Evidence Outline - Webs



Evidence Outline

Professor Capowski

***Evidence is the framework of rules of case law, practice, and customs within which trial attorneys work***

TYPES OF EVIDENCE

I. Documentary, Demonstrative, and Real Evidence

a. Testimonial

i. Statements of witnesses on the stand

1. Direct and cross examinations

a. Direct examination

i. Leading questions are inappropriate

b. Cross examination

i. Leading questions are permissible

ii. Structure of Examination

1. Background information

a. State your name, occupation, etc.

2. Lay foundation

a. Are you familiar with what has been marked for identification as people’s exhibit I?

3. Ask substantive questions

iii. Pitfalls of Examination

1. Echoing

a. Repeating the answer after the witness has given it for the record.

b. After every answer, stating, “ok” or “alright”

2. Exhibits

a. Must be introduced for identification first, then

b. Entered as (/( exhibit

3. Attorney must clarify physical gestures made by witnesses for the record

4. Tendency for attorneys to use eloquent words when asking lay witnesses questions

b. Scope of Direct—Questioning is limited to matters explored on direct.

i. Subject matter of direct examination

1. Particular facts in direct examination

a. The blue car ran a red light

2. The transaction or occurrence testified to in direct

a. The accident itself OR

3. The issue presented in direct

a. Negligence of the driver

ii. Although it is outside the scope of direct, matters of witness credibility FRE 611(b) can be properly raised in cross-examination.

1. The attorney on cross should not wait to attack the credibility of a witness because:

a. Jury may be crediting testimony that it should be discrediting

b. Attorney should be allowed to impeach credibility immediately

iii. Judicial Discretion over scope of direct rule

1. Judges have great discretion in determining the scope

2. An objection to the scope of direct is rarely won on the appellate level. Rather, it is won at the trial level

3. Why Judicial Discretion?

a. Efficiency

b. Party autonomy to put on its case

c. Opposing party’s opportunity to defend

d. Preserve the record for appeal

iv. Application of scope of direct rule

1. Application will vary depending on which side you’re on

a. Interpret broadly or narrowly

RATIONALE FOR THE RULES OF EVIDENCE

I. Mistrust of Juries

II. Substantive policies—Subject matter of the litigation

a. Each party bears some burden

i. Production OR

ii. Persuasion

III. External policies unrelated to the subject matter of litigation

a. Privileges

IV. Discern the Truth

V. Efficiency

OBJECTIONS

I. Generally

a. Immediately sustained by the court e.g., Attorney: OBJECTION . . . Court: Sustained.

b. Objections used to buy time or disrupt examination

i. PA requires grounds for objection to be stated by objecting attorney

1. See Dillipaine v. Lehigh Valley Trust

c. Object where context leaves no doubt

d. Types

i. Substantive

1. Exclusionary principles founded in the FRE

2. Keep the evidence out completely

3. Example

a. Hearsay

b. Best Evidence Doctrine

c. Attorney/Client privilege

ii. Formal

1. Focus on the manner of questioning

2. Not enshrined in particular FRE

iii. Speak to broad authority of the trial judge to regulate the trial

1. SEE ATTACHMENT—list of objections

II. FRE Requirements

a. FRE 103(a)(1) requires objections to be

i. Timely AND

ii. Specific

1. Otherwise, there would be errors throughout the trial with no chance for the judge to correct

2. Appeals are lessened by dealing with errors immediately

3. Helps the trial court and appellate court

b. Motions in Limine

i. Request for an order at the threshold—before trial commences

1. made in anticipation that particular evidence will be offered by opposing counsel to which the moving attorney will object OR

2. made in anticipation that particular evidence the moving attorney wishes to offer will be objected to by opposing counsel

ii. FRE 103(a)(2) provides

1. Once a definitive rule is made on the [motion in limine]

2. The party need not object again at trial when the issue is raised.

c. Offers of Proof

i. FRE 103(a)(2)

1. Where the court’s ruling excludes evidence,

2. Attorney provides the court with the substance of the evidence that would be presented if allowed to

3. Preserves record for appeal

4. Two Methods:

a. Sidebar conference OR

b. FRE 103(b)—attorney is afforded the opportunity to offer evidence in question and answer form outside presence of jury (See FRE 103(c)).

III. Errors and Review

a. FRE 103(a) requires that evidence excluded or admitted must affect a substantial right of the party.

i. Outcome Affected

1. In criminal cases, the outcome must have been affected beyond a reasonable doubt

2. In civil cases, whether the ruling probably effected the outcome

3. Burden of proof to show error

a. Show that the objection was preserved for appeal

b. Show the error according to the particular standards (civil or criminal)

c. Show that no other evidence was sufficient to substantiate the error

ii. Types

1. Reversible error

a. Where record is preserved AND

b. Outcome was affected

2. Harmless error

3. Plain Error

a. Clearly erroneous ruling

i. Very rare

ii. Usually found in criminal cases

4. Constitutional Error

iii. Three situations that will trump error

1. Cumulative evidence doctrine

a. So much similar evidence was presented that the erroneous admission of evidence would not matter

2. Curative instructions to jury

3. Harmless Error

iv. To argue that the lower court was correct on appeal, look to:

1. Whether opposing counsel properly preserved the record by timely and specifically objecting AND

2. If evidence was excluded, whether counsel made any offer of proof

RELEVANCE

I. Definition

a. FRE 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

i. The evidence must be relevant: any tendency to prove what the lawyer is attempting to prove

ii. The evidence must be material: what is being proven has something to do with the case

iii. FRE merges the old common law principles of “relevant” and “material” into FRE 401.

b. Determine the Context

i. Most important aspect of relevancy

1. Example—questions about children in a custody dispute would be relevant. Questions about children in a “secured transaction” case are probably not relevant.

ii. Exception

1. Questions used to relax the witness OR

2. Questions revealing personal information about the witness to the jury

iii. Example

1. An electrician working for an electric contractor forgets to turn of the circuit breaker before he works on wires. As a result, he suffers a shock and an injury to his right arm. At a hearing for the electrician to recover workers’ compensation benefits, counsel for the contractor attempts to question the electrician about his failure to turn off the circuit breaker. (’s attorney objects, arguing that his client’s negligence is not at issue in this case. The court would probably sustain because negligence is not an issue in recovery for worker’s comp benefits. Under FRE “objection, irrelevant” would suffice. Pre FRE—“objection, immaterial” would suffice.

2. Old Chief I v. US: ( charged with (1) felon who is in (2) possession of a firearm. ( stipulated that he was charged with a prior felony (assault causing serious bodily injury) thus proving that element. Prosecution brings in evidence detailing the prior felony. ( objects, arguing that the details of the underlying felony are irrelevant because the ( conceded he was charged with a felony and that the details told to the jury would be prejudicial. The court held that the details of the underlying felony were relevant because they provide (1) narrative richness (2) details were required to meet the expectations of jurors and (3) prosecution has autonomy of presenting evidence.

c. Conditional Relevancy

i. FRE 104(a)

1. The trial judge decides

a. Qualifications of witnesses

b. Existence of a privilege

c. Admissibility of evidence

2. Not bound by the rules except for those with respect to privileges

ii. FRE 104(b)

1. Where determination of relevancy requires the fulfillment of a condition of fact

2. Court admits it upon or subject to

a. Introduction of evidence sufficient to support a finding of the fulfillment of the condition

3. Jury makes this determination

4. Example

a. A sports car collides with a pickup truck on a day with ideal driving conditions and on a straightaway road. Pickup truck driver’s estate brings in evidence that the sports car was traveling at least 80 mph 30 miles before the cite of the accident. The testimony is relevant if the conditions thirty miles before the accident were substantially the same as the time of the accident. If, for example, there were police cars on the side of the road every ten miles from the point where the witness saw the sports car speeding to the site of the accident, the testimony is less relevant.

iii. Evidential Hypothesis

1. Carl was a suspect for robbery of the Fish and Chips restaurant, but he also had a warrant out for his arrest due to unpaid parking tickets. When the police arrive to his home, Carl tries to exit the back door, but he sees more police are waiting. Instead of fleeing, Carl hides in the laundry closet. At trial, the prosecutor tries to bring in evidence of flight to prove guilt of the robbery. Carl’s attorney objects. Flight is irrelevant.

a. The prosecutor argues:

i. Carl’s behavior showed flight.

ii. Flight shows guilt or consciousness of guilt

iii. Consciousness of guilt shows consciousness of fish and chips robbery

iv. Consciousness of fish and chips robbery tends to prove guilt of fish and chips robbery

b. ( Argues

i. (Attack part of the evidential hypothesis)

1. Flight does not show consciousness of guilt for that particular robbery, but it shows guilt of failure to pay parking tickets.

c. Court—Conditional relevancy

i. Evidence of flight is probably admissible, if the jury could find that ( fled because of the parking tickets or because of the robbery. “If the jury finds that the ( fled because of the robbery, the jury may consider evidence of flight to prove his guilt of the robbery.

d. (Legal) Pragmatic Relevancy

i. FRE 403

1. Although relevant

a. Logically probative

2. Evidence may be excluded if its probative value is substantially outweighed by the danger of

a. Unfair prejudice

b. Confusion of the issues

c. Misleading the jury or

d. Considerations of

i. Undue delay

ii. Waste of time or

iii. Needless presentation of cumulative evidence

3. Example

a. State v. Chapple: Issue at trial was whether the ( was “Dee.” All other matters relating to death, cause of death, and fatal wounds were not contested by the (. Prosecution presented gruesome photos of the victim to the jury. The court held that the probative value of the photos were substantially outweighed by the unfair prejudice to the ( because

i. The photos created emotional jurors rather than logical jurors

ii. The photos inflamed the emotions of the jury AND

iii. The photos were not probative to the issue of whether ( was “Dee.”

b. Old Chief II v. US: Although the details of the prior crime were logically relevant for reasons of party autonomy to present evidence, expectations of jurors met by the description of the crime, and narrative richness of evidence presentation, the probative value of detailing the prior felony was substantially outweighed by the unfair prejudice to the ( after balancing the following:

i. Probative value v. Unfair Prejudice Balancing test:

1. There were reasonable alternatives for the prosecution to meet its burden of proving the crime with less prejudicial effect:

a. All prosecution had to prove was whether ( was a prior felon

b. Legal status could be proved by the (’s stipulation

2. Evidence of the name and nature is less probative of the (’s legal status

c. ( charged with murder of his ex wife. ( concedes to cause of death and that ( was the cause. ( argues that his ex wife fell onto the blade. Prosecution offers testimony of a counselor at the battered and abused women’s shelter showing that two years earlier the victim sought refuge there for thirty days and during which time she divorced the (. ( objects, arguing that the evidence is irrelevant and prejudicial. BALANCING TEST

i. The evidence is logically relevant because it makes (’s accident defense less likely in light of prior abuse towards the victim, so long as the conditions were substantially the same at the time of the death to the conditions at the time of the victim’s stay at the battered woman’s home.

ii. The evidence is prejudicial because ( already stipulated to the cause of death and that he was the cause, but he argues that there was a tragic accident. Therefore, there is no legal relevancy because the ( is unfairly prejudiced by the evidence. HOWEVER,

iii. The prosecution has no other reasonable alternatives to disprove (’s accident defense with less prejudicial effect. Thus, the probative value of prior abusive conduct by the ( towards the victim is not outweighed by the prejudice posed to the (.

d. A driver exceeding the speed limit hit the victim from the rear. The car exploded, and victim died 24 hours later from burns. Victim’s estate sues the car mfg. for negligent design of the gas tank because it would not have exploded if properly designed. ( company introduces a certified copy of the driver’s guilty plea to involuntary manslaughter, and the court admits it into evidence. The jury finds that the ( company is not negligent. On appeal, the ( argues that the trial court improperly introduced the guilty plea. ( company argues that (1) guilty plea showed evidence of the driver’s speed and (2) established the cause of death. BALANCING TEST:

i. The guilty plea was logically relevant because it tends to prove the ( was not the cause of the victim’s death. HOWEVER

ii. The probative value of establishing speed of the car and cause of death was substantially outweighed by

1. The unnecessary cumulative evidence of the driver’s speed AND

2. The effect of misleading the jury or confusing the issue of ( company’s negligent design of the gas tank.

ii. Limited Admissibility

1. FRE 105

a. Where evidence is admissible as to one party for one purpose

b. But inadmissible as to another party or for another purpose AND

c. It is admitted into evidence

d. The court, UPON REQUEST shall

i. Allow the evidence to prove the point to which is admissible

ii. But instruct the jury that the evidence cannot be considered for the point to which it is inadmissible

2. FRE 105 recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly.

a. It is possible that jurors can follow the instruction in some, but not all circumstances

i. The rule does not affect the authority of the court to order a severance in a multi-defendant case where a jury instruction may be inadequate.

3. Example

a. Two cars collide, but neither can determine whose fault it was. ( says, “whoever screws up, her insurance pays. I know my insurance will cover it.” At trial, ( presents this statement as evidence of (’s guilt. ( argues that evidence of insurance coverage cannot be admissible to prove negligence under FRE 411. ( argues that the statement is admissible under the admissions exception to hearsay.

i. In this instance, a curative instruction would be sufficient.

1. The court could admit the statement, instructing the jury that the statement can be considered as an acknowledgment of fault, but the jury cannot consider the fact that ( has insurance as proof of her negligence.

2. Additionally, a statement can be redacted if cutting out the inadmissible portion of the statement would not substantially alter the entire context and meaning of the statement.

a. Here, however, redaction would substantially alter the meaning of the statement because cutting out the references to insurance coverage would render the statement meaningless regarding the acknowledgement of fault.

b. Before a joint trial charging two (s with murder, (1 makes a statement, “(2 and I killed the victim.” At trial, the prosecution tries to admit this statement against (2. (2 objects, arguing that the statement would violated (2’s right to confront and cross-examine his accusers. The judge allows the evidence with a curative instruction that the statement can be used against (1 only to prove his guilt, but cannot be considered against (2.

i. In this instance, a curative instruction would be insufficient.

1. Jurors would not be able to consider the statement only against (1.

2. Court must either bifurcate trial or have separate juries.

iii. Rule of Completeness

1. FRE 106—When a writing or recorded statement or part thereof is introduced by a party, an adverse party may required the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

a. Prevents misleading impression created by taking matters out of context

b. Prevents inadequacy of repair work when delayed to a later point at trial

c. Can sometimes trump hearsay and other objections when necessary to provide context

d. Rule includes letters, depositions, and oral statements

2. Example

a. A letter by an expert shows (1) power roll back almost certainly caused a flight to crash and (2) possible pilot error. ( brings in the expert testimony that power roll back caused a flight to crash, but does not testify to the letter. ( calls same expert as a hostile witness to testify to the letter regarding (2) pilot error but not (1) power roll back. On “friendly cross,” (’s attorney asks questions about the other portions of the letter relating to (1) power roll back. ( objects claiming hearsay and beyond scope. The court agrees and allows the expert to testify only to the portions relating to (2) pilot error. ( wins the trial, and ( appeals under FRE 106. Possible outcomes:

i. Trial court erred—allow the evidence under the “full story” rationale

ii. “At that time” means interrupting the testimony at that time to require the rest of the letter, revealing other portions of the letter on cross examination, or revealing other portions on rebuttal.

iv. Shortness of life

1. Court can exclude evidence for practical reasons

a. Limit the number of witnesses

b. Exclude, as cumulative, evidence duplicative of that already presented

v. Functions of Judge and Jury

1. Simple Relevance

a. Judge alone decides whether proffered evidence is “consequential” within the meaning of FRE 401

i. Inquiry turns on substantive and procedural rules which establish and limit the issues

b. Judge alone decides whether proffered evidence really has a tendency in reason to prove the point for which it is offered

i. BUT up to jury to WEIGH evidence after admitted by judge

2. Conditional Relevance

a. Judge performs only a screening function

b. When different answers are reasonable

i. JURY decides

3. Example

a. Child injured on a bike allegedly because of faulty brakes. ( calls Mundel, an expert who tested the bike two years later, corroborating the accusation that the brakes did not work. ( objects, claiming that the necessary foundation was not laid--( failed to show the bike was in substantially similar condition at the time of Mundel’s test. ( then calls carter, who testifies that two weeks after the accident the brakes showed no defect. ( also calls child’s father to testify that the bike was not touched after the initial test to the time Mundel did the experiment two years later. Court excludes the evidence and directs verdict for (.

i. FRE 104(b) should apply here. Since different answers are reasonable, i.e., two different opinions of whether the brakes were defective, judge should give this limiting instruction:

1. Jury may consider Mundel’s testimony only if jury finds the bike was in substantially the same conditions as it was at the time of the accident.

vi. Relevance of Probabilistic Proof

1. People v. Collins—Woman was robbed by white woman who got in a yellow car with black man; prosecution makes up probabilities and a mathematician testifies that there is a 1/12 million chance that any couple possessed these characteristics.

2. The court excluded the evidence. Mathematical evidence to prove guilt is inadmissible.

a. Characteristics were made up and not mutually independent

b. Product rule requires actual probabilities

c. Even if product rule works, it does not prove guilt

d. Policy problems

i. Misleads jurors

ii. Usurps the jury function

3. Probabilistic analysis allowed to identify victim; not ultimate issue in case

a. Note Case—victim’s torso found, physician testifies that there was a one in 4 chance she was victim. Evidence is relevant because

i. Mutually independent events and characteristics AND

ii. Not looking for the perpetrator, just identifying the body.

4. Example—80% of tires made by (. 4 other people made the remaining 20%. ( wants to admit that 4/5 chance that ( made the tire. ADMISSIBLE under 401 because

a. Actual probabilities AND

b. Limited jury confusion

FOUNDATIONAL EVIDENCE, AUTHENTICATION

I. Authentication

a. FRE 901(a) is satisfied by offering evidence sufficient to support a finding that the matter in question is what the proponent claims it is

i. Often presents issues of conditional relevancy under 104(b)

b. Methods of authentication

i. Marked for identification by ct. reporter

ii. Authenticated by witness testimony

iii. Offering exhibit into evidence

iv. Permitting opposing counsel to examine

v. Allow opportunity to object

vi. Submit exhibit to examination by ct.

vii. Obtain rule of ct.

viii. Request permission to present exhibit to jury

c. Tangible Objects

i. US v. Johnson--( attacked ( with axe; challenges authenticity of axe because ( testified that he was “pretty sure that was the axe”

1. Not prejudicial to admit because jury could weigh the evidence

ii. Identification of Tangible objects

1. Serial number, specific markings

2. Chain of Custody

a. Example--( arrested and found with three baggies. Officer personally delivers bags to lab. Cop picks up baggies on day of trial and brings to court. What foundation necessary?

i. Call the cop to testify that that was the bag he found on (

ii. Call chemist to testify that that was the bag cop personally delivered to the lab

b. US v. Howard-Arias—pot seized by coast guard & turned over to DEA. DEA agent who received drugs not at trial to testify.

i. Missing links in the chain of custody insufficient to deny evidence

ii. Only if first chain in custodial link is missing will the court deny evidence

d. Writings

i. US v. Bagaric--( claims letter to him by co-( not properly authenticated. Use of aliases and nicknames not sufficient.

1. Under 901(b)(4), authentication is sufficient by introducing circumstantial evidence, including appearance, contents, substance, and other distinctive characteristics

ii. Letterheads can be used to authenticate absent any suspicion.

iii. Example—suit to quiet title, ( offers land sale contract between previous owner and ( executed in 1966. Original obtained from the records office of courthouse. ID all ways under FRE 901(b) to admit.

1. (b)(1) testimony by ( and previous owner

2. (b)(2) testimony by ( and previous owner as nonexperts on handwriting

3. (b)(4) testimony by ( and previous owner on distinctive characteristics of the document

4. (b)(7) as a public record because filed in courthouse

5. (b)8) as ancient document because over 20 years old

e. Photographs

i. Determine relevancy

ii. Ask whether witness is familiar

iii. Ask whether witness was familiar with the scene at time of photograph

iv. Ask whether photo is accurate representation of the scene at the time of the incident

f. Telephone Conversations 901(b)(6)

i. Personal: circumstances including self-identification

ii. Business: call made to place of business AND conversation is business related

iii. US v. Pool--( identified as person who made call to DEA agent; agent never spoke with ( before.

1. Telephone call out of the blue from person who identifies himself is not in itself sufficient to authenticate that the person was the caller

2. One prior voice identification will be sufficient

3. Caller I.D. will be sufficient

4. Reply Doctrine—phone calls: similar to a letter that may be authenticated by content and circumstances indicated it was in reply to a duly authenticated one.

5. Telephone Records may be sufficient

iv. Example: Business—This is O’Rourke: ( interviews with firm, does not speak with O’Rourke, does not meet him, interviews with another. ( gets message from O’Rourke’s secretary giving country club phone number. ( calls number, “This is O’Rourke” answers and tells ( he got the job. O’Rourke later sends letter denying position. ( wants to admit phone conversation as evidence.

1. Call not made to place of business BUT

2. Related to business

3. Admit under 901(b)(4)—circumstances surrounding the conversation

II. Self-Authentication 902(b)

a. Exhibits that do not require extrinsic evidence of authenticity

i. Introducing party has burden of production

ii. Adverse party has burden of persuasion to bring counterproof that exhibit is not authentic

b. Example

i. 902(1): domestic public docs under seal certified by official

ii. 902(2): domestic public docs not under seal

iii. 902(3): foreign public docs—French census report

iv. 902(4): certified copies of public records—city council minutes

v. 902(5): official publication issued by public authority—state map with seal

vi. 902(6): Newspapers and periodicals—Supreme Court reporter, NY Times

vii. 902(7): Trade inscriptions—Baby Ruth wrapper

III. Demonstrative Evidence

a. Anything that appeals to the senses, including real evidence (i.e., the actual evidence: the axe, the gun, etc).

b. Usually accompanied with instructions—used for assistance not assurance

c. Courts are split on whether the demonstrative evidence must be accurate

BEST EVIDENCE DOCTRINE (Original Document Rule) FRE 1002

I. Old Common Law

a. Original writing must be produced OR

b. Absence of original explained

i. Written word given special sanctity

ii. If contents of a writing were at issue, all other evidence of content was inferior

iii. Accuracy of copies historically viewed with suspicion

c. No Longer relevant

i. Rationale for BER has largely disappeared, except in cases of fraud

II. Definition of Original FRE 1001

a. Original is the writing or recording itself or any counterpart intended to have the same effect

b. Original of photograph can be the negative or any print therefrom

c. Computer data stored in computer is original if

i. Any printout or readable output reflecting the data accurately

III. To prove the content of a writing, recording, or photograph, the original is required. FRE 1002.

a. Duplicates are admissible as originals unless

i. General question is raised to authenticity of original OR

ii. Circumstances make it unfair to admit the duplicate. FRE 1003.

b. Objection geared towards testimony

i. Example—What does the contract say? OBJECTION, Best Evidence Rule, you need the contract.

IV. Exceptions

a. Original lost or destroyed unless proponent destroyed them in bad faith

b. Original not obtainable

c. Opponent has the original

d. Original not required if writing is not closely related to a controlling issue

V. Defining Writing, Recording, or Photograph—Always look to what the evidence is offered to prove

a. Writing: Inscribed Chattels

i. US v. Duffy--( “Duffy” convicted for taking stolen vehicle across state lines; evidence of shirt with inscription “DUF” found in trunk of stolen car. Original not produced

1. Whether evidence is a chattel or writing depends on

a. What is on the chattel/writing

b. What the item is offered to prove

2. Evidence was allowed because

a. Was collateral to main issue

b. Both a chattel and a writing

i. Court has discretion to treat it as either

c. The inscription was easy to remember, original not required

i. Accuracy was not an issue here; (compare testimony to what a 35 page Will says)

b. Sculptures and paintings are not writings

c. Duplicates as Originals

i. Adoption arrangement by (-Doctor and (-mother. They agreed not to disclose to adoptive parents and child. Eighteen years later, daughter wants to contact (-mother and (-Doctor givers daughter a photocopy of original adoption records. ( suffers psychological problems from meeting with daughter and sues doctor for (1) outrageous conduct and (2) breach of confidentiality. Wants to admit the photocopy. ( objects—BER. Admissible because

1. 1004(3): Original in possession of ( AND

2. 1004(4): To prove breach of confidentiality, the copy is the original for proof of that because there would be the original, the copy shows disclosure to daughter

ii. FRE 1003 allows duplicates

iii. FRE 1001 allows computer printouts

iv. FRE 1001(3) defines original as also a counterpart that has the same effect

v. When an expression on the copy indicates that the signer intends copies/duplicates to be treated as original

vi. Example—Negligence suit, anesthesia administered. If administered one hour after ( had eaten, ( is negligent. If administered 9 hours after ( had eaten, no negligence. On the admitting form, ( writes she had eaten one hour. Nurse threatened by doctor to change it to 9 hours. Nurse makes copy of the “one hour” original and testifies against document.

1. ( would argue that 1003 would disallow the evidence because there is a question to the authenticity of the original

2. ( would argue that the copy became the original

3. In this situation, FRE 1008(a) allows the jury to decide whether a copy that challenges the original is admissible

d. Photographs

i. Example--( photographed by surveillance camera. Security officer testified that he removed the film from the camera after the robbery and supervised the development of the photograph when produced. At trial, no photo, only officer testimony.

1. Original is required under 1002 to prove the content of the photo; the photo is required.

2. Photograph required because testimony is offered to prove whether ( was robber.

HEARSAY

I. FRE 80(1)(c): Hearsay is an out of court statement offered to prove [the truth of] the matter asserted [by the declarant]. (Statement that relies, for its probative value, upon the credibility of witness who cannot be cross-examined)

a. Underlying Theory

i. General rule: Hearsay is inadmissible.

ii. Reasons to Exclude Hearsay

1. Lack of cross examination

a. Mightiest engine to discover the truth

b. Implicates the right to cross-examine the accuser

2. Lack of demeanor evidence

3. Lack of oath

iii. Risks of Hearsay evidence

1. Misperception

2. Misstatement

3. Faulty memory

4. Risk of distortion

iv. Example: Basic definitions

1. Statements after Higgins allegedly robbed bank—Issue is whether Higgins robbed the bank

a. Truth may be clearly expressed: “Higgins did it”

b. Truth may be an inference relating directly to the matter asserted: “Higgins was carrying bags out of bank”

c. Truth may be oblique, non-literal statement of the matter asserted: “They should lock Higgins away”

2. All statements made out of court offered to prove that Higgins robbed the bank

b. Statements

i. FRE 801(a)

1. Oral or written assertion

2. Nonverbal conduct of a person IF

a. Intended by the person as an assertion

ii. Assertive Conduct

1. Gestures such as nodding, shaking head, shrugging shoulders, or pointing

iii. Non-assertive conduct

1. PRE FRE: Statement could be:

a. Oral or written assertion

b. Conduct intended to be an assertion AND

c. Non-assertive conduct

i. Two-Step Inference

1. Conduct ( used to prove the belief of the actor ( used to prove the fact believed

2. Wright v. Doe—A sends letter to B stating business proposals. C claims A is incompetent. D offers the letter from A to prove that B was competent enough to do business. HELD: Non-assertive conduct is hearsay: Where there is no assertion, conduct could be hearsay if

a. The letters imply the view of sender AND

b. Offered to prove the sender’s belief

2. UNDER FRE 801(a)(2), non-assertive conduct is not hearsay unless intended by the actor to be an assertion.

a. Lack of complaint is not hearsay.

i. Cain v. George: (’s son dies in fire at hotel, parents sue owner for faulty heater, and owner offers no prior complaints as proof that the heater was not faulty. ( argues hearsay. ADMISSIBLE because

1. Owners had knowledge of the witnesses themselves on the number of complaints.

iv. Machines and animals

1. Animal conduct is not hearsay because animal is not a person (dog “hits” at drug scene)

2. Machines are not hearsay unless the machine requires human input.

a. The time on a watch is not hearsay BUT

b. A screen display of a stock quotes may be hearsay because it requires human input and suffers from human frailty

c. When is a statement not Hearsay

i. If hearsay is a statement offered to prove the truth of the matter asserted, a statement is not hearsay WHEN OFFERED FOR ANY OTHER PURPOSE OTHER THAN THE TRUTH OF THE MATTER ASSERTED.

1. Nonhearsay uses—statements not offered for its truth

2. Impeachment by prior statements

a. Offered to prove inconsistency in testimony NOT

b. For substantive evidence

i. Limiting instruction would be proper

c. Example: Witness at scene of accident testifies on direct that the “blue car ran red light.” On cross, the same witness states that he told another person the “blue car did not run the red light.” ( objects. ADMISSIBLE because

i. Statement used solely for impeachment purposes, not as substantive evidence AND

ii. Hearsay risks are minimal because declarant is subject to cross.

d. Attorney need not advise the witness about the prior inconsistent statement but it is a good idea to remind the witness

i. Overrules Queen Carol’s Case, which required the attorney to advise the witness about the prior inconsistent statement.

3. Verbal Acts

a. Acts that have independent legal significance apart from the words used in the statement are not hearsay

b. Example—Undercover cop at a whore house investigating solicitation. Employee says to cop “I can give it to you any way you like.” Statement offered at trial. ( objects. ADMISSIBLE because

i. Not offered to prove that the employee would have sex with cop BUT

ii. Offered to prove the offer of solicitation.

c. Example—Larry charged with solicitation to sell drugs. Witness hears Larry say, “Want to buy drugs?” Pros. offers statement, Larry objects. ADMISSIBLE because

i. Not offered to prove Larry has drugs BUT

ii. Offered to show solicitation to sell drugs

d. Example—Tommy charged with kidnapping for ransom. Says to parents, “We got your son, and we will kill him if you do not give us ransom.”

i. Not offered to prove that Tommy will kill the son BUT

ii. Offered to prove the kidnapping for ransom.

e. Example—A leases farm for 40% of corn produced by B. B borrows money from bank. At the farm, B points to 40% of the corn and tells A, “This is your corn.” B then defaults on the loan and bank repossesses the corn. B tells the Bank, while pointing at the same 40%, “This is my corn” (in essence, telling the bank that the corn is theirs). A sues B and bank for conversion, offering the first statement as proof. Bank offers second statement as proof that the corn was theirs. First statement admissible, second is not Because:

i. First statement offered to prove the transaction between A and B

ii. Second statement not offered to prove transaction, but to prove that the corn was B’s, and essentially, the Bank’s after they repossessed.

f. Example—woman’s scream “I’m alive!” to show husband died first

4. Proving Effect on Hearer or Reader

a. Statements used to prove the effect on the listener or hearer/reader are not hearsay

i. Example—( sues ( for negligence. ( smelled gas, but before calling company, Joe arrives, saying, “I’m from the gas company. Show me where the leak is.” ( shows him, and Joe lights a match in the area where ( says there was a gas leak and it explodes. ( raises contributory negligence--( should not have been so close to the leak. ( offers statement. ( objects. ADMISSIBLE because

1. Not offered to prove agency

a. Statements to prove agency are generally inadmissible BUT

2. Offered to prove ( could reasonably believed ( knew what he was doing

5. Verbal Objects

a. Verbal objects are not hearsay because there is no declarant and the objects do not make assertions

i. Matchbook with name of bar on the tag

ii. Engraved mug with name on the front

6. Evidence of State of Mind

a. Most statements showing state of mind are hearsay unless the statement is not offered to prove the contents of the statement

i. Example—(’s wife dies, and ( brings a wrongful death action and loss of companionship/income against (. To challenge, ( offers statement in Will that ( is a bastard and left him only $1. ADMISSIBLE because

1. Not offered to prove ( is a bastard BUT

2. Offered to prove ( did not lose companionship or money because wife thought he was a bastard

d. Borderland Hearsay

i. Statements with Performative aspects

1. Verbal conduct which is assertive but offered to prove something other than the matter asserted is not hearsay

a. Balance the performative aspects and the assertive aspects and admit if the performative aspects outweigh the assertive aspects

i. US v. Singer—Two men charged with drug offenses; Prosecution offers letter from landlord terminating (’s lease to prove that one ( lived with the other. Admissible.

1. Here, there is conduct of writing and sending an eviction letter

2. Shows the belief of the landlord that ( lives there

3. Conduct of sending the letter shows the fact believed

ii. Bookies calling to place bet is not hearsay because the performative aspect of calling to place the bet outweighs the assertive aspect of placing the bet

iii. Lying is not hearsay because

1. obviously not offered to prove truth AND

2. overall deceit abut the issues outweighs the assertive value

a. Example—impeding an investigation by lying

iv. Disclosure is not hearsay because the conduct of disclosing information shows a lack of guilty conscience.

ii. Statements as Circumstantial Evidence of State of Mind

1. State of mind is often hearsay unless state of mind is an important issue in the case

a. “I am the Pope” not offered to prove that ( is the pope but that ( is insane

b. Betts v. Betts—Custody Proceedings: Woman’s boyfriend beat and killed son; daughter in foster care cried when she learned the mother married the boyfriend and said he had killed her brother; daughter also said boyfriend would kill mom. Admissible

i. Issue is best interest of the child

ii. Mental state of Tracy's mind directly or indirectly reflects that issue

iii. Determining Hearsay: THE TEST

1. Out of court

2. Statement

a. Assertive conduct with the intent to communicate

i. Balance performative aspects with assertive aspects and decide

b. Common Law did not required intent to communicate (nonassertive conduct was hearsay)

3. Offered to prove the truth of the contents OR Other Purpose

a. Other Purposes include

i. Impeachment

ii. Verbal acts/objects

iii. Effect on listener

iv. State of mind

iv. Hearsay Quiz: ***Take Hearsay Quiz now***

II. Hearsay Exceptions

a. Prior Statements of Testifying Witnesses are not hearsay [by reason of the drafter’s rules]

i. Prior inconsistent statements: FRE 801(d)(1)(A): a statement is not hearsay if

1. Declarant testifies at the trial or hearing

2. Subject to cross-examination concerning a statement

a. Even if substance of earlier statement is not recalled, declarant is still cross-examinable

i. Protects against lying about the statement

3. Statement was given under oath at

a. Trial Hearing OR Other proceeding

i. CAPOWSKI: Must contain a true record of what happened

1. Other proceeding must be more than a police house interview

2. Administrative hearings are sufficient

ii. Compare State v. Smith—stationhouse interview and a sworn statement. Court held that this was an “other proceeding” for purposes of the rule because

1. Four ways to commence criminal proceedings (establish probable cause)

2. Sworn statement is one way

3. If other three are “other proceedings” so is a sworn statement

4. Statement at trial hearing or other proceeding was inconsistent with current testimony

a. Inconsistent

i. Lack of memory OR

ii. Fabricated statement

1. Protects against turncoat witnesses

ii. Prior Consistent Statements: 801(d)(1)(B): a statement is not hearsay if

1. Declarant testifies at the trial or hearing

2. Subject to cross-examination concerning a statement

3. Statement is consistent with the declarant’s testimony

a. Made BEFORE the time an alleged improper motive or influence occurred

i. Example

1. Carl loves Abby, who drives a red car

2. Two days later, Abby is in an accident, Carl says Abby had a green light

3. Two days later, Carl says Abby had a red light.

4. At trial Carl says Abby had a green light

a. Prosecutor alleges improper motive of love

b. On redirect, cannot use prior consistent statement (ii) to prove Abby had a green light because statement was not made BEFORE Carl fell in love with Abby two days before the accident: HOWEVER

c. Prior consistent statement can be used for the nonhearsay use of rehabilitation

4. Statement is offered to rebut an express or implied charge of recent fabrication, Improper influence, or Motive

iii. Prior Statements of Identification: 801(d)(1)(C): a statement is not hearsay if

1. Declarant testifies at the trial or hearing

2. Subject to cross-examination concerning a statement AND

3. Statement is one of identification of a person

4. Made after perceiving the person

b. Admissions are generally not hearsay

i. Individual Admissions: Rule 801(d)(2)(A): a statement is not hearsay if

1. The statement is offered against a party

2. The statement is the party’s own

a. Personal knowledge is not required

b. Statement need not be against one’s interest (contrary to old common law)

c. Where the statement/admission contains opinions, the statement can be fine tuned in court

d. Admissions made when declarant is drunk are admissible

e. Admissions made when declarant is hospitalized are admissible depending upon

i. The nature of the injury AND

ii. The competency of the declarant when the admission was made

f. Admissions made when declarant is sleeping might be admissible

g. Guilty pleas in prior criminal trials are usually admissible in a civil trial IF

i. Events arose from the same incident that brought about the guilty plea

h. Plea of no lo contendre is inadmissible (FRE 410(2))

i. Plea only admits facts in indictment

ii. Cannot be used at later trial

3. Individual OR Representative capacity

4. Bruton v. US—Evans confessed and implicated Bruton. Prosecution offers admission by Evans against Bruton. Bruton does not testify. Court allowed the evidence with limiting instruction. Supreme Court reversed.

a. Jury could not ignore the statement with a simple limiting instruction

b. How to handle these confessions

i. Redaction

ii. Sever trials

iii. Try with separate juries

c. Limiting instruction will suffice in a civil trial

i. 5th and 6th amendments are not involved in civil cases

ii. Adoptive Admissions: Rule 801(d)(2)(B): a statement is not hearsay if:

1. Statement is offered against a party

2. Statement is one which the party has manifested an adoption or belief in its truth

a. Statement made by another AND

b. Party’s response to that statement

c. Tacit Admissions Doctrine (Hoosier)

i. Party heard the statement

ii. Party had personal knowledge of the matter asserted

iii. Nature of statement and circumstances surrounding statement indicate that the party would have replied if he did not mean to accept what was said. EVEN IF MET, EXCLUDE IF:

1. Party did not understand the statement or its significance

2. Lack of reply is explained by physical or psychological factor

3. Speaker was one who the party would likely ignore

4. Silence is in response to questioning by law enforcement officer after Miranda warnings given/should’ve been given

a. Doyle v. Ohio: Silence after ( was arrested and read his Miranda rights cannot be used as substantive evidence or impeachment

b. Dissenters argue that silence can be used to impeach (’s testimony

i. Silence before the Miranda warnings is admissible

ii. You have a right to remain silent but not to commit perjury

iv. Silence can be an admission if silence is established by an ongoing relationship.

v. Submitting a report by doctor as claim for insurance

1. Not an adoptive admission because the effort is to collect on insurance, NOT manifesting a belief of the doctor’s report.

3. Adoptive admissions are decided by the jury under 104(b) UNLESS

a. Jury could not put aside the statement

i. Witness: “Are you the bank robber?” ( responds, “leave me alone:” could be submitted to the jury

ii. Witness: “You are the bank robber, aren’t you?” ( responds, “leave me alone:” could not be submitted to the jury because jury could not put aside the identifying statement.

iii. Authorized Admissions: Rule 801(d)(2)(C): a statement is not hearsay if:

1. Statement is offered against a party

2. Statement made by a person authorized by the party

a. Lawyers

i. ( v. Grider and Standard Bus Co. for negligence. Pleadings state that Standard negligently designed the bus because “the mirrors blocked Grider’s view,” which would indicate that Grider was not negligent. Complaint against standard is dismissed. Grider offers the pleadings as ( admitting that Grider was not negligent under 801(d)(2)(C).

1. Their lawyer is authorized to make such an admission, HOWEVER

2. FRCP 8(e) allows inconsistent pleadings, or pleading in the alternative.

ii. Exclude under 403 because the probative value is outweighed by the risk of confusing the issues

3. To make a statement concerning the subject

a. Pleadings

i. Notices to admit or deny are admissible only in particular cases

ii. Answers to pleadings are admissible in later actions

4. Jury can decide factual issues that could go both ways under 104(b).

5. Statement shall be considered, but by itself, it is not sufficient to establish authority

iv. Admissions by Agents: 801(d)(2)(D): a statement is not hearsay if:

1. Statement is offered against a party

2. Statement made by the party’s agent or servant

a. Statements by government employees are not admissible against the state

i. An agent cannot bind the sovereign

3. Concerning a matter within the scope of the agency or employment

4. Made during the existence of the relationship

a. Mahlandt v. Wild Canid--(’s child attacked by wolf kept at Poos’ house. Poos employed by Wild Canid. ( tries to admit (1) note stating “Sophie bit the child” from son to father; (2) statement from Poos to President Canid “Sophie bit a child;” and (3) minutes discussing the incident at a Board Meeting.

i. FRE 805: hearsay within hearsay is not excluded if each part of the combined statement has its own hearsay exception

1. According to Weinstein, there is no exception that applies to son’s statement to father; therefore, there is no way to admit the statement from father to president.

ii. HOWEVER, statements (1) and (2) are admissible against Poos because no personal knowledge is required for individual admissions. (1) is also admissible against Canid under 801(d)(2)(D) as a statement by agent or under (d)(2)(C) as an authorized admission.

iii. Board minutes are not admissible against Poos because the board is not authorized to speak for its employees.

b. Considerations: “I am an agent for X company:” Court does not like to admit such statements as admissions of agency relationship when it is a major issue in the case.

i. Bootstrapping: Statement being used as a basis for its own admission

1. “I work for X company” to show agency

ii. Coincidence: issue of admissibility coincides with issue that determines the outcome

1. Liability of employer depends upon whether party was an agent of employer; admissibility depends upon whether party was an agent of the employer

iii. Possible conflicting findings because the judge decides preliminary issues of admissibility and the jury decides facts

1. Judge may find that the statement “I work for X company” is admissible

2. Jury may find that the declarant was not an agent

5. Statement shall be considered, but by itself, it is not sufficient to establish agency

v. Admissions by Coconspirator: Rule 801(d)(2)(E): a statement is not hearsay if

1. Statement is offered against a party

2. Statement made by a coconspirator of a party

a. Admissible as a verbal act: nonhearsay use to establish transaction, but not to prove the truth of the coconspirator statements

b. Admissible as a hearsay use to prove the truth of the statements made by co-conspirators

i. This is why there is an exception in the Federal Rules of Evidence

3. During the course and in furtherance of the conspiracy

a. Statement made after the conspiracy ends is not “during the course” and “in furtherance of” the conspiracy

b. Some states allow statements to cover up conspiracies

4. Statement shall be considered, but by itself, it is not sufficient to establish existence of the conspiracy and participation of the declarant and the party against whom the statement is offered (Codifies Bourjaily)

a. Bootstrapping problem

i. Coconspirator statement is a required predicate fact for admissibility

ii. Coconspirator statement is required to show existence of a conspiracy: in other words, liability HOWEVER:

b. Bourjaily—Court held that bootstrapping is not a problem here because:

i. Judge is not bound by the FRE under 104(a).

1. Preliminary factual questions must be established by a preponderance of the evidence; then the case issue is submitted to the jury.

ii. Court did not decide if independent evidence is required to corroborate (FRE answered this question)

iii. Ohio v. Roberts—despite absence of cross-examination, admit the statement if

1. Sufficient indicia of reliability makes cross-examination unimportant to determine validity of statement OR

2. If exception is firmly rooted, no need to determine indicial of reliability

iv. Coconspirator statement is a firmly rooted hearsay exception

1. If exceptions are firmly rooted, court presumes evidence coming in under that exception is reliable

a. Example of Firmly Rooted Exceptions

i. Coconspirator statements

ii. Excited utterances

iii. Statements for medical diagnosis or treatment

iv. Business records

v. Dying declarations

vi. Agent’s admissions

vii. Public records

v. Dissenters argue

1. No bootstrapping, period.

2. Coconspirators based on agency rationale

a. Cannot go around saying you are an agent, so you cannot go around saying you are a coconspirator.

3. Requires indicia of reliability to forgo cross

4. Coconspirator exception no longer firmly rooted because the court is allowing bootstrapping

5. Judge decides admissibility under 104(a)

a. Judge knows the standards

i. FRE 401 relevance standard AND

ii. “Beyond reasonable doubt” standard

c. Unrestricted Exceptions

i. Present Sense Impression FRE 803(1)

1. Statement describing or explaining

2. An event or condition

3. Made while the declarant was perceiving the event

a. Nuttall v. Reading Co—Wife hears husband talking on the phone with his boss; sounds like the boss is trying to get husband to go to work—statement by husband admissible

i. State of Mind Nonhearsay use would allow the statement BUT

ii. To prove the truth of the Boss’ statement, exception is required

iii. Present sense impression usually seen, not heard

4. Present Sense Impressions are reliable because

a. No time to forget AND

b. No time to make up a false statement

5. Time Element

a. No magic rule BUT

b. Immediacy is the key

c. Admitting statement usually depends on necessity of the statement

ii. Excited Utterance: FRE 803(2)

1. Statement relating to

a. Startling event or condition

b. Made in reaction to or under excitement of the event or condition

2. Factors

a. Age, experience

b. Nature of the event

c. Subject matter of the statement

d. Spontaneity or in response to a question

e. Time and place of the statement

3. US v. Iron Shell—Victim assaulted by (. Victim spoke to police an hour after the incident occurred. Admissible because

a. Startling event was sexual assault

b. One hour was not a significant time lapse, considering the event

c. Victim was a child

d. Victim gave statement in response to general question, “What happened?”

4. Excited Utterances are reliable because

a. Declarant focuses on the event as he or she speaks AND

b. No real threat of deception

c. Firmly Rooted Hearsay Exception

5. Deciding Admissibility

a. Balance reliability and necessity

b. Consider bootstrapping

i. Ad. Comm. Notes require independent evidence in conjunction with the excited utterance

6. Difference between 803(1) and (2)

a. 803(1) is narrow—focuses on an explanation of a certain event

b. 803(2) is broad—focuses on reaction to an event

iii. State of Mind FRE 803(3)

1. Statement of the declarant’s then existing physical, mental or emotional condition

a. Apply only to present statement

b. Usually Facts included within the statement

i. Oberman v. D&B—statement reciting facts from a credit report amounting to a belief that Oberman was a “poor credit risk” admissible to show D&B’s belief (Nonhearsay circumstantial evidence of state of mind) BUT

c. Exception DOES NOT embrace statement of memory or belief

i. Same Example as above, facts in credit report cannot be admitted to prove the truth of the matter asserted HOWEVER

d. Where past facts are included, BALANCE to determine the misuse of the statement as proof of the facts themselves

i. Probative value of the facts

ii. Risk of unfair prejudice

iii. Give a limiting instruction

2. Subsequent conduct

a. Hillmon Doctrine: Statements of intent to prove subsequent conduct can only be used to prove the declarant’s subsequent conduct NOT the conduct of a 3rd party

i. Statement in a letter from A to A’s sister stating that A intends to travel to Blackacre and meet B can be offered to prove A’s intent to go, and that A went, but not to prove that B intended to go or that B went.

b. Pheaster—Reads Hillmon Doctrine to include statements of intent proving declarant’s subsequent conduct AND conduct of a 3rd party

c. Alcade Doctrine—Admit statement to prove 3rd party conduct IF

i. Statement is reliable

ii. Relevant AND

iii. Declarant is dead or otherwise unavailable

3. Facts about his will

iv. Statements to Physicians

1. Old common law

a. Statements to physicians only AND

b. Present conditions only

2. FRE 803(4) broadens scope:

a. Declarant’s motive in making the is consistent with the purpose of promoting treatment or diagnosis AND

b. The content of the statement is reasonably relied on by a physician in treatment or diagnosis

i. Statements of identity or fault are not always pertinent to treatment or diagnosis

1. Iron Shell—allow statement by child victim to doctor except portion that names the assailant because treatment not related to identity

a. HOWEVER, Read exception broadly for children BECAUSE

b. Adults will testify against their assailant more readily than children

c. Therefore, allow the statement that names the assailant

2. Consider the need for the statement and whether related to diagnosis or treatment

c. Statements need not be made ONLY by declarant to physician

i. Can be made to others on injured party’s behalf

1. Ex—Hanna tells physician “Jeremy fell”

a. Motive to make statement was for treatment

b. Doctor could reasonably rely on the statement for diagnosis

2. Ex—statement by declarant to an ambulance driver

3. Ex—statement made by Good Samaritan to ambulance driver on behalf of injured party

d. Where ( seeks out physician’s opinion for diagnosis ONLY and pays the physician:

i. Less reliable BUT

ii. “Diagnosis” was added to the FRE to change common law

iii. 803(4) allows such statements as substantive proof BUT

iv. PA requires that the statement made in contemplation of TREATMENT

v. Past Recollection Recorded FRE 803(5)

1. Memorandum or record admissible under the exception IF

a. Witness once had knowledge

i. If statement made by two persons and both were recorded MUST lay a foundation for BOTH witnesses

b. Near time of the event

c. Witness lacks present recollection

i. “Do you recall . . .” Answer: No. This is lack of present recollection

ii. “Do you recall . . .” Answer: “Well, I remember some, but not everything . . .”

1. This is sufficient under Ohio v. Roberts.

d. Writing is accurate

i. If testimony on the stand contradicts the past recorded statement

1. Judge decides accuracy

2. Differences between refreshing recollection and past recollection recorded

a. Refreshing recollection can be anything used to refresh current recollection

i. Ex—pasta fazul

ii. Not introduced into evidence

b. Past recollection recorded is introduced into evidence

i. If witness lacks current recollection, the writing supplements the witness’ testimony

3. Judge determines admissibility by a preponderance of the evidence

vi. Business Records FRE 803(6)

1. Record or data compilation in any form admissible IF

a. Witness is subject to business duty AND

i. Regular business; regularly kept record

ii. Witness has personal knowledge of the source

iii. Contemporaneity

1. Information recorded at the time of the act OR

2. Close to the time of the event

iv. Foundation Testimony

1. Custodian of the records

2. circumstantial knowledge of record keeping system

2. Rationale—multiple hearsay: would be irrational to bring in everyone to testify to the records kept in business

3. Example—A goes to Doctor B and states “I had no pain until I went weightlifting.” Dr. B records this in his report. A sues Dr. C claiming medical malpractice and C seeks to admit the statement by A to Dr. B. HEARSAY WITHIN HEARSAY because the statement in the report is hearsay AND the business record is hearsay: requires two exceptions under FRE 805

a. 801(d)(2)(A) can be invoked by Dr. C to admit the admission by his opponent A AND

b. 803(6) can be invoked by Dr. C to admit Dr. B’s report as a business record

4. In PA, opinions in business records are inadmissible

vii. Public Records Exception FRE 803(8)

1. Records statements, reports, or data in any form of public offices or agencies setting forth the following are admissible

a. Activities of the officer or agency

b. Matters observed pursuant to duty OR

c. In civil actions and proceedings and against the government in criminal cases

i. Factual findings resulting from investigation UNLESS

ii. Sources of the information or other circumstances indicate lack of trustworthiness

1. Trustworthiness is determined by the following factors

a. Timeliness of report

b. Skill and experience of the official making the report

c. Whether a hearing was held (NOT ESSENTIAL)

d. Motivation for making the report

2. Baker v. Elcona Homes—car accident; ( sues ( for damages. Report by Sgt. contained (1) observations (2) conclusions and (3) statements made by ( and others. ( wants to admit report

a. Observations regarding the accident fall within 803(8)(B) as matters observed pursuant to duty imposed by law

b. Conclusion that ( had the right of way constituted factual findings under 803(8)(C)

c. No lack of trustworthiness because

i. Officer made the report immediately at the scene

ii. Was a 25 year veteran and regarded as expert in accident evaluation

iii. No hearing, but not essential

iv. No illegitimate motivation because he took statements from both sides

d. Statement made by ( in report is hearsay and requires its own exception—801(d)(1)(B) prior consistent statement offered to rebut allegation of improper motive or recent fabrication

3. PA has not adopted 803(8) but will admit similar reports under Official Records Statute, 42 Pa. C.S. § 6104.

a. Similar to business records exception to hearsay

b. But does not include opinions

viii. Treatises FRE 803(18)

1. Expert Witness

2. On Cross examination

3. Whether treatise is authoritative

a. If yes, opponent can cross-examine and contradict expert witness based on the text in the treatise

b. Used to impeach witness for departing from an authoritative source

c. Testimony read into evidence, but treatise is not received as an exhibit

ix. Opinion Testimony (Non-Opinion Rule) FRE 701

1. Opinion testimony limited to opinions or inferences that are

a. Rationally based on perception of the witness

i. Lay opinion on another persons mood or emotional state

1. Worried

2. Angry

3. Vehicle speed

4. Sobriety

b. Used for clarity or determination of a fact

c. Not based on scientific, technical or specified knowledge

x. Expert Testimony FRE 702 (CODIFIES DAUBERT)

1. Opinions by experts admissible if helpful to the trier of fact AND

a. Testimony is based on sufficient facts or data

b. Testimony is the product of reliable principles and methods

c. Witness has applied methods and principles reliably to the facts of the present case

2. Frye Test: (Predecessor to Daubert)—No junk science: opinion must be generally accepted by those in the field

3. Daubert Factors—Trial judge determines under 104(a) whether the scientific opinion will assist the trier of fact to understand a fact at issue.

a. Whether reasoning is scientifically valid AND

b. Whether reasoning can be properly applied to the facts at issue

c. Factors to consider

i. Whether the theory has been tested

ii. Whether the theory has been subject to peer review and publication

iii. The theories known or potential rate of error

iv. The existence and maintenance of controls

v. The theory’s general acceptance

d. Declarant Unavailable

i. First determine whether declarant is unavailable pursuant to 804(a)

1. Declarant has privilege from testifying

2. Declarant refuses to testify despite charge of contempt

3. Declarant testifies to a lack of memory of the subject matter

a. Compare 801(d)(1)(A)—“subject to cross” for prior inconsistent statement purposes is met if witness can merely respond to questions

b. Here, lack of memory of the subject matter can qualify for “unavailability” for purposes of this rule

c. Therefore, witness can be “subject to cross” AND “unavailable” at the same time

4. Declarant is absent due to death, illness, or infirmity OR

5. Declarant is not subject to subpoena OR cannot be brought to curt by other means

6. Declarant is not unavailable if exemption, refusal, lack of memory, inability, or absence

a. Is due to the procurement or wrongdoing of the proponent of the statement

b. For purposes of preventing the witness from attending or testifying

c. Proponent must make a good faith effort to obtain presence of the witness at trial

i. Prosecution apprehends A for drugs and tells her to implicate B if she wants to go home. She does, and the government gives her a passport and a plane ticket. Prosecution then claims she is unavailable for trial. REJECTED

1. Motivation of witness statement implicating B was to go home

2. Prosecution did not make a good faith attempt to keep witness here for the trial, in fact, encouraged her to leave

ii. Next, determine whether an exception applies pursuant to 804(b)

1. Former testimony is not excluded if the declarant is unavailable as a witness:

a. Exception requires the former testimony was given as a witness at another hearing

i. Whether same or different proceeding OR

ii. Whether deposition in same or different proceeding AND

b. Party against whom the testimony is now offered OR

c. A predecessor in interest of the party against whom the testimony is now offered

i. Lloyd v. American Export—( subject to hearing for license revocation and sued by ( for damages. Predecessor in interest met if the hearing officer in the prior license revocation hearing sought to establish the same facts as the ( bringing an action against ( for damages in the present hearing: that ( was aggressive and violent. DISSENT argues privity, and that is the rule.

ii. JB and JC Wright—In Forum I, E and B testified to conspiracy by JB to commit arson. In forum II JB and JC sue the insurance company to recover and insurance company wants to admit the testimony of B and E, but B and E are unavailable. Admit the testimony from the prior proceeding

1. Rule of substantial identities of issues is met because JB committed arson and thus not entitled to recovery of insurance claim

2. Rule of substantial identities of the parties is met because JB and JC are parties to recover and both are present

3. Rule to satisfy cross-examination is met because JB had the opportunity to cross-examine E and B in Forum I.

iii. Example—In Forum I, A sues B and C testifies in favor of B by stating that the bus was not speeding. In Forum II, D sues B, but C is dead. B wants to admit the prior transcript of C’s testimony from forum one. Inadmissible because D is not a predecessor in interest of A.

1. Predecessor in interest does not mean who brought the claim first

2. Predecessor in interest means from WHOM you obtained the interest

iv. THEREFORE, the rule for predecessor in interest is

1. One from whom the present party received right, title, interest, or obligation

d. Had an opportunity and similar motive to develop the testimony by direct, cross, or redirect

e. Always two layers of hearsay:

i. Transcript of former testimony admissible under public records exception 803(8) to prove the words uttered AND

ii. 804(b)(1) to admit what the witness said as proof of what he or she asserts

f. Alternative: Catchall Provision FRE 807

i. IF inadmissible under 803 and 804, admit evidence IF

1. Statement having equivalent circumstantial guarantees of trustworthiness AND

a. Statement is offered as evidence of a material fact

b. Statement is more probative on the point for which it is offered than any other evidence (necessity)

c. Purpose of the rules and interest of justice will be served if statement is admitted

ii. Must give other party notice before using this exception

2. Dying Declarations FRE 804(b)(2)

a. Homicide or Civil action

b. Statement made by declarant with the belief of imminent death AND

c. Statement relates to the cause or circumstances of impending death

d. Judge decides admissibility because statement may be highly inflammatory and one that jurors could not easily disregard

e. Factors to determine admissibility

i. Injury

ii. Timing

iii. Observations by doctors, police officers, or others at the time of the statement

iv. Other statements made in conjunction with the dying declaration made by the declarant

3. Declarations Against Interests FRE 804(b)(3)

a. Statement made that is so far contrary to the declarant’s pecuniary or proprietary interest that a reasonable person in the declarant’s position would not have made the statement unless believed to be true.

b. Rationale is that one will not say things that harm them unless they are true

c. CONTEXT is vitally important

i. Determine if the statement is in fact against interests and not self serving

ii. Example—A signs account with and X in the presence of B, her daughter. B takes out money. A sues bank for the money. The bank tells A that they will pay her the money withdrawn if she admits that B had the authority to take the money. A does so. Bank wishes to use this as a statement against interest, but it is not. The statement is actually self-serving because A recovers the money she is suing for.

d. Courts do not allow conclusions without personal knowledge of the subject matter because the party is unavailable for cross-examination.

e. Williamson v. US—( gave three different statements in a narrative after he was arrested for possession: (1) he got the coke from a Cuban; (2) he received a note with instruction from a Cuban to get the coke; and (3) ( was giving the coke to Williamson.

i. Majority—only portions that are against (’s interests are statements for purposes of the rule. Collateral statements are not admissible

ii. Concurrence—Rule will not be used often unless court allows the narrative, even if it implicates another, here

iii. Concurrence—even if a statement implicates another, the statement is against interest. Court should not search through the statement to find only the portion against one’s interest.

iv. Concurrence—Statement must be reliable AND not made to curry favor with the police

f. Statements against interests offered by the declarant to exculpate the accused are admissible if exculpatory statement is corroborated with other evidence.

i. Example—A and B drove truck to deliver cheese. They are pulled over and police find marijuana. A says “I knew nothing about it” and B says “the pot is mine, A knew nothing about it, I took a chance and now I will go to jail.” A and B are arrested, and A seeks to admit B’s statement as a statement against interest. CONTEXT:

1. Not much corroboration is needed: Repetition is sufficient corroboration—both A and B said A knew nothing about the pot

2. PA requires corroboration for inculpatory statements rather than exculpatory statements

g. Lilly v. Virginia—statements against interests are not firmly rooted hearsay exceptions, thus court must find sufficient indicia of reliability

4. Personal or Family History FRE 804(b)(4)

a. Statements of family history are admissible if the declarant is unavailable AND

b. Statement concerns basic familial information

i. Not more sophisticated information

c. Familial relationship existed before the controversy

i. Ex—INS wants to throw out an immigrant. Immigrant brings in someone to testify that she is his wife and is legally married.

CHARACTER EVIDENCE

I. Propensity of one to do or not to do an act

a. Evidence of past behavior

b. Reputation in the community

c. Used to prove behavior

II. Methods of Proving Character FRE 405

a. 405(a) allows GENERAL testimonial evidence of to prove the character of a person

i. In the form of Opinion

1. Old common law did not allow opinion testimony AND

ii. Reputation

1. Evidence of reputation BEFORE the crime was charged, not after the charge

b. 405(b) allows SPECIFIC testimonial evidence IF

i. Character or trait of a person is an essential element of a charge claim or defense

1. Defamation of character

2. Negligent entrustment of money

3. Damages

III. Character Evidence is generally not admissible under 404(a) unless the following exceptions apply.

a. 404(a)(1): Character of the Defendant: Evidence of a PERTINENT character trait admissible

i. Pertinent trait means a trait relating to the crime charged

1. Ex—charge of indecent exposure: testimony revealing moral decency of ( and his general law-abiding manner is pertinent

ii. IF the ( raises the issue of his character

1. Prosecutor may rebut after ( raises the issue OR

iii. IF the ( raises the issue of character regarding the victim AND it is admitted under (a)(2)

1. Prosecution can admit evidence of the same trait against the (

iv. Defendant must FIRST raise the issue of his own character. Otherwise, it would be highly inflammatory, and it would required a ( to defend an entire life of conduct, not just the specific acts giving rise to the conduct at issue

b. 404(a)(2): Character of the Victim: Evidence of a PERTINENT trait of character admissible IF

i. If the ( offers evidence of character regarding the victim,

1. Prosecution may rebut after ( raises the issue OR

ii. In a HOMICIDE case

1. Prosecution can offer evidence of the peacefulness of a victim IF

a. Offered to rebut an allegation that the victim was the first aggressor

iii. Threats

1. Usually less probative of character

2. Typically, threats can be offered as nonhearsay use of state of mind OR

3. To prove the truth of the threatening statement

a. Offered under 803(3) as state of mind exception to hearsay

c. Once ( raises the issue of character by calling character witnesses, the prosecution on cross-examination can question the character witness about prior crimes of the ( IF

i. Crimes are pertinent AND

ii. Prosecutor acts in good faith

1. Prosecutor has a basis for such crimes

d. 404(b): Other Crimes, Wrongs, or Acts: generally inadmissible to prove general propensity BUT admissible for SPECIFIC propensity raised by the (

i. Specific conduct includes

1. Motive, opportunity, preparation, Plan, knowledge

2. Intent

a. Example—A tells B, an undercover agent, that he has some hash and cocaine to sell. He sold a small amount of hash to B and is arrested, but B finds no cocaine. A claims he had no intent to sell cocaine. Prosecution then offers testimony by C who states that A sold hash and coke on eighteen prior occasions. Admissible under 404(b) because ( raised the issue of intent, and the prior offenses are relevant to prove intent on this occasion.

3. Identity or Modus Operandi

a. Admissibility of Modus operandi, or signature crime, to prove identity is decided by the judge based on

i. Number of unique factors in the prior crimes similar to the present

ii. Distinctive nature of the acts

iii. How close in resemblance the past crimes are to the present crime

iv. Example—A and B rob bank. A charged, B is missing, bank robbery—took place at 9:00 am, B was hunched over, wore a ski mask and gloves, and switched cars after the robbery. Prosecution offers testimony from C who says B robbed a bank in the past and did exactly the same things as the current robbery. Probably inadmissible because this robbery is indistinguishable from any other robbery, not necessarily one committed specifically by B.

4. Absence of mistake or accident

a. No need to have an expert testify, but not barred from having expert testify

ii. Deciding Admissibility of prior specific acts: JUDGE

1. Decides whether evidence offered for the proper purpose

2. Decides whether evidence offered is relevant for that purpose

3. Decides whether the probative value outweighs the risk of unfair prejudice AND

4. Gives a limiting instruction on request

IV. Habit Evidence

a. Habit is SPECIFIC and REGULAR response to a REPEATED situation

i. FRE 406 Evidence of:

1. Habit of a person OR

2. Routine practice of a business

a. Whether corroborated or not

i. Some personal knowledge required under FRE 602 AND

b. Regardless of the presence of an eyewitness

ii. Relevant to prove

1. Conduct of person on the event in question OR

2. Conduct of the organization on the event in question

a. Example—testimony by 12-year INS agent, who never processed an immigrant in the past, outlining the procedure for such processing; although signature, part of the procedure, was lacking, admissible as organizational routine

b. Example—medical practice’s routine disclosure of side-effects admissible

c. Example—inter-office procedure for mailing documents—executive puts it in her outbox, secretary takes it from the outbox, puts it in the mail; although no personal knowledge of the exact letter mailed, admissible as organizational routine

IMPEACHMENT

I. Attacks on Credibility of Witnesses

a. Five ways to impeach testimony

i. Bias, interest, corruption, or prejudice

ii. Defect in mental or physical capacity

iii. By disposition, witness is untruthful

iv. Prior Inconsistent Statements (Hearsay)

v. Contradictory Witnesses

b. Bias, Interests, Corruption, or Prejudice

i. Proponent can introduce extrinsic evidence to bolster the impeachment

ii. Not collateral—if witness denies the impeaching evidence, proponent can introduce extrinsic evidence to prove what the witness has denied

iii. US v. Abel—Bias used to impeach testimony is relevant

1. Extrinsic evidence can be used to prove bias under 608(b)

2. Membership in a group is sufficient for impeachment

iv. General Rule: cannot bolster credibility until it is attacked HOWEVER

1. Prosecution can take the bite out of evidence if introducing an informant as a witness and addressing the fact that the informant negotiated a plea in order to testify

c. Defect in mental or physical capacity

i. Witness drunk at the time of the event

ii. Witness suffering from emotional distress at the time of the event

d. By Disposition, Witness is Untruthful

i. 608(a) allows testimonial evidence of opinion and reputation regarding the witness’ veracity

ii. 608(b) allows past misconduct leading to non-conviction to prove disposition

1. Limited to cross examination ONLY, thus

2. Prosecution cannot introduce extrinsic evidence

iii. FRE 609: Impeaching by evidence of a Prior Crime

1. Crime punishable by death or prison exceeding one year

2. 609(a)(1): Evidence of a prior crime committed by the ACCUSED admissible IF

a. Probative value outweighs prejudice

i. Favors exclusion because prior crimes of the accused are highly inflammatory

3. 609(a)(1): Evidence of a prior crime committed by ANY OTHER WITNESS not admissible IF

a. Probative value is SUBSTANTIALLY OUTWEIGHED by unfair prejudice (403 standard)

i. Favors inclusion because prior crimes committed by a witness other than the accused is not inflammatory towards the accused, although it is not helpful to the accused

4. 609(a)(2): Evidence of a prior crime involving

a. Dishonesty or false statement

b. Court shall admit against ANY witness regardless of punishment

5. When balancing probative value with prejudice under 609(a)(1), determine only whether evidence is probative to CREDIBILITY

6. Deciding admissibility of prior crimes against the accused:

a. Veracity

b. Recency

c. Similarity to current charge

i. The more similar, the LESS likely it will be admitted

d. Prior Record of the (

7. “Stand-up” crimes: Crimes such as bank robbery and manslaughter are not crimes inherently untruthful.

8. Crimes such as falsifying documents, forgery, and the like are inherently untruthful.

9. Use of prior crimes to impeach in civil cases is permissible. The same standards apply.

iv. FRE 909(b) requires the prior crime to fall within a ten-year span

1. The starting point is the latest date, either

a. Conviction OR

b. Release

2. The ending point is the date of the indictment for the present charge

v. Motions in limine to include or exclude evidence of prior crimes sometimes made so the ( can plan his or her defense before trial

e. Example—US charges A with bank robbery, and A claims an alibi on the day in question. B testifies against A. C will testify that he and A were fishing on the day in question. A will also testify to that effect. All three witnesses have prior conviction for bank robbery. Are the prior convictions admissible against any or all of the witnesses under 609(a)(1)?

i. Against A—No, because the current charge is bank robbery, similar to his prior conviction. This evidence is highly prejudicial against A, and the more similar the conviction, the less likely to admit against the accused. Further, such evidence is not very probative on credibility.

ii. Against B—Yes, because evidence of B’s prior bank robbery is probative on the issue of his credibility because honest folks do not rob banks, and the evidence would be not highly prejudicial to A.

iii. Against C—Maybe. The evidence is prejudicial to A because A and C, both convicted bank robbers, are possibly good friends, thus A would be hanging out with a bank robber. However, C’s prior bank conviction is also probative on the issue of credibility because law-abiding, honest people do not rob banks.

f. Example—A is charged with assault on August 1, 2000. On October 1, 2001, trial commences, and ( asserts the defense of mistaken identity. Prosecution offers five prior crimes: (1) falsifying a hotel ticket; (2) possession of marijuana; (3) grand larceny; (4) first degree assault; and (5) a forgery conviction on September 1, 1988, where ( was released September 1, 1990.

i. Hotel forgery is admissible under 609(a)(2) because it is a crime involving dishonesy

ii. Possession is probably inadmissible under 609(a)(1) because the possession of marijuana is not terribly probative on the issue of A’s credibility. If anything, the probative value of the prior conviction of possession would be outweighed by the prejudicial effect of having the jury hear that A is also a pothead.

iii. Grand larceny is not admissible bunder 609(a)(1) or (2). Respectively, it is not a crime involving dishonesty, and the probative value of the prior conviction, regarding A’s credibility, is outweighed by the prejudicial effect of having the jury hear that A is a thief.

iv. The assault charge is not admissible because it is identical to the crime charged here, thus highly inflammatory. We would not want the jury to hear this evidence because they would be inclinded to convict A on the basis of conviction for the prior assault, not the present assault.

v. The 12-year-old forgery is admissible under 609(a)(2) because it is a crime involving dishonesty AND is not barred by the 10-year rule. The proper date to stop the 10-year-clock from ticking is the date of the current indictment, August 1, 2000. Since this date falls within the 10-year-limit, the evidence is admissible.

PRIVILEGES

I. Spousal Privileges

a. Bar to adverse spousal testimony

i. Spouse-witness holds the spousal privilege

ii. Joint-Participation exception

1. Where both husband and wife are indicted AND

2. One refuses to testify against another or make a deal with the prosecution

3. There is no spousal privilege even if the one who would be testifying refuses to do so

a. The spouse witness would be compelled to testify regardless if they claimed the privilege

b. Bar to Spousal Communications

i. Confidential communications between husband and wife alone are inadmissible

ii. Acts not intended to be assertions between husband and wife ARE admissible

c. Where one spouse is charged with a crime by another privileges do not apply

i. Spouse cannot block adverse testimony OR

ii. Adverse communication between husband and wife

d. There is no parent-child communications privilege

e. US v. Trammel—husband indicted, un-indicted wife makes a deal to testify against spouse. Husband raises privilege, arguing that the wife cannot testify against him without his consent. Court held that the spouse-witness, here the wife, holds the privilege and can choose to testify or not unless a joint participant in the crime.

f. US v. Estes—husband steals money, brings home and (1) tells wife he stole the money (2) shows her the money (3) they both hid the money and (4) she laundered the money. Court held that only the first was admissible because privileges reaches communications: (2) was a nonassertive act, and (3) and (4) were joint ventures by husband and wife that nullify the spousal privileges.

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