEW CASE: (1) FACTS: (a) Guy shot in the abdomen, drives his car to gas station, and lying on the ground when the cops arrive. (b) They gather statements from him about who shot him. (2) ISSUE: Was the conversation with the victim, six blocks from the scene, to figure out what happened in the past, or was it part of an ongoing argument? c) Melendez Diaz v. Massachusetts: 5-4 decision. In supp. 639 (1) Drug Case: (a) Chemist determined substance was coke. Prosecution wanted to use three certificates of analysis. (b) Under MA law prosecution was allowed to do this without having drafter testify. Is that okay under confrontation clause? (2) Are the testimonial? (a) 5-4 Court says that they are testimonial. Prepped with knowledge it will be used in prosecution. (i) D never had opportunity to cross. (ii) No showing of unavailability. d) Brisco v. Virginia: Where is this? (1) Court withdrew writ of cert and said it was improvidently granted. Sent it back to VA for further proceedings. 4. Current Analysis: a) First: Is the statement Testimonial? (1) Types: (a) Extrajudicial statements in affidavits or depositions. (b) Prior testimony that D couldnt cross. (c) Prior statements that declarants would reasonably expect to be used in prosecution. (2) If none of these: No right to confront, and admit if it fits an exception. (a) Example: Statement that is part of an ongoing emergency? (3) If it IS testimonial: Step two. b) Second two parter: (1) Is the declarant Unavailable. (2) Has the accused had an opportunity to cross examine declarant. 5. Notes & Stuff: a) Crawford now controls. (1) Roberts is out. (2) Cross examination is the key. (3) Cross examination = Confrontation. b) One exception: Dying Declarations. See note 6 on 36869.

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(1) Widely admissible in 1791. (2) Not ALWAYS testimonial, but sometimes they are. (3) Admissible because it always has been admissible. c) Examples: (1) Co-conspirators: (a) Statements made after arrest are testimonial (but would fail in furtherance part) (b) Statements in furtherance to undercover cop: Not testimonial. (2) Words of Threat to prove extortion, force or fear? (a) Non-hearsay purpose. Impact on listener. (b) Confrontation clause is designed to prevent substantive statements offered against Defendant. (c) Nonhearsay comes in just because of the fact that the statement was made, not for the truth. (d) Therefore no confrontation clause problem. (3) Forfeiture by misconduct/wrongdoing (a) Allegations like in people v. Moreno, where D has kept person from testifying at trial. (b) Right to confrontation is WAIVED by wrongdoing of that sort. d) Domestic Violence: (1) Often person forgives perp and wont testify. (2) But, under Davis, violates confrontation. (3) So states usually have a really early hearing to get testimony subject to cross on the record. (4) Huge societal interest in getting these cases prosecuted. e) Rexamining Sex Abuse Case: State v. Blake: 253 in book. 36 6. Problem 4-0 a) Where you have a child who told her mom who was abusing her but now cant remember (a) The prosecution has to at least put the girl on the stand and have her say that she doesnt remember what she told her mommy. (b) Medical records from the doctors visit are admissible 7. Child Witnesses a) One case does say that in fact specific cases, you can have the child testify in another room with closed circuit television so that the defendant in the courtroom can see. (a) If there is expert testimony that this particular witness will suffer harm if forced to testify in the presence of the defendant in certain circumstances. (b) This is typically limited to young minors and cases of abuse where the witness will have particularly difficult time handling it. (2) Hearsay: (a) Statement to babysitter that stepdad abused her? (i) Present sense impression. (ii) Not testimonial. (iii) No confrontation clause issue. Also she testified. (b) Statement to Doctor: (i) Diagnosis & Treatment exception, 803(4): 35 (ii) Testimonial? Probably not. (a) This is closer to the line than the first one. (b) Reasonable child might think this would be sued against her father. (c) Does she even realize she is creating evidence> (i) Age might matter here. (ii) Might also matter if there is a cop present. (d) If she testifies, no confrontation clause issue. b) Reexamining Bourjaily: 212 in book. 30 (1) Conspiracy charges: Co-conspirator Admissions (802(d)(2)(e)): 30 (a) Statements were by coconspirators:

(i) Leanoardo & UC agent setting up a buy. Refers to a friend who has a question about the drugs, quality, and sale. (ii) Then the agree to go to a parking lot to do the deal. Borjaily was the friend at parking lot. (b) Hearsay exception? (i) Coconspirator admission? (a) Or verbal act? Actually agreeing to advance conspiracy is a verbal act. (ii) But more likely 802(d)(2)(E) 30 (a) Conspiracy: extrinsic needed. (b) Pendancy : (c) In furtherance. (iii) Not testimonial: Statement about friend was not made with an eye to subsequent prosecution. Even though it was made to a cop. (2) NOTE: (a) 801(d)(2): Statements by Party Opponents are de-facto testimonial. (i) They dont think they will be used in court when made. (ii) Is that true? What about confessions or something like that? 8. ANALYSIS: HEARSAY & CONFRONTATION CLAUSE: a) Hearsay: (1) Nonhearsay? (2) Not Hearsay? (3) Exceptions: (a) Available or (b) Unavailable (4) Admissions against interst. (5) Catchall. (6) IF CIVIL: STOP b) Then: If criminal (1) Testimonial? (2) If so: (a) Is the person testifying at trial? (b) If unavailable, has the person had an opportunity to be cross examined? (i) Remember: Owens Test for Cross: Very low threshold. (a) Basically just need to show a chance to cross. (b) [LINK OWENS]

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VI. SOCIAL POLICY EXCLUSIONS: A. Overview: 1. These exclusions are based on social policy. a) Dont want to discourage people from takin actions that make things safer. b) Or penalize them if they do make things safe. 2. These exclusions are not based on evidentiary reasons. a) They are probably probative. b) Just purely social utility. B. Rule 407: 1. When after an injury or harm allegedly caused by an event, measures are taken that, if taken previously would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a products design, or a need for warnings or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. (a) If someone is arguing that an accident at a rail crossing because the railroad was improperly marked and you sue the county who says that they dont control the railroad crossing but then later the county puts up stop signs. That is good evidence that they do own the crossing. You cant use it to show that they were liable, but you can use it to show that they own the railroad crossing. (2) This rule is there to support safety and allow groups to make these changes after accidents happen and not be deterred from doing so because of liability b) Four exceptions within the rule: (1) Proving ownership. (2) Control (3) Feasibility of precautionary measures (if controverted) (4) Or impeachment. c) These four exceptions are constantly probed. (1) Two Approaches for Feasibility, for instance: (From Tuer) (a) Narrow: (i) Not allowed unless D has contended that the measures werent physically, technologically, or economically possible. (b) Broad: (i) Motives and explanations for not having adopted the remedial measures earlier. (a) Was not practical (b) Was not successful *assuming attempt) (c) Was not possible. (ii) There is an argument that this guts the rule, because impracticability is always built into feasibility, conceptually. (2) Impeachment: (a) Might have to say something directly: (i) Maybe product was as safe as they could possibly make it. (b) Has to be more than simple controversion, because it would swallow the rule. (c) They have to be able to defend themselves. d) Products liability: (1) Unique issues: (a) Fed rules make clear that it applies in products liability. (b) CA: Subsequent measures can get in for these cases. (i) Rationale: (a) Because your opening suits to previous customers by changing. (b) OR opening suits to FUTURE customers by not changing. (c) Argument is that they will make the change not matter what.

(i) Less likely that future suits would be an issue I you make the product safer. (c) See Note 2(a) 446: Pomenio v. Honda: Posner writing. (i) Says mass producer with exposure on either side would make change anyway, so not problem with applying rule to products liability. (d) Note 4: 448: (i) Plaintiff has accident in 2004 model car in 2008. Defective steering wheel was fixed in 2005. Rule says change must be subsequent to event. (ii) ISSUE: What does EVENT mean in the rule: the change? Or the accident at issue in suit? (a) Some say the event is date of manufacture. (b) Others say the event is date of the accident. (iii) Reasonable view is that it is referring to the injury producing event, because they have to know about it. (a) If change happens before accident in date of accident view, then it is a PRIOR remedial measure and it comes in. (b) That is one of the reasons there are reacalls. (c) Someone fails to heed the recall there is a defense. CASE: Tuer v. McDonald: Case where the doctors took the guy off blood thinners the day before surgery, and the surgery go pushed back. He had a heart attack and died in the interim. Doctors then changed their practice to not taking the thinners away until surgery starts. Plaintiff argues that she should be able to use that to prove FEASIBILITY. Plaintiff called one doc, and asked why he didnt leave on heaprin to minimize risk of uncontrolled bleeding. Dr. Said at the time they though restarting heparin would be unsafe. Plaintiff said that that put feasibility at issue. Court outlines approaches. Pick narrow: Says that doctor didnt say they couldnt do it, just didnt think it was wise. Recognizes that practicability is implicit in notion of feasibility, and that impracticable to give drugs that might kill if your goal is to save lives. EXAMPLE: Peephole case: Where person claimed they couldnt have peepholes because it would provide a false sense of secutiry. That one got in as controverting feasibility. Dr.s though, made judgment call that it was safer. Court ALSO SAYS: Cant take that one statement out of context. Have to look at all testimony. ANOTHER EXAMPLE: Sign on golf course: argument that more signs would create confusion, which the court lets in. Looks like the BROAD view. IMPEACHMENT at issue too. Doctor would have to have said it was unsafe to leave the guy on heparin, IN EVERY SITUATION, not ust under circumstancs. Simple contradiction is not enough. Would have to make broad, unqualified statement. Here he is just saying it was reasonable view at the tiem. .

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C. Rule 408: Settlements and Offers to Compromise: a) Prohibited Uses: Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction. (1) Furnishing or offering to promising to furnish or accepting or offering or promising to accet a valuable consideration in the compromising or attempting to compromise the claim. (2) Conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regular authority. (Excludes evidence unless the subsequent case it is to be used in is criminal, and negotiations were during the course of an investigation by state agency for enforcement.) b) Permitted uses: This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include

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proving a witnesss bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. (1) The main thing here: (a) Negotiations must be for settlement of an ACTUAL DISPUTE. (b) Between Parties. (i) Lawyers usually put SETTLEMENT DISCUSSIONS ONLY so that there is no dispute whether or not the information contained therein can be used against them. (ii) If one party to an accident settles and the others continue in their lawsuit, you cant use that one persons settlement in the suit with the others. (can only be brought in if you need to show that persons bias or credibility but then you will get a limiting instruction telling the jury only to use that information to weigh the credibility) (c) Collateral source rule when in insurance company or so provides some relief, the defendant doesnt get any reduction in the amount they have to pay because of that. (i.e. medical insurance covers the costs of medical expenses but you still sue the defendant, the defendant still has to pay all the costs despite the insurance company already having paid them. Although the insurance company has subrogation usually and will go and get the money themselves so the plaintiff doesnt get to double recover) (2) Problem 5(q) on 549: (a) Farmer is buying chemicals from salesman, who gets them from supplier (not employer). (i) Potatoes dont do well, so sales guy tells him to tell him what damages are and hell bill chemical maker. (ii) Farmer sues chemical maker. (iii) Was this an offer to settle? (a) No salesman was NOT a party. (b) Not settlement negotiations. (c) There isnt even a dispute yet. (3) Problem 5(q): Page 450: (a) Enforcement action by SEC against the owner of a company. (i) Indiana authorities prosecuting him. (a) Enters an agreement and pays fine, wont solicit investments in state. (ii) DOJ brings criminal prosecution for mail fraud. (a) Prosecutor wants transcript to get in. (b) Making use of 1.5 million of investments (personal use). (iii) Two Issues: (a) Can the settlement be offered as evidence? (b) Can his statements about the 1.5 million for his own purposes be offered? (b) 408(2): Excludes evidence unless the subsequent case it is to be used in is criminal, and negotiations were during the course of an investigation by state agency for enforcement. (i) EXCEPTION: Dont make any statements to agency if you may be prosecuted. (ii) But, it only admits conduct or statements at the negotiations, and not the fact that they happened. (iii) Fact that he settled, and the terms, are inadmissible. (c) Why? (i) Fact that he settled and the terms are not very probative. (ii) But what the person says is very probative. (d) What should you do? (i) When you are in these civil discussions, make sure you include that nothing you say in the settlement can be used against you in a criminal prosecution.

(4) Note 2 on 449: (a) Car accident with Mason & NEWell hit from behind by Oscar. (i) M & N sue. (ii) N settles while mason continues. (iii) M cannot bring in evidence that N settled. (a) Settlement dont admit liability, just buying a truce. (b) If O calls Newell, can Mason cross examine on settlement? (i) To show bias, yes. (5) BIAS: (a) Example: Michael Jackson Molestation case: (i) One 10-12 year old child testifying against Jackson. (ii) Also a civil abuse case against Jackson. (a) That settled for 20 M. (b) The Boy says he cant testify. (iii) Could be procuring unavailability. (iv) BUT civil confidentiality agreements are not enforceable against the government. B. 409 (Payment of Medical Expenses). (AFTER 410 in notes) 1. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. a) Scope: Protects only offers to pay. b) Does NOT reach admissions of fault: (1) Example: Apologies. (2) However, there is a movement by some courts to exclude apologies because they are supposedly therapeutic. 2. Cal evidence Code 1160 on Page 394 a) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of or in addition to, any of the above shall not be inadmissible pursuant to this section. b) For the purposes of this section: (1) Accident means . . . [what it sounds like] (2) Benevolent Gestures means: actions which convey a sense of compassion or commiseration emanating from humane impulses. (3) Family means . . . [just what youd think]. 3. CA trying to have it both ways: a) Apologies inadmissible, but not admissions of fault. (1) Im sorry, it was all my fault gets cut down to: It was all my fault (2) That might actually be worse. C. Rule 410: PLEA BARGAINING NEGOTIATIONS: 1. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: a) A plea of guilty which was later withdrawn b) A plea of nolo contendere c) Any statement made in the course of any proceedings under Rule 11 of FRCrP or comparable state procedure regarding either of the foregoing pleas; or d) Any statement made in the course of plea discussion with an attorney for the prosecuting authority which do not result in a plea of guilty or which results in a plea of guilty later withdrawn. However, Such a statement is admissible (i) in any proceeding wherein another statement made in the course of that same plea or plea discussions has been introduced and the statement ought in

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fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. e) One thing That IS ADMISSIBLE: (1) A plea of guilty that is not later withdrawn. (2) Negotiations leading up to a plea of guilty not later withdrawn. f) Civil side: (1) We want to encourage settlement so we exclude to get them talking. (2) Why the difference? (a) Civil cases, not admitting fault when you settle. (b) Guilty plea: you ARE admitting fault and GUILT. (i) Except in the case of an Alford plea, D has to actually admit guilt, and that he is responsible for the criminal offense. (3) Also: More at stake with criminal. (a) Cant walk away from a guilty plea & all its consequences. (b) One of those is potential civil liability. g) Scope: (1) Protects everything except negotiations that lead to guilty plea. (a) That includes unsuccessful negotiations. (b) Negitiations resulting in nolo plea. h) Problem 5-S: (1) Guy charged with counterfeit bills, and wanted to plea bargain. Prosecution not ready, at interrogation with DEA agents. Second Interrogation, guy read rights, lawyer says they want to bargain, and negotiates with the DEA agents (no prosecutor is present). Buy basically confesses, and negotiations break down, government wants to bring that it. (a) Government argument: (i) Negotiations between attorney and prosecution authority: No Prosecutor present. (a) But prosecutor has power to delegate authority to the officers. (b) TEST: Whether D had a reasonable belief that plea bargaining was happening, and that the agents had the authority to bargain. (i) There has to be someone there representing the government with the capacity to make decisions. (ii) Courts say: Has to be viewed subjectively and objectively (a) Subjective belief that they were bargaining. (b) And that belief must be objectively reasonable. (c) Here: (i) Subjective belief. (a) Probably has this. (ii) Objective? (a) Government arguments? (i) Prosecution said he was ready, and hasnt said that she is. (ii) The guy was read rights, means they expected to take a confession. (b) Defense: (i) Reasonableness: Said at the meeting that they wanted to do a plea bargaining. (ii) Agents didnt say no, or try to redirect conversation. (iii) Takeaway: (a) If you want to plea bargain: Make it VERY clear what you are doing. i) Problem 5(s): (1) Raid on meth lab & four arrested.

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(a) Bill & Wife Ann: Roberts and & GF Stahl. (b) The men tell prosecutors they want to get the women out of this because they had nothing to do with it. omen are released, and government wants to bring that statement in to use at trial. (2) 410(4) Governs: Is it part of a discussion for a plea bargain or is it something else? (a) Does the rule reach bargaining on behalf of someone else? (b) Perrin thinks it does not. (i) Can look at it as a deal, of a sort, if the authorities released the women, the other two would talk, and if so, then that ought to be admissible. (ii) They were not bargaining for themselves, they were bargaining for the women so they dont get the benefit of it. j) Last Paragraph of 410: (1) Reaches two things: (a) Situations where D brings another statement in from negotiations, and the statement ought to be considered with the other, in fairness.. (i) Completeness: Context, Meaning. (b) Admissible in a proceeding for perjury or false statement if the statement was made by D under oath, on the record, and in the presence of counsel. (2) CANNOT BE USED FOR IMPEACHMENT (a) Defendant Plea bargaining and makes certain representations. He takes the stand at trial, after negotiations fail, and testifies. (i) D admits at negotiations he sold cocaine. (ii) On stand: Says he never did. (a) Can you bring it in? (iii) NO, only for prosecution for false statement or perjury. k) So what can you do as a prosecutor? (1) These rights are waivable: (a) So at the beginning of negotiations you make them sign a document saying that you can use these to impeach. (2) Can you waive these rights to exclude on the merits? (a) U.S. v. Birch (didnt get cert) these waivers were upheld. (b) This does discourage plea bargaining. (c) Strong argument against this, but well see if SCOTUS Resolves it. (3) Difference between the two: (a) Merits: use statement as proof of guilt. (i) Can bring in without D taking the stand. (b) Impeachment: use to attack credibility only. (i) Can only use if D testifies. D. Rule 411: 1. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, control, or bias or prejudice of a witness. a) Liability ins. is inadmissible to prove fault or negligent/wrongful conduct. (1) I still dont see how this is relevant. Everyone buys that shit. b) Applies both ways: (1) Allegations of contribution on part of Defendant. (2) This is more sensible. c) Concern is that jurors will change the standard they apply if they find out an insurer is paying, or going to get paid. d) Raise it on a motion in limine. e) All jurisdictions exclude mentions of liability insurance.

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IV. CHARACTER EVIDENCE: A. Overview: 1. Forbidden Propensity Inference: a) Look for this wherever there is a Character evidence question. b) Because the person has propensity to commit this type of crime, he committed it on this specific instance. c) D is a thief (he has stolen in the past), therefore, he stole THIS time. (1) Allows: opinions that a person has character for thievery. (2) Reputation that D has a character for thievery. (3) BUT NOT Forbidden inference. 2. Character evidence is an attempt to predict a persons behavior by looking at past behavior or proclivities. a) Certain people have certain inclinations and traits that are often useful in predicting how they will behave in certain circumstances. (1) Remember babysitter & references example. b) BUT the FRE are concerned with the adversary system and trying to decide what happened. (1) Focused on conduct in SPECIFIC INSTANCES. (2) Punish people for conduct in those instances. 3. Main Risk: a) That the jury will punish a person for prior acts, rather than the one in question in that case. b) Or that they will punish the person just for being a bad person. 4. Governed by Rules 404 & 405, mainly, and it is a Mess. B. Rule 404: 1. Character evidence generally: a) Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of the accused: In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution. (2) Character of the Alleged Victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. (3) Evidence of the character of a witness, as provided by Rules 607 [88], 608 [90, 97], and 609 [91]. [links 90] b) Other crimes wrongs or Acts: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution I a criminal case shall provide reasonable notice in advance of trial, or during trial, if the court excuses pretrial notice on good causes shown, of the general nature of any such evidence it intends to introduce. (Cross Ref: 72) 2. General Rule: a) Propensity Evidence is inadmissible. (1) Three exceptions: (a) Character evidence of themselves offered by D in a criminal case (i) Or by prosecution to rebut character evidence brought in by accused (a) So D has to open the door.

(i) The broader the character evidence offered by the defendant, the wider the door is open for the prosecution (i.e. if D says that they are a good law-abiding person, you can then bring in evidence of a speeding ticket, jaywalking, etc.) (b) Character of the alleged victim offered by D in a criminal case (i) Or by the prosecution to rebut the same (ii) Must be pertinent (c) Character of a witness if offered by the defendant. (2) Why not let it all in? (a) Because it just seems unfair to let prosecution show he committed crime, AND that he is fundamentally bad. b) Problems 5(A) & (B) (1) Bar fight: Where one guy (D) breaks glass over others head (V). (a) Evidence: (i) PROSECUTION: Coach will testify that D is mean and aggressive. (a) Wont come in. Not offered by accused. (b) RELEVANCE: lets look at inferences: (i) Evidence in past D has acted violent. (ii) Likely to engage in that in the future. (iii) Therefore, more likely he did this time. (iv) More likely that was before that he struck V. (v) So relevant. (c) However: Propensity inference is a forbidden inference. Propensity evidence is therefore not good. (ii) DEFENDANT: Calls reverend Graham who will say that D is peaceful, and wouldnt initiate violence. (a) Fits exception because D bringing it. (b) Relevant, because tends to prove he didnt initiate the fight. (c) Pertinent: just has to relate to charges. Like relevancy. (i) Says non violent, with violent charges, okay. (ii) Says never heard anything bad about him probably not pertinent. (iii) BUT if D brings in the above, Prosecution can bring Coach to rebut that evidence. (a) Rebuttal: (i) Note that the broader character evidence is, the broader rebuttal can be. (b) Example: (i) If testimony limited to violence, then can only testify to violent reputation. (ii) If testimony is that he is a good person, then can testify to anything anyone has to say that is bad about D. (2) Problem 5(B) (a) Same facts: (i) DEFENDANT wants to call Ernie to testify that V is belligerent, fight picking person. (a) Victims character, not D. (b) Relevant? Yes for the same reasons as Ds. More likely V is first aggressor. (c) Governed by 404(a)(2): (i) Pertinent trait of character of the alleged victim, offered by the accused. (d) Evidence of character of V is totally admissible. (e) Again, though, D has to start it: (i) Prosecution can admit evidence of Vs character to rebut Ds evidence.

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(f) Prosecution can bring in evidence of peacefulness in a homicide case to rebut evidence that V was first aggressor. (i) So not character, but if D alleges self defense. (ii) Only in murder cases. (iii) Only evidence of peacefulness of V. 3. Methods of Proving Character (Rule 405): (1) Reputation evidence (common law permitted this only) (2) Opinion evidence. (3) Specific instances of conduct allowed only on cross (a) The only purpose for these questions is to attack the testimony of the character witness- not to prove the truth about them. These are to impeach! b) Opinion Evidence: Problem 5(c) (1) Same facts: D is a fight picking individual with a short fuse: (a) That is opinion. (2) Opinion requirements: (a) Must be based on the witnesss personal knowledge. (i) Can be offered based on his perception. (3) Foundation: (a) Show that witness knows the person. (b) That he has known person long enough to form an opinion, (i) under what circumstances, (ii) opportunity to observe in conflict situations, (iii) see him react violently in conflict situations. (c) Not specific instances. c) Reputation: (1) Person is known in the community as a violent person. (a) Used to be probably the best evidence and most reliable. (i) Because everyone knew everyone else in small communities of the past. (ii) Now, not so much. Now its the least reliable 4. Recap a) 404(a) 1: (1) Allows D to bring in character evidence on his own. (2) Allows Prosecution to bring in that character evidence only if D brings it in. b) 404(a)(2): D can also bring in character evidence about Victims character. 5. Two ways to use character evidence: a) Character evidence that relates to the merits, to help prove guilt or innocence: (1) (a)(1) and (a)(2) deal with that. b) Or for impeachment purposes: (1) This just pertains to the credibility of the witness. (2) 60709. C. Rule 405: How can one introduce Character evidence: 1. Text: (a) only. 71 a) Reputation or Opinion: in all cases which evidence of character or a trait of character of a person is admissible; proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. Cross Ref: (1) 404 & 405 go together. (a) 404(a) tells you when character evidence is admissible, and by whom. (b) 405(a) tells you HOW you can get character evidence before the jury. b) So why do we get it in? & how? (1) First: (a) Specific Instances of conduct are not allowed (on direct). (i) They are particularly compelling & persuasive, jury will give undue weight.

(ii) Also, it is inefficient, because you wind up arguing over those instances rather than the one that gave rise to the trial. (b) Reputation & Opinion are allowed only. (i) Why? (a) Because we want D to be able to defend himself. (b) But also because this evidence is relevant, reputation and opinion allow for the collective experience of the community and the individual to be summed up. (2) Frame the questions as Reputation or opinion testimony. (a) Foundations: (i) Reputation: (a) Requires personal knowledge of Witness, of the reputation of D in the community. (b) Has to be an identifiable community that D is a part of. Ex: Pepperdine Law School. (ii) Opinion: (a) Witness must have personal knowledge through his own experiences with D. (b) Foundation will include specific events, thus it is usually demonstrated outside the hearing of the jury. (3) Scope: (a) Reputation, etc. is not barred if they are used for a non-character purpose, such as for the basis for a reasonable belief that force was necessary for self-defense. (i) That goes to state of mind of D, substantive law of self-defense and whether that state of mind was reasonable. (ii) Explanation for how D acted. (iii) That is different than saying that because a person is violent he started the fight. (a) Saying that because a person is violent, D had a reasonable belief he was going to have to defend himself. (iv) Note 2(b) on page 408: (a) Vince & Don again: D claims behavior of hitting V with glass was reasonable because vince is a violent person, and he thought he had to defend himself. c) Cross Examination & Rebuttal of Character witnesses/evidence: (1) Problem 5-D on 409 is an example. Page 105 of notes. (a) Defense calls a witness to testify to character. (i) Prosecution has two options: (a) Call own character witness to rebut the testimony. (b) OR cross examine the character witness and challenge the character witnesses testimony. (b) In cross examination, under 405(a) you can use specific instances of conduct to impeach the witness. (i) BUT because credibility of the witness is a collateral matter, you have to take the witnesss answer. (a) Cant prove collateral matters with extrinsic evidence. (ii) Thus if Witness says D is nonviolent, you can ask if he knew about the time that D hit his wife (in problem). (iii) In any case, the jury hears the question, and no truly satisfactory answer can be given. (a) No, I didnt know about that says that he doesnt know D as well as he claims. (b) And Yes, I did, suggests that he is not a good judge of character.

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(iv) Also, lawyer can ask about any specific instances where he has a good faith basis to belief it occurred. (a) Would a reasonable person think the incident occurred based on the info they have? (b) The basis itself doesnt have to be admissible. (Check note 3(c) on 411) (c) However, the specific instances of conduct must specifically rebut the testimony on direct. (i) Thus, acts of violence can rebut he is nonviolent or peaceable (ii) BUT embezzlement cannot rebut that. Because it is not violent. (iii) From Notes: What about fact that he was arrested for being in a brawl? (a) Presumption of innocence come into play here, meaning the fact of the ARREST is worthless as evidence. (b) But if used to show that if the witness didnt know about it, he lacked sufficient knowledge of Ds life to give good testimony. (i) Getting arrested is a big deal. (d) Jury cannot use this to decide the merits of the case. (i) ONLY permissible to use to assess the credibility of the witness and his testimony. (e) REDIRECT: (i) If specific instances are brought out on cross, you can bring out specific instances on redirect. (ii) But not very helpful because we expect people to behave well. Counts for less than one instance of behaving badly. d) Traditional Forms of Questions for specific instances: (1) Reputation: (a) Have you heard about the time... (2) Opinion, (a) Did you know about the time... D. Civil Cases: 1. 404(a)(1) & (2) apply only to Criminal Cases: a) (a) says: Evidence of a persons character is not admissible except: (1) Both (1) & (2) start with In a criminal case b) Thus, Character evidence is NEVER admissible in civil cases for propensity purposes. At least federally. c) Some states follow Perrin v. Anderson Approach: (1) If a suit is quasi criminal in nature, 404(a) applies. (2) In Perrin v. Anderson, the evidence in a 1983 wrongful death suit was offered by defense to show that the deceased reacted violently when dealing with cops in the past, thus showing they shot in self defense. The guy had a long rap sheet, where he had acted violently towards cops many times. Judge said the above rule, but this didnt fit because it was specific instances in the rap sheet. Not opinion or reputation. They eventually let it in as a habit because he did it like every time he ever dealt with the cops. E. Sex Crime Rules: 1. Rule 412: Rape shield rules. a) Evidence Generally Inadmissible: The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c). (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victims sexual predisposition. b) Exceptions: (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules.

c)

d)

e) f)

(a) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than accused was the source of semen, injury, or other physical evidence. (b) Evidence of specific Instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (c) Evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim. Rationale: (1) These rules are meant to prevent rape trials from turning into a trial of the victim. (a) Dragging out all of her past, very public, very embarrassing. (b) Its an attempt to strike the right balance, encouraging reporting. (c) If it was placed in 402: It would go to character of the victim 404(a)(2). 412(a) (1) Basically changes operation of that exception (404(a)(2))to the propensity bar. (a) Says you cant offer evidence to prove alleged victim engaged in other conduct. (i) No specific instances, in translation. (b) Also says you cant bring in evidence of the victims sexual predisposition: (i) Thats opinion and reputation, essentially. 412(b) hold the exceptions: (1) Criminal (2) Civil. Criminal Exceptions: (1) Problem 5-K: (a) V claims D raped her. She had bruises I guess. (i) D wants to offer Three types of evidence to show consent. (a) Past relationship between Defendant and V. (yes) (b) And testimony of two friends: (i) One that V as sexually active. (no) (ii) Second that the WITNESS had sex with her that night. (yes bc the bruises and semen could be from him instead) (b) Past relationship between D and V: (i) Would get in under (b)(1)(B): evidence of past relationship between V and accused. (c) W(1) will testify that she is sexually active and known as an easy mark.; (i) Question: is this even relevant to consent? (a) Debate here: (i) Can say it is more likely that she consented this time, if she consents many times. (ii) Others say it is not relevant to whether V consented in that circumstance. (iii) The argument is that each new encounter stands alone. (ii) In any case, this is specifically excluded by the rule. (d) W2: Testimony that he and Leslie had sex that night. (i) If it gets in, it is in under 412(b)(1)(a),. (a) (b)(1)(A) is can be used to prove identity. Drafters probably contemplated that use.

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(b) BUT evidence of injury, etc. Might be able to rebut that it was caused by forced intercourse. Maybe it happened when the other guy was having sex with her. (2) Final Criminal Exception: 412(b)(1)(C). (a) Evidence that the exclusion of which would violate constitution would get in. (i) Common Hypo: Attempted Rape: (a) For attempt crimes you have to intend to commit the offense, and fail. (i) Specific intent crime. (b) If D is told that V wants to have sex, and that she will say no, but she really means yes. D attempts to have sex with her, but doesnt. (c) He didnt have the specific intent to rape. (d) He should be allowed to introduce evidence that he did not have the specific intent to rape. (this is based on a past sexual encounter she had with someone else) (i) You cant preclude this type of exculpatory evidence because it specifically directs itself to the defendants intent (ii) By the plain language of 413 this would be excluded, but might be constitutional issue, because D has the right to introduce exculpatory evidence. (3) Finally, what if victim falsely claimed rape in the past? (a) Goes to credibility of the victim and should be admitted. (i) Not to prove past sexual conduct, but to attack credibility. g) Rule 412(b)(2) Civil Cases: (1) Rule of exclusion: (a) Default position is exclusion of character evidence of V. (b) The rule outlines two exceptions: (i) For evidence proving the sexual behavior or predisposition of the alleged victim: (a) The probative value must substantially outweigh: (i) The danger of harm to any victim (ii) The danger of unfair prejudice to any party. (b) The rules outline a reverse 403 balancing test. (c) This applies to specific instances (sexual behavior) or predisposition (ii) Evidence of reputation is admissible only if placed in controversy by the victim. (2) Examples: Problem 5-K: Page 42829: (a) Sexual Harassment Suit: Four pieces of evidence: (i) That V sometimes works as exotic dancer on weekends. (ii) That V sometimes shows up in a short skirt and tight blouse, but changes before going to the line. (iii) That V told a suggestive story on the line. (iv) That V made suggestive remarks to two male employees on the line. (b) First: Miniskirt & Blouse (i) Sexually suggestive dress is excluded by Rule 412.. (a) Probative? Not really... (i) Conduct outside work and dress outside work doesnt matter. (ii) Im not sure that dress AT work matters. (c) Second: Suggestive story and Remarks? (i) Probative: Substantive law has two pronged approach to harassment: (a) V must be subjectively offended by conduct. (b) Conduct must be offensive to reasonable person. (c) Probative value is high because it suggests she is not offended. (ii) Harm to V? (a) Probably not much

(iii) Unfair Prejudice? (a) What chance is there for the jury to use this improperly? Hardly any, because they would use it to determine whether she actually found such remarks offensive, and thats what we want them to use it for. So the unfair prejudice is low. (iv) Probably Admit. (d) Third: Works as a stripper? (i) Probative? (a) Yes, fairly probative, suggests she has a high tolerance for sexually explicit talk/actions. Not as sensitive. But thats only at her stripper job, doesnt say antying about how she wants to be viewed at factory. (ii) Prejudice? (a) Jry might assume that she welcomed conduct as a stripper, so it was okay at the other job. Might treat her differently after categorizing her as a stripper. (b) Might not separate out that its a different forum than the one they should be evaluating. (iii) Probably exclude this. (3) Notice In civil cases the court has much more discretion. F. Rape Rules: 413, 414, 415: 1. 413 a) In a criminal case in which the defendant is accused of an offense of sexual assault [child molestation 414], evidence of the defendants commission of another offense of sexual assault [child molestation 414] is admissible, and may be considered for its bearing on any matter to which it is relevant. (1) B requires notice, and the rest is definitions. (a) B says: if the government tends to offer evidence under the rule, then the government attorney must disclose the evidence to D, along with statements of witnesses or a summary of the substance of any testimony to be offered at least fifteen days before the scheduled date of trial, or later if the court allows for good cause. (2) Prosecution can go first and bring this up without the D opening the door (different from 404) (3) Prosecution can say, he was a rapist then, he is a rapist now. b) This rule says evidence of another separate offense is admissible to prove the offense on trial. (1) What is a separate offense? (a) ANY alleged past misconduct. (i) Conviction is not required. (a) William Kennedy Smith case: (i) On trial for rape, three women came forward saying he did the same thing to them. (ii) The judge excluded that and he was acquitted. c) Compare to 412: (1) 412 came through the advisory committee. (a) Said that evidence is admissible if it fits the other rules for admissibility. (b) 413 doesnt say that. It just says it is admissible. d) IS ADMSSIBILE interpretation: (1) Every court says that these rules are subject to 403. (a) Drafting senators thought 403 would apply. (2) The RAC Hated this rule. (a) Fed. government doesnt do many rape prosecutions. (b) The idea was to have this be a model for states. (c) Few have followed it.

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2. CA Corrollaries: a) 1108 & 1109: (1) 1108: References the probative v. Prejudice rules (rule 352). Page 381 of Supp. (a) In a criminal action in which a defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by 1101 if the evidence is not inadmissible pursuant to 352. (2) 1109: Allows domestic violence evidence in. Page 382 of Supp. (a) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by 1101 if the evidence is not inadmissible pursuant to section 352. (i) (e) acts occurring 10 years before the charged offense is inadmissible, unless in the interest of justice. (ii) (f) evidence of findings and determinations of administrative agencies regulating the conduct of health facilittes licensed under 1250 of the health and safety code is inadmissible. (b) 1109: Product of the OJ Simpson case where domestic violence was excluded. 3. Key to 413 & CA analogs: a) Can use past conduct, as a prosecutor, to prove specific instances of conduct. (1) D did it before, therefore he is a wifebeater, and should we really be surprised that he killed his ex wife? 4. Key differences with 404 scheme: a) Prosecution can go FIRST, and put Ds character at issue. b) Second, prosecution can use specific instances of conduct. (1) Totally forbidden under 404. c) Standard under 104(a) & (b)? (1) Its a 104(b) question: Jury decides what weight to give it. Judge just lets it in. (2) Whereas character is 104(a) question, generally? d) 403 is the only protection for these rules. G. 413 in Action: 1. Problem 5-L: a) Craig Allegedly rapes Karen. They leave party or something on military base and go out to field, he gets too forward and wont stop. Prosecution wants to bring in testimony from Ex GF: LAURA that they came back from a move and Craig tired to assault her. Second piece of evidence is a prior conviction for Assaulting N, the 13 year old daughter of a woman Craig was living with at the time. (1) 413: Should judge admit: (a) Lauras testimony of the prior sexual assault. (i) 104(b) (a) Witness says it happened, and that alone is enough to get a fact issue to arise, for 104(b) purposes. Jury decides. (ii) 403 Analysis: (a) VERY probative: Same type of assault, same MO. (i) Hes violated the social norm before. (b) Unfair prejudice: (i) Jury may infer that since he did it once, he did it this time. BUT thats what the rule tells you you are allowed to do, so not unfair prejudice. (ii) ALSO might try to punish him for his past offense against Laura, rather than the one against Karen. (c) SO prejudice is potentially high, but probative also high, so not substantially outweighed. Would get int. (b) N incident?

(i) Fact issue, so its basically satisfies 104. (ii) 403: (a) Probative? (i) Probative, because there is a conviction. (ii) BUT less probative because its older than the Laura incident, and its a different situation. A little less similar. (b) Prejudice? (i) Greater than the Laura story, because of the conviction, AND the fact that it was an underage child, so EXTREMELY HIGH. (ii) Also: Guy only served one year, jury might really want to punish him more. (iii) ALSO: NOW we have TWO past instances. In a sense, the probative value doesnt increase that much, since we already have one instance. (c) Judge might conclude that they should admit Lauras testimony, but exclude the Kid testimony. (i) Judges like to split the baby, (ii) BUT if the judge DID allow it, he probably wouldnt get reversed. (c) One of the issues with anything admissible/inadmissible for 403 purposes: (i) Highly deferential review. (ii) Anything in the middle zone, like Ns testimony above, would probably nto be reversed, whatever the decision. b) Rule 414 (1) In a criminal case in which the defendant is accused of the offense of child molestation, evidence of the defendants commission of another offense or offenses of child molestation is inadmissible, and may be considered for its bearing on any matter to which it is relevant. (a) This is identical to 413. Same rules apply, just substitute the offense. c) Rule 415 (1) In a civil case in which a claim for damages or other relief is predicated on a partys alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that partys commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in rule 413 and rule 414 of these rules (a) This allows evidence of past conduct in for civil cases, if the action is based on conduct that would fall under the criminal categories covered by 413 and 414. 2. A few final Words: a) SHOULD we have rules like this? (1) Seems kind of unfair to single out specific classes of offenders. (2) BUT sexual misconduct crimes are really hard to prove. (3) Difficulty of proof is a real problem in light of the seriousness of the offenses. (4) Recidivism concerns too: (a) What is the likelyhood that offenders will repeat? b) REMEMBER for these offenses: The ONLY possible way to exclude is 403 balancing. (1) Example: (a) If the alleged offense was long ago: 30 years, say. (b) Exclusion is really rare, and things let in are pretty much always affirmed on appeal (c) One CA case reversed. H. Two other uses for 405: 1. 405(b): Cross Ref: 64 a) In cases in which character or a trait of character of a person is an essential element of the charge, claim, or defense, proof may also be made of specific instances of that persons conduct.

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(1) Offenses in which a trait of character is an element is very rare. (a) Old chief comes the closest: Felon in possession of a firearm. (i) Status is criminal element. Have to prove that person is a felon. (b) Seduction is the example cited in a book: (i) Seduction of a CHASTE WOMAN: (ii) So you have to prove the chastity of the woman. (c) Another example: (i) Repeat offender statutes. (a) Most of the time this doesnt come up until sentencing, but it might conceivably by an element in some statute. (2) Defense of Entrapment: (a) By raising this defense, Defendant is saying that he wouldnt have done something like this if the government didnt create the circumstances. (i) Character is an essential element. (ii) Puts character at issue just by raising the defense. b) 405 allows reputation, opinion, and specific instances of conduct. c) This is different than propensity character evidence (1) Propensity is offered to allow an inference to be made by the jury that because of their past behavior, they are more likely to have committed this offense this time 2. 405 in civil cases: a) Uncommon: Reputation has to be at issue. b) Page 41415 in the text gives the Four most common situations: (1) Defamation: (a) Reputation is what has been hurt. (b) When defense of truth is raised, reputation is at issue. (i) For instance, if D called P a liar, and P sues, then D can raise defense of truth and try to prove P a liar. (ii) Thats reputation. (iii) Statement: Might be that D said P lied in a specific instance. Not reputational, just fact. (2) Negligent Entrustment: (a) Principle has trusted something to someone who is not a trustworthy person. (i) Reputation of the trustee is at issue. (a) Whether D reasonably should have known that the person is not trustworthy. (ii) Past instances of driving misconduct that you should know or have known about. (iii) Usually involves cars. (a) Speeding tickets wouldnt get in, but if the claim is negligent entrustment, those CAN come in. (3) Child Custody: (a) Parental fitness of the parents at issue. (4) Wrongful Death: (a) Damages are calculated based on the worth of the life that was lost. (b) Reputation: (i) Was he a drinker or lazy? Making it unlikely he would hold a job? I. OTHER uses of Character Evidence: 1. Generally: Cant use propensity evidence or evidence of past conduct. a) BUT there are six exceptions: (1) The three in 404. (2) The three Rape ones. b) When past conduct IS admissible: (1) 404(b):

(a) Evidence of other crimes wrongs or acts is not admissible to prove the character of the person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. (i) Basically there are non-character reasons for admitting this evidence c) So: If D committed a theft in the past: (1) Cannot use it to show that D is a thief, (2) BUT you CAN use the it to show that D intended to commit a later theft. (a) Has to pass 403 analysis: Probative v. Substantial Prejudice. (3) The jury will just get a limiting instruction. 2. United States v. Huddelston: a) Four part test: (1) First: (a) Is the evidence offered for a proper purpose? (i) Anything that is not propensity inference driven is a proper purpose. (ii) See list in 404(b) (2) Second: (a) Whether the evidence is relevant for that purpose. (i) Does intent, plan, motive, etc. matter? (ii) Does the fact that D had a plan, or motive, make it more likely that D committed the act in question? (3) Third: (a) Does the Evidence Satisfy Rule 403? (b) Weigh the probative value against the danger of unfair prejudice (4) Fourth: (a) Can a limiting instruction ameliorate any prejudicial concerns? 3. Problems: a) 5-F: Rhoda Smith turns states evidence against her ex boyfriend and will testify tha he did a bunch of drug deals including selling hash and cocaine over an 18 month period. Boyfriend was arrested after arranging a deal with an undercover agent, however, he saw that money was dusted and called off the deal. He was arrested after he left, but they only found a small amount of cocaine on him. Not enough to get him for sale. HE Says he wasnt there to sell cocaine, just told the buyer that to try and scam him. (1) What is the best argument we can make under 404(B) to show nonpropensity? (a) First prong: Mueller and Kirkpatrick say INTENT: (i) Were trying to prove his intent to sell, by using his past activities of selling drugs. Thats one of the things he does, so its more likely he intended to sell drugs this time. (a) His argument is that he didnt intend to sell, only scam buyer. But the fact that he didnt scam the buyer in the past 18 months gives the lie to that. (ii) Why is this different from propensity? (a) Illusory distinction? (b) We stop short of the ultimate propensity inference in this case. (c) Using it to prove the intent of the defendant in this situation, and that is different from telling the jury that it can be used to prove that he committed the offense. (d) Maybe its because it only goes to one element of the crime, and not the whole crime. (b) So we go to 403:

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(i) Probative? (a) Highly probative. We know that he dealt drugs in the past without robbing people. How likely is it that this time was different. (ii) Prejudice? (a) Concern is that the jury is going to look at his course of conduct and wonder why this guy isnt in jail. Thus put him there without being convinced he committed the offense this time. (c) So wed probably admit. (i) BUT NOTICE that intent is an element of the crime, so its more probative. (ii) If it was not an element, it would change the 403 balance. It would not be as probative. (iii) Order of proof? (a) Can the prosecution can bring it up or do they have to wait until D does? (i) Judge can decide. (ii) Might be that if D brings it up it might be more probative. 4. Problem 5-G: a) Bank Robbery is the crime at issue. The evidence is that D committed eight prior robberies, by his own admission. He claims, however, he didnt commit this one. BUT these eight were similar: A guy came into the bank, running, all hunched over, valuted the counter, and had the teller put the money in a bag, then got away in stolen cars of contrasting colors. (1) Analysis: (a) Showing method or Modus Operandi: (i) There has to be a close resemblance between the crimes. (a) Similarity isnt necessarily enough, it has to be similarity in nonessentials, maybe. Example: Taking the money & putting it in a bag is not enough, but putting it in a mickey mouse bag might be. (b) DISTINCTIVE DETAILS are required for modus operandi. KEY (ii) This one is close to the line: (a) Were not saying he did it before, therefore its more likely he did it this time. (b) We are saying, he did this before, in a specific way, and he did it this time because it was done in the same way. (iii) In this case: None of the pieces alone line up, but taken together, it looks pretty distinct. (iv) Generally, we need some kind of marker that the person has a specific way of committing the crime. (a) Watch for copycats. 5. Reverse 404(b) Evidence: a) Generally, propensity evidence is inadmissible, but you can bring in other stuff when used for a nonpropensity purpose. b) Note 2 on 430: (1) D charged with murder, and he says it was something else. He wants to bring in evidence of third party who has been involved with other murders with remarkable similarity. (a) 404(b) would allow this. Defendant can use it too to show someone else did it, (b) OR to show the motive of a third party. (i) Like domestic violence between third party and his spouse. (2) Famous example: (a) Brides in the bath cases (1915): (i) D married a woman who inherited a trust fund, but he was married to another woman. He didnt divorce the first woman. Second woman made out joint wills, and then drowned wife in the bathtub.

(a) She had seen doctors on several occasions for seizures. And was found face up in the water. (ii) After: D married another woman, in another country, in another name. Took life insurance, she was found in the bathtub. (iii) Then ANOTHER woman, found in the bathtub. (iv) Prosecuted for the first wife, and Prosecution wants to bring in evidence that this was not bad luck: (v) D argues that he is the luckiest person alive, and that you cant let it in because the jury will overvalue the evidence. INCREDIBLY prejudicial to let in subsequent events. (b) Court says: (i) Could show a pattern or plan, which cuts against the defendants arguments that this is just coincidence. (ii) Its not a propensity argument, youre just showing that there is a patter, or coordination. (iii) Using it to rebut the defendants claim that it was a mistake or accident. (a) Less of a character argument and more statistical. (3) The Doctrine of Chances: (a) Amounts to a What are the odds argument. (b) Not a judgment about the defendants characters. c) Problem 5-H: (1) Corrupt judge is on trial, with 27 counts of accepting bribes and one rico count. (a) Rico requires a patter of two or more events of racketeering (violating federal and state laws) (i) Testimony will come from a witness, a clerk, who can tell us that during the time he worked there the judge received envelopes once per month for eight years. However, they cant tie those envelopes to particular cases or outcomes. (ii) Another witness, a prosecutor, can tell us he paid the judge on some occasions, but cannot give a specific case in which the judge accepted money. (b) The fact that RICO charges were brought opens the door to this evidence under 404(b): (i) The evidence comes in to establish a pattern, and not to show that they judge is the type that would take bribes. (c) The point is, Context really matters with 404(b): ALWAYS LOOK AT THE CIRCUMSTNACES. d) Problem 5-I: Child Abuse: (1) Child brought to the hospital by mom, with broken ribs, and unconscious, with head injuries, claims he fell down some stairs. (a) Prosecution wants to bring in evidence that the mom brought the kid in with broken bones and head injuries on a previous occasions. (b) Both times, she said there were accidents. (i) Mom claims accident: And ABSENCE of mistake or accident is one of the categories. (ii) Related to intent and doctrine of chances. (c) Question is: are two prior instances enough? (i) How close together were they? (a) Twice in one year? (i) Odds that a three year old would get those kind of injuries twice in one year are pretty low. (ii) Also, injuries were different. (ii) 403: (a) There is some probative value. (i) But unfair prejudice is really high.

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(ii) Jury might punish for poor parenting. (b) Probably within judges discretion. 6. 404(b) Analysis: a) Think: What is the defendant claiming: (1) If D claims someone else did it, intent wont help you. (a) BUT identity, or modus operandi, maybe opportunity. (2) BUT you have to look at 403 balancing too: (a) The further off you are from the core issue, the less probative the evidence will be. (b) Its easy to get a non-propensity purpose, but you have to get over the 403 hurdle. b) When applying the four part test under Huddleson remember: (1) First: Rules do not require a preliminary finding by the court that the government proved the prior act. (a) Judge instead makes a threshold decision as to whether the evidence is probative of a material issue other than character. (2) Second: (a) Prior acts raise questions of relevance condition on facts under 104(b), which the JURY decides based on the preponderance standard. (i) In this approach, proof of a prior crime is relevant if the jury can reasonably conclude, by a preponderance that the act occurred and the defendant was the actor. 7. SO we have three ways that propensity evidence gets in: a) They are: (1) The six exceptions (404a and Rape stuff) (2) 405(b) (3) 404(b). b) Specific instances are not permitted on direct, but they are permitted on cross for testin knowledge or the judgment of the character witness. . J. HABIT: 1. Rule 406: a) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. (1) Perrins Question: Do we even need this rule? (a) 402 says all evidence is relevant unless it is excluded (i) evidence is admissible, but there has always been a concern over character evidence v. habit evidence. (b) Looks like a matter of degree. (2) Habit is embraced, and highly reliable, and should get in front of a jury whenever possible. (a) Problem is, that its confusing. (b) BUT: Comes in to prove that on this occasion, the person acted in accordance with their habit. Is the same thing as propensity, by function. (3) Habit is more extreme though. b) Problem 5N: (1) Teals driving on highway 46, and have a collision with Kinneys car on an exit. It is foggy that morning. Teal sues for wrongful death, and expert can testify to the probable speed and conditions of the accident. We want to show that lance teal was not driving negligently, and have two witnesses that will testify that Teal was a good and careful driver. (a) Witnesses allowed? (i) NO

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d) e)

f)

(b) HABIT: is a reaction to a specific situation. Almost like a reflex. (i) What would make this habit? (a) Maybe that he always took the turn under the speed limit? (i) BUT for that you would need foundation evidence, that you were with him on several occasions and specifically noted that he drove under the speed limit. (ii) It would have to be many occasions, to establish a pattern. (b) There would have to be something in common with the present situation and the witnesses past experience: (i) Knew his habits in fog, or traffic. (c) The situation needs to be pretty specific. (c) Habit evidence means that it is basically a person doing the same thing every time he is confronted with a situation. Advisory Committee Notes: (1) Requirements (a) Have to have an adequate sample size. (b) Have to have a uniform response (not perfect, but has to be pretty close). (c) There cant be objective percentages, but has to be close enough. Admissibility is a question for the Judge under 104(a): by preponderance. Another example: (1) Evidence of drinking? (a) Can you bring in evidence that a guy has four DUIs in three years to show he was drunk this time? (i) Would have to have other circumstances. (ii) Maybe coming home from the same annual party. (iii) Or that he goes drinking every Thursday night at the same bar, then drives home along the route where he was found drunk. (iv) You could get it in as a prior conviction, or a pattern under 404(b), but its not really habit. (v) It looks highly probative (b) BUT probably cant get it in as habit, because drinking is considered very admissible. (2) Perrin v. Anderson again: (a) Where guy had on several occasions reacted violently to uniformed officers, that might be able to get in as habit. (3) Yet another example: Freon problem in book: (a) Guy heats freon a certain way, and one day it blows up. (b) Evidence that he does this the same way very often. (i) To be habit: (a) How many times did you see him do it, or did he have occasion to do it, (i) Adequacy of sample (b) How many of those times did he do it this way. (i) Frequency of response (c) Has to be a high degree of similarity between this time and the others. (i) i.e. putting on their seatbelt is a habit Organizations & Habit: (1) Routine practice of a company can be a habit. (a) You can just bring it in rather than calling a ton of witnesses. (i) Note 3 on 439: (a) This is the one where lawyer said he placed a letter on desk to be mailed, and that the person was in the habit of mailing whatever was on that desk. (b) Wanted to establish that the item was mailed.

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g) Analysis: (1) Do we have a habit? (a) Habit examples: (i) Buckling seatbelts. (ii) Driving home on a certain rout. (iii) Note: Volition stands opposed to reflexiveness. (a) IF you can do something without thought, and almost automatically, it is more likely to be habit. (b) Anything that takes a ore conscious effort, is less likely to be a habit. (b) Once you have a habit: (i) Look at the nature of the sample size (ii) Uniformity of the response.

(c) Rather than having every person who handled the letter testify, just establish that the mail that was put there always got mailed, and that it was part of the routine practice.

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V. TESTIMONIAL EVIDENCE: A. Who may testify? 1. Competency of witnesses: a) Sort of like authentication: (1) There is a foundation requirement is that the witness is shown to be competent. (2) Historically, lots of people couldnt testify. Most of this goes to the weight of the evidence not admissible. 2. Rule 601: General Rule of Competency: a) Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with state law. (1) Translation: (a) Every person is competent to be a witness: (i) There is a presumption of competency for a witness. (ii) Burden is on the objecting party to rebut the presumption. (a) This is a very low standard (b) The rest: Erie concerns: (i) When in a civil case, governed by state law, state competency law applies. b) Minimum requirements (check on this): (1) Rule 602: Personal Knowledge: Person must have sufficient memory to testify. (a) A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not consist of the witnesss own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. (ADD CROSS Reference) (2) Rule 603: Must understand the oath. (a) Before Testifying, every witness shall be required to declare that he witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness conscience and impress the witnesss mind with the duty to do so. (3) And be able to communicate his knowledge to the jury. c) Everyone is competent, unless they fit some sort of exception: (1) Examples: (a) The witness lacks personal knowledge: Rule 602. (b) Or didnt understand the oath: Rule 603. (c) Or he had not capacity to recall, or ability to tell the jury what he knows. d) The threshold for incompetency is extremely high: (1) Note 4 on page: XX (a) Witness competent after he consumes opium on the stand from an evidence bag. Twice. (b) So he was high. And cross examined about it, and the jury could sort it out. CASES: United States v. Lightly: Lightly was charged with assaulting his cell mates, and there are competing accounts of what happened. A Mr. Duffy was involved in the fight, but he was not prosecuted because he was found incompetent to stand trial and criminally insane at the time of the offense. Mr. Duffy would testify that the voices in his head told him to kill the cell mate, and that Lightly didnt do it. ISSUE: Does being deemed incompetent to stand trial mean his incompetent to be a witness? COURT SAYS: He should be allowed to testify. Prosecution has him examined by a doctor: Dr. says the guy has sufficient memory to testify, can understand the oath, and can communicate what he knows to the jury.

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United States v. Fowler: Fowler hadnt filed taxes in some years, and represented himself. He wanted to testify, but refused to take the traditional oath. HE only wanted to say I am a truthful man, or I will not lie to stay out of jail, Judge says you cant testify if you dont take the oath. Judge offers to let him testify if he says: I state that I will tell the truth in my testimony. Witness HAS TO SAY he will tell the truth, and impress the consequences of failure to do so on the witness, either hell or perjury. That is the purpose of so help me God in the oath, but if you want to say something else in that part, you can. 3. Children: a) Common law: Hard age limit. Any kids under a certain age cannot testify. (no longer applies) b) Federal Rules: (1) Case by case determination. (a) Inquiry based on the childs understanding: (i) Personal knowledge (ii) Understanding of the oath. (iii) Cognitive capacity. (2) Sometimes children as young as three or four years old. c) Process: (1) Judge conducts voi dire: (Applies to all witnesses, but with kids, special). (a) Bring them in to chambers, and talk to them, out of the robe. (b) Makes sure they understand truthfulness, and that lying is bad. d) States have different rules. (1) NY Has presumption of incompetence under a certain age. (a) Rebuttable? (2) CA allows leading questions to be asked to children under 10 on direct examination. CASE: Rickets v. Deleware: Child said she went to church; A lie is a thing that isnt true; It is bad to lie; and Promised to tell the truth. The lawyer got the kid to admit she didnt know what heaven was. Judge said that she is competent because she understood the nature of truth telling, and promised to do it. That is enough. Rock v. Arkansas: SCOTUS: Witness was hypnotized, it was also defendant. Rock was prosecuted for manslaughter, for killing her husband during an argument. She didnt remember at first what happened. So a doctor hypnotized her. The doctor was careful: Before hypnosis: Wrote down everything she knew. During hypnosis, doesnt remember anything new. BUT after, she remembered her finger wasnt on the trigger. An expert will testify that he tested the gun, and that it would go off if dropped. Testimony was to show that the shooting was an accident. The gun was tested after hypnosis apparently. ARKANSAS SUPREME COURT (LOWER COURT): Adopted per se rule of exclusion for any witness that undergoes hypnosis. You cannot bring anything after hypnosis occurred. SCOTUS: This bumps up against defendants right to present evidence on his own behalf. Because its Ds testimony, it gets heightened protection. COURT SAYS: Per se rule of exclusion is too much. Should have allowed for the possibility that it might be reliable in some cases. HYPNOSIS CONCERNS: Confabulation: to complete narrative, you fill in details, and you remember more than what actually happened under hypnosis. No way to tell whats fake, plus testimony hardens and you really believe it. (3) Hypnosis: Per se rule against is not okay, but serious concerns about it. (a) Concerns (i) Confabulation: Completing narrative by filling in details. (ii) Under hypnosis, people make stuff up, and no way to tell whats true, or not. (iii) Very suggestible,

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(iv) Memories harden. (b) Precautions: (i) Video tape it, to make sure it is not improperly suggestive. (ii) Use recognized hypnotic practices. (iii) Take testimony before and after to see what is new. (c) Scotus says you have to leave the possibility open. (4) CA Approach: 795: Page 317 Supp. (a) CA limits hypnosis testimony to matters that were recalled prior to hypnosis. (b) Three categories: (i) Criminal defendants are not covered by this section. (a) Because of Rock v. Arkansas. (ii) All other witnesses in criminal cases, including those called by defendants, are subject to the section. (a) Testimony limited to what they recalled prior to hypnosis. (i) Doesnt apply to defendants they have all the rights available to them through the Arkansas case (ii) Defendant can testify to stuff that they remembered through hypnosis (iii) All other witnesses are subject to 795 where they can only testify as to what they remembered before the hypnosis (b) Substance of prior testimony preserved in writing, video, tape, etc. (c) Hypnosis must follow these procedures: (i) Written record made documenting subjects description of the event, and information is provided ot hypnotist concerning the subject matter of hypnosis. (ii) Subject gave informed consent to the hypnosis. (iii) Hypnosis session, including pre and post interrogation, is recorded for subsequent review, (iv) And hypnosis performed by licensed medical doctor, psychologist, clinical social worker, licensed marriage or family therapist, experienced in use of hypnosis. (d) Prior to admission, court holds a hearing in which the proponent proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witnesss prehypnosis recollection unreliable or to substantially impair the ability to cross examine the witness concerning the witnesss prehypnosis recollection. (iii) Witnesses in Civil cases may not testify if they have been hypnotized, AT ALL. 4. Can Lawyers testify? a) Longstanding rule is that an advocate in a case cannot be a witness. (1) Why? (a) Awkward for a jury to separate the lawyer and witness. (b) Also awkward to argue your own credibility in a closing argument. (2) Once a lawyer knows he may has to testify, you have to withdraw. (3) ABA Model Rule 3.7 on page 477 of text: (a) A lawyer shall not act as an advocate at trial where he is likely to be a necessary witness except where: (i) The testimony relates to an uncontested issue. (a) When the issue is undisputed (ii) Testimony relates to the nature and value of legal services rendered in the case. (a) You can testify as to the attorneys fees (iii) Disqualification of the lawyer would work a substantial hardship on the client.

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(b) A Lawyer may act as an advocate in a trial in which another lawyer in the lawyers firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 and 1.9. (4) B is the big one here: (a) Attorney fees are the big ones here. (b) BUT it looks bad in front of a jury, because you just look greedy. (5) C is sort of a catchall. (6) (B) recognizes realities of law practice today, and focuses rules on individuals, rather than firms. 5. Rule 606: Juror Testimony: a) At the Trial: A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. b) Inquiry into validity of verdict or indictment: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jurys deliberation or to the effect of anything upon that or any other jurors mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the jurors metal processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurys attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A jurors affidavit or evidence of any statement by the juror may not be received on a matter about which the jury would be precluded from testifying. c) Context: (1) Can we call a juror to testify about the verdict after trial to impeach it? (a) No. (2) Tanner case: (a) The one where the jury was doing drugs and stuff during trial & deliberations. Couldnt testify about it. d) Jurors cannot testify at trial. (1) Common law, you used to be able to. (a) Jurors were actually selected for personal knowledge. (b) Now: We select jurors based on ignorance, so if we have a juror that can give testimony then we probably screwed up voi dire. e) Breakdown: (1) Part (a): Jury may not act as a witness at trial in which he is a juror. (2) Part B (a) Juror may not testify as to any matter or statement concerning jurys deliberations, or what influenced people. (b) Three exceptions: Jurors can testify as to whether (i) There was extraneous prejudicial information brought to the jurors attention. (ii) There was any outside influence brought to bear upon any juror. (iii) Whether there was a mistake in entering the verdict onto the form. f) Problems: (1) 6-B: Jurors considered defendants decision not to take the stand as evidence of guilt. Judge informs both counsel, and D files a motion for a new trial, and the juror that wrote the letter disclosing the misconduct offered to testify. Should it be allowed? (a) NO: There is no outside influence or extraneous information, and no error in entering the verdict on the form. (i) Rationale? (a) We dont want every verdict up for review for error. (b) Efficiency concerns. & Maybe we dont really want to know. (ii) Here all we really have is just jurors not following instructions.

(iii) Perrin: TX tells verdict what they shouldnt do. (a) Quotient verdict: Total up yea or nay, votes, the proportionately divide up the pot. (2) 6-C: Jurors misunderstood an instruction and returned a verdict of 890K, when it should have been 90K. D got an affidavit saying they screwed up from all 12 jurors. Should we allow testimony that they didnt understand the instruction? (a) NO: Mistake under (b)(3) means actual mistake in entering it on form, like you meant one thing but accidentally wrote another. (b) No outside influence or extraneous info either. (c) D cant argue juror misconduct, but can move for a judgment notwithstanding the trial (i) No reasonable trier of fact could come to that conclusion. (ii) Its against the great weight of the evidence. (iii) Court would reverse as a matter of law and grant a new trial. (3) 6-D:Car accident in this case. Two jurors do a little factfinding of their own after hours, visiting scene & then telling the jurors what they found. They return a verdict for the plaintiff, and D wants to get have them testify. Can he? (a) YES jurors can testify: Extraneous information was used. (i) What can they testify about: (a) What they did (b) Whether they told anyone about it (ii) They CANT testify about: (a) How it affected their decision as a jury. (iii) It is up to the court to determine whether the information had an effect. There is a presumption of an effect, but the judge has to determine whether it changes things about the verdict. (b) Examples: (i) Perrins case: Remington gun malfunction (a) Day two of voi dire, they asked how many went home and tested it out on their Remingtons. Lots did. They were excused. (ii) More common is internet research. (a) Google the parties or the case. (b) If a juror does so, you just hope it is caught. But they usually dont catch. (4) 6-E: D convicted of detonating explosive device, and juror is willing to testify that one juror informed the others that he was a demolitions expert and told the jurors the explosive would kill anyone in 20 feet of it, even though no one was killed. D found guilty. Can you use testimony? (a) Arguments for NOT allowing juror to testify? (i) Have to allow jurors to use their different life experiences. (ii) Should have caught it in voi dire. Is anyone a demolitions expert? (iii) Not extraneous prejudicial information. (b) Arguments for allowing the juror to testify? (i) It is outside the record. Sort of like google or accident scene. (ii) Expert beyond the common knowledge. (iii) No chance for cross, and (iv) Really prejudicial. (c) Perrin says 6-E can go either way. (i) Perrin had another case: (a) Juror was really aggressive, to the point where he threatened people if they didnt vote his way. (b) Can those jurors come in and testify? (i) Is it an extraneous or outside influence?

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(c) Criminal conduct is something they should be able to testify about, but what about the turner case? 6. Rule 605: Judges Testimony: (1) The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. (a) You dont even have to object. Its plain error. 7. What is required for testimony? a) Rule 602: 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. Evidence to prove personal knowledge may, but need not consist of the witnesss own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. (ADD CROSS Reference) (a) Sufficient to support a finding: (i) Means conditional relevance under 104(b): (a) Judge reviews the evidence to see if a reasonable juror could conclude that the witness has personal knowledge. (b) Jury ultimately decides if he does. (ii) BUT 104(a) says that qualifications of a witness to BE a witness is a matter for a judge: (a) Thats true, but within that, personal knowledge is a jury matter. (b) Thus all a person needs ot say is that he was there, or perceived it. (b) Problem 6-F should be done on your own. It is on page 485. B. Direct And Cross Examination: 1. Direct Examination: a) Rule 611: (1) Leading questions should not be used on direct examination of a witness except as may be necessary to develop the witnesss testimony. Ordinarily , leading questions should be permitted on cross examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. (a) Generally, you cant use leading questions. (i) Leading question: One that tells the witness what you want the answer to be. (a) Did you go anywhere yesterday? (b) You went to Joes house yesterday, didnt you? (b) Rationale: We want the witness to testify on direct, not the lawyer. (c) Exceptions: (i) Lots. (a) Developing information. (b) Transitions, (c) Background, etc. (ii) But generally, cant lead on questions on disputed material matters in the case, unless the witness needs help. (like a child, or mentally disabled person). b) Present Recollection Refreshed: (1) Overview: (a) Using something to help with witness recall something he already knew. (i) Just showing the witness something, or playing a sound or something, and witness remembers. (ii) The important thing, taking the paper away from witness when your done. (iii) They cant read it, just refresh their memory and testify. (b) Can use pretty much anything to refresh recollection. (i) You can even use other peoples reports: Baker v State (below). (c) Process:

(i) I have here X. (ii) Id like ot have it marked, (a) May I approach and show the witness... (i) Take it away. (ii) NOT evidence. Dont show it to the jury. (b) Then ask again. Do you remember now (c) And witness will tell you. (iii) Other side: (a) Has a right to see the document, and can use it to cross examine. (i) Can use it to prove the witness was coached by the document. (ii) Usually witness testifies not to what they remember, but only what they just remember reading. (iii) You can try to bring that out. (iv) Anything can come in. The only limit is the discretion of the judge. (2) Past recollection recorded or refresh recollection: Dont have to use it in any particular order. (a) You can use either, or one or the other. CASE: Baker v. State: MD Ct. App. Officer Bolton was on the stand and the lawyer wanted to refresh his memory with the report prepared by another officer. The trial judge says you can only refresh with his own report, but the court of appeals says you can use anything. Even a song, or a picture or something. Reason is because it is something he already knows, he just needs his memory jogged, and anything can do that. BUT judge has the discretion to control what is used. 2. Cross Examination: a) Leading is not only permitted, but advised. (1) Rule 611(c): (a) Leading questions should be permitted on cross examination. (i) Every question should be a statement you get the witness to agree with. (2) 611(b): (a) Cross examination should be limited to the subject matter of direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. b) Rule 612: (1) Writing used to refresh Memory: (a) Except as otherwise provided in criminal proceedings by section 3500 of title 18, U.S. Code, if a witness uses a writing to refresh memory for the purpose of testifying, either (i) While testifying, or (ii) Before testifying, if the court in its discretion determines it is necessary in the interests of justice, An adverse party is entitled to have the writing produced at the hearing to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in cameral, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to the order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to

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comply, the order shall be one striking the testimony, or if the court in its discretion determines that he interests of justice so require, declaring a mistrial. (2) Basically, (a) If you use a writing during trial, it absolutely has to be disclosed. (i) If you use a writing before trial, its up to the judge to determine if disclosure is in the interest of justice. (ii) Balance the examining partys ability to fully examine the witness against the protection given to privileged documents. (3) Common law: Only had to disclose those docs used AT trial. (4) Attorney Work Product: (a) Hickman v. Taylor case: (i) Scotus says there is a zone of privacy essential for attorneys to do their work, and letting opponents look will lead to all kinds of sharp practices. (ii) Adversary system mandates protection & space for attorneys to work. (b) Protected by Fed. R. Civ. P. 26(b)(3). (i) Regular work product, or FACT work product, like the statements from an interview, which are discoverable upon a showing of substantial need & undue hardship. (ii) Opinion work product: the mental impressions, opinions, and conclusions of the lawyer, which is entitled to almost absolute protection. c) There are two approaches to Rule 612: (1) James Julian approach: Can get the whole binder, no problem. (2) Sporck v. Peil: Lawyers cant just get the documents: have to satisfy elements of 612: (a) Elements: (i) Documents have to be used for the purposes of witnesss testimony: (a) ASK: Did you look at any documents regarding X. (ii) Has to be used to refresh recollection. (a) ASK: did they help you remember the facts surrounding X? (iii) Has to be used in the interests of justice. (b) Protection is much narrower: (i) You only get the specific documents that the witness used, not the whole binder (ii) Also: You have to ask for documents with regard to particular questions or answers, and that witness used those documents for particular answers. (c) Foundation: (i) Have to prove docs were used for the purposes of testimony. (particular questions, particular documents). (ii) That they were actually used to refresh recollection of witness on the facts. (iii) And production is in the interests of justice. d) Analysis: (1) Refreshing during testimony or before? (a) During: Give them to the other side. (b) Before: (i) James Julian (ii) Sporck. CASE: James Julian v. Raytheon: US Dist. Del. Plaintiff James Julian Inc. brought suit against Raytheon under the Sherman act. Depositions were scheduled. James Julian used a binder of documents to prepare its witnesses to testify at the depo. Raytheon: We want that binder. James Julian doesnt object to giving docs & many were already turned over. Thy object to production of binder itself as attorney work product. Special protection under 26(b)(3) & Hickman v. Taylor . Raytheon argues (1)that it would not reveal thought process, and (2), plaintiff waived protection by using it to prep a witness. COURT SAYS:

26(b)(3): Two categories of work product: regular, fact work product, or opinion work product. In this case, binders are comprised of selected documents out of many, reveals the opinions and conclusions of the lawyers. COURT CONCLUDES: disclosure requirement for refreshing recollection reaches documents used at the time of testimony, and before the witness testifies. Rule 612(2), plaintiff argued it protected documents for refresh recollection, COURT SAYS: Rule said protection would be at discretion of the district court, on a case by case basis. Balances the ability of examining party to fully examine witnesses, and decides Raytheon is entitlted to see how much the binders influenced witnesss testimony. Opinion work product is almost always never made available to the other side - The process of selecting documents i.e. weeding out which are important to review that is opinion work product - So when preparing your client for a deposition, you are not going to show them a binder you can prepare them orally, but really you can go to the room where all the documents are stored Sporck v. Peil: Third Circuit: Same situation where one side sought the binders and documents used by the other to prep witnesses. Third circuit said that it wouldnt follow James Julian because it ruined the attorney work product protection. Instead, said you had to show. 3. Rule 615: Exclusion of Witnesses: a) At the request of a party the court shall order witnesses excluded so they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does NOT authorize the exclusion of (1) any party who is a natural person, or (2) any officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the partys case, or (4) a person authorized by statute to be present. (1) So who gets to be there? (a) Party. (b) Party representative. (i) Pick a likeable person to represent the company. (c) Experts (i) Doctors, investigators, etc. (d) Victims, usually. (2) Why? (a) Susanna and the Elders story, with the elders saying they were under different trees. (3) How: Invoke this at the beginning of the case. b) Problem 7-A (1) Plaintiff invokes the order so defense purchases daily transcripts and has them sent to the office at night and reads them to the expert (who was already excluded) (a) This violates 615 and the witness or the expert could then be placed in contempt of court (either a fine or otherwise) (i) Possibly try and find out what they learned and prevent them from testifying about it c) Problem 7-B: Statute allows victims of a crime, and the question is whether the daughter of a murdered woman is a victim (her father is D). Think about this on your own, Perrin says. (1) My analysis: (a) Argument Against her being victim: (i) Crime of murder contemplates victim as the dead person

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(ii) In the statute: killing of another human being, not depriving another human being of a person they love by killing that person. (iii) Would broaden it to anyone who suffers pain or hardship though actions of Defendant. (b) Argument for: (i) She did suffer loss and hardship through the loss of her mother. (ii) Ds conduct hurt her as much (maybe more, if youre just measuring emotional pain) (iii) Shes the one that bears the full brunt of the killing. The mother doesnt care one way or the other now, depending, of course, on religious beliefs... (c) Think about some more. (i) I could see something like this showing up on test, since he didnt answer. C. IMPEACHMENT: 1. Overview: a) Rule 607: The credibility of a witness may be attacked by any party, including the party calling the witness. b) There are five ways to impeach: (1) Bias (2) Defects of physical or mental capacity (3) Character (4) Prior inconsistent statement (5) Contradiction. c) Three focus on reasons to doubt the witnesss word in general: (1) Mechanics: (a) Definite in telling trier of fact why to doubt witnesss testimony. (b) Not specific in showing which testimony to doubt. (2) They are: (a) Bias (b) Deficit in sensory or mental capacity that undercuts testimony. (c) Disposition for untruthfulness. (i) Attack by: (a) 608(b) Cross witness about nonconviction misconduct. NO extrinsic evidence whe n witness not on stand. (b) 609: Cross regarding certain types of convictions. (c) 608(a) Testimony by character witness that witness in question is truthful or untruthful. d) Two call into doubt particular points in the testimony of the witness. (1) Prior inconsistent statements. (2) Contradicting the witness, or showing hes just plain wrong. e) Generally these are brought up on cross, but you can also do it by extrinsic evidence. f) The other side can rehabilitate the witness: (1) Under Rule 611: Court has discretion to limit inquiry into side issues. (2) But a party may examine a witness sin an effort to refute points the other made. 2. Bias: a) Bias is anything that would cause the witness to slant in favor or against one party or the other. b) There is no specific rule in the FRE that governs bias evidence. (1) BUT all relevant evidence is admissible under 401 & 402, so you dont need a bias rule. (a) Bias is usually relevant. (i) However, the context can affect things.

(a) U.S. v. Abel case (below): D and W are members of the Aryan brotherhood, more relevant than that they were members of the book of the month club. (2) 403: Also: one still must get over the 403 hurdle, but that is a rule of admission, so it wont be a problem unless prejudice substantially outweighs probative value. (a) Scope of bias stuff: (i) Example U.S. v. Abel again: (a) Should you bring in tenets of the gang, or just fact that they are in a gang. (b) If one of the tenets is to lie for each other, than it is very probative and should get in. CASE: United States v. Abel: Abel robbed a savings & Loan, accomplices pleaded out but he went to trial. Ehle, an accomplice, will testify against Abel. Both members of the Aryan Brotherhood. Abel brings in Mills, who will testify that Ehle planned to falsely implicate D in the robbery, and prosecution wants to tell jury that Mills is in the AB, and that that gangs tenets are to lie for each other. FIRST: Millss testimony about Ehles out of court statements is probably okay hearsay, because of Hillmon doctrine, it is a statement of intent to falsely testify. Also, it shows bias because Ehle would get a better deal from cops by falsely implicating Abel. Ehle and Prosecution: Will recall mills and impeach him as a member of AB. Trial court does its 403, and lets them say Mills is a member of a secret prison gang that lies. 9th circuit reversed based on freedom of association, missing the point. SCOTUS says the only test is whether (1) evidence is relevant, and (2) 403 balancing probative v. substantial prejudice. Court says the probative value is high, and though t is prejudicial, it is not enough to outweigh. The nature of the organization is important, and to hide it would strip the evidence of its value. c) Experts & Bias: (1) To show bias you can ask an expert just about anything about pay. (a) How much do you make an hour? (b) How much do you expect to make on this case in total? (c) How much did you make testify for GM last year? (d) Do you expect to testify for them in the future? (i) Shows loyalty, positional bias (needs the job) (e) How much did you make testify for automakers last year? (f) How much of your total income did you make in testifying last year? (2) What kind of expert do you prefer? (a) One that goes to plaintiffs and defendants, whoever is highest bidder? (b) Or someone who always testifies for the same side. (i) On might be a true believer, the other might look like hell waffle. 3. Sensory & Mental Capacity: a) Sensory: (1) This is the one where a person wasnt wearing their contacts, or needs a new prescription like in My Cousin Vinny. (2) Bad eyes, bad ears, dark out, extremely foggy, backlit, etc. b) Mental Capacity: (1) Too young (2) Too old (3) Crazy. c) Expert testimony on the reliability of eyewitness identification. (1) Lots of social science out there saying eyewitnesses totally suck. (a) Especially when its someone of another race. (b) Our system is premised on the idea that nothing is better than what the witnesses saw.

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(i) Research suggests that markers juries use to asses credibility are not true. (a) Confidence for instance. (b) Often times that person is either lying or mistaken. (2) So can we bring in an expert to tell the jury about the frailties of eyewitnesses? (a) California: People v. McDonald: (note 4 on 543) says bring em in! (b) Other states say just give them a jury instruction. 4. Character Evidence: a) Overview: (1) Three ways to use it to impeach. (a) 608(b) Non-conviction misconduct: (b) 609: Conviction misconduct (c) 608(a): Character witnesses against witness. (2) Purposes of impeaching credibility: (a) Key: Any time a witness takes the stand at trial and takes the oath, the witnesss character for truthfulness is at issue. (i) The other side has a right to try and show that person to be a liar. (3) 404(a)(3): Third exception to the general propensity bar. 62 b) 608(b): Specific Instances of Conduct (1) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witnesss character for truthfulness, other than conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, may be inquired into on cross examination of the witness (1) concerning the witnesss character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accuseds or the witnesss privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. (2) Uses: (i) Looking for conduct probative of their truthfulness (b) Cannot be proved by extrinsic evidence. (c) Can be used to : (i) Show witnesss character for truthfulness or untruthfulness. (ii) Or to impeach another witnesss character for truthfulness or untruthfulness. (d) Cant reach: Convictions. Thats rule 609. (3) What kind of conduct can this get in? (a) Three approaches: (i) Narrow: (a) Only those crimes that involve falsehood or deception. (b) Perjury, fraud, etc. (ii) Broad: (a) All conduct indicating bad character indicates untruthfulness. (b) Includes robbery and assault. (iii) Middle: (a) Any behavior seeking personal advantage by taking from others bears on truthfulness. (b) Doesnt include crimes of violence. (c) Does include taking advantage of a person for your own benefit. (d) Looking for the conduct that tells us something about the persons truthfulness and perhaps that person places themself before the truth. (iv) There is a distinction between conduct that tells about truthfulness, and conduct that is outside of societal norms. (a) Can be a criminal but still truthful.

(b) Scope: (i) Adultery? Probably not. (a) But the argument for is that youve broken your marital vows. (b) Also you must have lied, if youre cheating on your spouse. (ii) Theft? Probably not (a) They do not involve dishonesty or misstatement (4) Note: If you put the witness on the stand and ask him about an event, and he says that never happened, thats it. You cant prove this by extrinsic evidence. CASE United States v. Manske: Manske was arrested for conspiracy to distribute cocaine. The other coconpsirators turned states evidence and identified Manske as the source. They admistted they were engaged in bookmaking, and one of them was this guy Pshzienicka, who did a lot of bae things: Threatened witnesses, getting people to be silent and threatening harm if they spoke out, hanging dolls, etc. ISSUE is should those events come in as probative of Pzienickas truthfulness? COURT outlines the three approaches and goes with the middle approach. In this case, wouldnt fit narrow, and would fit broad. Middle approach: It is probative of truthfulness because it shows that Pszienicka was willing to put himself before the truth, and sought personal advantage by taking advantage of others to prevent truth from arising. Lets it in.

5. Rule 609: Impeachment by Evidence of Conviction of Crime a) For the purposes of attacking the character for truthfulness of a witness, (1) Evidence that a witness other than the accused has been convicted of a crime shall be How you admitted, subject to rule 403, if the crime was punishable by death or imprisonment in admit excess of more year under the law under which the witness was convicted, and evidence felonies that an accused has been convicted of such crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) Evidence that any witness has been convicted of a crime shall be admitted, regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. b) Time limit: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines that, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. c) Covers pardons/annulments/ certificates of rehabilitation. (1) Conviction not admissible with one of those if no other crimes has been committed, or (2) the person was later determined innocent. d) Conviction of juveniles generally not admissible, but a court may allow conviction other than the accused if it satisfies the other requirements and is necessary for fair adjudication of the present case. e) Pendency of appeal from conviction may be brought up, but doesnt make conviction inadmissible. (i) Cross Ref: 62 f) 609(a) is the main one to worry about. (1) Felonies (death or imprisonment for one year) (a) Prior conviction of the Accused: 609(a)(2) (i) Rule:

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(a) Subsection (1): Conviction of the accused gets a semi-reverse 403 analysis. (b) Probative value must outweigh prejudicial effect. (c) Notice, not substantially outweigh, just outweigh. (ii) Points to Remember: (a) this only comes up if the accused takes the stand and you are trying to impeach him. (b) Rule of exclusion: (i) Party offering the evidence has the burden to show that the probative value is sufficiently strong to overcome the prejudicial effect. (ii) So usually the prosecution. (b) If the probative value and the prejudice are equal, it is excluded (c) Witnesses other than the accused; 609(a)(1) (i) Rule (a) Straight 403 analysis: (b) Prejudice must substantially outweigh the probative value. (c) Prejudice to the offering party? Ask Perrin (ii) Things to remember: (a) Rule of admission: (i) Opposing party has burden (ii) Gets in unless the party opposing it shows substantial prejudice. (d) For both: (i) Analyze Probative value of felony for truthfulness: (a) There is a wide range of value for truthfulness. (i) Perjury, or fraud, would be the highest possible. (ii) Embezzlement, high end of the middle. (iii) Robbery, probably low end of moderate/ (iv) Involuntary Manslaughter would be the lowest. (ii) Remember Court ultimately has discretion here, so if its on the line, court is unlikely to be reversed. United States v. Lipscomb: DC circuit: Tells us one important thing: First line on 540: All felony convictions are probative of credibility to some degree. As a general rule, felony convictions are admissible. Subject to the exceptions for the accused and if the prejudicial effect to the offering party substantially outweighs probative value. (2) Section two is mandatory: Misdemeanors and felonies involving dishonesty or untruthfulness. (a) Perjury, fraud, theft by false pretenses, fit in here. (b) No 403 balancing needed, because admission is mandatory. g) Time limit: (1) Conviction date or release from confinement, whichever is LATER. (a) Limit is ten years old. (b) If more than 10 years, the probative has to substantially outweigh prejudice. (i) Reverse 403. (c) Courts very rarely admit things over ten years old. h) Examples: (1) Jimmy Stewart movie: Witness comes on, and says hes never been convicted but for the time hes serving. Steward reads off his rap sheet, including window peeping, indecent exposure, etc. (a) Probably should have read one at a time, to extend the pain. (b) BUT prosecution also could have objected: (i) Several convictions had nothing to do with truthfulness:

(a) Peeping tom & indecent exposure ones. (i) Misdemeanors: Served in city jail, so truthfulness was not an element. (b) The others: Arson, larceny, assault with a shovel: (i) 403 balancing, because not the accused. 609(a)(1) (ii) Probative outweigh substantially by unfair prejudice. (iii) Prosecution so we are not as concerned about prejudice. (iv) Only real concern is that the jury might decide the case because they didnt like the witness. (v) But also: admitting all six might be overkill. (2) Problem 8-B on 545. (a) Bank robbery. Prosecution witness is a former bank robber who will testify D confessed the robbery to him and asked him to help hiding the money and escaping to Mexico. D asserts an alibi defense, and his friend George Farr will testify that he was fishing with D in the Ozarks when it happened. He ALSO has a bank robbery conviction. (b) So witnesses evaluated under 609(a)(1): Probative v. substantial prejudice. (i) Witness one: confession & help with money/mexico. (ii) Probative? High: felony convictions are all highly probative. (a) Scale: (i) Low end: Manslaughter & other crimes of violence. (ii) Low end: Drug possession. (iii) High end: Perjury, fraud, etc. (iv) Bank robbery is probably somewhere in the middle. (b) Danger of unfair prejudice: (i) Low, because witness himself is a bank robber. (ii) Prosecution might even want that in, because it adds to his credibilityhe knows that world. (iii) Witness two: (a) Probative value: Roughly the same. (b) Unfair prejudice? (i) Jury could take it as guilt by association. (ii) D goes fishing with convicted bank robbers. (c) BUT standard is still 403, substantial prejudice required. Substantially higher than probative value. (i) Much closer call. Probably going to admit it. Especially if its an alibi case, D might really need to call this witness. (c) What if D has a prior robbery conviction: (i) Probative: Same as before. (ii) Unfair prejudice? (a) Extremely high: (i) Propensity inference danger: Jury may take past robbery as evidence that he committed this robbery. (ii) Or might punish him for the prior term. (d) EXTREMELY IMPORTANT: Similarity of Ds prior offense to the one charged cuts toward exclusion and not admission. (i) Very prejudicial (ii) It is propensity evidence. (iii) Different than 404(b): Where similarity points toward admission if used to prove motive intent, or the other exceptions to the propensity evidence. (iv) 609: similarity hurts admissibility. 404(b) non-propensity uses, similarity helps. (v) 404: Case in chief. MERITS (vi) 609: impeachment. CREDIBILITY.

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(3) Notes after 8-B: 545: (a) Gordon factors for admissibility: (i) Nature of the conviction (a) Think probative value scale. (ii) Recentcy or remoteness: (a) Within the ten year limit, more recent is more probative. (b) The more recent the conviction, the more probative it is it tells you more about their current character (iii) Whether it is similar to the charged offense (a) More similarity goes to more prejudice. (iv) Whether Ds record is otherwise clean. (a) 8 year old conviction alone, or 8 year old conviction plus three more. (b) 8 year old one alone, suggests less probative. (c) But 8 years and three others, might want to let the 8 year old one in, and exclude the other three, but more probative because of them. (v) The importance of credibility issues in the case: (a) Is the case about credibility at its heart? (vi) Importance of getting the defendants own testimony. (a) We want defendant to be able to testify. (b) One thing worse than D not taking the stand is getting up there and having priors admitted. (c) This would probably go to prejudice, but Im not sure. (4) What can you ask to bring convictions out? (a) You can bring out only: (i) The fact of the conviction. (ii) Nature (name) of the crime. (iii) Date of conviction. (iv) Sentence that was entered (not all jurisdictions allow this). (b) Were trying to be efficient. Cant have endless rebuttals about the exact circumstances of the witnesss offense, when that offense is not the subject of the trial. (i) Name, date, sentence and thats it. You cant bring in all the underlying facts of the conviction. (c) In some circumstances, you can only get the fact that they were convicted of a crime in. Maybe you can only say that they are a felon and not tell what felony they were convicted of. (5) Another Problem: 8-C: Dewald charge with embezzlement of union funds. Prosecution witness: Picket, will testify she saw couriers from law frims deliver envelopes with money in it. Cross examination wants to bring out: (a) Picketts misdemeanor 9 years ago for using a false handicapped sticker. (i) Crime involves falsity: (a) Saying shes handicapped when she is not. (ii) Falls under 609 (a)(2): Not discretionary, have to admit. (this is how we got the misdemeanor for lying in our trial) (b) Misdemeanor conviction six year prior for petit theft (i) Even though she lied to the store clerk while she was stealing the clothes, lying isnt part of the actual offense so it is not allowed (c) Dewalds felony for forgery (i) Automatically allowed in once he testifies (d) Dewalds misdemeanor for petit theft and stealing electricity by falsifying the meter. This one is allowed in because in the charges or indictment, the lie is where the theft came from.

(e) Picketts felony 9 years ago for obstruction justice: Unlawful to engage in misleading conduct toward another with intent to get them not to testify. Released three years later. So felony is only five years old for statute. (i) Might be able to get this in under (a)(1): (a) Probative: (i) Falsity is an element. (b) Prejudice (i) to prosecution it is minimal, jury wont use for purposes other than impeachment. (ii) Ant that is fair prejudice. (ii) Under (a)(2): Falsity is an element, so this falls under (a)(2): Gets in no matter what. (f) Misdemeanor for petty theft six years ago, where she took a scarf from the shelf and put it in her bag. Told a suspicious clerk she had put the scarves back. (i) TEST: Could the charged crime have been committed without lying? (a) Theft: Lying isnt an element, even though she did lie. (b) Not theft by false statement, because the lie didnt induce them to give her possession. (ii) Rule 609(a)(2) was recently amended to keep statements like this out. It used to be that it would get in if it could be shown the crime was accomplished by deception, but now it needs to be an element. (iii) This is only a misdemeanor, so (a)(2) was the only option, and it doesnt get in. (g) Dewald (Defendant) testifies: Prosecution wants to use on cross: (i) Felony conviction for forgery 8 years ago. (a) This has an element of falsity, so it gets in under (a)(2), no discretion. . (ii) Felony four years ago for unlawful use of physical force to prevent witness from testifying: (a) Probative value: (i) Physical force is usually low, but he is also tampering with witness trying to prevent the truth from coming out. (ii) This is moderately high on probative value scale. 75%. (iii) However, think about fact that we also have forgery conviction coming in. (iv) Is another that probative? Or does this go to prejudicial. (b) Unfair prejudice: (i) Underlying charge in this case is embezzlement, so there is not much similarity. That cuts FOR admission. (ii) Jury might be tempted to use it in other ways, but has a high probative value, so it could go either way. (iii) Also, we have another felony coming in, forgery, and this might just add insult to injury, upping prejudice. (iv) Moreover, Gordon kind of needs to testify, which may cut toward exclusion. (iii) Misdemeanor 1 year earlier for theft, in which he altered electricity meters to lower his bill. Essentially theft by false pretenses, making meter say he used less than he did. (a) Facts dont matter, its the elements. (i) Might depend on how theft statute constructed. (ii) But as described, false statements are the only way to commit this crime. (iii) Perrin thinks this would fit, because of the nature of the theft. (b) To prove the elements of theft here, it is essential to prove dishonesty.

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(i) Shoplifting can be done in many ways, but stealing from electric company can really only be done by messing with the meters and deceiving. (iv) Perrins rule: Has to be on the face of the charging instrument that it was a crime of deception. (a) Separate the particulars of the crime from the nature of the theft. (b) Doesnt depend on the elements, necessarily. Depends on the Nature of the theft. (6) Relationship between 608(b) and 609. (a) If there is a conviction you want to use to impeach, the only way to get it in is by 609. (i) Cannot chop it up into specific instances and use 608. (b) If there is no conviction, use 608(b). i) Process for introducing convictions for impeachment purposes. (1) Process: (a) First thing: motion in limine to exclude the conviction. (b) If the judge says its admissible: (i) Used to be that D would make proffers of what D would testify to if he testified. (a) Then on appeal the reviewing court would review with all of the facts, and decide whether admission was proper. If it was not, they would reverse and D would get a new trial where D testified and no convictions. (b) So D didnt have to testify. (ii) NOW you have to put D on the stand, go through direct, then object again when the prosecution brings up prior convictions on cross. Luce, below (a) Or you can prick the boil, bringing up convictions yourself so jury doesnt think D is hiding something. (i) But does that waive the objection? Ohler, below. (ii) In federal court, pricking the boil waives, but state courts do not all follow it. Luce v. United States, SCOTUS: said that D has to testify to preserve the error. D said he would have testified if the trial court hadnt admitted his prior convictions for impeachment purposes. Courts rationale was that any harm is mere speculation unless D actually takes the stand. No way of knowing if prosecution actually would have impeached. Might decide not to if case was otherwise strong. Decisions to testify seldom turn on one factor like exclusion, and court also cant assume that D would have testified if exclusion. Also: If you allow in limine ruling to be challenged for 609(a) on appeal, then its always going to be harmful error, but if you require testimony, the reviewing court can better assess all of the circumstances and determine if there was harmful error. Rule: The preferred method for raising claims, such as petitioners would be for the defendant to take the stand and appeal a subsequent conviction. Only in this way may the claim be presented to a reviewing court in a concrete factual context. Cant hold the would have testified part of it back as grounds for appeal. Generally a judges ruling on a motion in limine does not preserve the right to appeal. You have to object again when during the trial Ohler v. United States: Note 5 on Page 556: Ohler has a van and claims that a person stole it. It was found in Mexico and she went to get it, and they found drugs while she was on her way back. She would testify to this story, but she has a conviction. Prosecution wants the conviction in for its case in chief, but cant get it under 404, but they can get it for impeachment. The question was whether she could prick the boil, after court allowed evidence of the prior conviction, and then contest it on appeal. The court answered No. Trial court said Ohler waived her right to complain. 9th circuit says its waiver if you bring it

out on direct, and SCOTUS agrees. When the defendant preemptively enters this into evidence, it forces something into issue that you dont know would be brought in. Now you have to raise it in motion in limine, cant bring it up yourself on direct, wait for it to be raised on cross, and then hope that the court of appeals agrees that it was harmful error 6. Character Witnesses: 608(a): a) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (1) Overview: (a) Have another witness get on the stand and talk about the target witnesss character for truthfulness. (b) Same rules apply: (i) Direct: Limited to opinion or reputation that the witness is a liar. (ii) Cross: can bring out specific instances to show witnesss character for truth. (c) This can be done any time after a witness has testified. (i) Its just to impeach an earlier witness. 7. Prior Inconsistent Statements: a) Overview: (1) Very specific kind of impeachment. (a) Showing the witness previously said one thing, and now says another. So they are lying. (2) Always admissible under the hearsay rules for impeachment purposes. (a) Impeachment is not for the truth of the matter asserted. (3) Sometimes under 801(d)(1)(a) they can come in for the truth of the matter asserted: 23 (4) California: Always allowed for the truth of the matter asserted. b) Procedure: Rule 613: (1) Text: (a) In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party opponent as defined in rule 801(d)(2). (2) (a): Dont have to show the witness the statement. (a) You can tell them about it. (b) Can ask, isnt it true that you said, X today, but on another day you said not X? (c) In other words, dont give them the opportunity to explain. (3) (b): (a) That changes if you want to use extrinsic evidence. (i) Like a deposition. (b) There is a duty to confront the witness with extrinsic evidence: Have to give the opportunity to witness, and to opposing counsel to interrogate the witness thereon. (c) They have to have the chance to explain or deny when extrinsic evidenceis used. (d) The impeaching party has the burden to make sure the witness is given an opportunity under 613(b).

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8. Contradiction: (easy to miss if you arent thinking about it) a) Overview: (1) Using other witnesses or evidence to contradict what a witness said. (a) Normally, youre using those witnesses for your OWN purposes, and contradiction is a side benefit. (i) So it doesnt usually matter, but one case where it did is United States v. Havens. (2) Rule: (a) Evidence must have dual relevancy to be admissible to contradict a witnesss statement. (3) Dual Relevancy: (a) Evidence for contradiction goes in for two purposes: (i) On the merits (ii) And to impeach (b) Evidence of contradiction must both contradict a witnesss testimony and have independent relevance. (i) Evidence that only contradicts but is not independently relevant is collateral. b) Hypo on Page 576: (1) Ernie is suing Florence for rear ending Howe. Taking each statement in turn, George testifies on direct for Florence that: (a) Ernie was the cause, by backing up suddenly while Florence was at a stop. (b) That he saw it from the curb. (c) And that he first met Florence right after the accident. (d) He was coming from the drug store at the time. (2) Other witnesses: (a) Howe: evidence that his car was still when Florence hit him. (i) This directly contradicts George (ii) Relevant to the merits too. (iii) So you can use it. But we would just think of it as simply relevant evidence. (b) Ike: Testifies that Florence and George saw each other socially for one year before the accident. (i) Relevant to Contradict the just met her statement. (ii) Also relevant to impeach by bias. (a) So it can be two impeachment purposes. (c) Jason: Testimony that the drug store was closed that day. (i) Contradicts that George was making a purchase, so relevant for contradiction. (ii) But no impeaching effect or effect or relevancy for the merits. (a) Therefore fails the something else prong. c) Under normal circumstances: (1) Evidence that only contradicts cannot get in. d) What if Florence says she has neer been in an accident? (1) Can Ernie keep Florence from testifying what a great driver she is? (a) YES: Character evidence, and it is inadmissible in civil cases. (b) If there is no objection, though, he can bring in her driving record to contradict. (c) Dual relevancy? (i) Yes Contradicts, and shows she is a bad driver (a) BUT its not admissible for the second purpose, to show she is a bad driver. (b) Doesnt matter, because for the purposes of dual relevancy analysis, the second relevancy doesnt have to be an admissible use. (2) Evidence that contradicts, and would be relevant but is inadmissible for some other purpose can get it in. e) Some Specific Issues for Contradiction:

(1) On cross: Can you prove up impeachment by specific instances of conduct that contradict? (a) Example: Isnt it true you lied on your resume? And they say NO. (i) Cannot prove it up. Character for truthfulness is always a collateral matter that cant be proved up by extrinsic evidence. (2) Prior Convictions: (a) If you ask about it and they say no, you can prove it up, but it must meet the requirements of 609. (b) Can bring it in on the merits under 404 or 405 if you have those requirements, remember its only a problem for impeachment. (3) Character witness to say W1 is a liar: (a) Can bring in character witness W2? (b) Yes, because it contradicts witness, and goes to credibility of W1. (4) If contradiction goes to central issue (guilt or innocence of a party) it gets in. f) Two situations where you cannot contradict by extrinsic evidence: (1) 608(b): (2) Evidence that only contradicts. D. REHABILITATION: 1. Requirements: a) Have to repair credibility at the point of attack. (1) Cant repair bias by showing good eyesight. b) Have to repair after credibility is attacked. (1) Objection = bolstering, if before that. (2) Credibility must be at issue before you can bring in evidence solely to increase cred. (3) But, you can prick the boil, attacking credibility of your own witness, and giving chance to explain. 2. Specific tactics: a) Redirect: give witness a chance to explain. b) Call a character witness favorable to your witness. 3. If you prick the boil: a) Purpose is NOT impeachment, its anticipation (US v. Med. Therapies). b) Cross has to be sufficiently brutal to bring allow rebuttal, but you should have a chance to. CASE: United States v. Medical Therapies: Owner of a medicare company charged with making false claims against medicare. Coconspirator employee not prosecuted and agrees to testify. Prosecution brings in all the bad stuff that the woman did in the past (allegedly took %70, two priors for stealing amphetamines by fraud, but was an addict and sought treatment. Defense attacks on cross for those same points, and gove wants to bring in a character witness to rebut the claims. D claims they cant because Government attacked cred, in first place. Court said the purpose wasnt to impeach, but to anticipate Ds impeachment. Cross was sufficiently long and aggressive to allow rehabilitation. D then claims that attacking bias, not character, saying she hated employer. Court says bringing in the priors is a character attack on truthfulness (because of false statements). 4. Experts cant tell the jury what to believe. a) Can testify about effects of traumatic experience. b) Can provide reasons not to believe or be skeptical, but cannot tell them not to believe. 5. PRIOR CONSISTENT STATEMENTS 801(d)(1)(B): Means of rehabilitation. a) Attack on witnesss credibility, by alleging improper influence or motive or recent fabrication. (1) They may extend beyond the rule to be used to rehabilitate b) Its not recent fabrication.

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c) LOOK at when the alleged influence arose: (1) Alma problem: Cop ALWAYS had motive to want to prosecute two for one. (a) Thus, even at restaurant motive was there. (b) Didnt arise after guilty plea or after arrest. d) Can also use prior consistent statements to rebut a claim of faulty memory. (1) Nonhearsay purpose. (2) Showing theyve always testified that way, and that because of that their memory is not bad. e) Bias: is an improper influence so D(1)(B) applies. With timing requirement. E. Forbidden Attacks: 610: 1. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purposes of showing that by reason of their nature, the witness credibility is impaired or enhanced. a) Can use common membership in church to show bias. b) Can use peculiar religious beliefs like the star child to call mental capacity into question. c) Just not: Because he is a good Christian, you should believe his testimony.

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VI. LAY AND EXPERT WITNESS OPINION: A. Lay Witness Opinion: 1. Rule 701: If the witness is not testifying as an expert, the witnesss testimony in the form of opinion s or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witnesss testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702. 2. Analysis: a) First Question is always: Is this person an expert or a lay witness. (1) Test: Does this opinion require specialized knowledge, or is it within the grasp of the ordinary person? b) Second: Is the testimony fact or opinion? (1) Test is whether the witness is using some kind of inference within their testimony. (2) Facts are what they have observed, or perceived, or know. c) Three: Is it an Admissible opinion. (1) Is it rationally based on the witnesss own perception. (a) Does the witness have knowledge of the underlying facts? (b) Is the opinion rational based on those facts? (c) Witness needs to have personal knowledge, and the opinion must flow naturally and logically from that knowledge. d) Fourth: Is it helpful to the jury. (1) Is the opinion helping or is the witness just taking sides. (2) Closer they get to the central contested issue, the less likely the court will allow an opinion. 3. Recognizing opinion: a) Look for freighted words: ie: Plowed into the person. b) Look for speculation about physical or emotional or mental state: X Sounded suicidal. c) Whenever the witness says guess you can object d) Rarely ever get hypotheticals in with lay witnesses 4. Situations where Lay opinion arises: a) 404(a): Testifying as to character of the defendant. b) Impeachment, when witness says the person is a liar. c) Both have to satisfy rule 701. d) Estimates of distance speed etc. are opinions, but usually okay. e) Legal conclusions - X was negligent, or it was all Xs fault. f) Anything which isnt based directly on facts perceived is opinion on some level. g) No hypos allowed for lay witnesses. 5. So analysis is as follows: a) Rule 404(a), or 608(a) b) Then rule 701 & our four questions. (1) Expert or lay. (2) Testimony fact or opinion. (3) Admissible opinion? (4) Helpful to the jury? B. Experts: Rules 702-705: 1. Rule 702: a) If scientific, Technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the fact of the case. (1) Notes:

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(a) This rule was amended to accommodate daubert. (2) Definition of an expert: (a) Very broad: Any kind of specialized knowledge or training. (i) By education (PhD, Masters degree, etc). (ii) Experience: Fixing cars for then years. (iii) Skill. (b) Rationale is that we want people to assist the jury by sharing their specialized knowledge. (3) Experts are special because they can testify by opinion. (a) They dont need personal knowledge. (4) Standard: (a) Used to be that opinion or testimony would merely be helpful to the jury. (b) Now it has to be reliable. See 1-3 of rule: (i) Facts or data may be those perceived by or made known to the expert before the hearing. (ii) If facts or data are the type typically relied on in the field. (a) Facts neednt be admissible to be relied on. (iii) Facts or data not otherwise admissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines the probative value substantially outweighs the facts unfair prejudice.. (5) Facts: (a) Those made known: (i) Perceived= personal knowledge, so that gets in. (ii) Made known means just about anything: (a) Can run tests, look at police reports, (b) Get the info from lawyers. (6) Special Rules under FRCP: (a) 26: anything expert witness that is testifying relies on is discoverable. (i) Even recent cases they testified in. (ii) Only reaches testifying experts. (iii) Consulting experts are work product. (a) Opponent has to give a good reason. (b) When lawyers talk to experts, they dont do it in writing, just to avoid discovery. (i) Expert has to rely on memory. 2. Rule 703: Bases of opinion for Expert Testimony: a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect. (1) Translation: (a) Even when an expert relies on inadmissible facts or data, that is fine, as long as its the type of data that experts in the field rely on. (i) There used to be a debate on the meaning of reasonably relied upon by experts in the field. (a) Some said its what experts ordinarily relied on in the field. (i) Like a medical standard of care. (ii) Just look at experts in those areas in general.

(b) Others: reasonableness means more than that. It means the method must have some kind of reliability or trustworthiness. (i) Daubert goes with this. (ii) Can lead to opinions offered in court having a higher standard than in the particular discipline. (b) There was another problem: Hearsay: (i) Lawyers tried to use hearsay as basis for expert opinion. (a) Get hearsay in by saying it is being used for the nonhearsay purpose of explaining the opinion. (b) Rule fixes that, but doesnt totally shut the door. (c) Uses a True reverse 403: (i) Probative value must substantially outweigh the prejudicial effect. (ii) Rule of exclusion where the default position is that its out. (iii) There hasnt been much appellate litigation on this, so its unclear whether it has had an effect. (2) Thus there are two issues in answering whether the expert rely on certain information: (a) First question: is it reasonable to do so> (i) If put at issue, proffering party must show that it is reasonably relied upon. (ii) May need to bring in other experts to do this. (iii) If you lose on this, the experts opinion has to be valid without that particular piece of information. (iv) So it doesnt exclude the whole opinion, just whatever is based on that fact. (a) If there arent sufficient other facts: Speculation objection. (b) Second question: Can the underlying facts be disclosed to the jury? (i) Is it admissible? (ii) If not, does the probative value substantially outweigh the danger of unfair prejudice? (iii) If the facts cannot be disclosed, the expert can explain in general terms what they are: (a) Ie: the statements of the witness, or I read the police report, deposition of P and D, examined the scene. (b) Just to show that there IS a basis. 3. Rule 705: Disclosure of facts or data underlying the expert opinion: a) The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. (1) Steps to expert testimony: (a) Qualify the expert using foundation, education, experience, etc. (b) Then you can go right into the opinion, then talk about the facts or data. (2) Strategic benefits? (a) First thing the jury hears: Primacy might be good. (b) Also might help jury understand the facts if they hear the opinion forst. (3) You could choose to lay out the facts first, thereby bolstering the credibility of the expert and his opinion. (a) Jury knows everything expert knows when he gives his opinion. (4) Cross examiner always has a right to get into the underlying facts. 4. Rule 704: Opinions on the ultimate issue: a) Except as provided in (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

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b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. (1) At Common Law. (a) Experts couldnt offer opinions on the ultimate issue. (i) Rationale was that it invaded the province of the jury. (2) Now: they can: (a) But there is maybe one exception: (i) If an expert testifies that a person is negligent. (a) Can object that it is a legal conclusion, but jurisdictions are split on that. (b) Every jurisdiction says that an expert has to demonstrate a proper understanding of negligence and proximate cause to the jury. (ii) Might be able to object under 403 too. (a) Because that assessment isnt that probative, (b) But might be really prejudicial if jury credits it and doesnt decide on their own. (3) Another exception: Mental State of D in a criminal case. (a) This means: Mens rea of the crime. Not criminal insanity or something like that. (b) Witnesses cant offer any opinion as to whether the person had or didnt have the mental state that is an element of the offense. (i) Response to John Hinkley Jr. (c) Can testify to other things about mental states, but not to the specific mental state at the time. 5. DAUBERT stuff. a) Frye: the old standard from 1923 came from Frye case: (1) Crude precursor to the polygraph would measure heart rate to see if the person is lying. (2) Issue was whether expert could use that test to determine whether the witness was lying. (3) DC circuit: formulated the General Acceptance test: (a) Just when a scientific principle or discovery crosses the line between the experimental and the demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced form a wellrecognized scientific principe or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (4) Has some advantages: (a) You just look at the field in question and count noses to see if its generally accepted. (b) But then courts got clogged with pseudoscientists: (i) All ghost hunters might use the same technicques, but that doesnt mean ghosts are real. b) Daw-bert: (1) Daubert was about bendectin. There was a concern that the drug, for morning sickness, caused limb deformities. (2) But it doesnt cause it. 30 studies at the time of the case showed that it didnt cause it. So plaintiff went and got a bunch of scientists to reanalyze the date for the purposes of the litigation. (a) Litigation, however, had a 45% success rate. (3) ISSUE Was whether the rules adopted the fry test with rule 702.

(a) Analysis: (i) Advisory committee was silent on this. (a) Sometimes that means common law was adopted. (b) Sometimes that means it was rejected. (b) Blackmun looks at the liberal thrust of the rules, which seems to be inconsistent. (i) Frye is rigid and austere. Doesnt make room for new science. (ii) So frye is rejected, but not overruled. c) Daubert Standard: (1) Court relies on scientific knowledge: Scientific knowledge means that you have good grounds for the technique and it has to be one you can trust. (a) The technique has to be established as reliable. (i) Reliable means scientific validity. Footnote 9 in Daubert. (a) That it is actually true, and that the science has determined that the analytical technique works and can be trusted. (b) So not just a consistent result is required (same every time), but a valid result. (2) Court gives guidance on determining validity: (a) FACTORS or Benchmarks: (i) Has the technique been empirically tested? Can it be? (ii) Whether it has been subject to peer review and publication. (iii) Known or potential rate of error. (iv) Are the standards in this field maintained for quality control? (v) Is there general acceptance in the field of the technique? (b) Illustrative list, not exhaustive. (i) You might have to ignore some of the factors if they dont apply to your expert (c) Court remands, and Kozinsky adds another factor: (i) Whether the theory and principle was developed for the purposes of litigation. (a) Plaintiffs experts were paid. (b) Cuts against reliability. (ii) Also, on remand he noted that the plaintiffs results were not published or peer reviewed. (iii) Also did some statistical analysis: Not more likely than not from the results that Bendectin caused the defects. (3) Rehnquist: (a) Concerned about federal judges having to become amateur scientists. 6. Difference between Frye and Daubert: a) Frye: (1) Judge Just look at the field and count noses. (a) Scientists decide what is reliable.. (2) Less examination of the techniques experts use. (3) But also less allowance for techniques that are cutting edge and not yet widely accepted. (4) Allows in hogwash: (a) Everything depends on what the experts in the field think is reliable. (b) Every forensic document examiner thinks they do science, when their results are seldom better than lay people. (c) Judges can manipulate Frye by defining the community. b) Daubert: (1) Judge has responsibility to determine reliability. (2) Allows for newer techniques, and a judge can judge the technique on the merits. 7. Fallout from Daubert: a) Most states have adopted Daubert or some variation of it. (1) Oregon & Texas included.

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b) Minority, including CA & New York hold onto Frye. (1) People v. Lahey. 8. Questions & Issues in Daubert a) When does it apply? (1) Whenever there is scientific or expert testimony of any kind. (2) United States v. Peizell: (a) Pretrial hearing for forensic document examiners. Magistrate decides its not really scientific, and is more of a practical skill. Therefore not subject to daubert and can be evaluated on standards of forensic document examiners. (b) But what about experienced based? Like Drs. And Lawyers? (3) Applies to EVERYONE: Kumalo Tire v. Charmichael: (a) This one involved a tire failure analyst: had an engineering degree and learned by experience. Said he could tell by sight and feel if the tire was abused. Also said that if two of four factors were present, then there was abuse. But claimed only to have found one factor. Said the tires were design defect despite the heavy wear, multiple punctures, etc. etc. The court called BS. (b) Breyer said Daubert applies to all expert testimony. The key word in 702 is knowledge, not scientific. b) So Kumalo Tire makes clear that the test has two issues: (1) Are the methods used by the expert reliable? (2) Were those methods reliably applied to the facts and circumstances of the case at issue. (a) For example: Kumalo expert Carlsons methods were reliable, but there were several indications that it wasnt reliably applied. (i) Couldnt say if tire was driven 10K or 50K miles. (ii) Test seemed to be very subjective, as he explained away many signs of abuse. (iii) Also strange that he could form conclusive opinions based on just photos. c) Daubert standard easiest to apply in the hard sciences: (1) DNA: Known error rate, is tested, has been tested, subject to peer review, and generally accepted in the field. (2) Soft sciences are more difficult: (a) The many syndromes of sociology and psychology are more amorphous. (b) They were made up to help guide therapy and treatment, not based on statistics. (3) Also difficult when it is testimony based on experience. (a) Like a doctor or lawyer testifying about the standard of care. d) Key to Daubert is flexibility. (1) Courts are given discretion, but they have to make a careful inquiry.

VII. PRIVILEGES A. Rule 501: 1. Except as otherwise required by the Constitution or provided by act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State or political subdivision thereof shall be governed by the principles of common law as they may be interepreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law provides the rule of decision, the privilege of a witness, person government state or political subdivision thereof shall be determined in accordance with state law. a) Thus, common law controls. But courts use the deleted rules to help out. b) Civil actions: Erie concerns mean that when state law governs, state privilege rules are to be used. B. Attorney Client 1. Rule 502: Just read it. Really cumbersome. 2. Deleted Rule 503: Read it. 3. Overview: a) Client is the holder of the privilege, so the choice to disclose is not up to the attorney. (1) Does not end with the death of the client either: Vince foster example. b) The privilege protects only communications, not the underlying facts. c) But those communications must be related to legal services. 4. Elements: a) Statements must be related to legal services. (1) Not tax preparation, but tax planning to reduce liability is legal advice, so it counts. (a) Limited privilege in fed court: Only to noncriminal fed proceedings for authorized fed tax practitioners. (2) Not when attorney serving as a conduit for information: like court dates. (3) Not when attorney servies are primarily business services. b) Must be a communication: (1) Not matters observed by an attorney. (2) Not even necessarily manners of speech, though you could make an argument. (3) Statements from lawyer to client might get less protection than those form client to lawyer. c) Scope: (1) Reaches people employed by lawyers to help out with their legal services. (a) Accountants, secretaries, etc. etc. (b) But you have to look at who client is disclosing information to and why. (c) US v. Kovel: Use of accountant by law firm, court analogizes it to a translator to help lawyer understand the accounting issues client has. 5. When Communication leads to discovery of evidence: a) If a lawyer discovers evidence in a case because of a communication by the client, if the lawyer moves the evidence or alters the state of the evidence he may be required to testify as to where he found it. (1) You still dont have to say, HOW you found it, but do have to say where. (2) If you pick it up, move it, and put it back exactly as you found it, youve probably altered it enough to have to disclose. (3) Present evidence in a manner that avoids disclosing the source of the info that led to evidence. b) People v. Meredith: Wallet case, where Client told lawyer where wallet was, and PI retrieved it. 6. Maintenance of Confidentiality: a) Communications are protected only if confidentiality is maintained. (1) That means: NO disclosing information to third parties.

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(2) Confidentiality is maintained as long as the client and lawyer take reasonable precautions. (a) Shred letters, etc. (b) Lock office, though you could argue that is private. (3) Sew n sweep v. Swiss Bernina: Dumpster diving case. (a) Holder of privilege has burden to show adequate precautions. b) Inadvertent disclosure: (1) What if you send a letter to the wrong person? (a) FRCP 26(f) says you can ask for it back, promptly, and the other side shodul comply. Not wiaver, if you take precautions. (i) Not waiver if: IN FED OR STATE COURT (a) Inadvertent (b) Reasonable steps taken to prevent disclosure (c) Prompt steps taken to rectify including 26(b)(5(b) (b) Also: Only client can waive, thus lawyer cant disclose of his own volition and have it count as a waiver. c) HOLDER of privileges in corporate case: (1) Upjohn Case: (a) New test: Privilege can extend to low level employees, look at these factors: (i) Communications made by employee to counsel (ii) Made at direction of corporate superiors (iii) Concerning matters within the scope of employee duties (iv) Employees aware that they are bing questioned for purposes of legal advice. (v) Questionairre identifies questioner as lawyer. (vi) Refer to legal matters in questions. (vii) Communications are considered highly confidential with precautions and limited disclosure. d) Communications regarding crimes: (1) Past: Previleged (2) Future: Not privileged. C. Psychotherapist Patient 1. Jaffee v. Redmond: where a cop shoots a guy and seeks counseling. Wrongful death suit, and Ps want the records. a) Court applies 501: (1) How widespread is the rule (how many states have it) (2) Looks at private interest (a) Individual has an interest in his own mental well being. (3) Looks at public interest (a) Government. Has an interest in the health and welfare of citizens. b) Court applies it broadly, saying it applies to social workers, and the like, because those are the only options for people of lesser means. c) Tarasoff Case: (1) There may be a duty to disclose if patient makes a credible threat of harm to a third party. d) Patient is the holder of the privilege. 2. Priest penitent briefly touched on: Penitent holds privilege. D. Marital Privileges 1. Testimonial a) One spouse cant be compelled to testify against the other. b) Witness spouse holds the privilege. c) Privilege only applies to live marriages. d) CASE: Trammel v. US. SCOTUS

(1) Wife agrees to testify against husband. He tries to bar her testimony by asserting testimonial privilege. Court says no way, because witness is the holder. e) WATCH OUT: (1) Preliminary question for the judge is whether there is a valid marriage. (2) Sham marriages dont count. (a) Look at surrounding facts. (b) Recent doesnt mean sham, but might if they just got married out fo the blue. f) CA: 970 Witness is holder, but the privilege means they cant even be called without prior consent (971). 2. Communications a) Elements (1) Married: (2) Limited to communications between husband and wife. (3) Have to be intended to be confidential. (4) Statements to third parties, even children, or in their presence, destroys privilege. (a) CASE: US v. Montgomery: Bend case with note in bedroom. 3. Scope: a) BOTH hold this privilege. b) Also: continues after marriage dissolves. 4. Exception: a) Cannot protect communications in furtherance of a crime or fraud (co-conspirators or accomplices). b) Or when spouses are suing each other. Waives privilege for all communications.

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