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Evidence OutlineBitensky Fall 2018RELEVANCYFederal Rule of Evidence 402: General relevancy rule; if evidence offered is relevant, it's admissible unless there is another rule that makes the evidence inadmissible. Irrelevant Evidence is never admissible TEST/ANALYSIS: Federal Rule 401 has two features: (a) ?Have any tendency to make more probable or less probable the existence of a fact; and (b) must be directed at proving the fact of legal consequence.Proving legal consequence = the substantive law governing that caseFor this prong, the fact of consequence must be material.Two types of relevant evidence: Directly: Either exactly/expressly asserts fact to be proven, like element of a claim, charge or defense, or in effect asserts the fact to be proven Circumstantially: it has the ability to make one of the elements more probable that one of the elements, claims or charges is trueExceptions to throwing out relevant evidence:Federal Rule of Evidence 403 “Balancing test”: Excluding relevant evidence for prejudice, confusion, waste of time or other reasonsProbative value: simply means relevancy.The court may exclude relevant evidence IF the PROBATIVE VALUE is substantially outweighed by the danger of one or more of the following(1) Unfair prejudice: that which would cause the jury to decide on an emotional basis.?Found when evidence would arouse an emotional, not rational response.(2) Confusion of the issues.(3) Misleading the jury.(4) Undue delay.(5) Needlessly presenting cumulative evidence.NOTES/Old Chief case: When judge applying balancing tests he should consider whether there is other evidence available to prove same fact that is equally probative but less inflammatory.When judge determining relevancy and unfair evidence, the Judge shouldn’t be making credibility determinations… “ex: I believe this witness”; must assume the proffered evidence is true Evidence Exclusionary rule:Constitutional right: This can be overruled by Constitutional Rights of D to present a complete defense. But accused’s rights are only violated by an evidentiary ruling if:It impinges on a weighty interest of the accused, and The exclusionary rule is arbitrary or disproportionate in relation to the goals that rule is supposed to serveHolmes: test that allows inadmissible evidence b/c it's so relevant that the accused needs it to make a complete defenseBoth must exist (1) exclusionary rule of the jurisdiction preventing defendant from introducing evidence must bear a weighty interest of the accused and (2) exclusionary rule must be arbitrary/disproportionate in relation to purposes it's supposed to serveFighting fire w/ Fire rule: If party A introduces inadmissible evidence that's irrelevant then party A cannot successfully object if party B responds with rebutting evidence that is also inadmissibleCharacter evidenceFederal Rule 404 (a)(1): GENERAL RULE: Evidence of a person's character is not admissible to prove that the person's conduct was in conformity with his character.Federal Rule 405: Methods of proving character: (a): By reputation/Opinion: When evidence of a person’s character or character trait is admissible, it may be proven by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.Testing-Testing Question: In cross-examining the defendant’s character witnesses, the prosecutor is allowed to “inquire into” any “relevant specific instances of conduct” by the defendant; purpose is to show that character witness does not have bearing to testify on defendant's reputation or to provide an accurate opinion.(b): Specific instances of conduct: When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proven by relevant specific instances of the person’s conduct. [GENERALLY BANNED w/ some exceptions].Two uses of character evidenceCharacter propensity use: Evidence of a person’s character is offered to prove that person’s conduct is in conformity with said character.***Propensity= an inclination or natural tendency to behave in a particular way***Accepted methods: Opinion and Reputation Exceptions to general ban of character propensity: Rule. 404(a)(2)(A) In a criminal case, defendant may offer evidence of HIS own pertinent trait. ?IF evidence is admitted, prosecutor may offer evidence to rebut.Pertinent means it bears on the character trait involved in the crime charged or a defense. However, if defendant “opens the door” to show how “great of a guy” he is, prosecutor can rebut with same kind of evidence.Rule. 404(a)(2)(B) Character of Accused:in a criminal case, subject to the limitation in Rule 412 (sexual), a defendant may offer evidence of an alleged victim’s pertinent trait, and IF the evidence is offered the prosecutor may:Offer evidence to rebut; orOffer evidence of defendant’s same trait.Rule. 404(a)(2)(C) Character of Alleged Victim: In a criminal case, in a homicide case, the prosecutor may offer evidence of alleged victim’s trait of peacefulness to rebut offered evidence that victim was first aggressorRule. 404(a)(3) Character used to Impeach Witness. ? admissibility of a witness's character is dealt with Rule 606-609→ governs use of character propensity evidence of witness → all about impeachment → governed by article 6 of the rules.Opponent can still invoke Rule. 403 Balancing test.Character non-propensity evidence: character evidence offered to prove character when character is an ultimate issue in a case or to prove character because it has some other non-propensity relevancy to the case. When character evidence is offered to show something other than the person acting in conformity with his character.Typical non-propensity evidence: Defamation suit where defendant has truth as a defense.Custody suit, for fitness of parent.In a criminal case where the accused claims entrapment.Plaintiff argues that defendant knew something or should have known something about a third person's character and negligently ignored that.When evidence is shown for a non-propensity purpose, look at the general rules of relevancy → 401, 402, 403 and 405(a) 1st sentence; 405(b).ANALYSIS: Is the character evidence offered for a non-propensity purpose (i.e. to prove something other than that person having the character acted in conformity therewith on a particular occasion)?If yes, is the character evidence probative under 401 of that non-propensity purpose?403 balancing test.The evidence must fit within the methodological rules.Reputation [405 (a) 1st sentence & 803(21)]: when evidence of a person's character is offered for admissible purposes under 404(a)(2) exceptions or 401-403, it may be proven by testimony about the person's reputation.?Opinion (see 405 (a) (first sentence): When evidence of a person’s character is offered for admissible purposes under 404(a)(2) exceptions or 401-403, it may be proven by testimony in the form of an opinion.?Specific Instances of Conduct (see 405(b)): This methodology can be used ONLY when evidence is offered for character non-propensity purposes:When a person’s character is an essential element of a charge, claim, or defense, the character may also be proved by relevant specific instances of conduct.If offering specific instance of conduct of a person, that person doesn’t have to be a party.NO ban on the use of non-propensity evidence. Federal Rules of Evidence 404(b): Crimes, wrongs or other acts [CIVIL & CRIMINAL CASES]404(b)(1) Prohibited Uses: evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.404(b)(2): Exceptions to (b)(1) Permitted Uses; Notice in criminal case: Evidence may be admissible for another purpose such as → MOIPPKIA & W.C [list is not exhaustive] offered to show what someone did(1) Motive When a party is offering evidence of a person’s specific instances of conduct to show the 404(b) purpose of the person’s motive, the evidence does not have to be similar to or identical to the crime charged.(2) Opportunity(3) Identity Used to prove defendant's identity;BUT, there must be enough similarity between the actions to prove identity.When similarity of acts is used to identify the culprit, proximity of the acts in time is important.Carrillo: “It must bear such a high degree of similarity to the preset offense so as to make it the handiwork of the accused.” Unique signature → relevant(4) Plan(5) Preparation(6) Knowledge(7) Intent Rule of thumb from Bitensky: When person’s specific instances of conduct are offered under 404(b)(2) to show the person’s intent to do something, then if the conduct is extremely similar to/identical to the conduct to the crime charged, then the evidence will be deemed probative/relevant to showing the person’s intent to commit the crime charged(8) Absence of mistake/ accidentAdmissibility test of 404(b) evidence:(1) Must have permissible purpose [404(b)(2)-MOIPPKIA] &(2) show the conduct you’re offering is relevant [that it has any tendency to make more probable or less probable the existence of a factual proposition that is of consequence to the case (401)] to the permissible purpose (3) Also look to 403 balance test: Carrillo Test [usually brought up b/c opponent made 403 objections](1) Must be determined that the extrinsic offense evidence is relevant to an issue other than Ds character; AND(2) The evidence must possess probative value that isn’t substantially outweighed by its undue prejudice and must meet the other requirements of FRE 403Conditional Relevancy 104(b): When evidence is conditionally relevant, the evidentiary fact [evidence offered on the merits] will not be relevant unless another fact [conditional/preliminary fact] is shown to exist.Where evidentiary Fact A will not be relevant to proponent’s case unless conditional [preliminary] fact B exists → ?Judge could make credibility determinations as to whether fact B is true***Standard of proof: preponderance of evidence that conditional fact B exists by the jury JUDGE = GATEKEEPER Judge asks herself, could a jury find by a preponderance that fact B exists/occurredIf judge determines jury could not, W would not be able to testify If judge determines jury could, judge lets W testify and will instruct the jury that if it finds by a preponderance that fact B is true, then they may consider W’s testimony as evidence of Fact A, but if not, then they must disregard W’s testimony. FRE 404(b)(2)(A) &(B): NOTICE: on request by Defendant in a criminal case, (A) prosecutor must provide reasonable notice of general nature of any such evidence (character propensity) that the prosecutor intends to offer at trial; and (B) do so before trial or during trial if the court for good cause excuses lack of pretrial notice.Habit EvidenceFRE 406: evidence of a person’s habit or an organization's routine practice may be admitted to prove that on a particular occasion, the person or organization acted in accordance with the habit or routine practice of the organization and was in conformity with its routine practices.A person’s habit can come in to show that the person acted in conformity with the habit.Don’t need eyewitness/corroboration: It is not required that there is an eyewitness to the habit or routine practice. It is also not required that there be any corroboration.Definition: habit includes discrete, reflexive acts in response to the same stimulus.ex: every night, a person checks the doors.Methodological restrictions: As for methodology, NO REPUTATION EVIDENCE; specific instances of conduct & opinion allowed Counting the number of times a person did something before it becomes habit is up to the judge. Or, you can introduce opinion testimony to say that “plaintiff had a habit of using the product wrong.”Ex: Every time a person sees Stimulus A, he responds with Conduct B- routine don’t think about it.Not habits: PTSD and drug addictions are not habits.Alcoholism: Alcoholism cannot be a habit, but can have a habit of going to the bar every night.Majority rule: Majority of federal courts will not find habit even if you provide them with 100 instances of reacting violently to be habit evidence.Evidence of violent acts, threats or abuse are not deemed habit evidence.Sexual evidence: ANALYSISIs this a case involving sexual misconduct?Is the proffered evidence that of victim’s other sexual behavior or sexual predisposition?If yes, Is the case criminal or civil?If criminal, ban applied unless exception appliesIf Criminal is the exception criminal (412(b)(1)(A)-(C)) If Civil, then super duper balancing test (412(b)(2).Note: Filing a false rape claim is not sexual conduct and would not be banned by the rape shield law.Against victim: “rape sheild laws”: FRE 412 (a): Exclusionary rule for sex offense cases: The following evidence is not admissible in any civil or criminal action involving alleged sexual misconduct except as provided in (b) & (c). (1) Evidence offered to prove that a victim engaged in other sexual behavior; or(2) Evidence offered to prove a victim’s sexual predisposition.Not directly sexual, but sexual connotation in the way she speaks or dresses.The ban applies regardless of whether the evidence concerned is offered for substantive or impeachment purposesExceptions to Exclusionary Rule in ALL Criminal Cases → [412 (b)(1)(A)-(C)] [can raise 403 objection to 412b(1)(A) & (B) evidence BUT NOT (C)]Doesn’t need to be a sexual misconduct case but case needs to involve sexual misconduct.(A) Evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;Methodological Restriction: only specific instances of conduct can be used.(B) Evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; andMethodological Restriction: only specific instances of conduct can be used.(C) Evidence whose exclusion would violate the defendant’s constitutional rights.Methodological Restriction: opinion and may allow reputation.Special rule: Defendant may have constitutional right under this section to prove a pattern of distinctive consensual sexual behavior by the victim that is very similar to the incident in question in order to show consent Exceptions to Exclusionary Rule in Civil Cases → ?[412 (b)(2)]Super-duper balancing test: The Court may admit evidence to prove victim’s sexual behavior or predisposition if probative value of evidence substantially outweighs danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.****Not the 403 balancing test because it integrates harm to victim. This puts the burden on the proponent offering the evidence to show admissibility. Proponent has to show probative value outweighs. ?Proponent can show opinion and specific instances of conduct. Contrast w/ 403 balancing which places the burden on the opponent.Constitutional limitation: Olden: In a sexual assault case, if evidence is not otherwise barred by Rule 412, such evidence is admissible if its exclusion violates the constitutional rights of the defendant. These constitutional rights include the right to confront a witness against him and impeach that witness for biasAgainst the defendant: FRE 413 Similar crimes in sexual assault cases: [Must be relevant] a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.(d) Definition of “Sexual Assault.” In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:(1) any conduct prohibited by 18 U.S.C. chapter 109A;(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or(5) an attempt or conspiracy to engage in conduct described in subparagraphs(1)–(4)FRE 414: Similar crimes in child molestation: (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.(b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.(d) Definition of “Child” and “Child Molestation.” In this rule and Rule 415(1) “child” means a person below the age of 14; and(2) “child molestation” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:(A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child;(B) any conduct prohibited by 18 U.S.C. chapter 110;(C) contact between any part of the defendant’s body — or an object — and a child’s genitals or anus;(D) contact between the defendant’s genitals or anus and any part of a child’s body;(E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or(F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)–(E).FRE 415: Similar acts in civil cases involving Sexual assault or child molestation: a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.(b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause.(c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule.Standards for admission of evidence under Rule 415: In order for evidence of past act to be admitted under rule 415, court must determine whether the act satisfies the applicable definition of an offense of sexual assault provided by rule 413(d)Includes admission of prior convictions & uncharged conduct for sexual offensesEven if a court is satisfied that the proffered past act evidence satisfies 104(b), it may still exclude it under FRE 403 [weigh in favor of admissibility if similar].Similar happenings: Rule: Other accidents or similar happenings evidence can come in for the limited purpose not of showing negligence, but of actually showing the elements of a negligence claim. Other accidents can come in to show elements of negligence if relevant to show: 1) Defect, 2) causation, 3) dangerousness of a condition, and 4) need of notice.Assessed under 401-402 relevancy rules and if there’s 403 objections.Standard: Evidence of similar accidents is admissible in a negligence action if the other accidents occurred under substantially similar circumstances and its probative value is not outweighed by its prejudicial effectIf the answer is no, the evidence is not relevant and will kept out.If the answer is yes, the evidence is relevant and we have to get by the 403 balancing test.ANALYSIS(1) Is it substantially similar in the other incidents? IF yes:(2) Is the evidence offered to show defect, notice, causation or other dangerous condition? IF yes:(3) Does the 403 balancing test bar the testimony?Subsequent remedial precautions FRE 407: When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:(1) Negligence;(2) Culpable conduct;(3) A defect in a product or its design; or(4) A need for a warning or instruction.Exception: But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measuresDefendant only disputes feasibility by claiming that all available precautions were taken or that there was no way/not practical/possible to use the subsequent remedial measure that gives rise to the suit. Feasible = possible/practicableCompromise offers and negotiationsDavidson v. Prince: Although statements made in settlement negotiations are inadmissible, the statements must actually be made in or surrounding negotiations to compromise.FRE 408: ???(a) Prohibited Uses: evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of disputed claim or to impeach by a prior inconsistent statement or contradiction.(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept – a valuable consideration in compromising or attempting to compromise the claim; and(2) conduct or statement made during compromise negotiations about the claim – except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative or enforcement authority.(b) Exceptions: Ct may admit this evidence for another purpose, such as proving a witness's’ bias/prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.Example: Joe v. Sam in a Personal Injury claim. During settlement discussion, D says I was drunk as a skunk at the time of crash. In itself the statement is not an attempt to compromise/ a compromise. The statement can’t come in because the statement was made during compromise negotiationsHEARSAY: General hearsay rule: FRE 802: Hearsay is not admissible unless any of the following provides otherwise a federal statute; these rules; or other rules prescribed by the Supreme Court.Federal Rules of what hearsay is:FRE 801(a): Statement: A statement means a person’s oral assertion, written assertion, or nonverbal conduct that the person intended.FRE 801(b): Declarant: Declarant” means the person who made the statement.FRE 801 (c): Hearsay: Hearsay means a statement that does two things: It must be out of court (can’t be at a trial or previous proceeding)The statement is offered to prove truth of the matter asserted.FRE 801: ANALYSISProng #1: Evidence must consist of an out of court oral/written verbalization or nonverbal conduct.Prong #2: Out of court verbalization/conduct must make an assertion.Prong #3: The evidence of the verbalization/conduct must be offered to prove the truth of the matter asserted in that verbalization/conduct.Rules for Prong #1Out of court conductNon-verbal conduct: under 801(a), only out of court conduct, that the actor intends to make an assertion, can be hearsay.All non-verbal conduct is either assertive, or non-assertive; no implied anything here.Test: Look at the context in which the actor acted and whether he meant/intended to make an assertion by his conduct.Assertive non-verbal conduct: Always intended.Nonassertive non-verbal conduct: Where there is no intention NEVER HEARSAY.3 basic rulesIf evidence of a persons out of court assertive non-verbal conduct is offered to prove the truth of the matter asserted therein, it’s hearsay.If evidence of a person's out of court assertive non-verbal conduct is offered to prove something else, it’s not hearsay.If evidence of an out of court non-assertive, non-verbal conduct is offered for any other purpose, it’s not hearsayRules for Prong #2Assertion: a statement of fact that could be true or false. RequirementsMust be oral/written verbalization/conduct that makes an assertion.Intent: Declarant must intend to make an assertion of fact, or it's not an assertion.Bonafide question/command is not an assertion because it is not a statement of fact.Key in telling the difference = contextual; look at the context in which the assertion was made.Ask: functionally, how was declarant using the sentence at the time he made the statement.Prong #3 Bitensky rules to know(1) If the offering party is offering an express out of court verbalization to prove the truth of the matter asserted therein, that evidence is hearsay, according to most federal courtsExpress assertions: All express assertions are intended.(2) If the offering party is offering the intended implied assertion to prove the truth of the matter asserted therein, its hearsay, according to most federal courtsIntended implied assertions1st type: Implications from the express assertion of what the declarant thought, felt or believed and intended to assert but not expressly.All express assertions carry with them this 1st type of intended implied assertion.Step 1: given the posture of the case, is there, an intended express assertion, an intended implied assertionHow do you do this?Look at the context; how did declarant mean their verbalization functionally? [i.e how were they using this verbalization].IMPORTANT FOR EXAM: There is always a certain type of intended implied assertion in every single express assertionExample: The dog is big. That express assertion carries with it my intended implied assertion that I think, believe, or feel that the dog is big. 2nd type: Where declarant makes an express assertion of “thing 1,” however, it’s offered to prove the truth of declarants intended implied assertion that he thinks “thing 2.”Where Louise puts hand on her hip and tells Jack, “at least I don’t steal from the employer.” = intended implied assertion is that Jack stole from the employer.(3) If evidence [out of court verbalization] is offered for any other purpose, its not hearsay.Overall assertion analysis:(1) Identify the express assertion.(2) Check to see if there is an intended implied assertion.How do we tell if there's an intended implied assertion?To determine whether something is implied or not, we need to look at context—ex: “more than likely, Louise’s purpose wasn’t to vindicate herself but imply that Jack stole.”Once you conclude that there is an intended implied assertion you must do the analysis to prong three of the hearsay analysis.Rules for prong #3: First ask who is offering W’s testimony.Then ask what fact is the prosecutor trying to prove with W’s testimonyIs the truth of the matter asserted in statement relevant to prosecutor proving the facts he needs to prove?Words of legally operative conduct: Writing/verbalization of the words alone has legal significance apart from the truth or false setting of the words and verbalization of these words has legal significance apart from their truth or falsityFRE 801(d):?“EXCLUSTIONS”(non hearsay):FRE 801(d)(1)(c): Prior identification [exclusion] Preliminary Facts:Declarant must have personal knowledge.Declarant must testify at the trial or hearing.Declarant must be subject to cross-examination concerning the statement.counsel has to pose questions on cross and witness has to be willing to answer the questionsthere actually has to be an attempt at cross-examination and the witness must be willing to answer the questionsStatement must be one of identification of a person made after perceiving the person.Perceiving can be more than just eyes, e.g. photo/video.JUSTIFICATIONSometimes you can’t get an in court identification.Out of court IDs are generally more probative than in court because they were made closer in time to having seen the person identified.Declarant can be subject to cross even if he doesn’t remember the basis for his information.Indicates that declarant must have personal knowledge of making the statement of identification, but does not need to show that he had personal knowledge of the basis for his identification.Hypos:\W testifies at trial that X robbed her, W points out X in courtroom. Admissible, non hearsay – in court identification.W testifies at trial that X robbed her, W points out X in courtroom. Then W testifies that soon after the robbery she was asked to view a lineup and that she pointed at X and said “that’s the guy.” D cross-examines W who answers questions and remembers making the identification.do hearsay analysis first801(d)(1)(C) analysispersonal knowledge because she was the person that pointed out in the lineup at first and testifying to that knowledge nowidentification- yes- she pointed to him and identified him in the lineuptestified at trialcross-examined and answered the questions Admissible, Non hearsay because qualifies under the exemption.W testifies at trial that X robbed her. W testifies that soon after robbery she viewed lineup, pointed to X and said, “that’s the guy.” D cross-examines and remembers making the identification. Then cop gets on stand and says he saw W point to X at lineup.Admissible, and cop can testify to this as well. the witness doesn’t have to to be the out of court declarant, as long as he saw/heard the out of court declarantSame as above, but W cannot testify because he is sick. May cop still testify?Not admissible, W is not at trial testifying.Owens: memory loss is not equated with not being subject to cross.NOTE: under 801(d)(2) declarant doesn’t have to have personal knowledge under party admission exclusions but does need so here.?Party Admissions: General requirement: in all 5 party admissions, the statement must be against party’s interests at the time it is offered.801(d)(2)(a): Individual admission – Party’s own StatementPreliminary Facts:Statement must be offered against party.must be against the party’s interest when offered into evidenceMust be the party’s own statement.801(d)(2)(b): Adoptive admissions: evidence is not hearsay if the statement is offered against an opposing party and the statement is one of which party O manifested his belief or acquiescence in its truth. Preliminary Facts:Statement is offered against a party.Statement is against the party’s interest at the time it is offered.Statement is actually made by someone other than the party.That party, against whom it is offered, manifested his belief or adoption in the statement’s truth.When by silence it is called a negative or tacit adoption.look at the context. Would the reasonable person stay in silence? If not, this would be a negative adoption asked whether the natural reaction of a reasonable person be to deny the statement. (Hoosier)What would come in? The actual statements surround the silence and the circumstances in which the event occurred.Majority Position: Whether an inference can be made that there has been assent by the party is a question of conditional relevancy (i.e. for the jury).Only way the accusation is relevant for an admissible purpose is if there is first an adoption/assent.Establishing the adoption is the conditional fact.Minority position: Judge’s decision State v. Carlson-guy hung his head and shook it back and forth. This was super ambiguous. Up to the court. Unlikely to find an assertion with a silent nod of the head.In criminal context, silence I the presence of the police is not enough to be an adoptive assertionHypo: Personal injury action arose out of collision of 2 cars, P suing for negligence and his allegation is D was drunk at the time of accident. W was an eyewitness to the accident. P calls W to testify that immediately after the accident and at the location where it occurred, the following conversation took place:Party O = Defendant.Witness to D: You were drunk as a skunk.D to Witness: I know.Q #1: Is the statement offered against an opposing party? Yes, because it is made against D’s interest at the time the evidence is offered. Q #2: Was the statement made by someone other than party O? Yes, W to D said you’re drunk as a skunk.Q #3: Was there manifestation by party O that he adopted or believed in statements truth? Yeah, D said “I know.”Both statements = party admission made by Defendant [party O]801(d)(2)(C&D) – Imputing Admissions: Made by another person and then imputed to the party if the prerequisites of the rule are met (imputing).801(d)(2)(C) – Adoptive admissions by party authorized:Prerequisites:Statement is offered against a party.against party A’s interestStatement is made by another person.Person is authorized by that party to make a statement concerning the subject.Can be explicit or implied speaking authorityImplied from the task that the declarant has been engaged to perform for by the party.Will need preliminary facts beyond the evidentiary facts/hearsay statement itself to establish speaking authority.if fired EE, not authorized and test not metDeclarant does not have to have personal knowledge about the issue.Party against whom the statement is offered does not need to have personal knowledge about the statement.The proffered hearsay statement (the evidentiary fact) can be used to establish the declarant’s speaking authority under FRE 801(d)(2)(c), but the evidentiary fact (hearsay statement) is not sufficient to establish speaking authority of declarant under FRE 801(d)(2)(c).Need more preliminary facts than just the statement.must be evidence independent of the proffered hearsay evidence to establish the point801(d)(2)(D) – Statement made by party Agent or employee:Prerequisites:Statement is offered against a party.against party A’s interestStatement is made by another person who is that party’s employee or agent or employee.if fired EE, this wouldn’t apply and test not metThe statement must concern a matter within the scope of the agency or employment.The statement must be made during the existence of the relationship (NOT at the time of the accident, it matters when the statement was made)FRE 801(d)(2)(D) doesn’t require an agency relationship if there is employment.Declarant does not have to have personal knowledge about the matter which they are declaring.The party against whom the statement is imputed does not need to have personal knowledge about the matter which declarant declared.The proffered hearsay statement (evidentiary fact) can be considered by the judge in determining whether there is an agency or employment relationship between declarant and the party, and the scope of that relationship, but the proffered hearsay statement is not sufficient to establish those things under FRE 801(d)(2)(D).must have independent facts of the proffered hearsay evidence to establish this pointMahlandt v. Wild Candid Survival & Research Center, 1978: Young boy was bitten by a wolf and the employee in charge of the wolf admitted it and the corporate board stated the facts of the bite. Court held that the employee’s statements were imputed to the center, but the board’s statements were not imputed to the employee.In determining the foundational prerequisite of FRE 801(d)(2)(D) and 801(d)(2)(C) that an agency relationship exists between declarant and the party, the courts will use the substantive law of agency as the standard. (she will just give us agent stuff on the test)801(d)(2)(E) – Co-conspirator Party Admission:1) made by co-conspirator of the party during the course and in furtherance of the conspiracy2) conspiracy= people acting together by mutual consent in furtherance of the same goal3) Prerequisites:Statement must be offered against a party.Statement must be made by someone other than that party, i.e. that party’s co-conspirator.Must establish by a preponderance that there was a conspiracy.Conspiracy: Do not use substantive law!Defined: For purpose of FRE 801(d)(2)(E) a conspiracy is people acting together by mutual consent in pursuit of the same goal.Proponent must establish by a preponderance that that party and declarant were coconspirators in that conspiracy.Statement must be made in furtherance of the conspiracy.Needs to be part of the information flow.Recruiting, planning, progress reports, statements concealing the criminal objectives before the conspiracy ends are all in furtherance of the conspiracy.Statement must be made during the course of the conspiracy.“During the Course of the Conspiracy”Statements made by a co-conspirator after the termination of the initial conspiracy is not considered to be made during the course of that initial conspiracy and that statement cannot come in under FRE 801(d)(2)(E) to show the elements of the initial conspiracy. NOTE: Often there are conspiracies to cover up other conspiracies statements made in furtherance of covering up are not admissible to show participation in the first conspiracy.Still admissible if statement was made before D joined the conspiracy. You enter the conspiracy as is. Rationale: statement by one is statement by allDeclarant does not need personal knowledge.Party does not need personal knowledge.The preliminary facts can be used to show the conspiracy and that the party and declarant were coconspirators, but the proffered hearsay statement is not sufficient in itself to establish “c” and “d” above.must have independent facts on these matters beyond the hearsay evidenceUS v. DiDomenico, 1996: Conspirators are each other’s agent and principal. Statements made in a second conspiracy to cover up a first conspiracy, are not admissible to prove first conspiracy.Hypo: Dan is prosecuted for manufacturing meth. Sam is co-conspirator. During course of conspiracy, Sam said to Sally, “we’ve got the get more Sudafed to make the meth.” P offers Sally’s testimony of what Sam said as a party admission by Dan.During trial, P would otherwise have to ask Sally whether the conspirators were seeking Sudafed to make meth without this exemption. This is less potent because it is a statement about a prior event. US v. Doerr, 1989: Case dealt with a prostitution ring. Court held that statements about the décor of room was not in furtherance of the conspiracy and thus did not qualify for admission under FRE 801(d)(2)(E). The statements were merely narrative discussion of a past event, and mocking one’s ignorance of the club’s unlawful activities.Mere idle chatter and casual conversations are not “in furtherance” of a conspiracyHEARSAY EXCEPTIONS- (Admissible Hearsay):FRE 803(1): Present Sense Impression: covers statements describing or explaining an event or condition made while declarant was perceiving/immediately thereafter, the event or condition.Prerequisites (1) Declarant must have personal knowledge about the matter which he is declaring(2) Must be event or condition.(3) Declarant’s statement describing or explaining an event/condition [can’t just relate to the event].(4) Statement must be made by declarant while perceiving or immediately thereafter, the event/condition. Immediately thereafter: this is the slightest lapse of time A present sense impression is a statement made as an instinctive, immediate reaction to a then-occurring event.Justification: The most trustworthy because if a person makes a statement describing an event as he’s perceiving it, there’s no time to be insincere or to fabricate, and perception is probably pretty good if declarant is describing an event as he’s perceiving it.FRE 803(2): Excited utterance: Statement [out of court/hearsay] relating to a startling event or condition made while the declarant was under the stress of excitement caused by it.Prerequisites:(1) Declarant must have personal knowledge [in court witnesses and out of court declarants].(2) Existence of a startling event/condition.(3) Statement relating to a startling event/condition.To be admissible, the startling event must produce immediate nervous excitement to render the subsequent utterance spontaneous and unreflecting. The individual making the statement must not have had time to reflect on what was said. Also, the utterance must have directly related to the circumstances that warranted the spontaneous utterance(4) Statement must be made by declarant while under the stress of excitement caused by that event/condition.Justification: this is considered very trustworthy hearsay because if declarant is under the stress of excitement when he makes his statement, he’s being sincere.Problems: memory, mode of narration and perception due to stress.Measuring Stress of Excitement:Conduct: What was the declarant's conduct between the onset for the startling event and the making of the statement? [did he go to sauna and relax or was he bent over a dead body screaming?]Condition: Condition of the declarant when he makes his statement [wailing over a dead body or is he relaxing in a sauna]Location: Location [is he at the scene of the startling event or did he join some friends to have dinner?**If it appears the declarant is in continuing pain caused by the event, the courts will find he made the statement under the stress of excitement.Minority Rule: Must have independent evidence from the evidentiary fact, i.e. hearsay cannot be the preliminary fact as well.Federal court (majority): can use hearsay evidence to establish the event or startling conditionFRE 803(3): State of Mind: Statements of a declarant's then existing state of mind or emotional sensory or physical condition but not including statements of declarant’s belief/memory to prove the fact remembered/believed unless it relates to the validity or terms of declarant’s willPrerequisites(1) Declarant must have personal knowledge of the matter about which he is declaring.(2) Statement of declarant's then existing state of mind such as [i.e., intent, motive] OR then existing emotional, sensory, or physical condition such as [i.e. mental feelings, physical pain]. (3) BUT NOT including statements of memory or belief to prove the fact remembered or believed.Exception: UNLESS the statement relates to the validity or terms of declarant’s last will and testimony. Differentiate between past condition and then existing state of mind and physical condition.Justification: No memory problem because declarant is describing existing condition as he speaks.No perception issue because he is reporting his own internal works.However, could be sincerity or mode of narration problem.Mutual Life Insurance Co. of NY v. Hillmon: Evidence was a letter from Walter to his family stating that he intended to go to Colorado with Hillmon. This was used to determine whose body was found for insurance purposes. Evidence was allowed because it was probative not of the fact of whose body it was, but to show that it was likely that Walter went to Colorado.Hillmon doctrine: Hearsay statement of the declarant’s then existing intention to do something is admissible hearsay under FRE 803(3) if offered to prove that declarant probably did the thing he intended.(use it to offer declarant’s then existing intent to do something in the future to show that he did it)Then existing state of mind is one of intent.The ultimate proposition in each is different. Two different ways of using existing intent:To show that the declarant had the intent (Adkins).To show that the declarant did the thing he intended to do (Hillmon).All federal courts allow use of 803(3) to get into evidence responses to public opinion polls. So if question is what’s your favorite car and respondent says BMW, that’s considered statement of declarant's then existing state of mind.FRE 803(4) Statement made for a medical diagnosis or treatment: a statement that:Prerequisites Declarant has personal knowledge about the matter which he is declaring.Statement must be for purposes of obtaining medical diagnosis or treatment.Statement must describe medical history, past or present symptoms, pain, sensations, or the inception or general character of the cause or external source thereof (history, symptoms, pain, sensations).Cannot introduce statements that declarant is blaming another for illness, unless somehow attributing blame is reasonably pertinent to diagnosis or treatment.Dr. called to testify that patient told him in ER “I was struck on the right hip by a bicyclist” – Can come in for the truth of the matter asserted as statement of cause because what he was hit by matters in how the doctor treats him.Statement must be reasonably pertinent to medical diagnosis or treatment.Statement must be made by the patient or someone who has an interest in the well-being of the patientTrustworthy: High incentive for sincerity when seeking medical intervention.Subtleties:No insistence that it has to be then existing (i.e. as he talks).Could be “I had a headache yesterday.”Typically statements that a patient would make to a doctor, nurse, etc.Can be made to non-medical personnel if it is seeking medical treatment or diagnosis.Psychiatric treatment:Less clear, but seems to allow FRE 803(4) for that purpose.Does not work for statements from a doctor to the patient.Forgetful witness Problem: Call a witness to the stand and he says he can’t remember.Direct: can ask witness on direct a leading questionCaveat: The direct examiner can ask leading questions if it’s necessary to develop the witness’ testimony [RULE 611 C]. Present recollection refresh/revive: device for jogging witness memory, NOT a hearsay exception.Use this technique to jog your witness’s memory.Can use absolutely anything to jog a witness’s memory to get the associate of process going in the witness.The item used for jogging not offered into evidence because it’s the equivalent of asking a question [it’s just a different device for asking a question in the hopes of getting witness to answer question].Writing: Can use a document, any document, [transcript, book, etc]. Only party that can offer it as evidence is the opposing partySafeguards when introduce writing: When document is used as a jogging memory devices, certain safeguards come into play:FRE 612: When during the trial/hearing a writing is used to jog the witness’s memory the party opposing the evidence has 4 rights to protect his interest:(1) Has the right to have the writing/document produced in court;(2) Has the right to inspect the document;(3) Has the right to cross examine the witness with respect to relevant parts of the writing; and(4) Opposing party has right to introduce into evidence those portions of the document relating to the witness’s testimony.FRE 803(5): Past recollection recording (Forgetful witness who wrote it down): No full personal knowledge required about the matter he/she is being asked to testify about.Covers a record that concerns a matter about which the declarant once had knowledge, but now at trial, has insufficient recollection to testify fully and accurately [on the stand as witness, but can’t remember] just so happens that near the time of the event he made recordation about it.Prerequisites: Declarant does not have to be unavailable (usually is a witness).Declarant must have once had personal knowledge about the matter being declared in the past,What is offered is the content of a physical record.document read into recordThe record must concern a matter about which declarant once have personal knowledge, but now has insufficient recollection to testify accurately and completely about.The record must have been made or adopted by declarant when the matter was fresh in his memoryThe record must accurately reflect declarant’s prior personal knowledgeUsually W testifies that it was accurate when made.Adopted: suffices under 803(5) if witness read/examined the record and confirmed it’s accurate→ means that the witness read a document made by someone else and affirmed its accuracy.NOTE: the actual document/record can’t come into evidence, but its contents can be read into the record; only exception is if the opposite party wants to introduce the record, he can do that, can also cross and inspect the document/record.Adams v. NY: A document previously recorded by a witness may be read into evidence if the witness cannot remember its contents, but only if the witness’s memory is actually refreshed by looking at the document. If, after reading the document, the witness still cannot independently recall the event in question, the document may not be read into evidence.Justification: Minimal memory problems because document was made when matter was fresh.Minimized sincerity problem because it must be established by a preponderance that it reflects Witness’s personal knowledge as a declarant.FRE 803(6): Business and Public Records Record of an act, event opinion, condition or diagnosis made at or near the time by or from information transmitted by a person without knowledge.General rule for all records: All makers of the record must be under a business duty in making the record; if the informer is not under business duty, where there are multiple makers, admissibility still may be gained through using a combination of multiple hearsay rule and 803(6).Record: Can be made by 1 or more people.People:Informant: Person who gives information to the business to use in the document.Recorder: Informant gives information to this person who records the information [writes it down].The person who has the information and records it: The makerCustodian of the Documents: person who works for the business who is generally familiar with the record keeping practices at that business Qualified witness: person who is familiar with the record keeping/making practices of organization in question; does not have to be someone who saw the record at issue prepared.*?In order for document to be admissible under 803(6), without invoking another federal rule of evidence, both the informer and the recorder must act under an insider’s duty Prerequisites: (1) Record of an act, event, opinion, condition, or diagnosis(2) the record was made at or near the time of the act, event, opinion, or diagnosis(3) The record was made by or from information transmitted by a person with Personal knowledge ONLY the informer needs personal knowledge.(4) the record was kept in the course of a regularly conducted activity of the business, occupation, organization, calling whether for profit or not. (5) Making the record was a regular practice of that activity.Foundational prerequisite #1-5 must be each established by a preponderance via the test of the record’s custodian, by another qualified witness, or by certification that complies with FRE 902(11) or (12) or with a statute permitting certification 803(6)(6) Opponent has not shown that there’s a lack of trustworthiness in the source of info/other circumstances surrounding the making of the record. [Trustworthiness clause] NOT on the proponent to show; burden of proof is on the opponent [opposition must show the documentation is not trustworthy enough to be admitted].For a record to be made as regular practiceRecord must relate to the inherent nature of the particular business, andRecord must be part of the regularity of preparing records Acting under a business duty.General rules:?#1: True for all business records that come under 803(6); all makers of the record must be acting under an business duty in the making of the record. If there are multiple makers, and if the informer doesn’t act under such a duty, the proponent might still gain admissibility through use of a combo of multiple hearsay doctrine and 803(6).#2: Palmer says at a minimum the requirement with respect to the making of a document in a regular practice of activity requires regulatory in a business’s preparation of accident reports [non-hospital].For all other accident reports, regularity of preparation is a requirement.BE AWARE OF THIS: Douglas underlying concern about business records that are accident reports being untrustworthy because they are usually made in anticipation of litigation and there’s danger that they are self-serving.#3: The making requirement for using 803(6) contains two requirements: (1) All makers must be acting under business duty; and(2) The making of the record must be regular in the sense that its recurring or ordinary practice of the businessOne maker of the document: If there’s only 1 maker of the document [ex: if the accident occurred in front of the police officer→ he’s both informer and recorder of the accident], she must have personal knowledge & must be acting under a duty [insider's duty].So recorder and informant are 1 person = ?must be acting under a duty in order to summon 803(6).Acting under an illegal duty is still a duty [ex: working for an illegal enterprise]Multiple makers: the informers must have personal knowledge; recorder it's not required to have it.Multiple hearsay issue: Multiple makers of a record and a recorder and one or more informers and recorders will be acting under a business duty, but then one other informer is not acting under a business duty, does that mean that the proponent cannot get the record in?Under modern federal practice, maybe.Can get it in by using both 803(6) and the multiple hearsay rule.Under business record exception, the document won't come in, however, proponent can still get it in if the non-business participants [informer] articulation fits an exception besides 803(6) and if the recorders articulation/recordation fits 803(6), then admissibility of the record can still be gained [sauna case best describes this].805 [rule of hearsay w/in hearsay] tells you that multiple hearsay can come into evidence if each part of the combined statements fits an exception to the hearsay rule.Business records within business records: Duncan caseMajority approach in federal courts: What do you do when you have business records within business records?The federal courts will allow in under 803(6) the business records of company #2 as part of the business records of company #1 if company #1 either verified or relied upon the included records of company #2Hospital records:Hospital records = double hearsay issue [Dr.’s recordation, patient’s information]General rule: History of accidents appearing in hospital records are NOT made in the regular practice of the businesses activity UNLESS that history relates to diagnosis/treatment.Rule 106: if party introduces all or a part of a writing or recorded statement then an adverse party may require the introduction at that time of any other part or any other writing or recording that ought in fairness to be considered at the same time. Holding in Williams: A statement in a hospital record is admissible in so much as it helps to diagnose and treat a patient’s injuries. In this case, the statement by Williams about what caused the accident to occur did not help the hospital in making a diagnosis. Although it may have been helpful for Williams to say that he was struck by a car, the added details about whose car struck him and how it came to strike him do not assist the hospital in conducting its business of treating patients. As a result, the parts of the hospital record outlining Williams’s statements about the causes of the accident that serve no medical purpose are inadmissibleBroadest holding: Accident reports, non-hospital made, in anticipation of litigation are not made as the regular practice of the business activity and therefore don’t fit 803(6).Narrowest holding: Only a report made by one who is a potential party regarding accident litigation which report is made in anticipation of litigation only such report is not made in the regular practice of the businessAccident recordsSana rule:Counterargument to trustworthiness: that the document was made in anticipation of litigation and therefore should be excluded, BUT court said it’s no longer a consideration under prerequisite #4.Untrustworthiness/fear of self-serving because it was made in anticipation of litigation, that concern is no longer under #4If not being used by the side that prepared it, there’s no issue of self-serving.Federal court approaches: USE FOR EXAMFirst one: Some federal courts will treat this problem as simple hearsay under 803(6) as long as all the foundational prerequisites of 803(6) are fulfilled and there’s corroboration of the accuracy of the statements [the informers provide] by the recording business.Second one: Again, will treat the evidence as simple hearsay and avoid the multiple hearsay mess, just analyze under 803(6) because treat the presence of the multiple business organization’s as one company → one enterprise.FRE 803(8): Public records exceptionPrerequisites(1) Declarant must have personal knowledge of the matter about which he is declaring.(2) Declaration in a record/statement of a public office but only if the record sets forth 1 of 3 kinds of info:a) Activities of the office;b) Matters observed pursuant to legal duty & as to which there’s a duty to report, EXCEPT matters observed by law enforcement personnel in criminal cases.Law enforcement means people with actual law enforcement dutiesPolice reports can’t be used against the defendantcan only be used against the governmentc) In civil cases, or against the government in criminal processing, factual findings resulting from an investigation conducted pursuant to authority granted by lawAdverse party has the burden of objecting that even though proponent offers on of these types of records that it is not trustworthy, if met the documents cannot come inType A Documents:Inward turning with respect to the matters reported.These kinds of records are reporting what is going on internally in the agency or office.Ex. record of receipts and disbursements made by the department of the Treasury.Rarely raise any problem, routinely admitted.Type B Documents:Outward turning in terms of the matters reported.Reported matters outside of the office or agency. Documents that describe activities the public agency generates.E.g. Weather bureau observations of weather conditions.Routinely admitted, except when talking about documents made by law enforcement personnel offered against an accused in a criminal case.Exception was created for 6th Amendment confrontation concerns.Don’t want the accused to run the risk of being convicted on uncrossed official documents.Type C Documents:Documents resulting from an investigation and evaluation of that investigation.Same exception as to B documents - Routinely admitted, except when talking about documents made by law enforcement personnel offered against an accused in a criminal case.Same concern about confrontation for the accused under 6th Amendment.Outward turning in terms of the matter rmer:With (A) and (B) type documents the rule contemplates that the informer will be a government employee.With (C) type documents it is contemplated that the informer could be a government employee or an outsider.If there are multiple makers and the informer is not an employee there is no multiple hearsay problem.Trustworthiness assured by the government employee evaluating the information in making the report.Question: aren’t public records also business records? Yes, there’s duplication.A lot records will fit under 803(6) and (8).Public records don’t have to be regularly kept or made, therefore public records can encompass things like 9/11 [Gov. Office reports about the terrorist attack] → these records are not regularly made; strange and weird events don’t always happen.This exception just includes records that aren’t regularly made.ConditionsMany public records are the result of/embody information passed from official to official within a public agency or even among public agencies.Does this situation present multiple hearsay problems? No.If many officials/agencies involved in making a public record, courts treat it as simple hearsay NOT multiple hearsay under 803(8).With respect to the two categories of information, informers and recorders are government employees, but what about the 3rd category [in civil cases…]?Factual findings may just rely on agency employees/officials.This category could involve informers who are outsiders [not government employees].Multiple hearsay problems? No.FRE 804(a): Criteria for being unavailable: declarant unavailable as witness if declarant:(1) Is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;(2) Refuses to testify: refuses to testify about the subject matter despite a court order to do so;(3) Declarant is unavailable where she can’t remember: testifies to not remembering the subject matter;(4) Dead: cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or(5) Is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:**But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.FRE 804(b)(1): Former testimonyPrerequisites:(1) Declarant must be unavailable as a witness.(2) Declarant must have personal knowledge of the matter about which he declares.(3) The statement must be former testimony of a witness in an earlier hearing, or legal deposition (in the same or a different proceeding).(4) Provided that: Statement must be offered in a civil or criminal case against a party that had an opportunity and similar motive to develop the testimony by direct, cross, or redirect; OR The statement must be offered in a civil case against a party or, if needed, his predecessor in interest that had an opportunity and similar motive to develop testimony by direct, cross, or redirectSimilar motive: refers to the fact that the party against whom the evidence is offered, if he could cross examine the out of court declarant in the present proceeding, then his motive in crossing or otherwise developing testimony would be similar to the motive he had in the earlier proceeding Testimony: Testimony as statements made on the record in response to questions which statements are made under oath and subject to penalty and perjury.Proceeding: An official inquiry conducted in a manner authorized by law.Predecessor at interest: Test: whether the earlier development of the testimony is adequate to protect the party against whom the former testimony is now offered? Is there a shared interest in the earlier development?Community of interests test: what the federal courts use→ is there some shared interest as between the party against whom the evidence is now offered and his so called surrogate in the earlier case that assures the adequacy of the earlier development of the testimony?FRE 804(b)(2) Dying declarations: In prosecution for homicide/civil action, the rule covers a statement that declarant made while believing his death was imminent and it was made concerning its cause/circumstancesPrerequisites:(1) Declarant must have personal knowledge.(2) Declarant must be unavailable as a witness.(3) Statement must be offered in a homicide prosecution or a civil action.(4) Statement must be made by declarant while believing his death is imminent Statements – “I’m dying” and “You’re a goner.”Nature of the wounds – if grievous more likely imminent.Administration of last rights.Time between making the statement and eventual death.Statement must happen within a few hours and believe death is inevitable.death doesn’t actually have to be imminent, but the declarant must believe his death is imminent (even if the belief is unreasonable)AND(5) Statement must concern the cause or circumstances of what declarant believed to be his impending deathJUSTIFICATION: This testimony is considered trustworthy because the declarant will probably be sincere in what they say under the circumstances of impending death.How do you show imminent death?other statements suggesting belief of deathstatements made by medical personnel to declarant that death is nearnature of the wounds, then illness (shot in the head suggests death is near)length of time between statement and deathState v. Jensen, 2008: Wife wrote letter about suspicions about husband trying to kill her and gave it to her neighbors. Court held the letter to be a dying declaration because the wife preserved her utterance and it became effective when she died.Court examined the trustworthiness in a dying declaration based on the common law concept that one would not lie just before they went to the afterlife.Suicide notes as a dying declaration: state courts may allow after considering 1) the contents and circumstances described in the note, 2) the proximity between the declarations creation and the actual death. (Garza v.T) Federal courts generally do not accept suicide notes as a dying declaration b/c ultimately the final act rests within the choice of the declarant.FRE 804(b)(3) Declarations against interest:Prerequisites(1) Declarant must have personal knowledge about the matter.(2) Declarant must be unavailable as a witness.(3) Declarant’s statement must be against her interests at the time the statement was made such [that a reasonable person in declarant’s position would have made if believing it to be true because at the time it was made] in one or more than three ways:a) The statement was so far contrary to declarant's pecuniary or proprietary interest and/orb) The statement so greatly tended to invalidate a claim by declarant against another, c) Statement so greatly tended to expose declarant to criminal/civil liabilityCriminal liability: if statement tended to expose declarant to criminal liability and statement offered in criminal case, its inadmissible unless corroborating circumstances clearly indicate the trustworthiness of the statement US v. Barret: A statement against the declarant’s interest at the time he made it is admissible as an exception to the hearsay rule if the declarant is unavailable as a witness. However, if the declaration excuses a defendant, it must also be corroborated by circumstantial evidence to verify the statement’s trustworthiness.Declarant’s statement can be against his interest in the sense that it exposes him to criminal liability by: Facts stated by declarant tends to indicate criminal liability orJust the simple making of that statement tends to expose him to criminal liability.If declarant makes broad narrative and narrative is self-inculpatory, but it includes a statement which either is neutral or self-serving, then can those included statements come in under 804(b)(3) as part of the whole narrative?No, these cannot come in under 804(b)(3): Collateral, neutral or self-serving, statements that are part of a generally self-inculpatory narrative are not sufficiently against criminal interest when uttered such that they can come in under 804(b)(3).Compare and Contrast: Easy to confuse party admissions between declarations against interestParty Admissions:Declarant need not be unavailable as a witness.Declarant need not have first hand personal knowledge about the subject of his statement.Admissions need only be against the interest of a party at the time offered to evidence, not necessarily when madeMust either be made by an OOC declarant who is a party OR they are made by another person and the rule imputes the statement to a party.Must be against any party’s interest in any way relevant to that litigation.Declarations Against Interest:Declarant must be unavailable as a witness.Declarant must have personal knowledge of the matter about which he is declaring.Must be adverse to the interests of the declarant at the time uttered or written.May be made by any kind of out of court declarant.Can only be against the declarant’s interests in 3(a-c).Party Admissions:1. declarant need not be unavailable as a witness2. Decl need not have personal knowledge about the subject of his statement3. **Admissions need only be against the interest of a party at the time they are offered into evidence (don’t have to be against interest when uttered)4. Admissions must either be made by an out of court declarant who is a party OR by another person and the statement is imputable to a party.5. Admissions must be against a party’s interest in any way relevant to that litigationDeclarations against interest:1. Declarant must be unavailable as a witness2. Decl must have personal knowledge3. **Decl against interest must be adverse to the interest of the declarant at the time uttered or written4. Declarations against interest made be made by any kind of out of court declarant5. Declarations against interest can only be against the declarant’s interest in the ways laid out pare and Contrast: Easy to confuse party admissions between declarations against interestParty Admissions:Declarant need not be unavailable as a witness.Declarant need not have first hand personal knowledge about the subject of his statement.Admissions need only be against the interest of a party at the time offered to evidence, not necessarily when madeMust either be made by an OOC declarant who is a party OR they are made by another person and the rule imputes the statement to a party.Must be against any party’s interest in any way relevant to that litigation.Declarations Against Interest:Declarant must be unavailable as a witness.Declarant must have personal knowledge of the matter about which he is declaring.Must be adverse to the interests of the declarant at the time uttered or written.May be made by any kind of out of court declarant.Can only be against the declarant’s interests in 3(a-c).Party Admissions:1. declarant need not be unavailable as a witness2. Decl need not have personal knowledge about the subject of his statement3. **Admissions need only be against the interest of a party at the time they are offered into evidence (don’t have to be against interest when uttered)4. Admissions must either be made by an out of court declarant who is a party OR by another person and the statement is imputable to a party.5. Admissions must be against a party’s interest in any way relevant to that litigationDeclarations against interest:1. Declarant must be unavailable as a witness2. Decl must have personal knowledge3. **Decl against interest must be adverse to the interest of the declarant at the time uttered or written4. Declarations against interest made be made by any kind of out of court declarant5. Declarations against interest can only be against the declarant’s interest in the ways laid out above.FRE 804(b)(6): Forfeiture exception: Statement offered against a party that wrongfully caused or acquiesced in wrongfully causing declarant to be unavailable as witness and party did so intending this unavailability.Prerequisites:(1) Declarant must have personal knowledge.(2) Declarant must be unavailable as a witness.(3) Statement must be offered against a party that wrongfully caused or acquiesced in wrongfully causing the unavailability of declarant as a witness.AND(4) That party intened to produce that result.Giles v. California, 2008: D murdered ex gf. Evidence was statements gf made about domestic abuse weeks prior. Lower court admitted evidence because D caused the witness to be unavailable, thus forfeiting his Confrontation right. Court held that waiver of Confrontation right only applies when D engaged in wrongdoing that was intended to and did procure the unavailability of the declarant as a witness.Wrongfully: Wrongful illegal conduct, coercion, undue influence, attempt to impede the truth finding function of the trialAcquiesced: Evidence that the opposing party [against whom the evidence is offered] tacitly agreed to the wrong doing is sufficient for there to be acquiescence.Intending: Specific intent in the wrongdoing party/party acquiescing in wrongdoing must do so with particular intent of making the declarant unavailable as a witness.It does not suffice if it just may have happened inadvertently.FRE 803(21): reputation concerning character Rule:Exception for reputation as to a person’s character in the community or among the person’s associates.Must first be admissible as an exception to the ban against character/propensity evidence, and then this exception is what allows the otherwise hearsay statement to be admitted. (404 and 608)Declarant does not need personal knowledge of the matter about which he is declaring.Because it is about what people are say need only have knowledge of what people are saying, not the personal character.All declarant is doing is telling what others say about a person.Important because under character evidence rules, if you want to use evidence about a person’s character you have a hearsay problem as well as a problem under the character rules.HYPOUnder character rules—would need to show admissibility to show that reputation for dishonestyunder hearsay rules—would use 803(21) to say reputation as to a person’s character would be admissibleon cross- then testing testing 1, 2, 3 analysisFRE 807: Residual exception [also 804(b)(5) & 803(24)]Prerequisites(1) Declarant has personal knowledge of matter he is declaring about.(2) Evidence is hearsay statement not specifically covered by any exceptions in 803/804.(3) Statement is admissible if all four of the following are present:(1) Statement has equivalent circumstantial guarantees of trustworthiness; and(2) Offered to prove a material fact and [Ex: who, what, when something happened].(3) More probative on the point for which it is offered than any other evidence that the proponent could reasonably be expected to provide (4) Must best serve the purposes of these rules and the interests of justice. Example: Declarant is now dead & was only eye-witness of who caused the accident, which is more probative than any evidence D could reasonably obtain.****Means the statement must be as trustworthy as hearsay statement under other exceptionsNOTE: When doing this analysis on exam, make sure to identify why its trustworthy from the mon circumstances courts look at to determine if evidence has equivalent guarantees of trustworthiness: Preliminary facts showing motivation of the declarant to speak truthfully.Whether statement was made under oath.Amount of time lapse between an event & the utterance/writing.Spontaneity of making the statementWhether the statement has an against interest aspect.Did declarant make the statement when it was against his interests to do so?Whether making of utterance/document out of court was a matter of routine for the makers & did makers rely on the document/utterance.Notice provision 807(b): have to give other side pre-trial notice that you are going to do this.Notice includes: substance of what is being offered & name and address of declarant.Near miss: Courts almost uniformly applying residual clause to near misses, that is, it doesn’t matter if a category of hearsay was specifically rejected as an exception when considering its admissibility under the residual exception [abandoned in most federal courts now].6th amendment & hearsay:Crawford v. Washington, 2004: D was convicted of stabbing Lee (for supposedly attempting to rape his wife). Evidence was a tape made by the wife at the police station corroborating the story. At trial the wife could not testify under the spousal rule. Court held that the evidence could not be admitted because it did not meet the right of confrontation requirements.Court’s New Rule: Where testimonial hearsay statements are at issue, the 6th Amendment demands that when a declarant doesn’t appear at trial, and where the statements are offered against an accused, and where the accused makes a 6th Amendment objection, then the statements are inadmissible unless:The declarant is unavailable as a witness; andAvailability of a Declarant for 6th Amendment purposes.Prosecutor must make a good faith effort to produce the declarant at trial and must fail at that effort. Good Faith Effort: Prosecutor does not have to pursue vague clues to locate a witness who has left the state and Prosecutor’s efforts can be in good faith if she does nothing to locate a witness who has left the country.The accused must have had a prior opportunity to cross examine the declarant. (must have the opportunity to cross him at trial or before trial in a pre-trial hearing)Court holds that at least the following hearsay does constitute testimonial:Prior testimony from a preliminary hearing, prior testimony from a grand jury hearing, prior testimony from an earlier trial.Testimonial statements = Includes but is not limited to, statements that are prior testimony given at a preliminary hearing, at a former trial, or given before a grand jury, and it includes some statements made to the police during interrogation, and ex parte affidavits.For police exception, statements are testimonial if made during investigation or prep for litigation as opposed to responding to an ongoing emergency.Confrontation clause only applies to testimonial hearsay & is inapplicable to non-testimonial hearsay.OCC stmts do not raise a Confrontation Clause issue unless the statement is offered to prove the matter asserted.If witness is subjected to cross at trial, introduction of her prior OCC stmts do not create a Confrontation Clause issue b/c W is @ trialIf accused’s own wrongdoing caused witness’ unavailability, accused forfeits his Confrontation Clause rights.Davis v. Washington, 2006: Two different cases, both domestic disputes. In one, the testimony in question comes from a woman on the phone with 911 who is actively asking for help while being attacked. The second is an interview of a woman by a police officer following the end of the disturbance.When are out of court statements made to police via 911 call “testimonial” and subject to the Confrontation Clause?Court creates Primary Purpose Test: Statements are non-testimonial when they are made in the course of a police interrogation where objectively the surrounding circumstances show that the primary purpose of the interrogation is to enable the police to deal with an ongoing emergency. Look at the present tense is the emergency in progress?Hearsay statements are testimonial when objectively the surrounding circumstances show that there is no ongoing emergency and the primary purpose of the police interrogation is to gather information or to prove past events that might be relevant to a future prosecution.Confrontation Clause ONLY applies to testimonial statements!Hearsay is offered which is admissible as far as 804(b)(6) is concerned, but can the accused keep the stuff out by making a 6th amendment objection?Jiles v. Cali: The Confrontation Clause of the Sixth Amendment provides that a defendant has the right to confront the witnesses providing “testimonial” statements against him with a reasonable opportunity for cross examination. In Crawford v. Washington, the Court held that the only exceptions to the Confrontation Clause that will be granted are those that were established at the time of the founding. Although there was an exception to the clause at the time of the founding that allowed the admission of statements of a witness who was “detained” or “kept away” by the defendant, it is clear from a reading of this common law exception that it only included acts of the defendant specifically designed to prevent the witness from testifying. Thus, a defendant forfeits his Sixth Amendment right to confront a witness against him as a result of his wrongful act only when the defendant engaged in the act for the explicit purpose of preventing the witness from testifyingCredibility Evidence: ImpeachmentSubstantive evidence: Bears on merits of case [ex: is D guilty/liable or not?]Credibility evidence: Bears on witness’s testimonial capacities [i.e. perception, memory, sincerity & mode of narration]3 types of credibility evidence; NOT substantive evidence: Impeachment Evidence: Evidence that is directed to attacking the witness’s credibility.Rehabilitation Evidence: Directed to rehabilitating the credibility of a witness who has already been impeached.evidence to enhance the Ws’ credibility after his credibility has been attackedBolstering Evidence: Evid. to enhance a W’s credibility b4 impeachment.THIS IS NOT ALLOWEDImpeachment: Something is wrong with witness’s perception, memory, sincerity & mode of narration.Reason: When you impeach a witness, you do it for the ripple effect against witness throughout trial; everything witness testifies to, jury questions reliability of this witness.FRE 607: Governs who can impeach a witnessany party can impeach the witness, even the party calling the witness.A witness must testify in order to be impeached [exception to this].NOTE:No leading questions on direct examination [of your own witness]. Cross-examiner can ask as many leading questions as they want and can do it repetitively in many different waysStill admissible: Just because a witness is impeached, does not mean evidence is excluded; just attacks the credibility/weight of the evidence.Intrinsic evidence: When witness A is impeached via cross-examination, his impeaching testimony is called intrinsic evidence.Extrinsic evidence: Witness A is impeached by calling witness B and Witness B gives testimony that impeaches witness A, witness B’s impeaching testimony is extrinsic evidence or impeach by using a document, regardless of whether witness sponsoring witness is A or B; doesn’t matter who lays the foundation for the document, it’s still extrinsic.So extrinsic evidence is either testimony of another witness/physical evidence like documents5 Types of Impeachment: Prior inconsistent statements: Attack witness with his own out of court prior inconsistent statement that now contradicts her testimony. Example: W in court testimony is “the horse is black.” Impeaching counsel can impeach W by introducing evidence that W said out of court, “the horse is white.” This is a contradiction which means W has bad memory or he’s lying [insincere]Specific contradiction: Attack witness by introducing evidence, other than her prior inconsistent statement, that contradicts the witness’s testimony.Example: W in court testimony is “horse is black.” You could impeach W by introducing evidence other than W’s prior inconsistent statement that the horse is white, how? On cross, get W to admit “yeah it was white” or could call A as witness to contradict W’s testimony by testifying the horse is white.Rule: Although evidence of prior bad acts is not admissible to prove that the defendant acted in conformity with the acts, such evidence is admissible for various other, limited purposes, including impeachment of a witness by contradiction, BUT is still subject to FRE 403 balancing test so as to not invoke unfair prejudice.Example: W says I have never seen drugs, prosecutor cross-examines W, who then admits on cross that he tested positive for cocaine. Propensity evidence of witness’s character for untruthfulness: Bears on witness’s sincerity.FRE 404(a) ban on use of character propensity evidence, but (a)(3) If character propensity evidence is admissible under 608/609, then it’s okay gives permission to ignore general ban General rule: On cross examination of a witness, the questioning party may inquire about specific instances of conduct that are probative of the witness’s character for truthfulness.No extrinsic evidence: Party can’t prove the specific instances of conduct with extrinsic evidence, but may at least ask about them if party has good faith belief that they are true.Inadmissible: Evidence of such acts is inadmissible to prove the witness actually committed the acts but can bring it in to impeach witness for character of truthfulness.FRE 608: A witness(a) Reputation or opinion evidence: witness credibility may be attacked/supported by testimony about the witness’s reputation for having a character for truthfulness/untruthfulness, OR by opinion testimony about that character; [2nd sentence] but evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (no bolstering) No ban on use of extrinsic evidence (b) Specific instances of conduct: Except for criminal convictions under 609, extrinsic evidence is not admissible to prove specific instances of witness’s conduct in order to attack/support witness character for truthfulness; but on cross, court may allow them to be inquired into if they’re probative of the character for truthfulness/untruthfulness of: the witness, oranother witness whose character the witness being cross-examined has testified about.Evidence of truthfulness needs to rehabilitate witness who has been attackedPrerequisites:Intrinsic evidence [on cross];Elicited on cross:Cross examiner must be able to show basis for good faith belief that the witness engaged in the specific instances of conduct.Specific instances must be under 401 probative of truthfulness or untruthfulness.Purpose of the inquiry must concern the attacked witness’ character for untruthfulness to show a propensity for untruthfulness and is acting in accordance therewith on the stand by lying.If 403 objection, must be satisfied as well.No extrinsic evidence.(2) Specific instances of conduct not criminal convictions;(3) Specific instances of conduct must be probative of the attack witness’s character for truthfulness/untruthfulness [proponent must show this under 401].Federal court view: Conduct that involves falsehood/deception is probative.Always probative: fraud, making false statement on employment app, credit app.Not probative: violent acts, drug crimes, sexual crimes, disorderly conductTheft? Dishonest but not probative for truthfulness/untruthfulness [grey area].General guideline: If all you can say about the proffered conduct is that it is improper, immoral, or unlawful, and then it is not probative of a character for untruthfulness; won’t allow it in under 608(b).W being attacked must be attacked on cross.Proponents attacking counsel may at least ask about them if the party has a good faith belief that the specific instances of conduct are true or have occurred. 403 balancing test?NOTES:Judge discretion: Judge has discretion to allow witness to be cross-examined about specific acts that reflect on character for truthfulnessW denies conduct: If witness denies conduct, assuming the evidence is inadmissible on some other ground, cross-examiner must take the answer.Doesn’t mean cross examiner prohibited from further efforts to get the witness to admit the misconduct, but extrinsic evidence of misconduct is inadmissibleExtrinsic evidence = Testimony by another witness who observed the acts, documentary proof of untruthful acts when necessary to call another witness to establish documents are genuine/lay foundation for their admission under an exception to hearsay [but can do this through testimony of the witness whose character for truthfulness is being impeached]Judicial notice of facts is always extrinsic. On the stand: Witness must be acting in conformity with his character on the stand = he’s lyingBias: Specific instances of conduct that show a witness is bias, mental/sensory defect or conduct that contradicts testimony all modes of impeachment.Prior convictions: FRE 609: Impeachment by evidence of criminal conviction(a) The following apply to attacking witness’s character for truthfulness by evidence of criminal conviction: (1) For a crime that, in the convicting jurisdiction, was punishable by death/imprisonment for more than one year, the evidence:(A) Evidence of conviction of a crime by a witness who is not the accused shall be admitted, subject to the 403 balancing test, if the crime was punishable by death or imprisonment in excess of 1 year.Would try to use 608(b) if the crime was not a felony.(B)Evidence that a witness who is the accused was convicted of such a crime, shall be admitted if the probative value of the evidence outweighs the prejudicial effect to the accused.AKA Super-balancing test: If evidence offered in criminal case where attack W is defendant, can’t come in to impeach him unless probative value of that evidence outweighs its prejudicial effect on that defendant. Burden: Burden on the party who wants to keep the evidence in.Crimes of assault: not highly probative of truthfulness for impeachment purposes Factors under balancing test: Impeachment value of prior crimeRemoteness in time of the prior convictionSimilarity between crimes charged & crime of prior convictions; note such prior convictions generally inadmissible where current offense same/similar to prior conviction because probative value outweighed by prejudicial effect Importance of defendant’s testimony ***Appealing improper impeachment by prior conviction: To obtain review of claim of improper impeachment by prior conviction under 609(a)(1), D must have testified at trial; can’t review because would be speculative if D never actually testifies [example: D not testifying for fear of impeachment can’t be appealed](2) Evidence of conviction of a crime by any witness regardless of punishment shall be admitted if it can be determined that establishing the elements of the crime requires proof of an admission of acts of dishonesty or false statement of the witness.Criminal falsity: A crime in which an element of the crime is dishonesty or false statement.Crimen falsi are automatically admissible to impeach any witness under FRE 609(a)(2) – no balancing test needed.Exception – 609 (b,c, and d):Specificity of 609 trumps 403 in such evaluations.Erroneous to say that no balancing test can ever apply.Super Duper balancing test in 609(b) could apply if older than 10 years. Each exception could change the automatic admissibility.Theft/bank robbery crimesMajority view of federal courts: criminal falsity usually excluded unless they involve as an element of proving the crime, a dishonest act/statement. Dishonesty includes only those crimes that involve deceit NO 403/super balancing test application: unless it’s ancient criminal falsity.609(b) Limit on using the evidence after 10 years: Evidence of a conviction under this rule is not admissible if more than 10 years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is later . . .Unless, the court determines, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect.Super-Duper Balancing Test: Burden is on the proponent, and probative value must substantially outweigh the dangers – people change, give ’em a chance (same as rape shield).PROPONENT MUST GIVE NOTICE TO OPPOSING PARTY609(c) Effect of pardon, annulment or certification of rehab: Evidence of conviction not admissible if: [applies to criminal falsity & 609(a) convictions](1) The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; OR(2)?The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of witness’ innocence.609(d) Juvenile adjudication: Evidence of juvenile adjudication admissible only if:(1)?It is offered in a criminal case;(2)?The adjudication was of a witness other than the defendant;(3)?An adult’s conviction for that offense would be admissible to attack the adult’s credibility; and(4)?Admitting the evidence is necessary to fairly determine guilt or innocence.609(f) Pendency of an appeal: Conviction that meets this rule admissible even if an appeal is pending; evidence of the pendency also admissible.US v. Sanders, 1992: *GOOD EXAM HYPO* The trial court allowed in evidence of a prior conviction of D for stabbing another inmate in a case for D stabbing an inmate.Highlights that the same evidence needs to be examined under multiple rules and two different balancing tests could be used to figure out what could come in.Under 609(a)(1) for Prior Convictions of the Accused:Judge should have applied the Super Balancing test.Here prior convictions do not have relevancy to character for untruthfulness (D is not arguing he didn’t stab the inmate, he’s arguing he was self-defending).And prior convictions were highly prejudicial.Could you 404(b) to show intent? Under 404(b) for admissible character propensity purposes, can’t use specific instances of conduct:Improperly admitted to show intent when it was not at issue in case. – once again, claim of self-D, not lack of intent to stabIf was OK to admit, judge would use 403 balancing test. Would be deemed relevant under 401, but should end up being excluded under 403.Trial judge should have applied the Super Balancing Test.Witness being impeached was the accused.Evidence has little probative value but very high prejudicial value.Would likely be used improperly by the jury to view it as a forbidden propensity purpose.The similarity between the two crimes heightens the probative value. – keep in mind what is at issue.Showing witness has a defect: In her capacity to observe, remember or narrate; bears on attack witness’s memory, perception or mode of narration NOT sincerity.No FRE on this; governed by 401-403Evidence of W sensory/mental defect may be used to impeach W if it shows 1 of the following 2 things:First, if it shows W impaired ability to have perceived events accurately at the time they occurred; or Second, by showing W impaired ability at time of trial to remember passed events/narrates clearly about them.Hypo on sensory defect: Personal injury action, W testifies for P that car causing crash was blue, D whose car is blue can impeach W by showing she is color blind & impeaches prior perception.CAN use extrinsic/intrinsic evidenceMental defect: not character under 608(b), it’s involuntary whereas if someone as character for untruthfulness [lies], its voluntary. High probative value on issue of credibility & can materially affect accuracy of testimonyShow witness is bias: Some kind of prejudice against/for one of the erning rules: 401-403Can use extrinsic & intrinsic evidence.Scenarios of bias:Bias may be shown by a personal relationship between the attacked witness and a party. It could be a friendship, family ties, a sexual involvement, or even common membership in certain organizations. Witness bias can be proven by showing an employment or business relationship between the attacked witness and a party. Example: accomplice granted immunity from prosecution/promised a reduced sentence if give testimony.Example: A defense witness is an officer of a business. She acknowledged in her testimony that convicting the defendant would jeopardize her business interests.Bias can be achieved by showing that the witness has a financial stake in the outcome of the suit. Example: ask expert witness whether he’s being paid fee for his testimony.Evidence that the witness has taken or offered bribes in connection with this case.Hatred or enmity between the attacked witness and a party.Example: D has a hold over alibi witness [threatened, etc]Example: threats to W’s loved ones = threats to destroy business/reputation of WGeneral rule: proof of witness bias has tendency to make facts of his testimony less probable, so evidence of this is admissible, if not barred by 403If have nothing: D counsel can bring up the fact that prosecutions key witness in a good hotel, wined & dined and supported financially pending & during trial.Collateral Matters doctrine applies only to impeachment by prior inconsistent statements & specific contradictionCommon law, not in FRE, many courts use it but not all. Attacking counsel can’t impeach witness with extrinsic evidence on a collateral matter, meaning a matter that is collateral to the issues in litigation.Doesn’t apply to intrinsic evidence: statements from witness’s own mouth while testifying.Collateral means: not relevant Problem in applying this: defining in each case what matters are collateral to the issues being litigated.Analysis: ask (1) is it extrinsic? And (2) is it relevant to the litigationOswald rule: Contradictory extrinsic impeachment evidence is not collateral if that evidence also has some relevant purpose to the case in addition to impeachment by specific contradiction or by prior inconsistent statements; look for dual purpose.Additional purpose: Could be substantive purpose to show preparation, opportunity, intent, etc. or could also be to impeach the witness by some other method. Hypo: W saw an accident and he testified favorably for the plaintiff, part of his testimony is that at 11:00pm he was coming home from a visit to his mother when he saw the accident. Could defendant introduce evidence testimony of plaintiff’s butler that in the night in question at 10:50pm W left plaintiff’s sisters home? That is, would this extrinsic evidence of the butler’s that contradicts Plaintiff’s testimony be admissible to impeach W as a witness?It’s extrinsic because different witness is testifyingButler testimony = specific contradiction that contradicts W’s testimony; W said coming from mom’s house, butler saying coming from plaintiff’s sistersIf there’s no secondary purpose of butler’s testimony, is this attempt to impeach on collateral matter? Where W was coming from doesn’t seem to have much to do with how the accident happened = collateral.BUT, butler’s testimony bears on bias of W’s favorable to plaintiff because if he’s coming from plaintiff’s sisters house [as butler testified to], shows bias that W and plaintiff may be friends, etc. So NO longer collateral matter because there’s an additional purpose to the testimony, which is to impeach W’s testimony by specific contraction.Alternative to collateral matters doctrine: Some courts don’t use collateral matters doctrine, they use FRE 403 by assuming that the extrinsic evidence poses a very high danger of wasting everyone’s time and confusing the issues, and those dangers substantially outweigh the probative value of the impeaching evidence in contradicting on a very minor matter [i.e. collateral matter].Rehabilitation evidenceAllows counsel to try to repair a witness’s credibility after that credibility has 1st been attacked [impeached].2 commonly used techniquesIntroducing evidence of the truthful character of the attacked witness – character propensity evidence to rehabilitate.Counsel is trying to show that the witness has a truthful character and must have been acting in conformity with that by telling the truth.Extrinsic (W testifies about their opinion of A OR the reputation of A. 608(a))Intrinsic (W who attacked A’s character for truthfulness can testify on Cross w/ regard to specific instances of conduct that is relevant of A’s character for truthfulness. 608(b)(2)).Introduction of the witness’s prior consistent statementRule 801(d)(1)(b) – When a witness’s prior consistent statement is offered to rehabilitate a witness by showing his consistency, and the foundational prerequisites are met, it can also come in for a substantive hearsay purpose.Makes sense because the evidence is already being used for substantive purposes – because the evidence is consistent.Foundational Prerequisites:Declarant must have personal knowledge of the matter about which he is declaring.Declarant must testify at the trial or hearing and be subject to cross concerning the out of court statement.Declarant’s out of court statement must be consistent with some of his in court testimony.The out of court statement must be offered to rebut an express or implied charge that he has recently fabricated his testimony or improper motive or influence on him.Example of difference between implied charge and an express charge of improper influence or motiveExpress charge – to W on the stand attacking counsel says you would lie for the defendant since he is your son wouldn’t youImplied charge – You are the defendant’s mother aren’t youImpeachment by showing witness biasImpeachment by prior inconsistent statementsImpeachment by specific contradictionOne Exception: A statement cannot come in for either substantive or rehabilitation purposes unless the out of court statement was made when declarant had no motive to fabricate the statement.Pre-motive requirement: witness prior inconsistent statement introduced to rehabilitated the witness by rebutting charge/recent fabrication/improper motive/influence can come in only if the statement was made before witness had motive to fabricate itHYPO: Defendant D is charged with distribution of cocaine. W testifies for the prosecution that he saw D sell cocaine. On cross, W admits that he had drug charges pending against him and hopes for leniency by cooperating in the prosecution of D. W has made 4 statements saying that he saw D sell cocaine, (1) gossiping before he was arrested for drug crimes, (2) at the time that W was arrested for his own drug crimes, (3) At the grand jury hearing convened to consider indicting D, (4) when D was being tried. The prosecutor wants to put in all 3 statements 1-3 to rehabilitate the witness on bias. Are statements 1-3 admissible under the pre-motive requirement1 is pre-motive and allowed in3 is definitely post-motive2 is post-motive. Right after he is arrested he begins to have a motive to shift blame and cooperate.Hearsay problem? If a prior consistent statement of a witness is offered only for rehabilitation purposes, is there a hearsay problem?No. Out of court, makes assertion, but offered only to rehabilitate the witness. The prior consistent statement is offered only to show consistency between the out of court statement and the in court testimony, not the truth of the matter asserted.Counsel often offers a prior inconsistent statement for both rehabilitation & substantive hearsay purposes allowed under 801(d)(1)(b), governs substantive hearsay purposes & rehabilitation purposes for prior consistent statements. Steps to Analysis: When you have the intersection of impeachment and hearsay: 1. Determine whether an out of court statement is offered to impeach.If no, no double problem2. If yes, ask yourself can the evidence impeach only by use of the truth of the matter asserted?If yes, there is hearsay as well as impeachment.If no, then it is just impeachmentIntroduction of evidence of the witness’s truthful characterWhich technique do you use? Exercise logic select technique that is logically relevant to undo the damage of impeachment Governing rules: 608(a) & 608(b)(2) MARITAL PRIVILEGESPrivileges Generally:General Idea: to prevent confidences made in certain kinds of relationships from being divulged in the litigation process.The owner of the privilege has the burden of establishing the preliminary facts that give rise to the privilege.Sometimes forgo highly probative evidence.Based on the view that maintaining the confidentiality held in the privilege has greater social value than disclosing the protected information.If holder or designee is not present, those present may call the privilege to the court’s attention.Court may delay disclosure till desire of the holder can be attained.Privileges must be claimed at all stages of a legal proceeding.Where a professional on one side of a privilege reveals the communications without authorization the holder can still assert the privilege.In order to benefit from a privilege, the person needs to invoke the privilegeestablish the foundational pre-reqs.then the judge decides (it’s an admissibility decision)person who invokes the privilege must be holder of the privilegeFRE 501: In the federal courts, privileges are governed by the common law as interpreted by the federal courts.Refers you to the federal common law on privileges.In civil actions where state law supplies the rule of decision as to an element of a claim or defense, privileges must be determined in accordance with state law.Waiver: A privilege can be invoked or waived by its owner or holder, or by an appropriate person on the owner’s behalf.Can be by a person who is not a party or witness.Means of Waiving a Privilege:Holder or appropriate designee may use words to express waiver.Holder or appropriate designee may fail to assert the privilege when privileged matter is inquired into.Holder or designee can waive by disclosing the privileged communication.Analysis generally: 1) Is there a privileged relationship?2) Was the communication germane to the privileged relationship? (relate to the nature of the privilege)3) Confidentiality, was the communication confidential?4) Is the holder of the privilege asserting it?5) Has the holder waived the privilege?6) Is there an applicable exception?Marital PrivilegesRecognized in federal and state courts.Policy:To preserve marital stability and protect marital privacyTwo Separate Privileges:Privilege Against Adverse Spousal Testimony (Spousal incapacity privilege):Applies only in criminal cases, when the couple is married at the time of trial.Witness spouse is sole holderIf asserted and upheld, the witness spouse can give no testimony that would be contrary to the interests of the accused spouse.Privilege for Confidential Communications Made Between Husband and Wife During a Legal Marriage:Applies in both criminal and civil cases.Holder differs according to jurisdiction. Both/either usually.Applies even if marriage has dissolved by time of trialIf asserted and upheld, witness spouse can only testify to matters that are not included in the confidential communications covered by the privilege.What must be shown to claim the privilege:(1) Only covers words or acts intended as communication from one spouse to another.(2) The communication must have been made during a valid marriage.(3) Communication must have been made with the intent of the communicating spouse that it would remain confidentialIf the holder can establish (1) and (2), then (3) will be presumed in federal courts. . . . UnlessIf communication is overheard or intercepted by a third party, the privilege is destroyed unless..... The communicating spouse took reasonable precautions to prevent interception of overhearing ORThe third party is mentally incapable of understanding the content of the communication.Exceptions:Neither applies in civil litigation between spouses or in cases of alleged child abuse.Neither applies in criminal cases involving accusations of criminal acts against each otherTrammel v US: if the spouse wants to testify voluntarily against the other, the accused spouse can’t prevent the witness spouse from testifying if the witness spouse wants toThis case only concerns adverse spousal testimony.III. Attorney-Client Privilege:Rationale: beneficial to litigation full disclosure will benefit the quality of litigation. Holder: Client is the holder, attorney can assert the privilege on behalf of the client.Elements to Claim:Client must consult the attorney or one he reasonably believed to be an attorney.The consultation must be for the purpose of obtaining legal advice or assistance.Client must intend the communication to the attorney to be confidential.Confidentiality regarding the communication must be maintained by the munication must concern the subject matter of the client’s legal problems.In most jurisdictions, privilege covers not only confidential communication from client to attorney but also attorney to client.Elements must be proven by a preponderance.Following communications/facts are not within privilege:Identity of attorney.Identity of client, address, occupation.The fact of consultation, including number of times.time and place of hearingAtty/client privilege survives the client’s deathThird Party: Where information is communicated by a third person to the attorney, which the attorney then communicates to the client is not confidential and thus the privilege does not govern.IV. Corporate Context:Corporations can claim attorney-client privilege.Big Problem: When does the corporate client speak to its attorney?Upjohn v. US, 1981: This case has not brought much clarity.There is no simple test to determine whether a communication between a corporate employee and a corporate attorney is covered by the corporation’s attorney client privilege.The probable rule of thumb: If a corporate employee makes a communication to a corporate attorney the communication is likely to be covered by the corporation’s privilege if the following 3 things are true:The employee made the communication at the direction of a superior.The employee made the communication for purposes of obtaining legal advice for the corporation.The employee communicated about a matter relevant to the scope of the employee’s corporate duties.What if third persons learn of a communication that was meant to be confidential?No simple rule – it depends.If the communication is overheard by an eavesdropper or otherwise intercepted the privilege is not lost provided that the client took reasonable precautions to prevent such disclosure.A client can use an intermediary to communicate with attorney and privilege will not be lost provided that the intermediary is useful to the obtaining or rendering of legal advice.E.g. translator, accountant, doctor.Privilege extends to people who assist the attorney.Determining the Privilege: How judge determines privilege without exposing info to court.Claimant of the privilege must provide some basic information:General nature of communication and services being rendered by counsel.Courts will occasionally require partial disclosure of info to determine if it should be upheld.BEST EVIDENCE RULE: Triggered only when a party is trying to prove the contents of a writing, recording or photograph.AnalysisIs best evidence rule triggered? Is the party trying to prove contents of writing, recording or photograph? If no, best evidence rule objection overruled; If yes, ask whether proffered evidence fits one of the approved ways of proving contents of writing, recording, or photograph? [original, duplicate, other, testimony].Personal knowledge: If you have personal knowledge of something and it’s also in writing, recording or photograph, likely that best evidence rule isn’t triggered.Look at the source of the testifying witness’s knowledge! [If testify from writing = triggered; if testify from personal knowledge = not triggered]Example: If knowledge of the information from a meeting was because you were at the meeting, and independent of reading a transcript, best evidence rule isn’t triggered. -Would be testifying to what he heard not the contents of the transcript~One exception: If writing, recording, photograph has independent legal significance, BER triggered Example: will, deedIndependent legal significance: If testimony is offered to prove a matter, later reduced to writing, and the witness who got his knowledge of the matter independently of the writing, the BER still may be triggered if the law gives a special significance to the writing. Best Evidence Rule could still be triggered even if knowledge is independent of writing, recording, or photo IF the governing substantive law makes recordation or writing a prerequisite to legal efficacy of a transaction.Example: statute of frauds Hearsay: best evidence rule could trigger a hearsay problem! EXAMPLE:Case plaintiff needs to prove X loves Z.Plaintiff offers into evidence a letter from X to Z which states “I love you Z from X.”Best evidence rule is triggered.Hearsay also, it as an out of court statement about a fact used to prove that fact asserted. Hearsay objection is valid, have to check for exception.Rule of thumb: if proponent is trying to prove contents of writing, recording/photograph, there will also be a hearsay problem if contents contain assertion & proponent offers them to prove truth of matter asserted.FRE 1001: Writings, recordings, or photographs defined (1) Writings and recordings. “Writings” and “recordings” consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.(2) Photographs. “Photographs” include still photographs, X-ray films, video tapes, and motion pictures.(3) Original. An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".(4) Duplicate. A “duplicate” is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.Can prove the contents any of four ways:(1) FRE. 1002. The original copy(2) FRE. 1003. Use a duplicateUnless, opposing party can show:A genuine question is raised as to the authenticity of the original; ORUnder the circumstances it would be unfair to produce a duplicate instead of the original.(3) FRE. 1004. Can use “other evidence of the content of writing, recording/photograph, other than duplicate & original if: Other evidence= Testimony of other evidence can be introduced if 1 of 4 situations is present:(1) The original is lost/stolen/destroyed & not by the proponent acting in bad faith or(2) Original cannot be obtained through judicial process(3) Original is in custody of the adverse party who won’t produce it(4) Can use it if you show the writing is not closely related to a controlling issue in the case. (4) FRE 1007 Proven by testimony, deposition or written statement, of the party against whom the evidence is offered; proponent doesn’t need to account for the original. Copies of Public Records to Prove Content [1005]The proponent may use a copy to prove content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: The record or document is otherwise admissible; And the copy is certified as correct in accordance with Rule 902 (4); Or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.Summaries to Prove Content [1006]The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in courtSirico v. Cotto, 1971: Court did not allow the testimony of Dr. Wolfson because he was testifying regarding x-rays, but P did not produce the x-rays or explain his failure to produce them.Herzig v. Swift and Co, 1945: Evidence was testimony of a partner about the value of the company and the decedent’s share of the company. Court held that the best evidence rule did not apply because the contents of the writing were not being proved.Rule – Bitensky Rule: If a party offers a witness’s testimony to prove a fact or event, and the fact or event is one that subsequent to its occurrence was reduced to a writing, recording, or photograph, and the witness’s testimony doesn’t expressly state that it is recounting the contents of the writing, recording, or photograph, then is the best evidence rule triggered?Ask: where did witness get his information about which he is testifying!?If the testifying witness has personal knowledge of the firm’s earnings independent of the books, the BER is not triggered.He is testifying about something he knows.But, if the testifying witness’s knowledge of the firm’s earnings comes from reviewing the books even though he doesn’t say so on direct, BER is triggered.if knowledge comes from viewing or listening to writing, etc.-BER is triggeredOffering party is trying to prove the contents of a writing.Exception – even though a witness testifies to a fact independent of any writing recording or photograph, the best evidence rule may still be triggered if the relevant substantive law attaches special legal significance to the fact being embodied in the writing.E.g., a will, a deed.Hypo: A agrees in writing to buy widgets. Under Statute of Frauds, contract must be proven by writing. This is true even though A or B have personal knowledge of the contents of the contract.Best Evidence Rule objection would be entertained.Meyers v. US, 1948: Witness testified as to what another had said before a Senate hearing. Court allowed the testimony because the witness was testifying as to what he had heard and not based upon the Senate record.Possible interrelationship between hearsay and best evidence rule:The hearsay purpose and showing the contents of a writing can be the same.Hypo: W testifies that the “horse was brown.” The other side wishes to impeach with prior inconsistent written statement that horse was white. Best evidence was triggered because attacking counsel needs to prove the contents of the writing, but hearsay is not triggered because the writing was not offered to prove that the horse was white, just to prove inconsistency and impeach the witness.if offered to prove that the horse was white, then it would be a hearsay purposeAuthentication: may be necessary only in relation to identifying a thing offered into evidence or identifying the source of a writing where the identity of the thing or the source of the writing is relevant to the case and disputed by opposing counselGoverning rules: governed by 901, 902 & 104(b)Whether a writing is authenticated or not is a question of conditional relevancyAuthorship is the conditional fact that makes the writing relevant evidenceTriggered: when the identity of thing/source is challenged; & relevant by preponderanceEstablish: Either the identity of a thing or the author or source of a writing, if identity, authorship, or source are contestedFRE 901: Authenticating or Identifying Evidence (a) RULE: proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is(b) Not rules, they are guidelines. They are examples on how you authenticate a writing. They are not meant to be exhaustive. (1) Testimony of a witness with knowledge that an item is what it is claimed to be(2) Non-expert opinion about handwriting based on familiarity with it not acquired by litigation.(3) Comparison by an Expert Witness or the Trier of Fact.?A comparison with an authenticated specimen by an expert witness or the trier of fact.(4) Distinctive characteristics Authentication may be established by appearance and other distinctive characteristics in the document, taken in conjunction with the circumstances.It is still the case a document may not be self-authenticated even if it has your name/sig on it.Name/signature alone NOT ENOUGH: Cannot authenticate a writing by the mere appearance within the four corners of the document of a name or signature. BUT: Can use name/signature to authenticate in addition to other characteristics of the document [1 factor](5) Opinion about a voice-whether heard firsthand or through recording. (6) Evidence about a telephone conversation, such as the call was made to the number assigned at the time to a particular person (incl. self-identification); or to a business, if the call was made to a business and the call related to business reasonably transacted over the phoneHas to be shown that the number dialed was assigned to the party in question and that in the circumstances that the person called was the person that answered(7) Public records or reports: evidence that a writing authorized by law to be recorded or filed and in fact was in a public office, or a purposed public record, report, statement, or data compilation in any form is from the public office where similar items are kept.(8) Ancient document or data compilation: evidence that a document or data compilation in any form (a) is in such condition to create suspicion concerning authenticity, (b) was in a place where it, if authentic, would likely be, and (c) has been in existence 20 year or more at the time it is offered.(9) Process or system: evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.(10) methods provided by statute or rule: any method of authentication or identification provided by Act of Congress or by other rules prescribed by Supreme Court pursuant to statutory authority.NOT exhaustive: this list is not exhaustive; authentication can be shown reasonably Example evidence: any evidence not the document itself; beyond 4 corners FRE 902: Evidence that is self-authenticating Proponent relieved of burden: The proponent of the document does not have to introduce any extrinsic evidence to authenticate itDoes not mean that authenticity cannot be challenged and can introduce evidence to challenge the authenticity(1) Domestic public document sealed & signed; (2) Domestic public documents not sealed but are signed and certified; (3) foreign public documents; (4) certified copies of public records; (5) official publications; (6) Newspapers & periodicals;(7) Trade inscriptions; (8) Acknowledged documents; (9) Commercial paper; (10) Presumptions under federal statutes; (11) Certified domestic records of regularly conducted activity; (12) certified foreign records of regularly conducted activity.FRE 104(b): Whether a document is authenticated is treated as question of conditional relevancy under FRE 104(b), meaning that whether authentication has been achieved may well end up being for the jury to decide rather than the PETENCY OF WITNESSES: Distinctions between Witness Competency, Admissibility, and Testimonial CapacitiesWhether a person is incompetent to become a witness, there is some flaw in the person. The focus is on the person. If a person deemed incompetent to be a witness, their testimony is not going to come in.Inadmissibility focuses on the evidence that is proffered. A person may be perfectly competent to be a witness, but her testimony is not allowed in because there is some flaw in the testimonyThe only attribute in common between testimonial capacities and competency is sincerity.FRE 601: Competency to testify: Every person is competent to be a witness UNLESS these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim/defenseFRE 602: Need for personal knowledge: W can testify only if he has personal knowledge of the matter.Can prove personal knowledge from witnesses own testimony This rule does not apply to witness expert testimony in FRE 703FRE 603: Oath/Affirmation to testify truthfully: Before testifying, W must give oath/affirmation to testify truthfully.FRE 604: Interpreter: interpreter must be qualified & give oath/affirmation to give true translation.FRE 605: Judge: Judge can’t testify as witness at trial; don’t need to object to preserve issue on appeal.Does not prohibit clerks, bailiffs, stenographer from testifyingFRE 606: Jurors: 606(a) – Juror competency to be a witness at 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 to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.606(b) – Juror competency to be a witness during an inquiry into the validity of a verdict or indictment:During an inquiry into the validity of a verdict or indictment a juror is not competent to testify (cannot testify) as to three things:Any statement or matter occurring during the course of jury deliberations.The affect of anything upon the juror’s or another juror’s mental or emotional status as influencing assent or dissent to the verdict or indictment.Juror mental processes in connection therewith.Three Exceptions, 606(b) – Juror is competent to testify:Whether any extraneous prejudicial information was improperly brought to the jurors attention.Extraneous prejudicial information – extra record sources regarding matters not generally known.Ex. newspaper or tv report on a matter not considered common knowledge.Whether any outside influence was improperly brought to bear upon the jurors. Exception generally covers:Efforts by outsiders to interfere with jury deliberations.example: bribing or threatening jurorsJury contacts with outsiders that might interfere with jury deliberations.example: Juror/judge contact, attorney contact.Intoxication is not includedWhether there was a mistake in entering the verdict onto the verdict form.Juror affidavit or evidence of juror’s statement cannot be received/admitted Rule 606(b) applies to any inquiry into the validity of the verdict, not merely inquiries into what happened during jury deliberation. Warger (2014) (dealing with post verdict motion for new trial after discovering dishonesty by jurors during voir dire)Tanner v. US, 1987: Dealing with the exception for outside influences, D moved for a new trial on the grounds that one juror had advise D of another juror’s alcohol and drug use during the case. Court held that jurors are incompetent to testify in such a hearing regarding juror use of drugs and alcohol during trial.D argued that alcohol and drugs are external because outside jurors until they consume them.Physical or mental incapacity of a juror is an internal influence not external.Good policy rationales for what seems to be an odd result:Preserves stability of verdictsAvoids a floodgate of appeals into juror’s mental stateProcedural safeguards in place protect constitutional rightsChildren: A minor child’s testimony is competent if the child can comprehend the obligation to tell the truth and has the intellectual capacity to communicate his or her observations and experiences. The trial judge has discretion in making this determination.Hill v. Skinner, 1947: In this case a 4 year old boy was bit by a dog. The only evidence was the testimony of the child who stated that the dog bit him. This common law case held that the testimony was acceptable because the judge inquired about boy’s competency before testifying. The appellate court held that the test for competency was whether the child felt an obligation to speak truthfully and whether the child had the capacity to perceive, remember and narrate.FRE analysis:Questioning the child about capacity to remember and narrate would be unacceptable.Questioning about duty to tell the truth would be acceptable.Questions about ability to perceive would be ok – personal knowledge.**Note: Adults presumed to have mental competence to testify, but opponent can challenge capacity.Impeaching a witness v. incompetency of a witnessincompetency-can’t give the testimony at allimpeachment-he’s competent to be a witness, but impeaching counsel attacks his credibility and makes it look like his testimony isn’t believableInterest: Witness’s personal interest in the mater won’t keep them off the stand, but can be used to impeach [bias, etc.]Hypnosis Hypnotized person can give 2 types of testimony:Hypnotically induced/refreshed recall testimony:Testimony that recites facts that were recalled post hypnosis and seemingly due to the hypnosisConcern about testimony that witness will confabulate and have memory hardening.Confabulation: Witness confusing facts that actually occurred and are recalled due to hypnosis, and facts that are recalled due to hypnosis but didn’t occur – mix of truth and false in the facts.Witness and hypnosis experts can’t tell when he is confabulating.Memory Hardening: Witness becomes very sure of facts that come about due to hypnosis.Pre-Hypnotic Recall Testimony:Testimony that recites facts that were recalled prior to hypnosis.Danger of memory hardening.Dangers of hypnosis DO NOT bear upon the admissibility of the evidence. It is an issue of competency of being a witness. Currently 4 approaches:(1) Other than the accused in a criminal case, many courts hold that people are per se incompetent to give hypnotically induced recall testimony. Trend in the states.(2) Hold that people are per se competent to give hypnotically induced recall testimony.(3) Competent if some safeguards exist.Hypnosis done alone, by certified person, video typed, in neutral setting, etc. Evidentiary safeguards: cross examine W, jury aware it’s just hypnosis and dangers of it, corroborating evidence (4) Other than the accused in a criminal case, many federal courts will simply apply 403 balancing test. Probative value of testimony and weigh it against prejudicial effect.BAD because 403 is admissibility of evidence, not competency.Still how most federal courts do it.Constitutional argument: Unconstitutional to have a rule that witnesses accused of a crime are per se incompetent to give hypnotically induced recall testimony.Everyone has this constitutional right, but that the courts will decide on a case by case basis whether the constitutional right is outweighed by other consideration. In doing this weighing the Supreme Court said that the following factors should be looked to:(1) The reliability of the accused hypnotically induced recall testimony and the court will do this by checking to see what kind of procedural and evidentiary safeguards are available in the case.(2) Will take into account the constitutional right to testify.(3) Will take into account the relevancy of the accused testimony.Judicial Notice:Judicial Notice: A means of establishing certain kinds of facts without introducing mon Law – Two Kinds of Judicial Notice:Notice of Adjudicative Facts:Think common knowledge.Fact that concerns the particular facts that gave rise to the particular law suit.Who did what, when and why.Notice of Legislative Facts:Think policy. General assumptions about conditions or behavior that judges sometimes rely on in marking big policy judgmentsRelevant to the litigation but also transcend the case before the court.Typically sociological, economic, political, or scientific assumptions.Note: Federal rules only expressly deal with judicial notice of adjudicative facts – FRE 201.Four Questions Concerning Judicial Notice:Who Takes Judicial Notice?Only judges; Can be done at any stage of civil litigation (including appellate courts).In criminal, post-trial facts cannot be taken if it would go against the interests of the accusedWhat Circumstances Make Judicial Notice Proper?FRE 201(b) requires that for an adjudicative fact to be noticed, it must be one not subject to reasonable dispute.201(b)(1&2) – not subject to reasonable dispute:(1) not subject to reasonable dispute when generally known within the territorial jurisdiction of the court, or(2) the fact is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.How is Judicial Notice Achieved Procedurally?201(c): The judge has discretion to take judicial notice of adjudicative facts whether requested to or not.Judge need not notify parties before taking judicial notice of an adjudicative fact on his own- can do it at his own accord201(d): The judge must take judicial notice of adjudicative facts if requested to do so by a party, provided that the judge is supplied with the necessary information established by the requirements of 201(b) [provided facts to show that the judicial notice won’t be subject to reasonable dispute]201(e): A party is entitled upon timely request to an opportunity to be heard upon the propriety of taking judicial notice.Request may be made after judicial notice has been taken.if the judge doesn’t give you advanced warning that he is taking judicial notice of adjudicative facts, then you can make a timely request after the judge takes noticeWhat is the Jury’s Role Once a Fact is Judicially Noticed?201(g) – civil cases: the judge must instruct the jury to accept the judicially noticed fact as conclusive.party that is disadvantaged by this fact CANNOT introduce any evidence in rebuttal as contradictory evidence201(g) – criminal case: judge must instruct jury that it may, but is not required to, accept a fact judicially noticed as conclusive.party damaged by the judicial noticed fact can introduce evidence rebutting Judicial Notice of Legislative Facts:The facts upon which judges rely in making policy judgments.Standard: A legislative fact should be more likely than not true.Brown v. Board as example: US Supreme Court took notice of social science studies at the time that sociological studies showed that when school children were racially segregated, it caused inferiority feelings that impeded the ability to learn.In most cases legislative facts are not in the record:Process done informally and invisibly.Parties occasionally bring legislative facts to record.Oral argument or Brandies (about the data behind legislative fact) brief.Burden of Proof & Presumptions:Burden of proof: Burden of proof informs us of how much evidence is needed in order to reach the threshold to win a motion, or case.(1) Burden of Production—to survive summary judgment Civil caseIntroduce enough proof to show that the judge can find that a jury could find by preponderance that a necessary fact is true.When don’t meet this burden: a motion for directed verdict or summary judgment will be granted. That means the case is not going to trial. And the defendant won without going to trial.Criminal Case—to survive acquittal Introduce enough evidence that the judge can find the jury could find beyond a reasonable doubt that a necessary fact is true.When don’t meet this burden: if the prosecutor fails to meet his burden of production, then the judge will direct a verdict for acquittal in favor of the defendant (putting aside affirmative defenses). (2) Burden of Persuasion—to win a caseCivil caseMust convince the jury on the merits through proof by a preponderance of evidence that a necessary fact is true.Necessary fact: likely to affect the outcome of the case.A proposition is proved by a preponderance of the evidence if the fact finder actually believes in its truth, despite any doubt.When don’t meet this burden: P loses case on merits once it has been heard by trier of fact.Criminal casePersuade the jury on the merits by a reasonable doubt that a necessary fact is true.Necessary fact: each fact listed in the statutory definition of the crime is a necessary fact.When don’t meet this burden: D acquitted; if assert affirmative defense & don’t meet his burden, he loses.How do you know which parties have the burdenCivil cases: usually both burdens are on the same party and that party usually also has burden of pleading.Criminal cases: prosecutor has both burdens; for affirmative defense, D has burden of production & may/may not have burden of persuasion Presumptions: shortcuts to proof; can help proponent who invokes itPresumptions in civil cases: Presumption- an assumption of fact that the law requires to be made when the basic facts have been proven. The trier of fact must accept the presumed fact as established, unless that fact is rebutted.Policy reasons for presumptions:(1) FairnessExample – to correct for one parties superior access to proof(2) To carry out social or economic policyExample – presumption that if you prove that if Sam occupies a tract of land (fact A) then it will be presumed Sam owns the tract of land. May jurisdictions have this presumption to preserve status of land(3) To avoid an impasse so some result can be reached even if arbitrary oneExample – law about who died first or second in situations in which you really cannot tell(4) Probability. (Most common reason) Over time, judges found that if a party proves fact A invariably fact B is true too. Due to this experience many presumptions are created.There are hundreds of recognized presumptions that vary from jurisdiction. (1) If you prove the basic fact that a letter was properly addressed, had sufficient postage, and was mailed, then it gives rise to the presumed fact that the letter was received by the addressee.(2) If you prove the basic fact that a vehicle that is lawfully stopped is rear-ended by a second vehicle, then the presumed fact arises that the second vehicle was negligent.(3) If you prove that Sam was absent for 7 years, with no contact with family or friends, then that leads to the presumed fact that Sam is dead.(4) If you prove the basic fact that a will cannot be found, that leads to the presumed fact that testator revoked his will.Presumptions under FRE CIVIL: All real presumptions have the effect of shifting, in civil cases, one or more of the burdens of proof. However, there is an ongoing dispute about evidence experts and courts as to whether a presumption shifts to the other party, only the burden of production or both the burden of production and the burden of persuasion. FRE 301: Presumptions in civil cases: Unless federal statute or FRE say otherwise, party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originallyFRE 302: State law presumptions in civil cases: state law governs effect of presumption regarding claim/defenseTerminology:Inference: is very different that a presumption in a civil case. The jury is told that if they find the basic facts, then it may, but it need not, find the inferred fact. Inferences do not shift any burdens of proof. Basic & presumed fact: A presumption, in a civil case, says if you prove fact A (called the basic fact), then it will be presumed that fact B exists (called the presumed fact)Unless the opposing party is able to rebut the presumed fact. Presumptions in civil cases always have the effect of shifting the burden of production only to the other party. In some state courts the presumptions might also shift the burden of persuasion as wellConclusive presumption not a real presumption. Rather it is a statement of substantive law, not rebuttableFor example, such as a child under 7 years of age cannot commit a felony.= law NOT real presumption.Rebutting presumptions: in civil case, all real presumptions are rebuttable; 2 ways (1) Opposing party introduces evidence to rebut/contradicts the basic fact.Affects whether the presumption ever arises in the first place. If you find the basic fact, you must find the presumed fact. Example. If the basic fact is proven by P that the letter was properly addressed, had sufficient postage, and was mailed, D can prevent the presumed fact from following by introducing evidence that the letter was not properly addressed to Sam or had insufficient postage, or that it was never mailed. (2) Opposing party introduces evidence that rebuts/contradicts the presumed factExample. Evidence showing that he did not receive the letterAll courts under 301 adhere to the bursting bubble doctrineIf defendant rebuts the presumed fact the presumption pops like a bubble and goes away.A party who shifts the burden of production automatically bursts the bubble. He destroys the presumption and the presumed fact. And because that goes away, so does the presumption. Most jurisdictions are bursting bubble jurisdictionsHow much evidence is needed to rebut the presumption?In a bursting bubble jurisdiction- Evidence that is sufficiently probative to find the non-existence of the presumed factPresumptions in CRIMINAL cases: no FRE; rule is in the Constitution Issue: whether there can be a presumption that works against the accused without violating the accused’s due process rights. This is an issue because a SC case says that under the due process clause the prosecution must prove each element beyond a reasonable doubt. So if a presumption would relieve the prosecutor of that duty it would be a constitutional violation.Two Types of Presumptions:Permissive Presumptions:Actually an inference in a civil caseIf A established, then jury may find B Do not shift any burdens.Mandatory Presumptions:Similar to a real presumption in civil case.If A established, jury must find B unless rebuttedShifts either only the burden of production or both burdens.Problem: If presumptions are invoked by the prosecutor to work against the accused it can raise due process concerns. Under Due Process clause the prosecutor has a duty to prove every element of the crime by beyond a reasonable doubt.For permissive presumptions use the rational connection test: permissive presumptions are constitution in a criminal case, even when invoked against the accused, if there is a rational way, considering all evidence n the case, a jury could infer the presumed fact from the proven basic facts. (SCOTUS)For mandatory presumptions To date SCOTUS has not weighed in, but most federal courts take the position that mandatory presumptions are unconstitutional, 1) if invoked against the accused and 2) if they shift the burden of persuasion to the accused.However: if only the burden of production is shifted, the lower courts all apply the rational connection test to determine constitutionality.OPINONS, EXPERTS & SCIENTIFIC EVIDENCEFRE 701: Opinion testimony by lay witness: If W not expert, opinion testimony limited to one that it:(a) Rationally based on the witness’s perception [firsthand knowledge]Elements(1) The witness must have personal knowledge of the matter giving rise to her opinion.(2) The witness’s opinion must be such that a reasonable person in the witness’s shoes would have reached the same opinion(b) Helpful to clearly understanding the witness’ testimony/to determining a fact in issue &(c) Not based on scientific, technical or other specialized knowledge w/in scope of FRE 702 Analysis: First, is the testimony given by a lay witness or expert?LayIs the testimony an opinion or inference?Opinion, so go to FRE 701Three 701 criteria(1) Is the witness’s opinion it based on perception of the witness?(2) Would witness’s opinion testimony be helpful to the trier of fact?(3) Does it concern specialized knowledge?FRE 702: Testimony by Expert W: W qualified as expert by knowledge, skill, experience, training or education can testify by opinion if:(a) Experts scientific, technical or other specialized knowledge will help trier of fact to understand the evidence or to determine a fact in issue(b) Testimony based on sufficient facts/data(c) Testimony is product of reliable principles & methods, AND(d) Expert has reliably applied the principles & methods to facts of the caseFRE 703: Bases of an expert: expert can base opinion on facts/data in the cases the expert has (1) been made aware of [ex: in advance of trial/hearing] or (2) personally observed [ex: medical examiner]If experts in the particular field would reasonably rely on those kinds of facts/data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted BUT, if the facts/data would otherwise be inadmissible, the proponent of the opinion can disclose them to the jury if their probative value in helping jury evaluate the opinion substantially outweighs their prejudicial effectSuper-duper balancing testFRE. 703 ways of presenting evidence to experts.(1) Witness can base his opinion testimony on first hand observations the witness made out of court. (2) Can present through classic Hypo by counsel (3 kinds). Counsel can make up a hypo with facts that are relevant and necessary.Expert sits through the trial then is asked to assume certain facts are true, and then ask opinion.Expert sits through whole trial and asked opinion about facts they’ve heard so far. (3) Second hand info obtained out of court by expert: (if either 1 of the following is true)Facts or data upon which experts in the field reasonably rely in forming opinions; ORThe underlying facts or data are admissible.703 can operate as an exception to the Best Evidence Rule if three things are true: (1) What is offered into evidence is expert opinion testimony(2) Testimony is offered to prove contents of writing, recording, photo (3) The writing is either admissible evidence OR type that experts reasonably rely on in forming opinions.Hearsay issue: expert’s opinion can be based on inadmissible hearsay so long as the hearsay is the type of evidence reasonably relied upon by experts in the field.Anti-parroting Rule: When expert gives opinion testimony he must not parrot underlying inadmissible hearsay facts or data.Confrontation clause issue: poses confrontation clause issue because expert being used to present testimonial statements from others without the accused having an opportunity to be confronted w/ the makers of those statements. FRE 704: Opinion on an ultimate issue: opinion not objectionable just because it embraces an ultimate issue.(a) General: An opinion is not objectionable just because it embraces an ultimate issue(b) Exception: In criminal case, expert W must not state an opinion about whether D did/didn’t have mental state OR condition that = element of the crime charged/of a defense These matters are only for trier of factHypothetical terms: Although an expert’s testimony may not include his opinion as to whether or not the defendant is guilty of the crime, the testimony may include an opinion in terms of the ultimate issues of fact. However, such opinion must only be in hypothetical terms. In addition, the opinion must not recreate the language of the statute and must not include the name of the defendant.Credibility of other witnesses: Can’t assess credibility of other witnesses either for trier of fact.Mental health expert: expert can testify to whether the mental disease would?affect?the defendant’s ability to appreciate the nature of his actions.?Difference between a witness stating that a mental disease completely?eliminated?the defendant’s ability to appreciate his actions (not allowed) and a witness stating that the disease merely?affected?the ability (allowed) is a subtle, but important oneHidden message: if the experts can give an opinion without violating 704(b), then that opinion cannot constitute a legal conclusion concerning the accused mental mon law: due to common law principles, it not permissible for a person to give an opinion that is a legal conclusion (regardless if it pertains to mental state).i.e.: cannot say that the person committed fraud.FRE 705: Disclosing the facts/data underlying an expert: Unless court orders otherwise, expert can state opinion [& give reasons for it] w/o 1st testifying to the underlying facts/date BUT expert may be required to disclose those facts/data on cross [do not need hypothetical question posed].Either the court or a non-proponent of the opinion testimony can insist on disclosure of facts or data that underlie the expert’s testimony.Other side can request underlying facts even if it would be inadmissible evidence.FRE 706: Court appointed expert Witnesses:(a) Appointment process: On party’s motion or on its own, court can order parties to show cause why expert W should not be appointed & may ask parties to submit nominations; court may appoint any expert the parties agree on & any of its own choosing; court can only appoint someone who consents to act.(b) Experts role: Ct must tell expert his duties; can do so in writing and file it with clerk OR can orally do it at conference where parties have chance to participate; EXPERT(1) Must advise parties of any findings the expert makes(2) May be deposed by any party(3) May be called to testify by the court/any party AND(4) May be cross-examined by any party, even the party that called the expert(c) Compensation: expert entitled to reasonable compensation; payable by: (1) In criminal/civil case involving just compensation under the 5th amendment, from any funds provided by law AND(2) In any other civil case, by the parties in the proportion & at the time that the court directs – and the compensation is then charged like other costs(d) Disclosing appointment to jury: Court may authorize disclosure o jury that the court appointed the expert(e) Parties choice of their own experts: rule doesn’t limit a party in calling its own expertsImpeaching expert W: (1) contradictory material in authoritative publications in the field & (2) alteration of the facts of a hypo question put to the W during his direct examination.NO LEGAL CONCLUSIONS: Expert can’t use statutory language, UNLESS statutory language is plain use of the word & used in regular practice. YOU CAN DO THIS!!FOUCUS AND BREATHE! ................
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