EVIDENCE



I. PROOF

APPELLATE REVIEW OF EVIDENTIARY ISSUES

FR 103: Rulings on Evidence

How to appeal an alleged evidentiary error:

1) Preserve the issue for appeal: clear ruling from TC and record is complete;

2) Persuade appellate court that TC made an error in admitting/excluding; and

3) Convince court the error “affected a substantial right” (was prejudicial) of that party.

If TC erroneously admitted evidence – party must have made a timely objection and stated specific ground.

• “Timely” = stated as soon as basis for the objection is clear: right after Q is asked and before A is given.

• If ground for objection is not clear until the answer is given or if party cannot state the object fast enough, ct will usually consider a motion to strike the answer timely if made immediately after answer given.

If TC erroneously excluded evidence – party must make an offer of proof.

• “Offer of Proof” = make a record of what the substance of the excluded evidence would have been.

• Ex) outside hearing of jury, atty says, “If permitted to answer, witness would have stated that the bystander told her the light for Main St. traffic was red right before the accident.”

• If substance of the excluded evidence is apparent from the context – no need to make formal offer of proof.

*EXCEPTION: If TC made “PLAIN ERROR” = appellate ct will review the issue EVEN IF party did NOT MAKE A RECORD for appeal.

Ex) During murder case, P’s witness testifies that D is a member of a horrible racist political mov’t. These beliefs have nothing to do with the murder, the evidence is irrelevant, might seriously prejudice the jury. Even if P’s counsel doesn’t object, the TC transcript will reveal the error clearly, an appellate ct will review the matter and reverse if affected substantial right of D.

“Affect a substantial right” = If substantially swayed the jury OR had material effect on the verdict - goes to a crucial issue.

- BUT if error was purely technical, probably didn’t affect the jury’s decision or outcome, the error will be deemed harmless.

- If TC erroneously allowed/excluded evidence that went to an undisputed or minor issue – appellate court will not reverse it.

***Appellate courts give GREAT DEFERENCE TO TRIAL JUDGES EVIDENCE RULINGS.

Questions for Classroom Discussion [p. 24]

1. Action for personal injuries suffered in an automobile accident. Plaintiff’s attorney asks a witness, “What did Plaintiff tell the police when they arrived at the scene?” Defendant’s counsel loudly states, “Objection!” The court overrules the objection. The witness then answers, “Plaintiff said Defendant ran the red light.” Assume the testimony was inadmissible hearsay. On appeal Defendant’s counsel argues that admission of the testimony over her objection was error. How should the appellate court rule?

He did NOT state the specific ground for objection. Only saying “Objection!” is NOT enough!

2. Same case. Plaintiff’s attorney asks the witness, “What did Plaintiff tell the police when they arrived at the scene?” Defendant’s counsel states, “Objection, hearsay!” The court sustains the objection. Plaintiff’s counsel then asks, “OK, then what did Plaintiff tell the paramedics when they arrived?” Defendant’s counsel states, “Objection!” The court overrules the objection and allows the witness to answer. The witness testifies, “Plaintiff said Defendant ran the red light.” Assume the testimony was inadmissible hearsay. On appeal Defendant’s counsel argues that admission of the testimony over her objection was error. How should the appellate court rule?

OK: From the CONTEXT it is OBVIOUS that he is making the same objection. Specific ground for objection was apparent from previous objection. Very next question, almost identical.

3. Same case. Plaintiff’s attorney asks the witness, “Did Defendant run the red light?” The witness quickly answers, “I didn’t see what happened, but I heard Plaintiff tell the police that Defendant ran the red light.” What should Defendant’s now counsel do now? Is it too late?

Motion to Strike – ask judge to declare what was just said is not admissible and the jury should disregard it. Objection before is

preferable.

4. Same case. Plaintiff’s attorney calls the plaintiff to testify and asks, “Who had the red light?” Before Plaintiff can answer, Defendant’s counsel objects on the ground of hearsay and the court sustains the objection. Plaintiff’s counsel has no evidence other than Plaintiff’s testimony to prove who had the red light, which is the crucial issue in the case. Assuming the trial court was wrong to sustain the objection, what must Plaintiff’s counsel do to preserve the issue for appeal?

P’s counsel MUST make an OFFER OF PROOF of what the witness would have said if he could have answered the question. Either 1)

get jury out of the room and have the witness answer the q on the record; OR 2) sidebar w/ jury still in the room and tells the Judge

he wants to make an offer of proof that had she been permitted to answer, this is what she would have said. Must be an important

mistake – like here it was a crucial issue!

5. Prosecution for murder. A rule (studied in Chapter 4) forbids the prosecution in a murder case from presenting evidence during its case-in-chief of Defendant’s character for violent behavior. If Defendant objects to such evidence, and the trial court overrules the objection, is the court’s decision subject to “abuse of discretion” review on appeal?

Assuming you made the record, the appeals court will apply the “abuse of discretion” standard in judging whether an error was made. Generally, applellate courts will give the trial judge a LOT OF LEEWAY.

*Exception: There are some categorical exclusions like character evidence – that are simply INADMISSIBLE! Not judged on an

abuse of discretion standard. The appeals court will substitute its own judgement – won’t give judge discretion.

6. Same case. The prosecution offers evidence during its case-in-chief of Defendant’s character for violent behavior. Defense counsel does not object, the evidence is admitted, and Defendant is convicted. Assuming the evidence was inadmissible under the rules, what must Defendant’s counsel argue on appeal in response to the claim that the failure to object at trial means the error cannot be considered on appeal?

PLAIN ERROR: what happened was so egregious that the Trial Judge should have known it even if there was no objection. This is

very rare!!!

7. If an appellate court finds that a trial court committed error in the admission or exclusion of evidence, will the appellate court necessarily reverse the judgment of the trial court? Why not reverse whenever the trial court errs? Wouldn’t a reversal make the court more careful in issuing its evidentiary rulings?

NO – needs to affect a substantial right. Not enough that the trial judge made a mistake. The effect of the error must be BIG!

SOURCES OF EVIDENCE AND THE NATURE OF PROOF

1. WITNESSES: Requires: 1) Competency; 2) Personal Knowledge; and 3) Oath/Affirmation

COMPETENCY TO BE A WITNESS (FR 601):

EVERY PERSON is competent to be a witness!

• *Be careful! Other rules show that *TRIAL JUDGES and JURY MEMBERS are NOT competent!

• *BUT: STATE competency law controls civil actions brought in Fed Ct under Diversity jdx!

Questions for Classroom Discussion [p. 27]

1. A three-year-old child says she saw the incident in question and promises to tell “what really happened and not make-up something.” She then gives a coherent description of the incident. Is the witness competent?

YES 3yr old is competent. But, just because she is “competent” doesn’t mean the jury will believe her! Competence v. Credibility!

2. Same case. Assuming the witness is competent and her testimony is admitted against your client, what would you argue to the jury about her credibility?

She’s only a kid, you can’t trust her! Don’t believe her jury!!!

3. A witness is an atheist and states she does not believe she will be punished by God if he lies. Is the witness competent?

YES, still competent even if an atheist as long as she promises to tell the truth. Still competent.

5. Does evidence of a witness’s atheism suggest she is not a credible witness? If so, is the evidence admissible to attack her credibility?

Rule 610: Religious Beliefs or Opinions: Evidence of the beliefs/opinions of a witness on matters of RELIGION is NOT ADMISSIBLE for the purpose of showing the witness IS/ISN’T CREDIBLE. Cannot enhance/attack.

6. Civil action brought in a federal district court in Ohio under diversity jurisdiction. Plaintiff calls a three-year-old child to testify. What law must the court apply to determine if the child is competent to testify?

Apply STATE LAW. In Ohio, kids under 10 are NOT competent!

***CALIFORNIA EVIDENCE CODE is NOT as simple as the Federal Rule on Competency!

CA Rules 701(a)(2) – if incapable – more to it! A 3yr old might be disqualified under this rule! Maybe he can say “I promise to tell the truth” – but does he understand his duty under the law to tell the truth?

COMPETENCY OF JUDGE

(FR 605) = JUDGE PRESIDING AT THE TRIAL MAY NOT TESTIFY IN THAT TRIAL AS A WITNESS.

COMPETENCY OF A JUROR

(FR 606) = A) CANNOT TESTIFY AT TRIAL.

• b) BUT maybe can testify for INQUIRY INTO VALIDITY OF VERDICT/INDICTMENT after trial. RARE!

• Ex) After trial, jury reached a verdict, loser claims there was jury misconduct and wants a new trial.

• Juror cannot testify in that hearing as to what happened during deliberations or what mental processes played a role in their decision. Don’t want to know how they got their result.

• Exception 1) Extraneous prejudicial information: learns about facts from source other than admitted evidence like TV.

• Exception 2) Outside influence: bribes/threats to jurors.

• Exception 3) Mistake was made in entering the verdict onto the verdict form.

Questions for Classroom Discussion [p. 29]

1. Recall that Rule 103(a)(1) provides that the right to appeal for error based on erroneous admission of evidence usually is waived in the absence of a timely objection. Normally, an objection is timely if it is made as soon as the evidence is offered. Notice that Rule 606(a) provides, “the opposing party shall be afforded an opportunity to object out of the presence of the jury.” This creates an exception to Rule 103(a)(1), permitting a valid objection to be stated after a juror has finished testifying and the entire jury has been excused from the courtroom. Why does Rule 606(a) create such an exception?

2. Notice that Rule 605 creates an even more complete exception to Rule 103(a)(1), stating “No objection need be made in order to preserve the point.” Why does Rule 605 create such an exception?

Question for Classroom Discussion

Casebook page 29

Prosecution for assaulting a witness while she was testifying. The judge in the instant proceeding was the judge in the courtroom when the assault allegedly occurred. The prosecution calls the judge to testify. The defense does not object. Is the witness competent under the Federal Rules? Under the C.E.C.?

Fed Rules = JUDGE CANNOT TESTIFY! He was the judge in the courtroom – not competent!

***CA Rules = If no objection – he CAN testify!!! If you don’t object, then he can testify!!!

Tanner v. US (1987)

• D’s convicted of fraud. Motion for new trial bc several of the jurors were drinking, smoking, cocaine, sleeping, etc.

• Argued that their drinking was improper “outside influence” so they could testify.

• Held: NO - JURORS CANNOT TESTIFY about the drinking! Juror testimony is not admissible.

• Policy: protect the jury’s prerogative to decide cases however they want to decide them.

Questions for Classroom Discussion [p. 32]

1. Defendant is convicted after a jury trial. Defendant makes a motion for new trial on the ground of jury misconduct and calls the courtroom bailiff to testify that jurors were drinking alcohol and doing drugs whenever he entered the jury room during deliberations. Is the bailiff’s testimony barred by Rule 606(b)?

BAILIFF’S testimony IS OK. Someone not in the jury can testify, like a bartender who sees the juror get drunk.

4. Negligence action by Plaintiff against Defendant after Defendant allegedly ran Plaintiff down as Plaintiff crossed the street in a crosswalk late one night. Defendant claims she was not the one whose car struck Plaintiff. To identify Defendant’s car as the one that hit Plaintiff, Plaintiff calls Witness, who testifies that she was standing approximately 200 feet from the point of impact, and that the car that hit Plaintiff was a 1995 Acura Integra. Other evidence shows that Defendant owns a 1995 Acura Integra. After a jury verdict for Defendant, Plaintiff’s attorney learns that one of the jurors is a car buff and, during deliberations, said that “there’s no way to tell the difference between a 1995 Integra and a 1996, 1997, 1998, 1999, 2000, or 2001 Integra from 200 feet in the dead of night.” Plaintiff moves for a new trial on the ground that the juror employed improper personal knowledge outside the record and offers the testimony of another member of the jury to prove what was said during deliberations. How should the court rule on the competency of the juror to testify?

Juror cannot testify. This is NOT “extraneous prejudicial info” – nothing wrong with a juror bringing info they happen to already

have in their heads.

CALIFORNIA: COMPETENCY OF JUROR AS WITNESS

• CA Rule 704(a): there might be situations were juror WILL be permitted to testify.

• CA Rule 704(b): If you OBJECT – then a juror CANNOT testify as a witness & court declares a MISTRIAL.

Questions for Classroom Discussion

Casebook page 32

1. Same case. Immediately after the prosecution puts the juror on the stand, the judge calls for a recess. During the recess the defense objects to the juror testifying. How does this objection affect the trial under the Federal Rules? Under the C.E.C?

-FR: NO – juror CANNOT testify. Judge sustains objection.

-***CA law: court MUST declare a MISTRIAL!

2. Same case. After the jury returns a verdict of guilty, the defense makes a motion for a new trial. During the hearing on that motion, the defense offers the testimony of a member of the jury who offers to testify that, during deliberations, several members of the jury were drinking and intoxicated. Is the juror competent under the Federal Rules? Under the C.E.C?

FR: NO – juror is not competent to testify – won’t consider the jury drinking, flipping a coin.

-***CA law: you CAN hear testimony about WHAT WENT ON during the jury deliberations (juror can testify that they were drinking and smoking.) BUT juror may NOT testify that it had an EFFECT on their verdict.

COMPETENCY OF A WITNESS WHOSE RECOLLECTION HAS BEEN REFRESEHED THROUGH HYPNOSIS

• Recollections from hypnosis are often unreliable products of the hypnosis rather than the events supposedly recalled.

• It is all about suggestion – so suggestions made to a witness during hypnosis may convince him they are real.

• Usually they come out of hypnosis convinced all their recollections are accurate, even tho they may not be.

• Shirley (CA 1982): testimony not admissible as to all matters relating to those events from the time of hypnotic session forward.

• CA 795: if CRIMINAL case - CAN testify ONLY on things they REMEMBERED PRIOR TO BEING HYPNOTIZED.

Questions for Classroom Discussion [p. 37]

1. Would the witness in People v. Shirley have been competent to testify if Rule 601 applied?

YES. EVERY PERSONS IS COMPETENT to testify! No exception for hypnotized witnesses!

2. The court in People v. Shirley stated that it did not “foreclose the continued use of hypnosis by the police for purely investigative purposes.” Can you see why the decision might still discourage police from using hypnosis in an investigation? What are the disadvantages of this?

If cops are discouraged from using hypnosis – maybe the crimes will not get solved!!

3. Evidence Code § 795 was enacted in response to People v. Shirley. Why do you think the legislature did this? In a civil action arising under diversity jurisdiction brought in federal district court in California, is a witness competent under Rule 601 to testify if her recollection has been refreshed through hypnosis?

Must apply the STATE competency law. For civil matters, a witness who was hypnotized cannot testify.

CA CIVIL cases = witness IS NOT COMPETENT!

Rock v. Arkansas (1987)

• D charged w/ manslaughter for shooting her husband. She was hypnotized and wanted to testify.

• Arkansas law: bans the admission of hypnotically refreshed testimony.

• Q: Does the state law violate petitioner’s constitutional right to testify on her own behalf as a D in a criminal case?

• Held: a TOTAL BAN on the admission of a D’s testimony is an arbitrary restriction on the right to testify.

• *Constitution trumps the evidence law!!!

Questions for Classroom Discussion [p. 41]

1. Assume the defendant in Rock was hypnotized by a therapist who lacked training in hypnosis, was paid by defense counsel, and kept no record of the procedures employed. According to Rock, does a state law excluding hypnotically refreshed recollection produced under such circumstances necessarily violate the Constitution?

NO! BUT - If a State makes a rule of evidence that totally excludes whole categories of evidence without differentiating – that is not

ok! Under Rock, the State is allowed to look at the circumstances of specific evidence and decide it is too unreliable to admit. *CA

does exclude all post-hypnotic memories. Could be a problem based on Rock – but that has not yet been dealt with!

2. Does Rock mean that an accused has a constitutional right to present the hypnotically refreshed testimony of a witness other than the defendant when that testimony is crucial? Rock says D has right to testify. Hmmm…

PERSONAL KNOWLEDGE REQUIREMENT

FR (602): A witness may NOT testify to a matter UNLESS evidence shows he has PERSONAL KNOWLEDGE.

• Unless evidence is introduced sufficient to support a finding that the witness has PK of the matter.

• PK = must have perceived with at least ONE of your SENSES (doesn’t have to be perfect perception, just RPP test).

• Requires: Perception, Comprehension, Recollection, Communication.

Questions for Classroom Discussion [p. 44]

1. Prosecution of Defendant for the murder of Joe. Defendant denies committing the crime. A prosecution witness testifies he saw a person resembling Defendant shoot Joe, but the witness admits he did not have his glasses on, his view was obstructed by a tree, and the sun was in his eyes. Does the witness have personal knowledge? What standard of proof applies to the question?

Yes, he has PK - he PERCEIVED a shooting with his own senses.

2. Same case. A prosecution witness testifies “Defendant shot Joe.” After further questioning, the witness admits he did not see the shooting but a police officer told him Defendant was the perpetrator. Does the witness have personal knowledge?

No, he does not have PK. He never saw the shooting.

3. Same case. A prosecution witness testifies, “The police officer told me, ‘Defendant shot Joe.’” Does the witness have personal knowledge? If so, is there any other reason why we might not want to admit this testimony?

Yes, he has PK, BUT hearsay, so no good!

4. Same case. A prosecution witness testifies he had a dream that Defendant shot Joe. Does the witness have personal knowledge?

YES, he has PK that he had a dream that D shot Joe. But it is not relevant – not admissible!

5. Same case. A prosecution witness testifies that, before the crime was committed, Defendant told the witness “I had a dream that I shot Joe.” Does the witness have personal knowledge? Is the testimony relevant? Yes, he has PK of what D told the witness, he heard the statement. It might be relevant to prove intent/mental state. Hearsay?

No – offered by D for the prosecution.

6. Prosecution for bank robbery. A prosecution witness testifies he overheard a conversation between Defendant and an alleged accomplice just before the crime was committed. The witness says that the conversation was in a foreign language he does not understand. The witness then offers to testify that he believes Defendant was talking about robbing the bank. Does the witness have personal knowledge?

NO! Not if he hears in language he cannot understand! Need COMPREHENSION! Not enough to perceive, must understand it too!

7. Personal injury action arising from an automobile accident. Plaintiff calls the emergency room doctor to testify about Plaintiff’s injuries. The doctor states that she does not remember, but offers to read to the jury the notes she made at the time in the hospital’s records. Does the witness have personal knowledge?

NO PK. Must REMEMBER what you perceived!

8. Prosecution for election fraud in which Defendant is alleged to have cast votes in the name of elderly patients living in a nursing home. The prosecution alleges the patients could not have been capable of casting the votes themselves. The prosecutor puts one of the patients on the witness stand and asks a series of questions. In response, the patient only stares blankly at the ceiling. Does the patient have personal knowledge? If not, is the patient even a witness subject to Rule 602? If he is not a witness, does he serve some other function in the trial?

NO PK if stares blankly at ceiling. The witness must be able to COMMUNICATE!!!

Question for Classroom Discussion

Casebook page 44

1. Personal injury action arising out of trip and fall in supermarket. The defense calls the store manager to testify. He says he saw the accident and offers to testify as to what happened. Previously, witnesses testified that the manager was in the stockroom when the accident occurred at the front of the store. May the manager testify under the Federal Rules? Under the C.E.C.? FR – YES he may testify. CA – YES. A reasonable person could conclude that the witness saw the accident.

OATH/AFFIRMATION

• FR 603: Mechanical requirement. Must administer oath or have the witness promise to tell the truth before testifying.

• Not required to check if they really believe it. Need the oath for later – perjury.

Questions for Classroom Discussion [p. 46]

1. Prosecution of Defendant for perjury. Previously, Defendant had been a defense witness in the criminal trial of Jane. The prosecution alleges that Defendant lied when she testified that she and Jane were together in another state when the crime was committed. Prior to taking the stand in Jane’s trial, Defendant had refused to take an “oath,” claiming that she was an atheist. The court allowed her simply to state that she would testify “honestly.” May Jane be tried for perjury?

YES because she affirmed that she would tell the truth. An affirmation is find if you are an atheist.

2. At the trial of an auto accident case, Plaintiff calls Witness to testify about the accident. Witness refuses to take an “oath” before testifying, and also refuses to affirm that she will tell the truth. Defendant objects to Witness testifying. How should the court rule?

CANNOT TESTIFY W/OUT FIRST TAKING OATH/AFFIRMATION! Must do it!

2. REAL EVIDENCE: Authentication & Best Evidence Rule

Authentication: FR 901: Requirement of Authentication/Identification

• Authentication is a requirement for admissibility of real evidence = process of proving an item is what its proponent says it is.

• Similar to PK: foundational requirements must be met in order to establish that the evidence is worth considering.

• Similar to PK: burden is sustained by evidence “sufficient to support a finding.” LOW BAR – judge should admit the evidence unless the proof of authenticity is so weak that no reasonable juror could consider the evidence to be what claimed to be.

• Relevancy matters: a party’s claims about an item must be consistent w establishing that the item is relevant.

Questions for Classroom Discussion [p. 49]

1. Action for breach of contract. Defendant denies accepting Plaintiff’s offer to make a contract. Plaintiff produces a signed letter that reads, “I accept your offer.” For this letter to be relevant, what must Plaintiff claim this letter to be?

Must be a letter from Defendant, not some random individual. Must be connected to the case in some way.

2. Same case. What does P have to prove to authenticate the letter?

Must prove WHO signed it. FRE 901(b) personal knowledge.

3. What are some ways to authenticate a signature under Rule 901(b)? Personal Knowledge of person; Non-expert Opinion: based upon familiarity. Call a different witness who says, “I am the secretary of Defendant and I see his signature all the time,” and that’s his signature!; Trier of Fact could authenticate it by offering into evidence another doc that was definitely signed by D and now the jury can compare this doc w/ the disputed doc and decide for themselves; Handwriting Expert; Distinctive Characteristics: offer A’s letter to D, w/ D’s address on it and mailed; also offer the letter he got back (the disputed letter), postmarked the hometown, dated just a couple of days later, and purports to accept A’s offer and how would he know about the offer unless he read the letter he was sent!?

4. Same case. Plaintiff offers the testimony of a handwriting expert that he has compared the signature on the letter in question with other signatures shown to be that of Defendant and that, in the expert’s opinion, the letter in question is signed by Defendant. Defendant offers the testimony of another handwriting expert who comes to the opposite conclusion. Assume that the judge finds both experts to be qualified and believes their opinions are equally convincing. Should the judge admit the letter? JUDGE DECIDES ADMISSIBILITY.

5. Same case. If the judge admits the letter, is the jury bound to conclude that the letter is signed by Defendant? No.

Questions for Classroom Discussion

Casebook page 49

1. Action for breach of contract. Plaintiff testifies that Exhibit A is the original contract. Defendant will testify to the contrary. Has Plaintiff offered sufficient evidence to authenticate Exhibit A under the Federal Rules? Under the C.E.C? YES. TIE OK.

1. Note that under the C.E.C., all provisions relating to authentication concern some form of a writing, broadly defined, while the scope of Rule 901 seems to be wider, applying to telephone conversations, voice identification, and the like. Is the authentication requirement under the C.E.C. limited to writings? NO – CA not limited to writings. Voice id, results of breathalyzer (must give evidence about the process to show it actually measures the concentration of blood alcohol) – identical to FR even tho only says writings.

AUTHENTICATION OF PHOTOS

Questions for Classroom Discussion [p. 52]

1. Suit for injuries suffered in an auto accident. Plaintiff shows an eyewitness a photo of the intersection taken by a photographer one year before the accident. Plaintiff asks the witness, “Does this photo fairly and accurately depict what the intersection looked like at the time of the accident?” The witness answers in the affirmative. Defendant objects, claiming only the photographer can authenticate the photo. How should the court rule?

Witness CAN answer the q. He is just being asked whether the intersection looks like that. Photo is admissible to prove what the intersection looked like at the time of the accident.

2. Same case. This time Plaintiff asks, “Is this a photo of the intersection?” Defendant objects on the ground the witness cannot authenticate the photo. How should the court rule?

Witness CANNOT answer the q. She has no perception of the taking if the photo so she cannot say .

CHAIN OF CUSTODY

• If no witness can uniquely identify the item bc indistinguishable from other items that look like it (vial of blood, drugs, gun).

• A witness can only testify as to whether it “looks like” the item previously perceived. Not that it is the item.

• Chain of Custody is necessary to establish it is the same item previously perceived.

• Proponent must how it was continuously in the safekeeping of one or more specific persons until brought to court.

• All witnesses in chain testify to the circumstances they had custody - establish a chain of perceptions / personal knowledge.

Questions for Classroom Discussion [p. 53] – COURT TRANSCRIPT

1. Prosecution for cocaine possession. The prosecutor seeks the admission of a bag of white powder, claiming it is same bag Officer Smith found on Defendant. In the following transcript, does the court make the proper rulings? YES. As the transcript begins, Officer Smith is on the stand and has already testified that he found a bag of white powder in Defendant’s pocket.

• Q: Does this look like the same bag? Sure, it looks like it. (That is NOT enough!! Have to prove it is THE bag!)

• Q: Does this bag differ in appearance in any respect from the bag you found in D’s pocket? (No, cannot ask that!)

• Def: Objection! Insufficient foundation! Objection is valid - sustained.

• More q’s – State offers the bag into evidence.

• Def: Your honor, may I take the witness on voir dire? Proceed.

• Def: Isn’t it true that right after Smith handed you the bag, you got a phone call?

• Pros: Was anyone else in the evidence room at that time? Did you notice anything that it make have been messed with? No.

• Pros: State offers bag into evidence.

• Court: Objection overruled – gab will be received into evidence. (Admitted bc there is sufficient evidence that it is what they say it is: the bag of cocaine found in D’s pocket. SOME DOUBT IS OK. A reasonable person could believe it is THE bag. D can still argue at the end trial that it is not the bag.)

2. Same case. Officer Smith (the arresting officer) admits he absentmindedly left the baggie of white powder in the men’s room of the bus station overnight. When he returned the next morning, he found the baggie on the counter in approximately the position in which he left it. Is the baggie admissible? NOT ADMISSIBLE! NO HUGE BREAK in the CofC.

3. Murder prosecution. The victim was found with a jewel-encrusted, gold dagger stuck in his heart. The prosecutor shows a dagger to the investigating officer, who testifies, “That’s the dagger I found stuck in the victim.” Has the dagger been authenticated, or will it be necessary for the prosecution to establish a chain of custody?

Yes, the dagger has been authenticated, do NOT need to establish a chain of custody bc this is a one-of-a-kind item. When an item

has a unique appearance or character, often a single witness can authenticate that item based on seeing it just once before

testifying. Just looking at the dagger, he recognizes it.

4. Murder prosecution. The victim was shot and found with a smoking gun next to his body. The gun is identical to thousands of similar guns in circulation. The investigating officer testifies that, when he found the gun at the scene of the crime, he etched his initials in the barrel. He then examines a gun handed to him by the prosecutor and says, “That’s the gun I found next to the victim—it has my initials on the barrel.” Has the gun been authenticated, or do we need a chain of custody?

Yes, the gun has been authenticated – no need to establish a chain of custody. Can take a generic item and mark it to make it

unique: blood in marked container.

SELF-AUTHENTICATION

• FR 902: Certain categories of physical evidence that do NOT NEED TO BE AUTHENTICATED. We presume it is what it looks like!

• 902 is an exclusive list – 12 categories - no others.

• Ex) Exhibit, reads “New York Times” across the top – authenticates itself.

Questions for Classroom Discussion [p. 62]

1. Will contest. Defendant offers into evidence a document entitled “Last Will and Testament” and which purports to bear the signature of the testator. The signature is not notarized. Plaintiff objects on the ground that the document has not been authenticated. Defendant argues the document is self-authenticating since it appears to be what Defendant claims it to be—testator’s will. How should the ct rule?

Not self-authenticated. However, NOTARIZED DOCS are self-authenticating.

2. Plaintiff alleges that he was injured when he drank a bottle of Whoopsie Cola in which there was a piece of broken glass. Defendant Whoopsie denies it was one of its bottles. Plaintiff offers into evidence the bottle in question, which is imprinted with the words “Whoopsie Cola.” In order to authenticate the bottle, does Plaintiff need the testimony of someone who knows that this specific bottle was produced by Defendant?

NO – P does NOT need the testimony of witness to authenticate. TRADE INSCRIPTIONS: signs/tags/labels affixed in course of biz

indicating ownership is enuf.

3. Prosecution of Alice for murder. The prosecution offers into evidence a newspaper which carried an article about the crime the day after it was committed. The article quotes the investigating police officer as stating, “Alice committed the murder.” Does the prosecutor need to call the newspaper reporter to authenticate the newspaper? Is there any other problem with admitting the evidence?

NO – do NOT need to authenticate a newspaper. NEWSPAPERS/PERIODICALS self-authenticate! But remember – there is a

hearsay problem here.

Questions for Classroom Discussion

Casebook page 62

1. Personal injury action. Plaintiff alleges that he was drinking a bottle of Whoopsi Cola when he discovered a human finger in the bottle. Defendant denies it was a bottle of Whoopsi Cola. Plaintiff offers Exhibit A, a bottle imprinted with the words “Whoopsi Cola” on the side and he testifies it is the bottle from which he was drinking. Is the imprint on the bottle sufficient under the Federal Rules and the C.E.C. to authenticate the exhibit as a bottle manufactured by defendant or is additional evidence necessary? In CA: Trade Inscriptions are NOT self-authenticating! So, a witness must testify: I am familiar with Whoopsi Cola bottles and I know this is one. Under FR, trade inscriptions are self-authenticating.

Civil action for violation of antitrust laws. Defendant offers into evidence hundreds of documents from its internal business files to prove it was not fixing prices. Under the Federal Rules, is it necessary for defendant to call a witness to authenticate each document or is there a quicker way? How about under the C.E.C? FR 902 (11): Biz records are self-authenticating. Must provide written notice to all adverse parties and made them available for inspection in advance. If accompanied by a written declaration of its custodian or other qualified person, certifying the record. **Not in CA??!!

2. REAL EVIDENCE: Authentication & Best Evidence Rule

Best Evidence Rule:

• FR 1002: To prove CONTENT of a WRITING/RECORDING/PHOTO/HARD DRIVE/DVD/CD, the original is required!

• Purpose: to protect against unreliable evidence concerning the contents of a writing/recording/photo.

• Ex) Breach of contract alleging seller delivered late, testimony is offered that the written k called for delivery on a specific date.

• Ex) Prosecution for bank robbery, testimony is offered that D signed a statement in which he confessed to robbing the bank.

Questions for Classroom Discussion [p. 64]

1. Prosecution for theft of a briefcase and its contents owned by Victoria. The arresting officer testifies that when Defendant, Sam, was arrested he had a briefcase in his car. The defense objects under Rule 1002 on the ground the briefcase itself should have been offered. How should the court rule?

Not a BER issue - NOT a writing/recording/photo. It is a briefcase!

2. Same case except the officer testifies that when Defendant was arrested he had a briefcase in his car and that in the briefcase was a business card with Victoria’s name on it. The defense objects under Rule 1002. How should the court rule?

This does raise a BER issue. Dealing with testimony about the contents of a writing – what was written on the card.

3. Same case except the officer testifies that a surveillance video taken in the store where the robbery occurred shows defendant pointing a gun at Victoria. The defense objects under Rule 1002. How should the court rule?

Yes, BER problem. If a witness testifies as to what he saw in a videotape, the contents of the videotape, raises BER problem.

4. Action for personal injuries. A doctor testifies that an x-ray revealed Plaintiff suffered a broken arm. The defense objects under Rule 1002. How should the court rule?

Yes, BER problem. The doctor testifying what he saw in the x-ray, the contents fo the X-ray, raises BER problem.

5. Same case. The doctor testifies that, in her opinion, Plaintiff is unable to work. She bases this opinion on her review of Plaintiff’s x-ray. The defense objects under Rule 1002. How should the court rule?

NOT a BER problem. The doctor is NOT testifying as to the contents of the x-ray.

6. Action for infringement of computer trade secrets. Plaintiff offers into evidence a printout of its software source code that was created from the disk on which the software resides. The printout is offered so it can be compared line-for-line with a printout of Defendant’s software. Defendant objects under Rule 1002 to the printout of Plaintiff’s software. How should the court rule?

BER applies - need an original. Any printout = original.

7. Prosecution for murder. Defendant’s conviction was reversed on appeal and he is being retried. The prosecution’s eyewitness, Joe, testified against Defendant at the first trial but is unavailable at the retrial. The prosecutor calls Sally, who heard Joe testify at the first trial, and asks, “What did Joe say when asked who shot the victim?” Sally responds, “Joe said Defendant was the shooter.” Is the question objectionable under Rule 1002 because Joe’s answer is in a written transcript?

This is NOT a BER problem! Witness is testifying as to what someone said in prior trial. Witness has personal knowledge. Just

because, by coincidence, the same facts happen to be in a doc (here, the written transcript) does not turn it into a BE problem. Not

offering to prove what is in the writing.

Situation #1: Witness has independent personal knowledge of the facts to which she testifies & it is coincedentally written down

somewhere. NOT a BER problem!

8. Same case. Assume Sally was not present at the first trial. She testifies, “The transcript says that Joe identified Defendant as the murderer.” Is the testimony objectionable under 1002?

This raises a BER problem. Her testimony is being offered to prove the CONTENT of a writing. The witness ONLY HAS KNOWLEDGE

BASED ON READING THE WRITING (transcript).

Situation #2: Witness has knowledge of the contents solely based on what she read. YES a BER problem!

9. Same case. Assume again that Sally was not present at the first trial. She testifies, “Defendant is the murderer.” Defense counsel knows that Sally did not see the crime committed and is basing her testimony on reading the transcript of the first trial. What is the proper objection to Sally’s testimony?

Objection: lacks personal knowledge that D is the murderer – she did not perceive the murder with her senses. Ask her: how do you

know? A: “I read it in the transcript.” Objection! Violation of the BER.

EXCEPTIONS TO BER:

• FR 1003: Admissibility of DUPLICATES.

• FR 1004: Original not required and OTHER EVIDENCE of the contents is admissible if:

1) Originals lost/destroyed;

2) Original is not obtainable;

3) Original in possession of opponent;

4) Collateral matters (not closely related to controlling issue).

Ex) Other evidence = testimony from memory about what invoice said.

• FR 1006: SUMMARIES: contents of voluminous writings/photos can be presented in chart form, summary, calculation. The originals/duplicates must be made available for examination/copy by other parties at reasonable time/place.

Questions for Classroom Discussion [p. 66]

1. Action for breach of contract. Plaintiff offers a photocopy of the contract. Is this an original?

NO. If not, is it still admissible? YES, it is admissible as a “duplicate.” Copy produced by a machine. (NOTE: “counter-part” w/

written contracts. Written k’s are signed by all the parties, if they are not in the same room on opposite sides of the country, they

necessarily must sign different copies of the contract. Each copy = “counter-part.” If parties intended for each copy to have same

effect, each is then considered an original.

2. Same case. Plaintiff offers a handwritten copy of the contract.

Not admissible! HANDWRITTEN copy is NOT a duplicate. Copy is not made by a machine; not okay for a person to make the copy.

3. Same case. Defendant claims his supposed signature on the contract is a forgery. Is the photocopy admissible?

NO! A duplicate IS ADMISSIBLE unless a GENUINE QUESTION RAISED AS TO THE AUTHENTICITY OF THE ORIGINAL. Need the

actual original copy! That way experts can analyze the original signature.

4. Prosecution for treason. A prosecution witness testifies to the contents of a note in which Defendant outlined details of his plan to sell military secrets to a foreign government. Defendant ate the note when the FBI kicked in his door. Is this testimony concerning the contents of the note admissible?

YES – testimony concerning the contents of a note that was LOST/DESTROYED IS ADMISSIBLE unless the proponent lost it in bad

faith. Prosecution is offering the evidence, not the party who destroyed it.

5. Same case. Defendant offers to testify that the note simply listed the groceries he intended to pick-up at the market. Is this testimony admissible?

NOT ADMISSIBLE: the PROPONENT DESTROYED THE ORIGINAL IN BAD FAITH.

Questions for Classroom Discussion

Casebook page 66

1. Civil action for breach of a written contract alleging defendant breached because it performed late. Plaintiff offers into evidence a photocopy of the contract to prove that defendant’s performance was due on September 1. The evidence will show that plaintiff destroyed the original in order to conceal the fact that the word “November” had been typed over to appear to read “September.” Is the photocopy admissible as a “duplicate” under Federal Rule 1003? If not, how would you phrase the objection if the evidence was then offered under Rule 1002? Is the photocopy admissible under either C.E.C. §§ 1520 or1521? If not, would you phrase the objection differently?

Under FR: 1) Authentic? Is this what the proponent claims it to be? Is that their signature? Assume yes. 2) BER? Someone is arguing the document has been ALTERED – will NOT ADMIT DUPLICATE! *CA = “secondary evidence rule” = same as FR’s!

2. Same case. The contract was in the form of emails exchanged between plaintiff and defendant. The emails were saved to the hard disk in plaintiff’s laptop computer. Plaintiff offers into evidence printed copies of the emails produced by connecting a printer to his laptop. Are the copies admissible under the Federal Rules?

Yes the printed copies of the emails are admissible and are considered “originals.” Under the C.E.C.? Yes = “original.”

3. Civil action for trespass. Plaintiff offers a certified copy of his deed, obtained from the county recorder’s office, to show the boundaries of his property. How will plaintiff establish the authenticity of the document under California law? How will she meet the requirements of California’s "Secondary Evidence Rule"? Could plaintiff overcome authenticity and best evidence rule objections under the Federal Rules? CA 1530(a) = custody of public entity.

CA: certified copy from public entity = prima facie evidence of authenticity & content.

CA 1530(a) = in custody of public entity. Rule satisfies both authentication issue & BER issue! Certified copy of deed admissible!

FR: 902(4): “certified copies of public records” = self-authenticating.

BUT! Must still confront BER. Exception to original under FR 1003: “Duplicates.” Certified copy of deed admissible!

3. JUDICIAL NOTICE

• FR 201: Fact must not be subject to reasonable dispute:

1) Either generally known w/in the territorial jdx of TC; or

2) Capable of accurate and ready determination by indisputable source.

• MAY take judicial notice, whether requested or not.

• MUST take judicial notice if requested by a party and supplied w/ the necessary info.

• Adverse party is entitled upon timely request to an opportunity to be heard as to the correctness of taking judicial notice.

• Judicial notice may be taken AT ANY STAGE of the proceeding.

• Jury Instructions:

o Civil Case = ct must instruct the jury to accept as conclusive any fact judicially noticed. (Civil = Must)

o Criminal Case = ct must instruct the jury that it MAY accept as conclusive any fact judicially noticed. (Criminal = May). W/ criminal cases: the taking of notice may not be deemed final or conclusive.

Notes:

• Adjudicative Facts: judicial notice is appropriate:

1) Fact at issue can be established conclusively by consulting reliable sources

2) Party seeking to establish the fact presents those sources to the court; and

3) Opponent is given an opportunity to contest the correctness of the ct’s taking notice of the fact.

• Ex: Whether Ford manufactured a 2000 model T = “capable of being determined” by consulting authoritative source.

• Ex: Whether all planes were grounded several days after September 11 = “generally known.”

• Not ex’s: whether traffic signal at certain intersection was not operating at a certain time, or there were many potholes on a particular street on a particular date. Not generally known and not recorded in an indisputable source.

• Judicial notice can be taken AT ANY TIME. Any time during trial, after trial, even on appeal.

Rae v. State (1994)

• D convicted of criminal charges: driving while license revoked.

• Court told jury: Ct has taken judicial notice based on DMV records that his license was revoked at the time. Ct instructed the jury: “when I declare that the ct will take judicial notice of some fact/event, you MUST accept my declaration as evidence and regard as CONCLUSIVELY PROVED the fact/event which I have judicially noticed.”

• Held: taking of conclusive judicial notice of an element of a criminal charge is not ok.

• Ct took judicial notice that D’s license was revoked at time of arrest taken from DMV records.

• Instructed jury to take the DMV records as conclusive proof and the jury MUST conclude that D had a revoked license.

• W/ criminal = the judge is allowed to conclude he had a revoked license – but cannot be required to!!!

• W/ civil cases – the jury is required to conclude he had a revoked license!

Judicial Notice of Law:

• Law is not an adjudicative fact (facts concerning the event that gave rise to the lawsuit).

• But, courts regularly take judicial notice of domestic law, federal law: the parties will brief the ct on the law, etc.

Judicial Notice of Legislative Facts:

• Judges often end up making the law.

• Statutes have gaps/ambiguities – requires the court to judge/interpret rules: lawmaking.

• When a ct engages in its lawmaking, must make assumptions that are factual in nature (social/political/policy) for rules.

• These facts are called “legislative facts.” There is no rule regulating judicial notice of legislative facts.

• Ex) SC decided in Brown v. Board that racially segregated schools are inherently unequal even when provided w/ equal resources, the ct was making a determination of legislative fact.

• Ex) SC Roe v. Wade relied on its view of medical/social data.

• Courts must be permitted to take judicial notice legislative facts.

• Unlike the adjudicative facts – legislative facts are not indisputable. Often controversial.

• Parties must brief the issue, expert witnesses, and the court will make a decision.

Questions for Classroom Discussion [p. 76]

1. Prosecution of Defendant for robbing a convenience store. Defendant claims she was in church attending Sunday services when the robbery took place. The prosecutor asks the court to take judicial notice that the date of the robbery fell on a Wednesday, not a Sunday, and provides the court with a Sierra Club calendar. May the court take judicial notice?

YES. A calendar is an indisputable source. The other side could try to argue why this Sierra Club calendar is not indisputable.

2. Same facts as in Question 1. The prosecutor asks the court to instruct the jury that it must accept as conclusive that the day on which the robbery occurred was a Wednesday. Defendant objects. How should the court rule?

Objection sustained. This is a criminal case. The jury instructions should say: you MAY accept this as conclusive, not must!

3. Defendant appeals a judgment for Plaintiff in a negligence action arising from an accident in which Defendant’s car struck Plaintiff. At trial, Plaintiff alleged that Defendant was going 50 miles per hour in a school zone, where the speed limit is 25 miles per hour. Defendant’s appeal is based on Plaintiff’s failure to offer evidence at trial to prove the accident was in a school zone. Plaintiff provides the appellate court with a copy of a city ordinance declaring the block in question to be a school zone. Defendant does not deny the truth of this fact, but claims that it would be improper for the court to take judicial notice on appeal. How should the court rule?

OK to take judicial notice EVEN ON APPEAL.

4. Negligence action by Plaintiff against Defendant arising from an automobile collision. To prove Defendant was driving intoxicated, Plaintiff calls a police officer who testifies that she conducted a breathalyzer test on Defendant five minutes after the collision, and that it revealed that Defendant’s blood-alcohol content was .16 percent, twice the legal limit. The officer testifies that she calibrated the device earlier on the same day. After the jury renders a verdict for Plaintiff, Defendant moves for a new trial on the ground that Plaintiff failed to demonstrate that a breathalyzer can measure blood-alcohol content accurately. Plaintiff asks the court to take judicial notice that a breathalyzer accurately measures the concentration of alcohol in blood when properly calibrated. How should the court rule?

Ok, it is generally known.

5. Negligence action by Plaintiff against Defendant arising from a head-on collision after Defendant’s car crossed the center

line. Plaintiff claims this occurred because Defendant was not paying attention. Defendant claims her car suddenly ran

through a deep puddle, causing her to lose control. Defendant asks the court to take judicial notice that a large puddle

often forms at the accident site. The judge is personally aware that this is true. Should the court take judicial notice?

NO! This is not a fact that is generally known or capable of accurate/ready determination. (On the other hand: the fact that Wilshire Blvd. runs east/west is a matter generally known and we can definitely take judicial notice of that fact.)

6. Prosecution of Defendant for murder. Defendant claims self-defense. The prosecution calls Witness, Defendant’s fifteen-year-old child, to testify to a conversation Defendant had with Witness shortly after the crime. Defendant objects, asking the trial court to recognize a parent-child privilege. There is no statutory parent-child privilege, though the jurisdiction allows its courts to develop the law of privileges as those courts think appropriate. The court decides to create a parent-child privilege on the ground it would encourage communication between parents and children. Accordingly, the court sustains Defendant’s objection. The prosecution argues that the court’s rationale involved a question of fact that is not beyond reasonable dispute, making the court’s action inappropriate. Did the court act within its authority?

Court decided that the creating a parent-child privilege would encourage communication. The court made law. There was no statute

creating a parent-child privilege. The court did it themselves. The court decided to assume the fact that creating the privilege would

encourage communication btw parents and children and that is a good thing = legislative fact. Ct said it was a fact. Not subject to

Rule 201. This goes beyond the specifics of the case at hand.

Questions for Classroom Discussion

Casebook page 76

Prosecution for manslaughter arising out of an automobile accident. Defendant testifies that, as he was proceeding westbound on Main Street at 7 a.m., the sun was in his eyes and momentarily blinded him. Both sides rest their respective cases without offering any evidence as to the position of the sun at 7 a.m. on the date in question and neither side asked the court to take judicial notice thereof. The trial judge now wants to take judicial notice of the fact that the sun rises in the east and intends to instruct the jury accordingly. Answer each of the following questions under both the Federal Rules and the California Evidence Code:

1. Is the fact that the sun rises in the east subject to judicial notice? YES under CA.

2. Assuming this is a proper matter for judicial notice, is the court required to take judicial notice of this fact or is it a matter within the court’s discretion? Discretionary v. Mandatory.

FR: Here, NO – COURT IS NOT REQUIRED TO TAKE JN – court was not asked to take judicial notice of the fact. Discretionary.

Mandatory: COURT MUST take JN IF REQUESTED by a party and supplied w/ necessary info.

Discretionary: COURT MAY take JN whether requested or not.

*CA is DIFFERENT from FR! YES – MUST TAKE JN.

CA 451 = FR 201(b)(1) = if GENERALLY KNOWN (sun rises in the east); MUST take judicial notice.

CA 452 = FR 201(b)(2) = if CAPABLE OF ACCURATE AND READY DETERMINATION (consult calendar); MAY take judicial notice.

3. Assuming the court properly takes judicial notice of this fact after requested to do so by the prosecution, should it instruct the jury that it must or may accept as fact that the sun rises in the east? JURY MAY, not must! THIS IS A CRIMINAL CASE!

RELEVANCE (Ch. 2)

FR 401: Relevant Evidence :

1) Must be offered to prove a FACT OF CONSEQUENCE;

a. Ex) breach of contract case. D is saying he was secretly joking when he agreed. Contract law says his secret intentions are irrelevant and are of no consequence.

b. Ex) products liability. D wants to offer evidence he was not negligence. Not of consequence since its strict liability.

c. If the substantive law deems it important. The facts of consequence.

2) Must make that fact more/less PROBABLE.

a. Ex) murder case. Prosecution calls witness – claims he had a dream that D shot the victim. No good.

CLASS NOTES:

• Relevancy always depends on some ASSUMPTION about how the world works.

• It is the JUDGE that gets to make those assumptions.

• Problem: Judge often makes assumptions about human behavior. May be very different from reality of the parties.

• Ex) fleeing from the scene. Generalization about how people who commit crimes tend to react.

• “A brick is not a wall.” As long as each brick is relevant, can start stacking, maybe taken cumulatively will create the wall.

• Relevance is a yes/no proposition – not a matter of degree.

BOOK NOTES:

• If you think you know more about a pertinent fact after you hear the evidence than you knew b4 you heard it = relevant.

• Evidence is relevant if it has ANY effect on the fact-finding mission – even if very minimal. Regardless of degree.

• MATERIALITY: evidence is relevant if it tends in any degree to prove any of the necessary elements under the substantive law or other facts from which a necessary element may be inferred.

• The pertinent substantive law determines what facts are material or “of consequence.”

• Reasoning process: apply generalizations from everyday experience.

State v. Jaeger (Utah 1999)

• D Jaeger convicted of second degree murder of his gf.

• Held: court erroneously excluded evidence of victim’s prior suicide attempt.

• D sought to admit medical records from Mental Health Center were gf was a resident for a year because she was “ungovernable,” ran away from home, and abused alcohol and drugs. Record contained statement by gf admitting she attempted suicide in the past.

• Main issue at trial = whether gf’s death was a homicide or a suicide.

• Evidence = gf attempted suicide in the past.

• D sought to introduce the evidence to support his defense that she committed suicide – that he didn’t kill her.

• Standard for determining whether evidence is relevant is very low.

• It is reasonable to believe that person who has attempted suicide in the past may attempt suicide again.

• Held: Evidence is RELEVANT! Records may have helped the jury in determining whether death was a homicide or a suicide.

• *Evidence that a person attempted suicide as a young, ungovernable teenager IS RELEVANT to the q whether her death years later was a homicide or suicide! Rational inference that a person who attempted suicide at an earlier point in her life is somewhat more likely to have repeated the attempt on the occasion in question.

Questions for Classroom Discussion [p. 91]

1. In Jaeger, was the evidence offered to prove a fact of consequence? If so, did it have a tendency to make that fact more or less probable? YES. YES.

2. How would you assess the probative value of the evidence in Jaeger? What factors would you take into consideration? Relevance depends only on whether it is a rational link in the chain to the one before it. BUT – the probative value depends on the strength of each inference. Evidence can be relevant but not sufficient to convict.

3. Prosecution of Defendant for assault and battery on Victim. While sitting in the stands at a football game, Victim was struck in the back by a bullet apparently fired from a handgun. Defendant denies involvement. To prove that Defendant shot Victim, the prosecution calls Witness, who was sitting near Defendant at the time, to testify that she saw Defendant pull something out of his pocket (Witness could not see what it was) and point it in Victim’s direction and that, moments later, there was a loud popping noise and Victim slumped down in her seat. Defendant objects on relevance grounds. How should the court rule? What inferences connect the testimony to a fact of consequence? What generalizations justify those inferences? Here, there is a series of assumptions being made. Assumption that gun makes loud popping noise, assumption about what happens when someone is shot, etc. Evidence here is consistent w/ the idea that D pulled gun out of pocket and fired in the direction of the victim.

4. As noted in the discussion following Jaeger, the first inference in the chain of inferences necessary to determine if witness testimony is relevant is that the testimony is accurate. In Question 3, what reasons might we have to question the accuracy of Witness’s testimony?

5. Same case as in Question 3. The prosecution calls Victim to testify that a week before the shooting, Victim turned down a date with Defendant. Defendant objects on relevance grounds. How should the court rule? Relevant – goes to motive.

6. Action against a life insurance company for refusing to pay the proceeds of a policy on the life of Deceased. Plaintiff was the beneficiary of Deceased’s insurance policy. The insurance company claims Deceased committed suicide, an act that voids the policy. To prove Deceased took her own life, the insurance company calls Witness to testify that a few days before she died, Deceased called Witness and apologized for something that occurred many years earlier. Plaintiff objects on relevance grounds. How should the court rule? What inferences connect the testimony to a fact of consequence? What generalizations justify those inferences? Inference: People who contemplate suicide are usually more likely to apologize for something that occurred many years earlier. Acceptable generalization – although low probative value.

7. Same facts as in Question 6. After the court admits Witness’s testimony, Plaintiff wishes to testify that she knew Deceased all her life, and that Deceased was an atheist who did not believe in an afterlife. Is this relevant to prove Deceased did not commit suicide? Is it relevant to prove she did commit suicide? What inferences connect the testimony to either conclusion? What generalizations justify those inferences? Sure – if you don’t believe in an afterlife – you aren’t going to kill yourself and shorten your life. Not eager to get to the afterlife.

8. Dispute between Plaintiff and Defendant over who is the birth mother of a certain baby. It is undisputed that both women gave birth to babies at about the same time, but that one of the babies died. To prove that Plaintiff is the birth mother of the living child, Plaintiff wishes to offer evidence that when an elder suggested that the child be divided in two, Plaintiff offered to give the baby to Defendant instead. Defendant objects on relevance grounds. How should the court rule? RELEVANT. King Solomon. Assume: birth mother is more likely to choose to let the other woman have the baby than have it be divided in two. Real mother will always act to protect the life of the child. Is the evidence being offered to prove a fact of consequence? The real birth mother or the better custodian? Interesting query.

9. Same facts as in Question 8. To prove that she is the birth mother of the living child, Defendant wishes to offer evidence that when the elder suggested that the child be divided in two, Defendant, in tears, told the elder that she would go along with the solution. Is the evidence relevant to prove Defendant is the birth mother? YES.

10. Prosecution of Defendant for assault and battery on Victim. Defendant claims self-defense. To prove self-defense, Defendant calls Witness to testify that a week before the altercation between Defendant and Victim, Victim threatened to kill Defendant. Defendant was unaware of the threat. The prosecution objects on relevance grounds. How should the court rule? Does it matter if Defendant claims self-defense because Victim attacked Defendant first or because Defendant was justified in being the first attacker in that he was in fear of his life? DEPENDS.

- If the evidence is being offered to show D was reasonably in fear of his life and acted preemptively ( NOT relevant.

- But, if the evidence is being offered to show Victim indeed attacked D (acted on his threat) ( Relevant. If you make a threat to

kill someone, you probably harbor some malice towards that person, so maybe you will actually carry out the threat.

11. Prosecution of Defendant for the murder of Victim. Defendant claims she attacked Victim in self-defense because Zed told her that Victim had made a threat against her. It is conceded, however, that Zed was wrong — that in fact Victim made no such threat. The prosecution therefore objects on relevance grounds to Defendant’s testimony concerning what Zed told Defendant. How should the court rule? RELEVANT to D’s state of mind!

12. Prosecution of Defendant for bank robbery. To prove Defendant took part in the robbery, the prosecution calls Witness, who testifies that she was standing across the street from the bank and saw Defendant emerge with what appeared to be a bag of money. Later, Defendant wishes offers evidence that Witness is far sighted and was not wearing his glasses at the time the bank robbery occurred. The prosecution objects on relevance grounds. How should the court rule? Objection overruled. RELEVANT. The fact that the witness is far sighted and not wearing his glasses is relevant. Personal knowledge requirement: did he see anything? If not, evidence is irrelevant. Evidence going to the credibility of the witness is relevant.

13. At a trial involving an intersection collision, Plaintiff calls Witness and begins by asking Witness to recite her name and address. Defendant objects on relevance grounds. How should the court rule? Objection overruled. NAME & ADDRESS of witness is RELEVANT – background evidence about a witness. Helps juries evaluate the witness’ credibility.

Questions for Classroom Discussion

Casebook page 91

1. Prosecution for being a felon in possession of a firearm. Defendant offered to stipulate that he has a felony conviction on his record but denied being in possession of a firearm. The prosecution accepted the stipulation and the court permitted the stipulation to be read to the jury. At trial the prosecution offered into evidence a certified copy of Defendant’s judgment of conviction for carrying a firearm onto an airplane, which is a felony.

Is this evidence relevant under the Federal Rules? Yes, but may be excluded if very low probative value and waste of time.

The CA Evidence Code? NO. To be relevant, evidence must go to a DISPUTED fact – this is not disputed – he admitted it.

2. Same case. Assume that under California evidence law covered later in the course, evidence that the defendant illegally possessed guns on some prior occasion is not admissible to show he has the propensity to act in that way and, thus, probably was in possession of a firearm on the occasion in question. Notwithstanding those rules, does Article I §28(d) of the California Constitution make that evidence admissible? Notwithstanding that provision, can you object to the admission of that evidence under some other provision in the C.E.C.?

*CA CONSTITUTION: Relevant evidence shall NOT be excluded in any CRIMINAL PROCEEDING! (Diff from FR’s!)

IN OTHER WORDS, IN CA, ALL RELEVANT EVIDENCE IS ADMISSIBLE IN A CRIMINAL PROSECUTION!

If you can show its relevant, then its admissible! Radical – Prop 8.

Exceptions:

1. Any exclusionary rules under US Constitution.

2. Hearsay law.

3. Law concerning Privileges.

4. Limits on Character Evidence concerning D or the Victim.

5. Limits concerning Victim’s Sexual History in sex assault case.

6. Best Evidence Rule “Secondary Evidence Rule”; and

7. 352: Balance unfair prejudice v. probative value.

ASK PROFESSOR!

BALANCING PROBATIVE VALUE AGAINST DANGERS

FR 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if PV is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

• Not all relevant evidence will be admitted.

• Ct may exclude evidence only if the danger “substantially outweighs” the probative value. Admissibility is favored.

• Time-consuming, waste of resources, cumulative evidence.

• Unfairly prejudicial = undue tendency to suggest decision on an improper basis.

• Inferential error prejudice = Negligence action. To prove injuries, P offers gory, color, close-up photos right after car accident. The photos are relevant – they demonstrate that P was in fact injured in the crash. But bc they are so graphic, they might lead the jury to overestimate the ext of the harm she suffered and give her more $ than she should get. If the COURT finds that the unfair prejudice greatly outweighs probative value – should exclude it.

• Also – if question of negligence is unsure – the photos might make the jury think photos tend to prove negligence. Not ok.

• Nullification prejudice = evidence makes jury want to punish/reward party and ignore the law. Bank robbery. To prove D was the perpetrator – prosecution offers: D is a heroin addict – relevant to prove that D had a motive to rob a bank bc he needed the money for his addition. Jury might decide that he should be locked up cuz he’s a heroin addict, not bc he robbed a bank. If ct finds that the risk of the jury deciding the case on that basis substantially outweighs the legit probative value – exclude it!

• Also – this evidence is relevant to show two things. One is admissible, the other is not.

1. Relevant to show a motive to commit the crime. (Admissible)

2. Relevant to show D has the character of a law breaker so more likely to commit bank robbery. (Not admissible under 404)

• If the court admits the evidence of D’s heroin addition for the limited purpose of showing D had a motive to commit the crime and instructed the jury to ignore the evidence insofar as it relates to his character – might have problems. If ct finds that the danger outweighs probative value – should exclude the evidence!

Feaster v. U.S. (1999) JURY DETERMINES CREDIBILITY OF WITNESSES – not the judge!

• Feaster convicted of sexual offenses.

• Trial judge excluded form his case = transcript of the grand jury testimony of witness who denied ever seeing the misconduct.

• Objection to testimony was made under 403.

• Judge concluded that his testimony was unreliable.

• Issue: can the JUDGE consider the CREDIBILITY of the witness whose testimony is in question in balancing 403? NO!!!

• CREDIBILITY determinations are for the JURY – NOT THE JUDGE!

• Judge looks at the logical weight of the evidence, assuming the witness is credible. Cannot discount if doubt his credibility.

• Judge asks himself: assuming the witness is credible – what is the logical weight of this evidence?

• Held: The trial judge erred – he cannot consider his doubts as to the credibility of the witness in 403 balancing.

Questions for Classroom Discussion [p. 100]

1. According to the Feaster court, how exactly is a trial judge to avoid making determinations of credibility when weighing probative value and prejudicial impact? How can the court determine probative value without deciding whether the evidence is credible? He must first assume the witness is credible – then weigh the evidence under 403.

2. What, exactly, was the trial judge’s error in Feaster? He assessed the credibility of the witness. The jury should do that.

3. How should a trial court instruct a jury about its role in determining credibility?

4. Prosecution of Defendant for murder. Defendant claims self-defense. At trial, the prosecution wishes to offer several color photographs of the victim, taken during the autopsy. The photos show the victim’s body from several angles, and reveal bullet entry and exit points on the torso and head. Defendant objects to the photos on Rule 403 grounds. How should the court rule? Should it matter that the photos are in color? What if the photos are tight close-ups of the wound and do not show a recognizable location on the body? What if the prosecution introduced a diagram rather than the photos? This can be very emotionally disturbing. The more realistic, the greater the danger that the jury will react emotionally. Diagrams and black&white photos are less disturbing. ???

5. Same case. The perpetrator had placed the victim’s body in a bag and threw the bag in the lake. The body and bag were discovered six months later. The prosecutor offers the bag into evidence. The bag emits a pungent, disturbing odor that can be detected throughout the courtroom. Defendant objects on Rule 403 grounds. How should the court rule?

6. Negligence action by Plaintiff against Defendant following an intersection collision. Prior to trial, Defendant admits negligence and indicates that she will only contest the extent of injury suffered by Plaintiff. At trial, Plaintiff wishes to call a witness to testify that Defendant ran the red light, striking Plaintiff’s vehicle. Defendant objects on relevance and Rule 403 grounds. How should the court rule?

Looking at the effect D’s conduct had on P. Not on the nature of D’s conduct.

FR: 401 Does not make his admission irrelevant. RELEVANT! But maybe unfair prejudice and waste of time.

CA: Must be in dispute to be relevant. NOT RELEVANT!

UNDISPUTED FACTS

• Ex) Negligence case: D admits negligence – but disputes extent of injuries. Trial about effect conduct had on P.

• D’s admission of negligence does NOT render evidence that would tend to establish such negligence irrelevant!

• FR: evidence tending to show D’s negligence = RELEVANT!

• But then under 403: court then may exclude due to unfair prejudice/waste of time.

• ***BUT in CA – must be a disputed fact to be relevant. So here, evidence tending to show D’s negligence = irrelevant!

Old Chief v. U.S. (1997) – LEGAL STATUS: accept the admission – don’t have to reveal name/nature of previous crime.

• D charged w/ 2 crimes: assault & being a felon in possession of a firearm. Earlier crime charged = assault.

• D offered to stipulate the fact of the prior conviction of assault – that he had been convicted of a felony.

• Just state that D was convicted of a felony. Not specify name and nature.

• Asked for the court to withhold the name and nature of the prior assault conviction bc would unfairly prejudice jury.

• Held: In this case, where the prior conviction is for an offense likely to support conviction on some improper ground, unfair prejudice substantially outweighs the value of the record of conviction.

• Held: It was an abuse of discretion to admit the full record of the prior judgment.

• D is worried the jury will take the evidence of the prior assault conviction and draw conclusion that he is an “assaulter.”

• Juries are supposed to only decide on the crime charged – not consider what he did previously.

• #1 Admissible for the fact that he is a felon = fact of consequence. Not in dispute – he admitted it.

• #2 Not Admissible for the fact that he is an “assaulter” = character evidence is generally not admissible.

• 403 problem! Here – low probative value and high potential for unfair prejudice.

• Worry = Prosecutor wants to tell her story to the jury in the most understandable and compelling way. Tell the story.

• Here, simple stipulation on a simple fact like legal status = must take it. Didn’t limit Prosecutor’s ability to tell the story.

Questions for Classroom Discussion [p. 109]

1. As the Old Chief opinion points out, relevant evidence as defined in Rule 401 includes evidence offered to prove a fact that is not in dispute. In this sense, the rule differs from the definition of relevant evidence in other rules including California Evidence Code § 210, which defines as relevant any evidence that has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” What is the justification for the Federal Rules definition? Attorney’s want to tell their story in a compelling way and need room to do so. FR – stipulated/admitted fact is still considered relevant. In general, under 403, let the attorney tell his story. Exception: if non-story fact, like status!

2. What did the court in Old Chief mean by “evidentiary richness” in comparing alternate ways to prove facts?

3. Why didn’t that principle apply to the facts of Old Chief? The point at issue here is D’s LEGAL STATUS – so the prosecutions need to tell a continuous story has no use here.

4. Prosecution of Defendant for bank robbery. Defendant admits being the person who approached a teller, pointed a shotgun at him, and threatened to kill him if he did not empty his cash drawer into a bag and hand it over. Defendant claims, however, that she had been kidnapped by the other robbers, and that they threatened to kill her if she did not help them rob the bank. At trial, the prosecution wishes to call the bank teller referred to above to describe Defendant’s actions. Defendant offers to stipulate to all the facts to which the teller will testify. The prosecution refuses Defendant’s offered stipulation. Defendant objects. How should the court rule? Prosecution is entitled to prove its case by evidence of its own choice. A criminal D may NOT stipulate/admit his way out of the full evidentiary force of the case as the Gov’t chooses to present it.

PROBABILISTIC EVIDENCE

• We CANNOT prove facts with CERTAINTY.

• Ex) eyewitness might testify he is “pretty certain” D is the perpetrator.

• Modern society – more common to have evidence in form of mathematical statement of probability.

• Ex) lab tests can show that a sample of DNA taken from the accused has char’s that match DNA from crime scene and a collection of the results of many such tests can show that only one in a billion people has such char’s.

• Probabilistic evidence usually presented in form of an EXPERT’S OPINION concerning the meaning of a large mass of data.

• Ex) employment discrimination – whether D intended to discriminate – statistical evidence accumulating hundreds of employment decisions over the years can provide powerful circumstantial evidence of discriminatory intent.

• Problems w/ probabilistic evidence: accuracy, can overwhelm, can obscure burden of proof, can be manipulated.

• Product Rule = frequency w/ which 2 or more independent events can be expected to coincide. Flip a coin. Can express the probability of getting 2 heads in a row as the product of the probabilities of each flip. 50% x 50% = 25% (chance of flipping two heads in a row).

Questions for Classroom Discussion [p. 112]

1. Prosecution for bank robbery. Eyewitnesses testify that the two perpetrators were a black man with shaved head, a beard, and mustache and a Caucasian woman with blonde hair and blue eyes. The defendants have all these characteristics. The prosecutor then calls a mathematician to testify as an expert. The prosecutor states, “Assume one in ten men have a shaved head, one in four men have a mustache, one in ten have a beard, one in three women are blond, one in ten women have blue eyes, and one of every thousand couples are interracial. What is the probability of finding a couple that reflect all these characteristics?” The witness answers, “One in twelve million.” Is the expert’s math correct? ?? Multiply the individual probabilities.

2. Same case. Is there a problem with the prosecutor’s assumptions?

3. Same case. Is there any problem calculating probability in this manner? If one in three women is blond and one in ten women has blue eyes, does that mean that one in thirty women has blond hair and blue eyes?

4. Same case. Assume defense counsel finds one other couple with all the characteristics of the perpetrators. Does that mean that the probability defendants are guilty is one in two?

5. Rape prosecution. The victim testifies the perpetrator was a Hispanic male, but can offer no other description. Defendant is a Hispanic male. A blood sample taken from defendant reveals six DNA characteristics that match those present in a semen stain found on the victim’s clothing. An FBI database collecting data from several hundred DNA samples of men of various races and ethnic backgrounds shows the following probabilities for the six characteristics: one in five, one in twenty, one in ten, one in two, one in fifty, and one in seven. An expert witness testifies that this means the probability of a single person having all these characteristics is one in 700,000. Assume the technology for proving a DNA match is reliable. If you are defense counsel, how might you attack the evidence? Typically, DNA databases narrow it down to the race – if database is just from Hispanic males, maybe this genetic match would be much smaller: 1/7 times. Then the evidence has much less force. Also, the size of the database is only several hundred. Unsure whether reliable.

PRELIMINARY QUESTIONS OF FACT

*Best way to figure out (a) or (b)?

Ask: If you cannot prove the preliminary fact – is the evidence still relevant? If yes, (a).

FR 104 a) Questions of admissibility generally: prelim q’s concerning the qualification of a person to be a witness, existence of a privilege, or admissibility of evidence shall be determined by the court.

• Ex) Murder. To prove D did it – Prosecution wants to present evidence that before victim died, said “D did this to me.” D objects - says it does not qualify as a “dying declaration” bc Victim did not believe he was about to die when he said it.

• Preliminary question of fact = the statement must have been made by the speaker while believing his death was imminent.

• Here - COURT has the power to decide whether the preliminary fact is true. JUDGE must decide whether PF exists.

FR 104 b) Relevancy conditioned on fact: when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the intro of evidence sufficient to support a finding of the fulfillment of the condition.

• It is not always required that TC decide questions of preliminary fact. If important values would not be endangered by jury determination of prelim facts, ct should allow the jury to make those findings.

• Ex) Murder. Cause of death is disputed. Prosecution claims victim was stabbed w/ antique dagger. D claims victim died of gunshot. To prove D was the killer, prosecution calls Officer, to testify that he found an antique dagger in D’s bedroom closet.

• Preliminary question of fact = whether victim was stabbed by antique dagger or died from another cause. His testimony is only relevant if the victim died of a stab wound.

• Here – JURY should decide. No important value would be undermined. If ct instructs the jury to consider the evidence about the dagger only if it finds that victim died form a stab wound – they will. Judge still plays a role – there must be at least some minimal reason to think it might be relevant. So long as the prosecution has made a threshold showing sufficient to allow a rational juror to conclude that victim died of a stab wound, ct admits the evidence about the discovery of the dagger and lets jury decide prelim q concerning the weapon used.

• Conditional Relevancy = Evidence is not relevant unless a particular fact is true.

• Ex) Auto accident. Issue: whether D was speeding. D denies. P wants to introduce testimony of witness who will claim she saw D’s car speeding. That would be irrelevant of the car she was not in fact D’s car. Ct should permit the witness to testify so long as there is evidence sufficient to support a finding the car the witness saw was D’s car.

• Ex) Contract. D denies entering into the k. Acceptance letter is relevant if sent by D. Ct should admit the letter so long as there is, will be, sufficient evidence to support a finding the signature on the letter is D’s. The process of showing the letter is signed by D = authentication.

• Rule 602 – personal knowledge – question left to the jury subject only to Judge making threshold determination that there is evidence sufficient to support a finding that the witness has pk.

Comparing Court’s Role in 104(a) v. (b)

104(a) – general – harder burden.

• In deciding preliminary facts – court decides based on a preponderance of evidence/more likely than not.

• Court can consider any evidence available, including evidence that would not be admissible. Judge can look at everything!!!

104(b) – conditional relevancy – easier burden.

• Ct shall admit the evidence if evidence sufficient to support a finding of the fulfillment of the condition. Easy. Lower than (a).

• Only evidence the ct should take into account is evidence the jury would be permitted to hear when deciding.

Questions for Classroom Discussion [p. 132]

1. Breach of oral contract action between Plaintiff and Defendant, who were friends, concerning the alleged sale of a car. Plaintiff wishes to testify that Defendant phoned Plaintiff, offered to buy Plaintiff’s car, and that Plaintiff accepted the offer. Defendant claims she never had this phone conversation with Plaintiff, and objects to Plaintiff’s testimony concerning that conversation. What is the preliminary fact Plaintiff must prove to make the testimony admissible? Is this a 104(a) or 104(b) preliminary fact? How should the court rule on Defendant’s objection?

Preliminary fact = that it was Defendant who he talked to. If not D – still relevant? NO! 104(b) fact. Goes in – up to jury. Doesn’t

have to be >50%.

2. Prosecution of Defendant for pick-pocketing. To prove Defendant committed the crime, the prosecution calls Witness, who was walking with the victim when the act occurred. If permitted, Witness will testify that just after Defendant reached into the victim’s back pocket and removed his wallet, Witness said to the victim, “Someone just stole your wallet.” Assume that the statement is hearsay but will be admissible if Witness’s statement described or explained the event while she was perceiving it or immediately after she perceived it. (See Rule 803(1).) What is the preliminary fact that must be decided? Should it be decided according to the standard of Rule 104(a) or Rule 104(b)?

Prelim fact = that the witness said it while she saw him do it or immediately after. Still relevant even if she didn’t say it immediately

after. 104(a). Higher burden.

3. Negligence action by Plaintiff against Defendant following an automobile collision on a dark road at night. Plaintiff was driving one car and Defendant was driving the other car. Defendant also had a passenger in the car. Plaintiff wishes to testify that after the collision, Plaintiff walked over to Defendant’s car, knocked on the window, asked what happened, and that a voice answered, “I don’t know what happened. I fell asleep before the accident.” Assume that if Defendant was the speaker, the evidence would not be excluded by the hearsay rule, but that if the passenger was the speaker, the evidence would be inadmissible hearsay. Defendant objects to Plaintiff’s testimony. What is the preliminary fact Plaintiff must prove to make the testimony admissible? Is this a 104(a) or 104(b) preliminary fact? How should the court rule on Defendant’s objection?

Preliminary fact = that it was D that answered. If it isn’t – no longer relevant. 104(b).

4. Same facts as in Question 3. Assume, however, that the voice from inside the car said, “I don’t know what happened. The windshield was all fogged up.” Defendant objects to Plaintiff’s testimony. What is the preliminary fact Plaintiff must prove to make the testimony admissible? Is this a 104(a) or 104(b) preliminary fact? How should the court rule on Defendant’s objection?

Preliminary fact = that it was D that answered. If it isn’t – still relevant. 104(a). Fogged windshield.

5. Prosecution of Defendant for murder. The prosecution wishes to present evidence of a written confession signed by Defendant. Defendant admits signing the confession, but claims she only did so after the police threatened to investigate her entire family for any possible wrongdoing. Assume that Defendant is entitled to a decision as to the voluntariness of her confession. To make this decision the court will need to hear testimony from the Defendant and the police. Where should the jury be during this testimony?

Judge must decide whether it was voluntary and therefore admissible. 104(c) – hearing of jury = hearings on admissibility of

confessions shall in all cases be conducted out of the hearing of the jury!

HEARSAY = Out of court statement offered to prove the truth of the matter asserted.

• Possible sources of inaccuracy: 1) Perception; 2) Memory; 3) Sincerity; 4) Narration.

• Hearsay rule is concerned w/ twice-removed evidence. Witness is testifying as to what statement X made to her.

• Problem: reliability of the hearsay cannot be tested at the time statement is made. Jury can’t see the statement being made.

3 STEP APPROACH

1. What is the out-of-court statement?

2. What is the statement offered to prove? How relevant?

3. If the declarant was inaccurate – would the evidence be unreliable – would the jury be misled? YES = hearsay.

Questions for Classroom Discussion [p. 140]

1. Why do we have a hearsay rule? How does it affect the fact-finding process? The reliability of hearsay cannot be tested at the most appropriate time: just as the statement is being made. Any later examination of the statement’s accuracy usually will be less effective to uncover sources of inaccuracy. The trier doesn’t have opportunity to observe the declarant while saying it.

2. If the witness and the declarant are the same person (i.e., if the witness is testifying about her own out-of-court statement), why should the statement ever be classified as hearsay? Still twice removed from the event. The passage of time between the making of the statement and its repetition in court still presents a problem. Maybe the witness doesn’t remember the event as well as he did when he observed it and made the prior statement. Or he’s had time to prepare himself to hide dishonesty.

3. Suppose a statement is hearsay and is not admissible pursuant to an exception. If the judge believes that the probative value of the statement is not outweighed by the danger of unfair prejudice, does the judge have the authority to admit the evidence? NO! Inadmissible hearsay can never be let in by the Judge!

• Oral/written assertion or nonverbal conduct of a person if intended by the person as an assertion.

• Conduct is an assertion if the actor intends by that conduct to convey information. Attempt to communicate.

• Assertive conduct ex) Asked which way the suspect ran, person points in a certain direction = asserts that way.

• Not assertive conduct ex) asking a question, order/instructions “keep your jacket on!”, opening umbrella when step outside.

• ANIMALS/MACHINES do NOT create HEARSAY – they are not people!

• Bloodhound’s tracking of a scent – not hearsay.

• Printout of an electrocardiogram recording hearbeat, chiming of mechanized church bells not hearsay.

• Hearsay: to prove car crash happened at 1am, witness testifies when she asked her husband what time it was,he looked at his clock and said, “It’s 1am.” He said it – hearsay. To avoid – have husband testify that he looked at the clock and it said 1am.

• Hearsay: to prove D ran the red light, prosecution offers audiotape of witness who saw the accident, saying, “D ran the red light.” The machine merely preserved her statement. Statement still made by the declarant.

• Hearsay: to prove bank robbed at 2pm, witness testifies she heard the church bells ring twice. If operated by human, it is a human assertion and the accuracy of the bells would depend on the person’s accuracy.

• Even spectator shouting out in the courtroom is hearsay. So is testimony given at trial if later offered at the trial in a diff case!

Questions for Classroom Discussion [p. 145]

1. To prove that Defendant committed the crime, a police officer testifies that at a line-up, an eyewitness to the crime pointed to Defendant when asked whether the person who committed the crime was among those in the group. Is the eyewitness’s conduct a statement?

Yes.

2. To prove that Defendant committed the crime, evidence is offered that a bloodhound trained to track a scent followed a trail from the crime scene and “pointed” to Defendant. Is this a statement?

No. Dog is not a person.

3. To prove that the “surf was up” at a particular beach, evidence is offered that hordes of surfers headed for that beach. Is this a statement?

No.

4. To prove that an officer had just entered the barracks, evidence is offered that the lead enlisted person in the barracks loudly snapped to “attention” and yelled, “Atten-Hut!” Is this a statement?

Could be if trying to communicate that an office just walked in.

5. To prove that the defendant committed the crime, a testifying witness points to the Defendant when asked if the person who committed the crime is in the courtroom. Is this a statement for purposes of the hearsay rule? If so, is it covered by the rule?

No – he’s on the stand – in the witness box.

6. During Denise’s murder trial, a spectator in the gallery stands up and yells, “Denise is a murderer.” Is this statement covered by the hearsay rule?

Yes.

7. At a trial, a party wishes to offer in evidence a statement made by a person in a deposition. Is this statement covered by the hearsay rule?

Yes. Altho, typically there will be an exception for depositions.

8. Same case. A witness testifying at trial is asked, “Tell us what you said in your deposition.” Is this statement covered by the hearsay rule?

Yes.

Question for Classroom Discussion

Casebook page 145

Assume you are a federal district court judge and are asked to rule on the admissibility of hearsay evidence that you believe is highly reliable but does not fit within the scope of any specific hearsay exception within the Federal Rules of Evidence. Does Rule 802 require you to exclude the evidence? If you are a superior court judge in California and no specific hearsay exception within the Evidence Code applies, does C.E.C. § 1200 require you to exclude hearsay that you think should be admitted? CA law creates the possibility of judge-made hearsay exceptions!

OFFERED IN EVIDENCE TO PROVE THE TRUTH OF THE MATTER ASSERTED

• A statement is hearsay if the matter it asserts has to be true in order for the evidence to be relevant.

Questions for Classroom Discussion [p. 148]

1. Why is a statement classified as hearsay only if it is “offered in evidence to prove the truth of the matter asserted”? Because that is when we are concerned about the 4 inaccuracy problems. Cannot cross-examine.

In each of the following hypotheticals, indicate whether the statement or conduct is “offered to prove the truth of the matter asserted.”

2. Prosecution of Defendant for the murder of Victim. To prove that Zed, another person, committed the crime, Defendant offers evidence that Zed confessed to the crime.

Yes.

3. Same case. To prove that Zed committed the crime, Defendant offers evidence that Zed said, “I hated Victim.”

Yes.

4. Personal injury action arising from an automobile accident. To prove that Plaintiff was injured, evidence is offered that just after the event, Plaintiff was sitting on the street curb sobbing.

No - Not assertive.

5. Same case. To prove Plaintiff was injured, evidence is offered that when someone asked him at the scene whether he was hurt, Plaintiff grabbed his own leg and began rubbing it.

Yes – responding – asserting. It is communicative.

6. Prosecution of Defendant for assault and battery on Victim. Defendant claims self-defense. To prove that Victim attacked Defendant first, evidence is offered that the day before the altercation, Victim said, “I want to kill Defendant.”

Yes – being offered to prove the truth.

7. Same case. Suppose that Defendant admits being the one who hit first, and claims he did so because he feared that Victim was going to kill him. Victim’s statement (“I want to kill Defendant”) is offered to prove that fact.

Not offered to prove the truth. Just the fact that it is said is enough. Doesn’t matter whether it is actually true! Relevant to prove the

effect on the listener – that he was actually in fear.

8. Personal injury action. Witness testifies that the light was green for Plaintiff. To prove that Plaintiff’s light was red, Defendant offers evidence that at the scene of the accident, Witness said Plaintiff’s light was red.

Hearsay.

9. Same facts. Defendant offers Witness’s prior statement (“Plaintiff’s light was red”) to impeach Witness by demonstrating that she is inconsistent and therefore unreliable.

Not hearsay. Statement is not being offered her to prove the truth of the matter asserted – that P’s light was red. Just trying to

show she made inconsistent statements. Doesn’t matter when the statement is true or not. Just matters to show that the witness

changer her story.

10. To prove that a witness is insane, and thus not credible, evidence is offered that she said, “I am Elvis.”

Not hearsay.

11. Same case. Suppose the witness said, “I believe I am Elvis.”

Hearsay. Offering to prove the witness is insane. She must actually believe she is Elvis. We are trying to prove exactly what she is

asserting – that she believes she is Elvis!

12. Prosecution of Defendant for the murder of Victim. To prove that Defendant was acting in the heat of passion and did not premeditate, Defendant offers evidence that just before he killed Victim, Defendant’s best friend Joy said to Defendant, “Victim attacked me.”

Not hearsay. Whether or not it’s true that the victim attacked her – still is relevant. Effect on D matters – just the fact that he heard the

statement – not whether it was true.

13. Same basic situation as in Question 12, except assume that Victim survived, and is now being prosecuted for rape of Joy. The prosecution offers Joy’s statement to Defendant, “Victim attacked me.”

Hearsay.

14. Prosecution of Defendant for bank robbery. To prove that Defendant robbed the bank, evidence is offered that during a fight with his girlfriend, the girlfriend said to Defendant, “I may have B.O. but at least I’ve never robbed a bank.”

Hearsay. This is common – speaker is not making an assertion in a straight-forward way. Prosecution is offering to say D did it.

15. Prosecution of Defendant for the murder of Victim. A prosecution witness offers to testify that he heard the sound of a gunshot from the next room, opened the door, saw Victim on the floor and Victim’s brother choking Defendant while screaming, “Killer!”

He is asserting that D did it. Offering to prove the truth. Hearsay. Metaphor. “You dirty rat.” Same thing – you are a bad person – you

are the murderer.

UTTERANCES AND CONDUCT THAT ARE NOT HEARSAY

1. Words of Independent Legal Significance – Verbal Acts = NOT HEARSAY

• It is the SPEAKING OF THE WORDS that matters! Not the credibility of the person who says it that counts.

• Breach of contract: Witness testifies that she heard P say, “I offer to sell you,” and D responded, “I accept.” Not hearsay to prove that a contract existed. Formation of an oral contract. Legally significant event.

• Slander action: D’s utterance, “you are the worst scoundrel since Stalin!” – it is the slander. Not evidence about the slander.

• Libel action: D’s printed words in the newspaper – it is the libel.

• Whether given Miranda rights: Cops statement, “You have the right to remain silent” – it is the warning itself.

• Dispute over rent payment: On day rent due, tenant pointed to field and told landlord, “the corn in that field belongs to you” – it is the act of payment – not evidence of payment. Not hearsay!

Questions for Classroom Discussion [p. 152]

1. Breach of contract action. Defendant claims there was no contract. To prove a contract existed, Plaintiff offers evidence that after receiving Defendant’s offer Plaintiff said, “I accept your offer.” Is this hearsay?

No. Magic words of legal significance. Just the fact that the statement was made is what matters. Not whether it is true!

2. Same case. Plaintiff offers, instead, his statement to Defendant, “I accepted your offer last week. Where are my widgets?” Is this hearsay?

Yes. I accepted your offer LAST WEEK – not magic words.

3. Libel action by Plaintiff against the River City Times for publishing an article falsely stating that Plaintiff was a child molester. To prove the libel, Plaintiff offers in evidence a copy of the newspaper article. Is this hearsay?

No. Mere writing of the words has legal significance. Not trying to prove the truth!

4. Same case. To prove the libel, Plaintiff wishes to testify that the day after the newspaper article appeared, Zed told Plaintiff, “An article in the River City Times states that you are a child molester.” Is this hearsay?

Yes. Zed’s statement is hearsay.

5. To prove that a corporate board of directors approved a certain resolution, evidence is offered that when the chairperson asked all in favor to say “aye,” a majority of directors did so. Is this hearsay?

Not hearsay. Ballot count. Law: person with the most “ayes” wins. Aye is a verbal act. Ballots have independent legal significance.

6. Action by Joe to quiet title to real property. Joe claims he acquired title through adverse possession. He offers evidence that, for years, he posted signs on the property reading, “Private property of Joe. Stay off!” Is this hearsay?

No. Independent legal significance. Open and notorious claim. Necessary for adverse possession. Magic words.

7. Dispute over ownership of a bracelet. To prove she owned the bracelet, Plaintiff testifies that her grandmother, the prior owner, gave her the bracelet while stating, “Here is your birthday present.” Is this hearsay?

ON BAR!!! Not hearsay. Personal property law: statement made at the time transfer of possession takes place w/ personal property –

statement is about the nature of the transfer - has independent legal significance!

SITUATIONS IN WHICH THE VALUE OF THE EVIDENCE DERIVES FROM FACT WORDS WERE SPOKEN – NOT TRUTH

• Issue: whether someone was alive at a given moment. If witness offers statement that at the time, the person said, “I’m still alive.” – NOT HEARSAY. It is not the content of the words – just the fact that the speaker said anything at that moment.

Questions for Classroom Discussion [p. 153]

1. To prove that Deceased was alive at a certain moment, evidence is offered that at that moment, Deceased told a police officer, “I haven’t kicked the bucket yet.” Is this hearsay?

Not hearsay – just the fact that he is speaking is enough. Fact that his lips are moving. Don’t care about the truth.

2. Same case. To prove Deceased was alive at that moment, Deceased’s widow testifies that the police officer told her, at the scene, “Deceased just said he’s still alive.” Is this hearsay?

YES. If it is the dead guy saying it – not hearsay. But if the officer is saying he heard him say it – that is hearsay.

3. To prove that Zed spoke Spanish, evidence is offered that the witness overheard Zed say to a Spanish-speaking person at a restaurant, “Hablo español.” Is this hearsay?

Not hearsay – doesn’t matter what he’s saying – just the fact that he is speaking Spanish is enough. Mere fact that these words are flying

out of his mouth is what is important.

WORDS BEING OFFERED TO SHOW THEIR EFFECT ON THE LISTENER – NOT TO PROVE TRUTH OF THE MATTER ASSERTED

• Assault/battery of victim. To prove self-defense, D offers that just before he punched Victim, Victim screamed, “I’m going to shoot you!” Not hearsay. Just the fact that D heard this statement is enough. The statement is being offered not to show that Victim was actually going to shoot D, but that D reasonably believed she was in danger.

• Ex) trying to prove D knew his brakes were faulty and failed to get them fixed = negligence. Mechanic testifies that he told D, “your brakes are faulty – you should have them fixed now.”

o To prove brakes were defective = hearsay.

o To prove D was aware of the problem and therefore negligent = not hearsay. Truth of statement doesn’t matter!

• Problem of limited admissibility. Ct should instruct the jury that the evidence is not admissible to prove the actual defect. A limiting instruction is mandatory if requested or ct can issue it on its own. Also – ct may 403 and exclude if it finds a limiting instruction will not sufficiently reduce the danger of unfair prejudice.

• Ex) bank robbery. Robber said to D, “We will kill you if you do not help us rob the bank” – relevant to help establish a defense of duress. Not offered to prove the other robber really would have killed D if she didn’t take part – just that D feared he might.

Questions for Classroom Discussion [p. 155]

1. Negligence action by Plaintiff against Defendant, the owner of a supermarket, after Plaintiff allegedly slipped on a ketchup spill. Defendant denies there was any ketchup spill. To prove the spill was present, Plaintiff calls Witness, another customer who was in the store at the time, to testify that 15 minutes before Plaintiff fell, Witness told Defendant’s manager that there was ketchup on the floor. Is this hearsay?

Hearsay to prove the spill was present. This is being presented for the truth.

2. Same case. Suppose Witness’s statement is only offered to prove that Defendant was aware of the ketchup spill before the accident occurred. Is this hearsay?

Not hearsay to prove notice. Doesn’t matter whether there actually was ketchup on the floor – just matters that D heard it – effect on D.

3. Same case. If the evidence is only admissible to prove notice, how may Defendant prevent the jury from using it for the wrong purpose?

Limiting instruction.

4. Same case. Suppose Defendant asks the court to exclude the evidence because the risk of jury misuse is too great. How should the court rule?

Could object under 403 – unfair prejudice outweighs the probative value. Judge will typically overrule 403 objection on theory that juries

follow instructions.

5. Same case. Plaintiff wishes to testify that while she was waiting for medical care, Witness told her, “I warned them about the ketchup!” Is this hearsay if offered to prove that Defendant was aware of the ketchup spill?

Hearsay.

WORDS/CONDUCT = CIRCUMSTANTIAL EVIDENCE OF DECLARANT’S STATE OF MIND

• Negligence action – car crash. Evidence of witness’ statement, “I am the Queen of England.” Not being offered to prove the truth, but to prove she’s delusional and can impeach her credibility and undermine her testimony that D ran the red light.

• Jeweled necklace. D claims it was a gift from P. P says it was a sale. To prove P did not give it to her, calls witness to testify that the day before P told her, “D is a lazy slob who hasn’t worked a day in her life.” Whether or not it is true – it is relevant to her feelings towards D and whether she was likely to gift something to D. If P has negative feelings about D, makes her less likely P gave D a gift. Offered as circumstantial evidence of P’s feelings towards D.

• *BUT! If P said, “I don’t like D.” – that is HEARSAY! Offered to prove P’s feelings toward D. Not circumstantial evidence – instead it is a direct statement of her feelings. The first inference is the same as the matter asserted.

• Ex) State of mind: knowledge. Prosecution wants to prove D was a member of a gang. Evidence: Gang’s leader was arrested w/ note in his pocket that contained D’s name and phone number. Not hearsay. Not being offered for the truth – that it is D’s correct address and phone number, but that the possessor of the note had knowledge of the info. Relevant to show he knew D, maybe infer from that that D was also a member of the gang.

• Statements that look backward. Ex) Witness said to Victim after drinking the lemonade, “somebody tried to poison me.” To prove Victim didn’t kill herself.

o To prove someone actually tried to poison her: hearsay.

o To prove she did not commit suicide: not hearsay. Shows that she believed someone was trying to poison her – suggests she did not poison the drink, and thus did not take her own life.

Shepard v. U.S. (1933)

• D convicted of murdering his W – poisoning her.

• D claims she committed suicide. Provided witnesses who said that before her illness, she had no wish to live.

• Evidence: After being poisoned, while ill, W told her nurse, “H poisoned me.”

• Admissible, not as evidence of the truth, but evidence of a state of mind inconsistent w/ suicidal intent? Nonhearsay purpose.

• Gov’t used her statement to prove she was dying of poison given by her husband. That’s hearsay.

• When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.

• Held: Evidence should NOT have been admitted. Hearsay.

• Objection 403 analysis – virtually impossible for the jury to separate the non-hearsay purpose form the hearsay purpose.

• Once the jury hears the statement – they will use it for the impermissible purpose – that H poisoned W.

Questions for Classroom Discussion [p. 163]

1. In Shepard why was Mrs. Shepard’s statement hearsay if offered to prove Dr. Shepard’s guilt?

Offered to prove the truth of the matter asserted.

2. What non-hearsay argument did the government make to justify admission of Mrs. Shepard’s statement? Why did the Supreme Court reject the argument? Was the Court correct?

That her state of mind was inconsistent w/ suicidal intent. She actually wanted to live.

3. Action by Plaintiff against Defendant for interference with contract. Plaintiff alleges that Defendant enticed Zed, one of Plaintiff’s customers, to switch its business from Plaintiff to Defendant by falsely suggesting that Plaintiff was going to declare bankruptcy soon. To prove that Defendant did this, Plaintiff wishes to testify that Zed told Plaintiff’s sales representative, “I’m switching because your future is uncertain.” Is Zed’s statement hearsay?

Not hearsay. What he is saying circumstantially evidences his belief. He believes that P is going broke. No whether true.

4. Same case. Suppose Zed’s statement had been, “I’m afraid you will be going bankrupt soon and won’t be able to fill our orders.” Is Zed’s statement hearsay?

Hearsay. Offering to prove he was afraid. Same as, “I believe I’m Elvis.” Directly asserting his state of mind.

5. Will contest. Testator’s will left everything to Defendant, and Plaintiff claims this was because Defendant exerted undue influence on Testator. To prove Testator had fallen under Defendant’s spell, Plaintiff wishes to testify that Testator told him, “Defendant really knows how to take care of an old man.” Is this statement hearsay?

Not hearsay. Circumstantial evidence of the testator’s state of mind.

NOT ASSERTIVE CONDUCT or ASSERTIVE OF SOMETHING OTHER THAN OFFERED TO PROVE

• Ex) Issue whether testator was mentally competent when she made her will. Evidence: testator’s friends ask her to take care of their young kids. Non-assertive conduct. They believe T to be competent.

• Ex) Ship case. To prove the vessel was seaworthy – evidence: captain examined every part of it before boarding it with his family. If he didn’t believe the vessel was safe, his decision to sail off w/ his family aboard would be ridiculous. Not hearsay. This is non-assertive conduct. Was not attempting to communicate.

Questions for Classroom Discussion [p. 167]

1. Negligence action by Plaintiff against Defendant, the owner/pilot of a small airplane that crashed, injuring Plaintiff. Plaintiff claims Defendant took off even though the plane was unsafe. To prove that the plane was safe, Defendant offers testimony that before she got on board and took off, she walked around the plane looking at its wings and engine. Is this hearsay? If not, why not? Do you understand why “non-assertive conduct” can be a subset of “circumstantial evidence of the declarant’s state of mind”?

Not assertive conduct. Not hearsay. Nothing suggests she is trying to assert something.

2. To prove a hurricane was expected to hit the town, evidence is offered that the citizens boarded up their homes and businesses. Is this hearsay?

No. Not assertive conduct.

3. To prove a hurricane was coming, evidence is offered that the police activated the town’s warning siren. Is this hearsay?

Yes. Trying to communicate. Asserting that a hurrican is coming.

4. To prove a person had a contagious disease, evidence is offered that her doctor placed her in an isolation room. Is this hearsay?

Not hearsay. But if slap a big sign on the door, “quarantine!” – that is a statement asserting.

5. Prosecution of Defendant for robbing the River City Bank. To prove Zed, rather than Defendant, robbed the bank, Defendant offers evidence that shortly after the robbery, Zed was seen carrying bags of money. Is this hearsay?

Not hearsay. No indication he is asserting anything.

6. Same case. To prove Defendant committed the crime, the prosecution offers evidence that when the police tried to question Defendant shortly after the robbery, Defendant ran away. Is this hearsay?

Not hearsay. Not trying to communicate.

HEARSAY V. PERSONAL KNOWLEDGE OBJECTIONS

• ON EXAM!!! Which is the proper objection.

• Ex) Murder. D calls witness who says, “I heard D’s brother say, ‘Joe was with me in another town on the night of the murder.’”

• Evidence is hearsay – offered to prove the truth of the facts asserted – help to establish D’s alibi. Hearsay objection.

• Ex) Witness says, “Joe was in another town on the night of the murder.” Objection: lack of personal knowledge.

• Does FT = FP? If yes, the witness has PK. If No, objection: PK.

Questions for Classroom Discussion [p. 174]

1. Civil action for injuries suffered in an automobile accident. Defendant alleges contributory negligence in that Plaintiff knowingly was driving on defective brakes, which prevented him from stopping in time to avoid the collision. To prove Plaintiff had defective brakes, Defendant calls a witness who offers to testify that on the day before the accident, she heard an auto mechanic tell Plaintiff, “I just took a look at your brakes. They are shot.” Is this testimony objectionable? If so, on what basis?

Hearsay objection. (No PK objection – she testifying as something she heard.)

2. Same case. Plaintiff admits his brakes were defective but claims he did not know this was the case. Defendant offers the same evidence only to prove Plaintiff was on notice of the defect. Is this testimony objectionable? If so, on what basis?

No hearsay objection - effect on listener. No PK objection.

3. Same case. Defendant’s witness testifies, “Plaintiff’s brakes were shot.” The witness is relying on what she heard the mechanic say. Is this testimony objectionable? If so, on what basis?

- PK objection. Ft (brakes shot) doesn’t equal FP (nothing). Objection – no foundation to show witness had PK.

4. Same situation as in Question 3. How does Plaintiff’s attorney find out and reveal to the judge that the witness lacks personal knowledge?

-P’s lawyer then asks, how do you know the brakes were shot? Witness says I heard the mechanic say to P, “Your brakes are

shot.” Now – Hearsay objection!

-Or P’s lawyer does voir dire, asks the witness, you said the brakes were shot, how do you know? Reveals there is a problem.

HEARSAY REVIEW

Questions for Classroom Discussion [p. 174]

In each of the following questions, indicate whether the evidence is hearsay or not hearsay. Assume that the definition of hearsay in Federal Rule 801(c) (and not the “declarant-based” definition) applies unless you are instructed otherwise.

1. Prosecution of Defendant, a tall blond man, for bank robbery. Defendant denies committing the crime. To prove Defendant committed the crime, the prosecution calls Officer, a police officer, to testify that she spoke with Zed, who witnessed the robbery, and that the crime was committed by a tall blond man.

Hearsay.

2. Same case. Assume Zed testified in an earlier trial of the same case that the robbery was committed by a tall blond man. The first trial ended in a hung jury. Before the case could be retried, Zed died. The prosecutor wishes to take the stand to testify that she was at the first trial and heard Zed testify that the robber was a tall blond man.

Hearsay. Has to be THE trial.

3. Same case. Instead of taking the stand herself to relate the substance of Zed’s testimony at the first trial, the prosecutor calls Court Reporter, the court reporter who transcribed the testimony at the first trial, to read Zed’s testimony from the official transcript.

Multiple Hearsay. 1) Testimony of Zed; 2) Trial transcript.

4. Same case. To prove Defendant’s involvement, the prosecution calls Witness, a teller who was in the bank at the time of the robbery, to testify that just after the robbery, she told a police officer that the robber was a tall blond man.

Hearsay.

5. Same case. The prosecution calls Investigator, the chief police investigator assigned to the case to testify that a police forensic expert examined the stolen money for fingerprints, and that this expert told Investigator that fingerprints on the money matched those of Defendant.

Hearsay.

6. Same case. If the court sustains a hearsay objection to the testimony in Question 5, the prosecutor will respond that the forensic expert’s statement is not being offered to prove the truth of the matter asserted (that fingerprints on the money matched those of Defendant), but only to prove that the expert believed that the prints matched those of Defendant).

Objection: Not Relevant! Who cares what he believed?

7. Same case. Assume the evidence of the forensic expert’s statement is offered during a hearing to determine whether there was probable cause to arrest Defendant.

If offered to prove probable cause, then the effect the statement had on the listener matters and this is NOT hearsay. State of mind.

8. Wrongful death action by Plaintiff, administrator of the estate of Deceased, against Defendant following an automobile accident in which Deceased died. Defendant admits negligence but contests damages, claiming that Deceased died instantly in the crash. To prove that Deceased lived for a time after the crash, Plaintiff calls Witness, a bystander who observed the accident, to testify that she approached Deceased’s car just after the crash, and that Deceased was moaning incomprehensibly.

Not hearsay. Non-assertive statement. Just the fact that his lips were moving prove he was alive – not whether the words he were

moaning were true.

9. Same case, except that Witness will testify that when she approached Deceased, Deceased said, “I’m alive.”

Not Hearsay. Not offered to prove the truth – that she was alive. Offered to prove she made a sound, so she was alive.

10. Same case, except that Witness will testify that she did not speak to Deceased, but that Bystander told her that Deceased said, “I’m alive.”

Hearsay.

11. If the judge rules that the evidence in Question 10 is hearsay, how can Plaintiff’s lawyer get Deceased’s words before the jury?

Get bystander who heard the victim say it on the stand.

12. Prosecution of Defendant for murder. To prove her innocence, Defendant offers a letter written by Zed, now deceased, taking responsibility for the crime.

Hearsay.

13. To prove that the traffic signal at a particular intersection had turned green, a witness will testify that at that moment, the driver second in line at the intersection honked her horn.

Hearsay. Assertive conduct – saying – the light is green! Go!

14. To prove that it was raining at a particular place and time, evidence is offered that people opened their umbrellas.

Not hearsay. Not assertive conduct.

15. To prove that Zed suffered pain when another person bumped into her, evidence is offered that Zed said, “Ouch!”

Not hearsay. Not assertive conduct. Reacting to pain is not assertive conduct.

16. Same case. To prove Zed was in pain when brought to the hospital, an emergency room nurse testifies that when she asked Zed, “Are you in pain?” Zed looked at the nurse, put his hand on his stomach and said, “Ouch!”

Hearsay. She asked him a question and he was trying to communicate with her. Assert that he was in pain.

17. Prosecution of Defendant for burglary. Defendant claims she never left her house on the night of the crime. To prove Defendant was home on the night of the crime, Defendant testifies that earlier that evening, before the burglary took place, she told her husband, “I have a horrible stomach ache.”

ON EXAM! Hearsay. Offered to prove the truth of the matter asserted. If she had a stomach ache, then they likely stayed home.

Her statement must be true in order for it to be relevant.

18. Same case. To prove that Defendant never left her house on the night of the crime, Defendant testifies that she is a Sagittarius, that she read her horoscope in the paper on the day the crime was committed, and that the horoscope read, “Your life will take a bad turn if you don’t stay home tonight.”

Not hearsay. Not being offered to prove the truth – but rather the effect the statement had on the listener.

19. Same case. Instead of testifying that she read the horoscope in the paper, Defendant testifies that on the day the crime was committed, she got a call from Zed, a close friend, who said, “Stay home tonight. Your horoscope says that if you don’t, your life will take a bad turn.”

Not hearsay. Simply proving the effect the statement had on the listener.

20. Same case. Instead of Defendant or Zed testifying, Abel, a mutual friend of Defendant and Zed, takes the stand to testify that on the same day, Zed told Abel that she had told Defendant to stay home because her horoscope said that her life would take a bad turn if she did not.

Zed testifies: I told Abel, “I told D to stay home because her horoscope said her life would take a bad turn.”

Hearsay. Offered to prove the truth – that Abel told D that statement. Asserts fact we are trying to prove.

21. Prosecution of Defendant for the shotgun murder of Victim in Springfield. There is a dispute about the time Victim was shot. Defendant claims the shooting occurred at 6:00, when she was in River City. The prosecution claims the shooting occurred at 4:00, when it is undisputed that Defendant was in Springfield. To prove that Victim was shot at 4:00, the prosecution calls Witness to testify that on the day of the crime, she was working at her desk, heard a loud sound that could have been a gunshot or an auto backfiring, and within a minute, looked at her watch, which read 4:00.

Mechanical device. Not hearsay.

22. Same case, except that Witness testifies that within a minute after hearing the loud sound, she asked her colleague what time it was, and that the colleague looked at her watch and said, “4:00.”

***Tricky!!! Hearsay. Person is saying it. Offering it to prove that the shooting occurred at 4pm.

23. Same case, except that instead of testifying that she looked at her watch or asked a colleague about the time, Witness testifies that within a minute after hearing the shot, she heard the automated “break whistle” on the factory floor go off four times, which she testifies indicates that it is 4:00.

Mechanical device. Not hearsay.

24. Conversion action by Plaintiff against Defendant arising from a dispute about ownership of a certain dog. Defendant, a kennel operator, claims that Plaintiff sold the dog to Defendant for $200. Plaintiff claims she was the one who paid the $200, and that this payment was to board and care for the dog for a month while Plaintiff traveled in Europe. To prove that the arrangement was only for boarding and care, Plaintiff testifies that when she brought the dog to Defendant, she said, “I’ll pay you $200 if you will care for my dog for a month.”

Not hearsay. Independent legal significance. When you have a TRANSFER of PERSONAL PROPERTY: anything that is said at the

moment of transfer regarding the nature of the transfer is magic! Has independent legal significance.

25. Same case. Plaintiff wishes to testify that when she returned from Europe and Defendant refused to turn over the dog, Plaintiff responded, “We had a deal for board and care, not a sale!”

Hearsay. Statement made later, not at the time the transfer was made.

26. Action by Landlord against Tenant to recover rent. Both are farmers. Rent is to consist of a portion of Tenant’s crops. Tenant alleges she paid the rent. To prove payment, Tenant testifies that on the day rent was due, she approached Landlord, pointed to a certain field, and said, “that corn over there is your rent.”

Not hearsay. TRANSFER OF PERSONAL PROPERTY. Whatever is said at the time regarding the nature of the transfer has

independent legal significance!

27. Prosecution of Defendant for the murder of Victim. During the trial, while Defendant is testifying on her own behalf, a member of Victim’s family, present in the courtroom, stands up and screams, “You murderer! You killed Victim, and I saw you do it.” Later in the trial, a witness who heard the family member’s outburst is asked to repeat what the person said.

Hearsay. Not in the witness box testifying. Out of court statement.

28. Negligent entrustment action by Plaintiff against Defendant. Defendant allowed Zed to use her car, and Zed recklessly struck Plaintiff while Plaintiff was crossing the street in a crosswalk. Defendant denies she had reason to know of Zed’s recklessness. To prove Defendant knew about Zed’s poor driving habits, Plaintiff calls Witness to testify that a week before Defendant loaned the car to Zed, Witness told Defendant that Zed was “the most irresponsible and reckless person I’ve ever met.”

Trying to show he was negligent by giving keys to Zed.

1) Trying to show D knew Zed was a reckless driver: might be admissible to prove D’s knowledge.

2) Trying to show Zed was a reckless driver: not admissible. It is hearsay.

Must instruct the jury to use for proper purpose. 403 problem?

29. Same case. Plaintiff offers into evidence an article in a local newspaper, published a week before Defendant loaned the car to Zed. The article states that Zed’s driver’s license had been revoked because of several arrests for reckless driving.

?

30. Same case. To prove Defendant was aware of Zed’s recklessness, Plaintiff calls Witness to testify that several days before Defendant loaned the car to Zed, Abel told Witness that he had just told Defendant that Zed was the most reckless person he had ever met.

Hearsay.

31. Proceeding to commit Lengold, a law professor, to an institution for the hopelessly insane. To prove Lengold is insane, evidence is offered that one day recently, Lengold grabbed a megaphone, went to the highest point on campus, and yelled, “I am the king of the Federal Rules!”

Not being offered for the truth. Not hearsay.

32. Employment discrimination action. Employer claims Plaintiff was fired for incompetence; Plaintiff claims racial motives. To prove Plaintiff was fired for incompetence, Employer wishes to testify that a few weeks before firing Plaintiff, she demoted Plaintiff from a supervisory job to a lower position.

Employer is testifying about something he did = non-assertive conduct. NOT HEARSAY.

33. Same case. Suppose the jurisdiction in which the case is tried uses the declarant-based definition of hearsay rather than the assertion-based definition. Would evidence of the demotion be hearsay? Skip.

34. Prosecution of Defendant for running a murder-for-hire operation out of his neighborhood “counseling” office. Defendant denies running such a business. To prove that Defendant ran a murder-for-hire business, the prosecution calls a police officer who conducted an authorized wiretap of Defendant’s office. If permitted, the officer will authenticate and play a tape recording of a “client” of Defendant saying to Defendant, “Please make my husband disappear.”

NOT HEARSAY. Not offered for the truth. Offered to show the caller thinks he is calling a murder-for-hire biz.

35. Paternity action by Plaintiff against Defendant. Plaintiff claims that Defendant is the father of Plaintiff’s ten-year-old son Zed. At trial, Zed takes the stand and testifies, “Defendant is my father.” If the evidence is not hearsay, is there any other objection?

Personal Knowledge objection.

36. Negligence action by Plaintiff against Defendant arising from an automobile collision. At trial, Plaintiff calls Witness, a bystander, to testify that shortly after the cars collided, another bystander asked Witness, “Did you see the Chevy run the red light?”

Hearsay. Asserting that he ran the red light – Just because it is in the form of a question doesn’t mean it is not hearsay.

37. Prosecution of Defendant for arson. Defendant asserts that the crime was committed by someone else. To prove Defendant committed the crime, the prosecution wishes to offer evidence that the day after the crime was committed, the police asked Zed if Defendant committed the crime, and that Zed answered, “it wasn’t a little birdy, if you know what I mean.”

Hearsay. Being offered for the truth. Metaphor. Zed is saying, “D committed the crime.”

38. Negligence action by Plaintiff against Defendant after the car Defendant was driving ran off the road and struck Plaintiff. To prove Defendant’s car was in bad condition, leading to the accident, Plaintiff offers evidence that an hour before the accident, someone said, “Your right front tire is missing two lug nuts.”

If offered to prove the car was in bad condition – not admissible. HEARSAY.

39. Same case. Assume the person’s statement was made in Defendant’s presence, and is offered to prove that Defendant knew the car was in bad condition.

If offered to prove D knew – had notice – that the car was in bad condition – admissible. NOT HEARSAY.

40. Prosecution of Defendant for violation of the securities laws by trading stock in Zed Corp. on inside information. To prove Defendant’s guilt, the prosecution offers evidence that just before Defendant traded the stock, an insider at Zed Corp. told Defendant that the company was about to announce a huge loss for the previous quarter.

To prove D is guilty: insider told D, “the company is about to announce a huge loss.” NOT HEARSAY. Offered to show its effect on

the listener – gave him notice.

41. Prosecution of Defendant for theft of a valuable coin. The coin at issue is a one-of-a-kind double-tailed quarter. Though police found the coin buried in a field near Defendant’s home, Defendant denies any involvement in the theft. At trial, the prosecution calls Officer, a police officer, who testifies that Defendant’s housekeeper told Officer she saw a quarter “with two tail sides” in Defendant’s home. Defendant’s counsel objects on hearsay grounds. The prosecution responds that evidence of the housekeeper’s statement is not being offered to prove that such a coin was in Defendant’s house, but only to prove that the housekeeper had knowledge of such a coin. Defendant continues to object.

TOUGH!

If offered to prove the coin was in D’s home = HEARSAY.

If offered to prove the housekeeper knew of such a coin = NOT HEARSAY.

Mere fact that she knows about the coin ( allows us to infer she saw the coin. Bc it is so unusual – she probably didn’t make it up.

Similar ex) Guy gives detailed description of the crime scene (allows us to infer may he was there.

403 objection – will the jury be able to split hairs here?

*Anytime someone describes something with precision/detail/rarity ( infer the person has knowledge of those facts.

How else would he be able to give this description – but for the fact that he knows those facts.

42. Negligence action by Plaintiff against Defendant arising from an automobile accident. After the accident, Plaintiff received a letter from Zed, a witness to the accident, stating that Defendant’s car ran a red light and struck Plaintiff’s car. Plaintiff offers Zed’s letter into evidence.

HEARSAY.

43. Same case. Prior to trial, Plaintiff took Zed’s deposition, and Zed repeated that Defendant’s car ran the light and struck Plaintiff’s car. Zed died before trial. Plaintiff wishes to use the transcript of Zed’s deposition to prove that Defendant ran the light and struck Plaintiff.

2 layers of hearsay: 1) out of court statement; 2) reporter’s transcription.

44. Prosecution of Defendant, a woman, for murder. To prove Defendant committed the crime, the prosecution calls Witness, who testifies that she saw Defendant shoot the victim. To impeach Witness by showing that she tells inconsistent stories, Defendant wishes to offer evidence that just after the killing, Witness told the police the killer was a man.

NOT HEARSAY. Offered for impeachment purposes. Prior inconsistent statement. Not being offered for the truth of the

statement, but to show the witness is unreliable.

45. Same case. Assume Defendant offers Witness’s prior statement to prove that the killer was a man.

If being offered for the truth – not admissible. HEARSAY.

46. Prosecution of Defendant for murder. To prove Defendant’s guilt, the prosecution offers evidence that Defendant ran away when the police tried to question her at the scene of the killing.

NOT HEARSAY. Non-assertive conduct.

47. Same case. In response to the evidence offered above, Defendant calls Witness to testify that just before Defendant ran from the scene, someone told Defendant that her child had just been run over by a car on the next block.

NOT HEARSAY. X told D, “Your child was just run over by a car on the next block!” Offered to show the effect on the listener.

48. Slander action by Plaintiff against Defendant. Plaintiff claims Defendant told an audience of senior citizens that Plaintiff, a stock broker, had stolen money from many of his elderly clients. To prove this, Plaintiff wishes to have Witness, who was in the audience, testify about Defendant’s statement.

NOT HEARSAY. Not being offered for the truth of the statement! Independent legal significance = SLANDER: uttering those

words is a tort.

49. Same case. To prove that Defendant slandered her, Plaintiff calls Zed to testify that she was not in the audience, but that after the meeting, Witness told her that Defendant claimed Plaintiff had stolen money from many of his elderly clients.

Zed testifies that after the meeting, Witness told him, “D claimed P had stolen money from his old clients.”

HEARSAY. 2 layers of hearsay. 1) Witness heard D say that P stole money (make the defamatory statement). 2) Witness told Zed

what she heard D say. Add another layer and it’s hearsay.

Exceptions & Exemptions from the Hearsay Rule

• Rationale: rule is too broad.

• 8 Exemptions. 30 Exceptions.

• EXCEPTION: HEARSAY, BUT ADMISSIBLE bc of an exception in Rules 803, 804, 807. Even if hearsay, still admissible!

• EXEMPTION: NOT HEARSAY. Fits w/in an exemption from the hearsay rule. 801(d)(1) and 801(d)(2).

• Exemption: If evidence fits w/in exemption – not hearsay – not hearsay no matter what 801(c) says.

• 801(d) = should be admitted bc the adversary system will help to ensure adequate testing of its reliability.

o 801(d)(2) “admissions” of party opponent. Person who made the statement will always have an incentive and opportunity to deny making the statement or to explain its meaning. Can assess reliability of the evidence.

o 801(d)(1) prior statement made by persons who testify at trial. Party who called them is able to recall them to explain or deny the prior statement.

• In CA – only have EXCEPTIONS to the hearsay rule. No exemptions.

|FR 801(d)(2): A statement is NOT hearsay if it is an admission by a party-opponent and statement is offered against a party and is: |

|a) The party’s own statement, (party admission) |

|b) A statement of which the party has manifested an adoption or belief in its truth, or (adoptive admission) |

|c) A statement by person authorized by the party to make a statement concerning the subject, or (authorized admission) |

|d) a statement by the party’s agent/servant concerning a matter w/in the scope of the agency/employment, made during the existence of the relationship, or (agency |

|admission) |

|e) statement by coconspirator of a party during the course and in furtherance of the conspiracy. (co-conspirator statements) |

|Contents of statement shall be considered but are not alone enough to establish the declarant’s authority under c), agency/employment relationship and scope under |

|d), or the existence of the conspiracy and participation therein of the declarant and party against whom the statement is offered under e). |

EXEMPTIONS: PARTY ADMISSIONS

• Any statement made by a party may be offered by the party’s opponent.

• Any party may produce a witness to testify about an opponent’s statement.

• Party admissions are easy to admit. Declarant does not need to have personal knowledge of the facts in the statement.

• If statement in writing – need to authenticate the writing.

HYPO FR 801(d)(2):

• H&W dissolution proceeding – dispute about division of assets.

• H claims W bought a home w/out telling him and she has a lot of $ in the home. W denies owning the home.

• To prove W owns home, H offers: W’s loan app where she listed the home as an asset. Statement by W, offered by H.

• H may offer W’s statement as a party admission.

HYPO:

• Tenant sues Landlord after T’s slip and fall on common stairway.

• Tenant alleges she fell bc lighting in the stairway burned out and Landlord didn’t replace it.

• Plaintiff Tenant calls D’s friend to the stand. What did D say about what caused my client’s accident?

• Witness says, Landlord told me, “Tenant fell bc the lights in the stairway were burned out.”

• Even if Landlord did not have PK of this fact, learned it from another tenant shortly after accident, still is a party admission.

• “Party” more complicated if corp or gov’t entity. Authorized/agency admissions: cts do not treat them as party admissions.

• Admissions agst interests of declarant usually reliable bc ppl don’t say things agst their interest unless they think they are true.

• But it does not have to be against the interest of the declarant at the time it was made.

• Rationale: Party is usually at trial and has both the incentive and opportunity to clarify her statements.

• *A party may not offer how own statement as a party admission. One exception = Completeness doctrine.

FR 106: Completeness Principle applicable only to WRITINGS

• If party introduces writing/recorded statement, adverse party may require the introduction of any other party or other writing/recorded statement that in fairness ought to be considered w/ it.

• “Completeness” doctrine = if one party offers into evidence one part of an oral/written statement or exchange of statements, the opponent may offer another statement or part of the exchange if it would put the already admitted statement into context or otherwise correct a mistaken impression that might be left w/ the jury.

HYPO:

• Witness testifies, D told me, “we could pay him off.”

• D can later offer testimony that a moment later D added, “but that would be wrong.”

Questions for Classroom Discussion [p. 184] – Simple Party Admissions

1. Negligence action by Plaintiff against Defendant following an automobile collision. Defendant claims to remember no details about the accident. At trial, to prove Defendant’s liability, Plaintiff wishes to testify that a week after the collision, Defendant contacted Plaintiff and said, “I fell asleep just before the accident.” Defendant objects on hearsay grounds. How should the court rule?

Not hearsay. Admissible. Statement of a party (D) offered by party opponent (P).

CA 1220: Hearsay, but Admissible. Same result, get there a different way.

2. Same case. Plaintiff also wishes to testify that Defendant also said, “I crossed the center line just after I fell asleep.” Defendant objects on the ground she lacked personal knowledge. How should the court rule?

3. Why do the courts refuse to impose a personal knowledge requirement on party admissions?

For party admissions, NO PK requirement. Rationale: person who said it will have chance to explain, can take the stand.

4. Same facts. Assume that Defendant also told Plaintiff, “Maybe somebody slipped something into my Diet Coke at dinner, because I certainly had no warning that I might fall asleep.” Defendant wishes to testify to this portion of his statement. Plaintiff objects on hearsay and lack of personal knowledge grounds. How should the court rule?

FR 106: Not applied as it is literally written. If judge is convinced – will typically let a verbal convo in if one side is taking a chunk out

of context and it will mislead the jury. Completeness doctrine.

CA’s completeness rule is much broader: a jury can judge whether the witness is credible.

5. Personal injury action by Plaintiff, the administrator of Decedent’s estate, against Defendant, a paramedic, following an automobile accident and Decedent’s subsequent death. Decedent was crossing the street when she was struck by Zed. (Plaintiff initially sued Zed, but they reached a settlement before trial.) At trial against Defendant, Plaintiff claims that Zed’s car caused Decedent a relatively minor injury that could have been treated successfully, and that Decedent’s death was caused by Defendant’s negligent treatment at the scene. Defendant, however, claims that Decedent was near death when she found her. To prove Decedent was not badly injured when Defendant began to treat her, Plaintiff calls Zed to testify that when Defendant approached Decedent, Decedent said, “I’m fine. The car barely touched me.” If Defendant objects on hearsay grounds, and Plaintiff claims Decedent’s statement is a party admission, how should the court rule?

Decedent here = party-opponent. Most cts treat it as a statement of a party.

BUT – Plaintiff is offering a statement by Plaintiff – NOT a party admission!

EXEMPTIONS: ADOPTIVE ADMISSIONS

• Sometimes a person manifests a belief in the truth of something a second person says. Can becomes statement of 1st person.

• P claims D ran red. P testifies she approached D right after accident and said, “you ran the red light!” and D nodded his head.

• D’s head nodding is an acknowledgment that what P said is true. D adopted P’s statement, making it his own. Adoptive.

• Sometimes SILENCE = adoptive admission.

• HYPO: D denies cheating on driver’s test by having someone else take it. To prove D hired Z to take the exam, prosecution called W to testify that she was in exam area at same time, heard employee loudly accuse D of cheating, and D did NOT RESPOND. W will also testify that many other ppl were in the room.

• If D heard and understood what the employee said, and if under the circumstances you would expect a person who disagreed w/ the employee’s statement to say so – might view D’s silence as acquiescing to the employee’s assertion.

• D must have heard the accusation bc it was voiced “loudly”.

• And a RP in his position would have denied the accusation if it was untrue.

• Therefore, adoptive admission under 801(d)(2)(b) – silence manifested an adoption or belief the statement was true.

• Carlson: Prosecution of D for possession of meth. Officer asked D about needle marks on D’s arms. D claimed he got them from working on his car. D yelled, “you liar, you get them from shooting up in the bedroom” D did not reply, hung his head, shook it back and forth.

• Adoptive admission if: 1) D heard her accusation; 2) An innocent person would have denied it; & 3) D’s conduct was not a denial.

• Issue: Would an innocent person have denied it? Was his head shaking a denial? Unsure.

• Preliminary fact determination = was this an adoptive admission?

• HELD: Rule 104(a) applies: PREPONDERANCE OF THE EVIDENCE. Oregon case.

• 104a: must demonstrate to judge by preponderance of evidence that the preliminary fact exists. Then jury hears it.

• Difficult for a jury to decide the preliminary fact without hearing the statement itself.

• If jury does not find the preliminary fact (intent to adopt) to exist, the jury is still contaminated! Need judicial intervention.

• The preliminary fact question of intent to adopt should be left to the TRIAL JUDGE.

• Deciding the preliminary fact q’s requires consideration of the other person’s accusation! Not possible to decide whether innocent person would deny the truth of the accusation w/out knowing what the accusation was.

• And, bc the accusation is relevant to the facts at issue, the jury will not ignore the accusation even if it finds D did not adopt it.

• 104(b) – the preliminary fact must be true in order for it to be relevant – leaves preliminary fact question to the jury.

Questions for Classroom Discussion [p. 188] – Adoptive Admissions

1. In our hypothetical based on Carlson, why didn’t the court adopt the following procedure: allow the jury to decide whether defendant’s “head shaking” was a rejection of Lisa’s accusation, and if the jury decided that it was, then allow the jury to hear the accusation itself?

In order to determine when the innocent person would deny the truth of the accusation – need to know what the accusation was!

The accusation is relevant to the facts at issue – still relevant – jury will not ignore accusation even if it finds that D didn’t adopt it.

2. Even assuming the jury would have to hear Lisa’s accusation in order to make an accurate determination of the meaning of defendant’s “head shaking,” what harm would there have been in Carlson if the court had held that the preliminary facts necessary to support admission as an adoptive admission were to be decided in accordance with Oregon Evidence Code 104(2) (Oregon’s equivalent of Rule 104(b))? Isn’t it true that if the jury found that defendant’s head shaking was a denial of the truth of his wife’s statement, the jury would not use her statement against defendant?

The jury will have to hear the out-of-court statement (her accusation) in order to figure out whether it was adopted or not.

The accusation is relevant to prove the truth of the accusation even tho it may not be admissible for that purpose.

Problems: 1) A juror could overlook the q of intent to adopt and consider the truth of the matter asserted; 2) A juror could use the

accusation before considering and resolving the prelim q of intent to adopt, or 3) the juror could consider the accusation regardless

of what they conclude on the preliminary q of adoption.

If the jury does NOT find the preliminary fact exists (intent to adopt) – may be impossible to prevent jury contamination!

Need JUDICIAL intervention to prevent improper use of the evidence!

(104(b) facts go to conditional relevance. D’s conduct is irrelevant if it was not an adoptive admission. If any of the foundational facts are missing, D’s conduct/silence will not be relevant, and the jury will ignore it. Ya right!)

3. What is the practical effect of the Carlson court’s decision that the question of defendant’s adoption of Lisa’s accusation should be decided in accordance with Oregon Evidence Code 104(1) (Oregon’s equivalent of Rule 104(a))? How exactly will this be done?

104(a) – must demonstrate by preponderance of evidence that the preliminary fact is present w/out worrying about evidence rules. If

JUDGE thinks the preliminary fact exists, the jury can hear it.

5. Prosecution of Defendant, a gang member, for the murder of Victim, a member of a rival gang. Defendant denies involvement. To prove Defendant killed Victim, the prosecution calls Witness, a member of Victim’s gang, to testify that shortly after the killing, he approached Defendant in a bar and said, “You son of a bitch! You killed my friend!” and that Defendant just stared at him and smirked. Defendant lodges a hearsay objection to Witness’s testimony. How should the court rule?

GANG member. Witness approach D in a bar and said “you killed my friend!” – D didn’t deny it outright, stared and smirked.

If you are in a gang – you might not want to deny the murder, even if you did not commit the murder – in order to instill fear and

leave the impression that you did it. Could argue that it was not an adoptive admission bc he was trying to stand up for his gang.

6. Same facts. Suppose that instead of making his accusation in a bar, Witness made it in front of a bunch of members of Defendant’s gang, and not in the presence of any “civilians.” Again, Defendant lodges a hearsay objection. How should the court rule?

Argument for #5 is even stronger. This may NOT be an adoptive admission. D wouldn’t deny a false accusation in front of his fellow

Gang members – so that he can enhance his reputation among them.

7. Prosecution of Defendant for bank robbery. Shortly after Defendant’s arrest, and after the police officer read him his Miranda rights, a bank teller approached Defendant and stated, “You are the one who pointed that gun at me.” Defendant did not respond. The prosecution wishes to offer the teller’s statement and Defendant’s lack of response. Defendant makes a hearsay objection. How should the court rule?

MIRANDA RIGHTS = would not be fair to use your silence against you! Might remain silent even if the accusation is false!

EXEMPTIONS: VICARIOUS PARTY ADMISSIONS (Authorized and Agency Admissions)

Authorized Admissions

• Ex’s) Press agent, PR department, President, COO.

• Ex) CORPORATE SPOKESPERSON – if the corporation is a party to an action, and spokesperson makes a statement on behalf of the company, that statement will qualify as an authorized admission if offered against the corporation.

• Ex) GENERAL PARTNERS are generally authorized to speak for each other.

• Ex) LAYWERS often speak for clients.

• Corp spokesperson’s statement to outside world and a corp’s financial records, even those never intended for outside qualify.

Agency Admissions

• Ex) Delivery truck owned by Hank’s Appliances runs over P. Right after driver says to P, “I was distracted and didn’t see you in time.” P sues Hank’s Appliances. His statement is admissible because it was concerned with the conduct of his job (driving the truck) and was made while in the employ of the store.

• In general, agency admissions do NOT apply to GOV’T AGENT statements in CRIMINAL cases. If D charged w/ bank robbery, wants to offer evidence that a cop claimed another person did it, cops statement will NOT be admissible as a party admission.

• Gov’t prosecutes crimes on behalf of “the people.” Some cts are now re-evaluating the approach. If they do admit – think about rank/authority of the gov’t official. Statements by informants or lower-level gov’t employees don’t usually qualify.

• Ct may consider the admission itself in deciding whether the declarant had authority or was w/in scope of agency.

• Statements themselves are NOT alone sufficient to establish any of those facts. Usually not an issue.

• CA: NO GENERAL AGENCYADMISSION RULE.

Questions for Classroom Discussion [p. 192] – Vicarious Party Admissions

1. Should the preliminary facts necessary to the application of the authorized admission rule (Rule 801(d)(2)(C)) be decided in accordance with the standard of Rule 104(a) or that of Rule 104(b). Should agency admissions (Rule 801(d)(2)(D) be treated the same way?

Authorized admissions & Agency admissions: BOTH 104(a) facts. Statement relevant whether or not the person was authorized to

say it. Statement relevant whether or not the person was making the statement as employee and w/in scope of employment.

2. California Evidence Code § 1222 provides that a “statement made by a person authorized by the party to make a statement or statements concerning the subject matter of the statement” is admissible if it is “offered either after admission of evidence sufficient to sustain a finding of such authority, or, in the court’s discretion as to the order of proof, subject to the admission of such evidence.” Does this rule establish the same standard for admissibility of authorized admissions as the federal version of the authorized admission rule?

NO! This is treated like a 104(b) fact: only need to prove by sufficient to support a finding standard! Easier in CA to get this

evidence in over a hearsay objection!

3. Suppose that the only evidence of the authority of the declarant is the declarant’s own statement (“I am authorized to tell you…”). In the absence of any other evidence of authority, may the court find that the declarant was authorized to speak for the party?

NO. 104(a) – judge can look at the statement itself to determine – but not alone sufficient to establish. Need other evidence.

4. Negligence action by Plaintiff against Ron’s, a supermarket, to recover for personal injuries Plaintiff suffered when he fell in the produce aisle. Plaintiff claims the fall was caused by a puddle of water on the floor. Defendant denies there was a puddle on the floor. At trial, to prove the puddle existed, Plaintiff wishes to testify that shortly after the fall, Zed, the store’s produce department manager, apologized to Plaintiff for “not cleaning up the puddle.” Defendant objects on hearsay grounds. How should the court rule?

He was an employee of the party & w/in the scope of his employment. Qualifies under 801(d)(2)(d). NOT hearsay!

5. Same facts. Suppose Defendant argues that it never authorized Zed to make any statements on its behalf concerning accidents. Should this affect the court’s ruling?

No. This is an AGENCY admission. Just need a statement by an employee. Don’t need statement by someone authorized.

6. Same facts. Suppose that prior to trial, but after Zed made the statement, Defendant fired Zed. Is Zed’s statement still admissible?

Yes, still admissible. As long as Zed was employed at the time he made the statement. Not hearsay!

7. Same facts. On cross-examination of Plaintiff, Defendant wishes to ask whether Zed also told Plaintiff that Plaintiff was trying to carry too much produce and should have been watching where he was going. Plaintiff objects on hearsay grounds. How should the court rule?

D is offering a statement of its own employee against P. No good.

To prove a party admission: need statement by a party offered against that party!

If the full sentence the employee said was,“I’m sorry I didn’t clean up, but you were carrying too much stuff to see it.”

*106 Completeness Doctrine = cts tend to apply the completeness doctrine more broadly.

*611(a) – ct shall exercise reasonable control. Broad delegation of powers to the judge! If the P is taking something out of context

and the jury will be misled, ct has the discretion to admit the entire statement.

8. Negligence action by Plaintiff against Defendant, the owner of a business, after Plaintiff’s car and a delivery truck operated by one of Defendant’s employees collided in an intersection. Defendant denies the driver was negligent. To prove negligence, Plaintiff wishes to testify that just after the accident, the driver approached Plaintiff and said, “I didn’t notice that the light had changed. My company will pay your damages.” Defendant objects on hearsay grounds. How should the court rule?

“I didn’t notice the light had changed.” = Admissible. Truck driver talking about whether the light had changed.

“My company will pay your damages.” = NOT admissible. That is not a matter w/in the scope of his employment.

HYPO: P sued truck driver and truck company. Admissible against the truck driver – not admissible against the company!

*If the truck driver himself is a party (statement of truck driver is admissible against the truck driver. Not against company.

403 problem of limited admissibility. 105. Judge now has discretion to allow it to be admitted and then instruct the jury – only use

the statement against the truck driver, not the company. But may be very difficult for the jury to do! Balance.

9. Breach of contract action by Plaintiff, a movie studio, against Defendant, a famous actor, for reneging on a commitment to star in the studio’s musical version of Citizen Kane. Defendant claims he was unable to perform because he broke both of his legs in a snow sled accident two weeks prior to the date on which filming was to commence. To prove that Defendant was physically fit to meet his commitment, Plaintiff calls Witness, a reporter, to testify that shortly after the alleged skiing accident, Defendant’s publicist told her that Defendant was feeling fine and looked forward to his planned mountain climbing expedition scheduled for the following week. Defendant objects on hearsay grounds. How should the court rule?

Admissible. Publicist is authorized. C) Authorized admission.

EXEMPTIONS: CO-CONSPIRATOR STATEMENTS

• Statement by co-conspirator of a party during course and in furtherance of the conspiracy.

• Rationale: conspiracy is like a biz – when speak for each other usually speak carefully and accurately to benefit the biz. But the reality is – they are often likely to speak inaccurately if it will help them hide, every man for himself.

• Rationale: conspiracy is hard to prove. Requires inquiry into ppl’s minds who don’t wanna fess up and const right not to incriminate themselves. Tangible evidence is hard to find. Words of conspirators are often the best evidence of existence.

• Co-conspirator statement preliminary fact requirements 104(a): decided by the court bc will still be relevant.

o Must have been a CONSPIRACY

o Declarant must have been a MEMBER of the conspiracy

o Statement must have been made WHILE the conspiracy was IN EXISTENCE; and

o Statement made IN FURTHERANCE of the conspiracy.

• Ex) D charged w/ bank robbery & conspiracy to commit bank robbery. D says he was not involved. Prosecution called W, an alleged co-conspirator who plead guilty, to testify that a few days before the robbery, she tried to recruit Z into the plan, and told Z, “D is the best safe-cracker in the biz, we’ve got to get her for the job!”

• Still relevant even if W was no longer member of conspiracy, or W was not really trying to recruit Z, just boasting abt robbery.

• Prelim facts must be decided by the court – ct will have to make the same factual finding (existence of a conspiracy) the jury will be asked to make at the end of the case. To admit the evidence, ct need only determine more likely than not.

• Co-conspirator statements are admissible WHETHER OR NOT CONSPIRACY IS ACTUALLY CHARGED!

• Applies even if declarant is not a party. No requirement the declarant be produced at trial and cross-examined.

• Prosecution most always benefits from this rule!

• The co-conspirator’s statement is not enough alone to establish the preliminary facts to its admission. Usually not a problem.

Questions for Classroom Discussion [p. 195] – CO-CONSPIRATOR STATEMENTS

1. Prosecution of Defendant for murder and conspiracy to commit murder. Defendant denies any involvement. To prove Defendant supplied the poison used to kill the victim, the prosecution calls Witness, a bartender, to testify that a few months before the killing took place, Defendant and Zed were sitting at the bar and that Zed said to Defendant, “If you can get the anthrax, I’ll take care of the delivery.” Defendant objects on hearsay grounds. How should the court rule?

Must prove the 4 preliminary facts. Contents of the statement is not alone sufficient. If this was the first event that started the

criminal conspiracy – problem. Until D has said or done something to indicate a conspiracy, no conspiracy. Need a conspiracy.

CA 1223(b): maybe admissible before the conspiracy gets going. More language to work w/.

2. Same facts. Assume all the physical evidence suggests that the crime was committed by a single individual, and the only evidence of the involvement of more than one person was Zed’s statement to Defendant. Is the statement admissible under the co-conspirator rule?

NO. Need other evidence to prove the existence of a conspiracy.

3. Same facts. Assume Defendant is only charged with murder, not conspiracy to commit murder. How would this affect the admissibility of Zed’s statement?

Doesn’t affect admissibility. Don’t have to be charged w/ conspiracy.

4. Same basic facts. Assume, however, that instead of calling Witness (the bartender) to testify, the prosecution calls Witness’s spouse. If permitted, the spouse will state that Witness told her that he heard Zed say to Defendant, “If you can get the anthrax, I’ll take care of the delivery.” Defendant objects on hearsay grounds. How should the court rule?

NOT admissible. Bartender is not a member of the conspiracy. Bartender made the statement about Zed’s statement.

5. Same case. Assume that after the killing, the police captured Zed and Defendant together, and that on the way to the police station, Zed said to Defendant, “We should have picked something less detectable in the body.” If a police offer overheard the statement, may the prosecution call her to testify about it?

NOT ADMISSIBLE. The alleged conspiracy is over. Not in furtherance!

Questions for Classroom Discussion

Casebook page 195

1. Action for breach of contract brought in federal court. Plaintiff offers the out of court statement of defendant “I breached the contract.” Defendant objects on the ground of hearsay. Should the court admit the evidence on the ground it is not hearsay or on the ground it is hearsay but within an exception to the hearsay rule? If the evidence is offered in a California superior court, is the answer different?

FR: A party admission is not hearsay.

CA: 1220 party admission is an exception. Still hearsay, but admissible in CA.

3. Same case. After defendant’s statement is admitted, defendant offers evidence that, immediately after defendant said, “I breached the contract,” he added, “but not before plaintiff refused to perform as promised.” Is the rest of defendant’s statement admissible under the Federal Rules over a hearsay objection? If the evidence is offered in a California superior court, is the answer different?

Issue: this is an ORAL statement.

FR 106 Completeness Doctrine, under 611(a), most courts will let it in.

CA Completeness Doctrine applies to all statements: written, recorded, and oral. Clearly admissible in CA.

3. Prosecution for bank robbery and conspiracy. The prosecution offers into evidence the out-of-court statement of one of the alleged members of the gang made to another member of the gang while planning the robbery, “You don’t need to worry about the cops. Joe [defendant’s name] is our getaway driver and he is the best in the business.” Defendant objects on the ground of hearsay. The prosecution argues that the statement is an admission of a co-conspirator. For purposes of admitting this evidence under the Federal Rules, what is the prosecution’s burden of proof for showing the existence of a conspiracy? May the court consider the statement itself in determining whether a conspiracy existed for purposes of deciding whether the statement is a co-conspirator admission? What are the answers to these questions under the CEC?

FR: 104(a) question: preponderance of the evidence. May consider the statement itself, but it is not enough on its own.

CA 1223: Must prove the preliminary facts under sufficient to sustain a finding (like 104(b) fact). Easier to admit here! Need

admissible evidence to prove the preliminary facts. So harder in another way!

4. Negligence action for personal injuries arising out of a collision with Truck Co.’s delivery truck. Plaintiff testifies truck crashed through her bedroom window and driver said, “I fell asleep while driving.” Hearsay under the Federal Rules? Hearsay under California law? What result in California if the driver acted properly, the accident was caused by faulty brakes, and driver’s out of court statement was, “The company mechanic sometimes forgets to check the brakes.”?

FR: NOT HEARSAY. Truck driver = employee and w/in scope of employment. Truck driver is talking about driving.

Track the tort doctrine of respondeat superior. If the declarant’s actions are the basis for holding the boss liable under tort law, then we will treat the speaker’s words as the admission of D. Here, the truck driver’s negligence, makes boss liable under RS.

CA = Hearsay, but admissible under party admission exception under 1224.

*BUT if driver acted properly, it was the brakes fault, the driver’s statement, “company mechanic forgets to check the brakes” is INADMISSIBLE in CA! The driver has not been negligent. But under FR, this is still admissible!

2nd statement: admissible under FR, but NOT admissible under CA!

EXEMPTIONS: PRIOR STATEMENTS OF WITNESSES

FR 801(d)(1): A statement is NOT hearsay if: prior statement by witness.

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

a) inconsistent w/ the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial/hearing/other proceeding/deposition, or

b) consistent w/ the declarant’s testimony and is offered to rebut an express/implied charge against the declarant of recent fabrication or improper influence/motive, or

c) ID of a person made after perceiving the person.

Prior Inconsistent Statement Intro:

HYPO: W said “the blue car ran the red light” right after accident. At trial, says “green car ran the red light.”

To prove substance (D wants to use W’s prior statement to show the blue car ran the red light.”)

• Clearly inconsistent. But the facts do not show W made the prior statement under oath. Most prior statements are informal.

• In order for the prior inconsistent statement to be admissible substantively (to prove truth of the matter asserted), must have been made by a witness in a formal proceeding = trial, deposition, grand jury proceeding.

To impeach witness (D wants to use W’s prior statement to impeach her credibility)

• Enough to know the witness has spoken inconsistently. That fact alone is enough to impeach bc unclear of the facts.

• The truth of the statement doesn’t matter. Just the fact that she is inconsistent. Not hearsay to impeach.

• When a prior inconsistent statement is offered to impeach, 801(d)(1)(a) doesn’t apply.

Prior Consistent Statement Intro:

HYPO: W said “the green car ran the red light” right after the accident. At trial, says same thing.

• Law treats them as always being offered substantively. 801(d)(1)(a) requirements must be met.

• Tome v. US – statement must have been made before the alleged fabrication or improper influence/motive arose.

• Prior consistent statements do not have to be under oath to be admissible.

• For ex) D learns before trial that P offered W a bribe to testify in P’s favor.

• P may offer evidence that W made the statement, as long as it was made before the alleged bribe was offered.

Statements of Prior Identification:

• Declarant must testify at the trial at which the prior ID is offered into evidence.

• Rule does not require the witness testify about the ID. Only that the witness testify at the trial.

• Another person, cop, who observed the ID might be the witness who actually informs jury about the ID procedure.

• Usually sufficient if declarant takes the witness stand and willingly answers questions.

• Only ID of a SPECIFIC PERSON satisfies the rule. Descriptions of a person’s appearance (6ft, brown hair) is NOT enough here.

• Formal line-ups, show-ups (only the suspect is paraded before the witness), informal/unstaged ID’s (spot person in crowd not long after the crime occurred and point to cop or another person at the moment), look at a bunch of photographs ok.

• HYPO: D charged w/ bank robbery. Few days later, bank teller who was working at time of robbery, picked D out of a line-up at police station. At trial, teller testifies about the robbery, cannot remember who she ID’d at the line-up. Prosecution may call a cop who conducted the line-up to provide that info.

Questions for Classroom Discussion [p. 203] – Statements of Prior ID

1. Prosecution of Defendant for robbery of a convenience store. Two days after the robbery, the police arranged a formal line-up, and Witness, the clerk who was on duty when the robbery occurred, identified Defendant as the perpetrator. At trial, after presenting evidence about the line-up procedure, the prosecutor asks Witness who she identified. Defendant objects on hearsay grounds. How should the court rule?

NOT hearsay. Speaker is an in-court witness, being cross-examined about her prior ID.

2. Prosecution of Defendant for murder. Witness observed the killing, described the perpetrator to the police, and picked Defendant out of a line-up the next day. Witness died before trial. Does Witness’s statement qualify as a statement of prior identification?

NO – this is HEARSAY.

3. Same case. Suppose Witness did not die before trial, and appears as a prosecution witness. On direct examination, Witness only testifies about the facts of the killing itself; the prosecutor does not ask her about the line-up. The prosecutor calls Officer, the police officer who arranged the line-up, to testify about the line-up and about Witness’s identification of Defendant. Defendant objects on hearsay grounds. How should the court rule?

NOT hearsay. Witness need only be “subject to cross-examination.”

4. Same case. Assume the court overrules Defendant’s hearsay objection. Defendant now objects to Officer’s testimony on the ground Officer lacks personal knowledge of the perpetrator because she was not present when the killing took place. How should the court rule?

PK objection overruled. Officer has PK: she heard witness point and say, “that is the guy.”

5. Same case. Suppose that instead of arranging a line-up, the police showed Witness 20 photographs of persons with characteristics matching Witness’s description of the perpetrator. Does this procedure satisfy the prior identification rule?

Yes. Showing photos is ok – does not have to be a formal line-up.

6. Same case. Suppose that instead of identifying Defendant in a line-up or photo array, Witness was at the police station giving a statement when she noticed Defendant being interrogated, and told the police officer that Defendant was the one who committed the crime. Does this statement qualify as a statement of prior identification?

NOT hearsay. This is an ID as long as she perceived it afterwards.

7. Negligence action. Plaintiff claims Defendant ran a red light and struck Plaintiff as she crossed the street. Defendant claims she was in another state when the accident occurred. To prove Defendant was the one who struck Plaintiff, Plaintiff calls Witness to testify that she saw the accident, and described the driver to the police shortly afterward. (Defendant fits the description.) Defendant makes a hearsay objection to Witness’s testimony concerning the description she gave to the police. How should the court rule?

HEARSAY. Witness described the driver to the police. He never ID’d a specific person.

Question for Classroom Discussion

Casebook page 203

Murder prosecution. Prosecution calls Witness, who testifies that he was present at the scene of the crime and that defendant was the perpetrator. The defense does not cross-examine. Prosecution then calls Police Officer who testifies that, over a year after the killing, defendant was apprehended and placed in a police lineup during which Witness pointed at defendant and said, “That’s your man!” Defendant objects on the ground of hearsay. What result under the Federal Rules? The C.E.C?

FR: A year later – still admissible.

CEC 1238: A whole year might be too long to be admissible hearsay. Passage of time might be important – needs to be fresh.

§ 1238. PRIOR IDENTIFICATION

Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:

(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;

(b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and

(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.

EXCEPTIONS TO THE HEARSAY RULE: FORM AND STRUCTURE

• Exceptions are divided into 2 groups.

• 804 = apply only if declarant is UNAVAILABLE.

• 803 & 807 = apply whether witness is available or unavailable.

• FR 807: hearsay that does not satisfy the req’s of any specific exception might nevertheless be admitted if it meets certain criteria regarding reliability and need.

EXCEPTION: AVAILABILITY OF DECLARANT IMMATERIAL

FR 803(1)&(2): Not excluded by the hearsay rule, even tho the declarant is available as a witness:

1. Present Sense Impression – statement describing/explaining an event/condition made while the declarant was perceiving the event/condition or immediately thereafter.

2. Excited Utterance – statement relating to a startling event/condition made while the declarant was under the stree of excitement caused by the event/condition.

*Some statements qualify as both. Ex) 2 bicyclists collide on bike path. Right before, one rider yells, “you’re veering into my path!”

EXCITED UTTERANCE 803(2) - EMOTION

• Assumption: statements made while under the stress of nervous excitement caused by a shocking experience are likely to be sincere bc the person’s reflective faculties don’t have an opportunity to work. Difficult for a person to lie.

• And statements are thought to be accurate. Theory is that an exciting event elevates a person’s senses – clear perceptions.

• Human mind most likely does not work the way the cts assumed it does. Modern research says they are false!

Prerequisites:

1) Startling event/condition

2) Statement must related to that event/condition; and

3) Declarant must have been under the stress of excitement caused by the event/condition when made statement.

• Existence of the preliminary facts must be determined by the court under 104(a) bc statement will still be relevant.

• 104(a) bc if a bystander says right after an accident, “that car just ran through the light” = relevant even if not startling.

• No precise limit to amt of time that may pass. Few seconds, minutes, maybe even hours.

• Rule = if sufficient time has passed to give a person time to reflect on the event, statement will not qualify.

• For ex) if statement was a response to a question – there was probably a reflection – and will not qualify.

PRESENT SENSE IMPRESSION (803(1)) - TIMING

• As long as there has been not time for reflection, comments about an event/condition will be reliable.

• Houston Oxygen: right after P’s car passed another car 4mi from the scene of the future accident, passenger in the other car said, “the people in P’s car must be drunk, if they keep going that fast they’ll crash!” Statement admissible.

Prerequisites:

1) Event/condition

2) Statement must describe that event/condition; and

3) Declarant must have made the statement while perceiving the event condition, or immediately thereafter.

• Even if witness says it to herself – can still qualify. Phone convo can qualify too.

• Ex) child’s statement, “looks like I tracked mud on the carpet, whatever.” Not an excited utterance, but is a p.s. impression.

• These statements are more time restricted than excited utterance statements. Must be made VERY QUICKLY.

• If declarant had an opportunity to reflect on the events about which she has spoken – statement is not admissible.

Questions for Classroom Discussion [p. 210] – Time Sensitive Statements

1. Prosecution of Defendant for murder. To prove that the killing took place outside a bank at 1:00 P.M., the prosecution calls Witness who testifies that she was in front of the bank at 1:00 P.M. that day when she heard Bystander, scream, “Did you hear that gunshot?” Defendant makes a hearsay objection to Witness’s testimony concerning Bystander’s statement. How should the court rule?

Present sense impression may apply. Excited utterance definitely applies.

2. Same case. Suppose Witness will testify that Bystander did not scream, “Did you hear that gunshot?” until Witness noticed Bystander looking frantically around her and asked Bystander what happened. Defendant objects on hearsay grounds. How should the court rule?

Answer here is not as clear as #1.

Excited utterance - when there is a question posed: the speaker must think and deliberate before responding.

Maybe too much time has passed. As time passes, usually people calm down.

3. Same case and same circumstances as described in Question 2. Suppose that after listening to the proposed testimony of Witness and the arguments presented by counsel for both sides, the court is in equipoise as to whether Bystander’s utterance was a spontaneous reaction to the event or a deliberative reaction to Witness’s question. (“Equipoise” means evenly balanced; here, that means the court is not persuaded either way.) How should the court rule on Defendant’s objection?

If the court is equipoise – then it does NOT meet the 104(a) preponderance of the evidence standard.

4. Prosecution of Defendant for assault and battery on Victim, his spouse. The incident occurred on a busy street corner when Defendant allegedly pushed Victim to the ground. A police officer arrived at the scene about five minutes after the incident. The prosecution wishes to have the officer testify that when she approached Victim, Victim was sitting on the sidewalk sobbing, and that when Victim saw the officer, Victim immediately said, through her sobs, “My husband hit me!” Defendant lodges a hearsay objection to the testimony about Victim’s statement. The prosecution argues that the evidence is relevant and admissible as an excited utterance. How should the court rule?

YES Excited Utterance: Emotion. She is clearly very upset – she is sobbing. Timing is not key – the fact that she is still emotional is.

5. Same facts as in Question 4. Assume the prosecution argues that Victim’s utterance is also admissible as a present sense impression. How should the court rule?

NO Present Sense: Timing. 5 minutes have passed. Typically, 5 minutes is WAY TOO LONG.

6. Prosecution of Defendant for the attempted murder of Victim, her boyfriend. Defendant denies being the person who pushed Victim off a cliff. Victim did not die, but was knocked out by the fall and remained comatose for several weeks before waking up in the hospital. The prosecution calls Witness, a nurse, to testify that as Victim was emerging from his coma, he opened his eyes and screamed, “You did it, Defendant!” Defendant objects on hearsay grounds. The prosecution responds that the statement is admissible as an excited utterance. How should the court rule?

Admissible as an Excited Utterance: EMOTION. Here, he screamed and exclamation point. Coma okay.

7. Prosecution of Defendant for the murder of Victim. Defendant claims he was in another town on the day of the murder. The prosecution calls Witness to testify that he was talking to Victim on the telephone on the day of the murder when Victim said, “Defendant just walked into the room. It looks like he wants to show me his new chainsaw. I will call you right back.” He never did. Defendant objects on hearsay grounds. How should the court rule?

Admissible as a Present Sense Impression: he is describing the facts as they are happening.

How do we prove that it was simultaneous – look at the statement itself – he is speaking in present tense. 104(a) fact.

Nothing in the facts suggests that the speaker is excited. No excited utterance.

8. Prosecution of Defendant vehicular manslaughter. The driver ran down the victim in a crosswalk and fled. The car left a tire track clearly showing the tread pattern. Police took a photo of this track, and also took a photo of the tread pattern of the tires on Defendant’s car. At trial, the prosecution calls a police officer, who testifies that he showed the two photos to a police tire track expert, and that the expert looked at them and said, “The tread patterns match.” Defendant raises a hearsay objection to the testimony concerning the expert’s statement. How should the court rule?

EXPERT WITNESS on the stand at trial is giving an opinion. This is more than just a description. The police track expert is analyzing

the photos, crunching a bunch of information in his brain. Not a present sense impression. Too deliberate.

9. Negligence action arising from a bicycle collision. Plaintiff alleges that the cyclists had been heading in opposite directions when Defendant suddenly veered into Plaintiff’s path, causing the collision. To prove Defendant veered into Plaintiff’s path, Plaintiff calls Witness to testify that two or three seconds before the bikes collided, she heard Plaintiff yell, “You’re in my path!” Defendant makes a hearsay objection. Plaintiff responds that her statement is admissible as both an excited utterance and a present sense impression. How should the court rule?

Excited utterance? Yes, startling event which is excitement inducing. Emotional: yell and exclamation point.

Present sense impression? Yes. Simultaneously describing what is happening.

Questions for Classroom Discussion

Casebook page 211

1. [The following is similar to question 7 from page 211 of the casebook.] Prosecution of Defendant for the murder of Victim. Defendant claims he was in another town on the day of the murder. The prosecution calls Witness to testify that he was talking to Victim on the telephone on the day of the murder when Victim said, “Defendant just walked into the room. It looks like he wants to show me his new chainsaw. I am smiling and waving at him. I will call you right back.” He never did. Defendant objects on hearsay grounds. How should the court rule under the Federal Rules? The CEC?

FR: Present sense impression – describing events as they are happening.

(Not excited utterance bc victim is not excited, doesn’t know he’s about to be killed.)

CA 1241: Contemporaneous statement: offered by the prosecution to explain conduct of declarant? NO.

The prosecution wants to show that D was in the room holding a chainsaw. Doesn’t work under CA law.

HYPO: If D says he acted in self-defense: victim attacked me. The victim’s statement, “I am smiling and waving at him” could explain the conduct of the declarant. Acting friendly, not in a violent manner. That part of the statement is admissible because it relates to the conduct of the victim. The rest of the statement is not.

§ 1241. CONTEMPORANEOUS STATEMENT

EVIDENCE OF A STATEMENT IS NOT MADE INADMISSIBLE BY THE HEARSAY RULE IF THE STATEMENT:

(A) IS OFFERED TO EXPLAIN, QUALIFY, OR MAKE UNDERSTANDABLE CONDUCT OF THE DECLARANT; AND

(B) WAS MADE WHILE THE DECLARANT WAS ENGAGED IN SUCH CONDUCT.

2. Same case. The prosecution offers into evidence the sound recording of a telephone call the victim made to 911 in which she stated, in a calm voice, “My former husband kicked me in the head a few minutes ago.” When the police arrived shortly thereafter, they discovered the victim unconscious. She subsequently died of a brain hemorrhage. Defendant objects on hearsay grounds. How should the court rule under the Federal Rules? The CEC?

Not excited utterance. No exclamation point, said in a calm voice.

Not present sense impression. A few minutes ago is too long!

Won’t get in under CA 1241 bc CA’s rule is even narrow than the FR’s!

*BUT, there is CA 1370: OJ Exception: seems to meet all the requirements below.

§ 1370. THREAT OF INFLICTION OF INJURY:

(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all are met:

(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.

(2) The declarant is unavailable as a witness pursuant to Section 240.

(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.

(4) The statement was made under circumstances that would indicate its trustworthiness.

(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official. 911 calls fit!

EXCEPTION: STATEMENTS CONCERNING STATE OF MIND & PHYSICAL CONDITION

803(3): Then existing mental, emotional, or physical condition.

A statement of the declarant’s then existing state of mind/emotion/sensation/physical condition (intent/plan/motive/design/mental felling/pain/bodilyhealth), but not including a statement of memory/belief to prove the fact remembered or believed unless it relates to the execution/revocation, ID, or terms of declarant’s will.

• “I believe I am Elvis.” Offering it to prove her internal state of mind. If in a proceeding to commit her to a looney bin, this evidence is admissible! If she believes she is Elvis, she is crazy!

803(4): Statements for purposes of medical diagnosis or treatment.

Statements made for purposes of medical diagnosis/treatment and describing medical history, or past/present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis/treatment.

• Rationale: we figure when ppl are trying to get a medical diagnosis – going to try and be accurate.

• A person’s utterances concerning his physical condition or med history are often the best available evidence of those facts.

• Diagnosis: A patient’s statement to a doctor from whom she had no intention of seeking treatment = admissible.

• Problem: Ppl who bring PI case often consult doctors to help a lawyer assess damages - patient might want to exaggerate.

• So there might be a lack of reliability of statements made for purpose of diagnosis.

• Statement can be made to medical professionals AND even lay people nearby.

o Admissible: Skateboarder falls, says to witness, “Please get me help. I can’t feel my legs.”

• Statement can concern someone other than the declarant’s medical condition.

o Admissible: Mom bring son to the doctor and says, “my son has been running a high fever all day.”

• Statement must be reasonably pertinent to med diagnosis/treatment: description of events.

o Injured person tells ER doctor, “I was riding my bike when the car hit me.” Probably admissible.

o If doctor would consider it significant that the patient was riding a bike at the time, or that he was hit by a car, the exception would cover that detail as well as the specific descriptions of injuries.

o Here, might help doctor decide what tests to perform or the likelihood of internal injuries.

• Exception applies only to statements obtaining a medical diagnosis – not statements giving one like, “You have cancer.”

State of Mind Exception 803(3):

• Here, statements directly assert the declarant’s state of mind – must be classified as hearsay – but may be admissible.

• HYPO: P sues D over ring. P says D stole it. D admits to having the ring, but says P gave it to him as a gift. To prove P did not give the ring voluntarily to D, P calls W to testify that a few days before the transfer, P said, “D is the kind of person who steal milk from a starving baby.” Inference: P did not like D. Conclusion: D didn’t give the ring as a gift. Statement is relevant. Not hearsay bc it is not offered to prove the truth of the matter asserted. Admissible non-hearsay.

• If instead, P said to W, “I don’t like D one bit.” Inference and what statement asserts are the same thing. Hearsay.

• But statements that directly assert the declarant’s state of mind are hearsay but fit w/in the exception in 803(3).

• Statement must be of the declarant’s then-existing state of mind. “I’m thinking about driving to NY tomorrow” ok.

• Backward-looking statements are not admissible: “Yesterday, I was depressed.”

• Rule does not allow statements concerning a fact remembered/believed if offered to prove the fact remembered/believed.

• Ex) “I think Dr. Shepard poisoned me.” Hearsay if offered to prove what she thought. Admissible if offered to prove she had such a state of mind. But the hearsay would not be admissible if offered to further prove the fact remembered/believed – that Dr. Shepard had poisoned her.

• Rationale: when a person is speaking only about what is happening internally, reasonable the person is getting it right.

• Whereas, we often misperceive events that occur in the outside world. Sometimes ppl make statement about external events using language of internal state of mind. “I remembered Dr. Shepard poisoned me” or “I believe Dr. Shepard poisoned me.”

• BUT the mere fact that the statement makes reference to an internal state of mind does not make the statement any more reliable. If using the statement to prove the external event remembered/believed, he could be misperceiving it.

• State of mind exception applies to statements of emotion, pain, hunger, thirst, plans, desires, needs.

• There may be some OVERLAP w/ excited utterance and present sense impression: “Oh! That cramp really hurts!” all 3.

• Cts tend to ADMIT FORWARD-LOOKING statements. (Mutual.)

Mutual Life Insurance v. Hillmon (1892)

• Wife sued Mutual for her husband’s life insurance policy.

• Mutual alleged that Hillmon and Brown conspired to defraud Mutual, falsely pretended and lied that Hilmmon was dead.

• Whether the body found at crooked creek on the night of March 18, 1979 was Hillmon’s body or Walter’s body.

• Issue: Admissibility of letters written by Walters in March 1879.

• P introduced evidence that Hillmon and Brown left Wichita, Kansas around March 5 to search for site for cattle ranch, on night of March 18, while they were in camp at crooked creek, Hillmon was accidentally killed there.

• D introduced evidence that Walters left his wife and home in March 1878, went to Kansas until March 1879 and regularly wrote his wife and family. Last letters received were dated around March 5 at Wichita. Not heard from since.

o Letters said: “I expect to leave Wichita around March 5 w/ Mr. Hillmon…”

• The letters tended to show that he went from Wichita to Crooked creek w/ Hillmon.

• The trial court excluded the letters.

• Letters showed intention of going with Hillmon, which made it more probable that he did go and that he went w/ Hillmon.

• Held: LETTERS ADMISSIBLE! The two letters were competent evidence of the intention of Walters at the time of writing them, which was a material fact bearing upon the q in controversy.

HILLMON RULE = a person’s statement of her INTENTION to do something in the future is ADMISSIBLE both to prove the speaker HAD SUCH AN INTENTION and that the person ACTED upon that intention.

HYPO: Prosecution of D for murder of Victim. D denies involvement. Prosecution wants to bring in evidence that several hours before she was killed, Victim told a friend, “I am going to a movie tonight w/ D.”

• If Victim said, “I am going to a movie tonight.” – Admissible to prove both that she intended to go and did go to the movies.

• But, prosecution wants to offer bc it is putting Victim together w/ D on the night in question.

• Q: is Victim’s statement admissible to show Victim intended go to a movie with D and that D went to the movies?

• Some cts would hold the evidence admissible to show both V and D’s conduct. Others say no.

Questions for Classroom Discussion [p. 223]

1. Why is it important to admit statements of a person’s state of mind, or statements that stand as circumstantial evidence of one’s state of mind? When a person is thinking only about what is happening internally to his own person, it is reasonable to think that the person is not misperceiving that internal reality. We know how we feel. But, we often misperceive events in the outside world. We cannot read a person’s mind – so we have to look to a person’s outward manifestations, and the best of these is what the person says about the matter.

2. Personal injury action by Plaintiff against Defendant following an auto collision. To prove Plaintiff suffered injuries in the collision, Plaintiff calls Witness to testify that at the scene, when Witness asked Plaintiff if she was hurt, Plaintiff said, “My leg is killing me.” Is the statement admissible under either Rule 803(3) or 803(4)?

803(3) applies. Admissible.

803(4)? Need more facts to prove it was made for the purpose of medical diagnosis. Maybe if the witness was a doctor.

3. Same case. Suppose that in response to Witness’s question, Plaintiff added, “I was feeling fine just before the accident.” Is the statement admissible under either Rule 803(3) or 803(4)?

He is speaking about the past = “was” = NOT ‘THEN-EXISTING’ state of mind. NOT admissible.

4. Same case. To prove that Plaintiff was not injured, Defendant wishes to offer evidence that a paramedic who appeared in response to the accident told Plaintiff at the scene, “luckily, your leg is not broken.” Is the statement admissible under either Rule 803(3) or 803(4)?

NO.

803(3) = Someone else is telling him. Paramedic is talking about P’s physical condition – not his own physical condition.

803(4) = The paramedic is giving the diagnosis, rather making the statement for purposes of obtaining a diagnosis.

803(1) = Present sense impression? No – giving a medical diagnosis means you need to take a moment and assess the situation. Present sense impression statements are aimed at reflexive statements – not deliberate assessments.

5. Negligence action by Plaintiff, a young child, against Defendant, the driver of a car who allegedly ran into the child on the street in front of Plaintiff’s school. Defendant claims her car did not strike Plaintiff and that Plaintiff did not suffer any injury. To prove that the car struck Plaintiff, causing a hip injury, Plaintiff calls the emergency room doctor who treated her to testify that when the paramedic brought Plaintiff into the emergency room, the paramedic said, “Plaintiff says her hip hurts.” Is the statement admissible under either Rule 803(3) or 803(4)?

Multiple layers of hearsay.

1. P’s statement to Paramedic, “My hip hurts.” = Yes 803(4) statement made for medical treatment/diagnosis. 803(3) also applies.

2. Paramedics statement to Dr, “P says her hip hurts.” Yes 803(4) exception. Statement need not come from P. NO 803(3) here!

6. Same case. Suppose that after saying, “my hip hurts,” Plaintiff added, “I fell hard after that car hit me.” Is the statement admissible under either Rule 803(3) or 803(4)?

NOT 803(3) – PAST TENSE – not “then-existing” state of mind – must describe an internal fact, not external fact.

YES 804(4) – this information bout the cause is important for the doctor to know in order to diagnose him. Admissible.

7. Personal injury action by Plaintiff against Defendant. To prove that she was injured in the accident, Plaintiff calls Dr. Witness to testify that she examined Plaintiff at the request of Plaintiff’s attorney, and that Plaintiff said, “My head has been hurting ever since the accident.” Is the statement admissible under either Rule 803(3) or 803(4)?

NOT admissible under 803(3) – PASTE TENSE.

ADMISSIBLE under 803(4). Even an expert witness who is hired to give a diagnosis – still admissible under 803(4).

8. Prosecution of Defendant for assault and battery on Victim. Defendant claims he had nothing to do with the crime. To prove Defendant was the perpetrator, the prosecution calls Officer, a police officer, to testify that the day after the crime, she interviewed Victim while Victim was recovering in the hospital, and that Victim said, “I distinctly remember that the guy had long, straight hair and was well over six feet tall.” Is the statement admissible under either Rule 803(3) or 803(4)?

Not under 803(3) – Victim is not talking about an internal fact.

Not under 803(4) – Victim is talking to a cop giving a description of the defendant – not for medical diagnosis.

Not under 801(d)(1)(c) – Not an ID, just giving a description.

9. Action for involuntary commitment of a law professor to a mental institution. To prove that the professor is in serious need of in-patient psychiatric treatment, a psychiatrist testifies that the professor, a man, said, “I am Queen Caroline, and I hereby invoke the rule in my case.” Is the statement admissible under either Rule 803(3) or 803(4)? Is the statement hearsay?

This is NOT HEARSAY. Professor is asserting the fact that he is Queen Caroline. Not being offered for the truth.

10. Same case. Suppose the professor’s statement was, “I believe I am Queen Caroline.” Is the statement admissible under either Rule 803(3) or 803(4)?

This IS HEARSAY, but ADMISSIBLE under 803(3): then-existing state of mind. Trying to prove he believes he is the queen and is nuts.

11. Prosecution of Defendant for the murder of Victim. To prove Defendant was the killer, the prosecution wishes to offer evidence that a few days before he was killed, Victim said, “I am afraid of Defendant.” Is the statement admissible under either Rule 803(3) or 803(4)?

Admissible under 803(3): then-existing state of mind. Statement about an internal event.

12. Same case. Suppose Victim’s statement had been, “I’m scared because Defendant threatened to hurt me.” Is the statement admissible under either Rule 803(3) or 803(4)?

“I’m scared of D.” – Admissible.?

“D threatened to hurt me” – NOT statement about some internal event, this is about an external event.

13. In Hillmon, who was the declarant, what was the statement, and why did the Supreme Court classify it as non-hearsay.

Walters was the declarant. It was not hearsay because bc it was being offered as circumstantial evidence of the speakers state of

mind. Plans/intentions = states of mind. *Problem: this looks like a direct statement of state of mind. Typically, “I am

planning/intending to do something” = state of mind. Not hearsay?

14. Why was Walters’ statement in Hillmon relevant?

RELEVANT to show he PLANNED/INTENDED to go which makes it more likely that he ACTUALLY WENT.

ADMISSIBLE UNDER 803(3) – intentions/plans are admissible to prove that state of mind and the subsequent conduct in conformity

w/ that state of mind. ADMISSIBLE to prove they subsequently followed up and ACTED IN CONFORMITY W/ THEIR INTENTION.

15. What if Walters had written, “A certain Mr. Hillmon plans to leave Wichita….” Would the statement be relevant? Would it be hearsay? If it is hearsay, would it be admissible under the state of mind exception?

RELEVANT to show Mr. Hillmon might have been there.

HEARSAY and NOT ADMISSIBLE under 803(3).

Mr. Walter’s is the declarant and talking about the state of mind/intention of ANOTHER PERSON. 803(3) does NOT permit that!

16. Was Walters’ statement strictly about his own intentions? If not, why didn’t Hillmon’s representatives object to the statement, insofar as it mentioned Hillmon as well as Walters?

No, they were also about Mr. Hillmon’s. “I expect to leave Wichita around March 5 WITH MR. HILLMON and WE are going to…”

Walters is talking about their JOINT intention to go somewhere.

There are cases to the contrary: CA SC U.S. v. Pheaster: declarant told friends he was going to meet Angelo in the parking lot of a

certain restaurant; the court held the statement admissible to prove declarant and Angelo were together on the night in

question. If they have a joint intention = intention to do something together – might be admissible.

17. Prosecution of Zed and Abel for the kidnapping and murder of Victim. In the guilt phase of the trial, both Zed and Abel were found guilty of participating in the crime. During the sentencing phase, to achieve a harsher sentence for Zed, the prosecution wishes to show that Zed was the one who killed Victim. To prove this, the prosecution wishes to offer evidence that the day before the crime took place, Abel wrote a letter to her husband in which she said, “Tomorrow, Zed and I are going ahead with a risky plan. All I can say is that I will stand guard, but I don’t want to have anything to do with any violence.” Is the statement admissible under either Rule 803(3) or 803(4)?

Mixed statements to prove not only what the speaker’s subsequent conduct was, but somebody else’s may be admissible.

18. Prosecution of Defendant for the murder of Victim. To prove Defendant committed the crime, the prosecution offers evidence that earlier in the day she was killed, Victim told a friend, “Defendant is planning to come over for dinner tonight.” Is the statement admissible under Rule 803(3)? Is it admissible under Rule 803(4)?

NO – this is not a mixed statement of declarant’s intentions w/ somebody else. Declarant is only talking about D’s intentions and

803(3) does NOT go that far.

*RULE = statement of plan/intention admissible under 803(3) to prove state of mind and to prove the speaker’s subsequent conduct

was in conformity and MAYBE, depending on the jdx, the speaker’s plan to do something with someone else admissible to prove

what the other person was going to do. Not a clear winner, but could win.

Questions for Classroom Discussion

Casebook page 223

1. [The following is based on question 2, page 223 of the casebook.] Personal injury action following an auto collision. To prove Plaintiff was injured in the collision, Plaintiff calls Witness to testify that at the scene, when Witness asked Plaintiff if she was hurt, Plaintiff said, “My leg is killing me.” Admissible under the F.R.E. or the C.E.C.?

803(3)’s analog = CEC 1250. SAME THING. Admissible in CA.

2. [The following is based on question 3, page 223 of the casebook.] Same case. At the scene, Plaintiff said, “I was feeling fine before the accident.” Plaintiff is unavailable to testify. Admissible under the F.R.E. or the C.E.C.?

NOT Admissible under 803(3) bc this is not a statement of a “then-existing” state of mind. This is in PAST TENSE.

NOT Admissible under 803(4) bc there is nothing indicating that his purpose is to obtain medical treatment/diagnosis.

BUT ADMISSIBLE UNDER CEC 1251! No analogue in the FR’s. Past tense is ok here.

Here PAST TENSE OK bc: a) Declarant is unavailable (in hospital); and b) Her physical condition is in issue in the case (PI).

§ 1251. Statement of declarant's previously existing mental or physical state

Subject to Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a

statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made

inadmissible by the hearsay rule if:

(a) The declarant is unavailable as a witness; and

(b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.

3. Same case. Plaintiff’s statement in the preceding question was given to a paramedic who, upon arriving at the accident scene, asked Plaintiff about his general medical condition prior to the accident. Assume that Plaintiff is available to testify. Is the statement admissible under the Federal Rules and the C.E.C.?

NOT admissible under 803(3) = past tense not ok.

CEC 1251 – must be unavailable. So no good.

ADMISSIBLE under 803(4) = pertinent to medical diagnosis/treatment.

NOT admissible under CEC 1252 – the analogue to 803(4)!

CA’s version of 803(4) is EXTREMELY NARROW.

CEC 1252 only applies to MINOR VICTIM’S describing CHILD ABUSE/NEGLECT.

§ 1253. Statements for purposes of med diagnosis/treatment; contents of statement; child abuse/neglect; age limitations

Subject to Section 1252, evidence of a statement is not made inadmissible by the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and describes medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect. “Child abuse” and “child neglect,” for purposes of this section, have the meanings provided in subdivision (c) of Section 1360. In addition, “child abuse” means any act proscribed by Chapter 5 (commencing with Section 281) of Title 9 of Part 1 of the Penal Code committed against a minor.

EXCEPTION: RECORDED RECOLLECTION

FR 803(5) – Not excluded by the hearsay rule, even tho the declarant is available as a witness…

• A memo/record concerning a matter about which a witness once had knowledge but not has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made/adopted by the witness when the matter was FRESH in the witness’ memory and to reflect hat knowledge correctly. If admitted, the memo/record may be read into evidence by may not itself be received as an exhibit unless offered by an adverse party.

If all conditions are met – the recording may be read to the jury:

1. Witness must once have had knowledge of about a matter;

2. Witness must now have insufficient memory;

3. Memo/record must have been made/adopted when the matter was fresh in witness’ head; and

4. Memo/record must reflect the witness’s prior knowledge accurately.

• Often years pass before you get to trial. Reliability of witness testimony is often doubtful.

• Sometimes we get lucky and person makes a written record of what they were thinking while still fresh in his mind.

• Adopted = she read it when the matter was fresh in her mind and concluded it was correct.

• Memo/record is merely a substitute for oral testimony.

• *The person whose prior knowledge is preserved in the memo must testify for this exception to apply. Person who made it.

• NOTE: This is NOT the same thing as a party’s right to refresh a witness’s recollection.

• Refreshing recollection is different = lawyer can try to help the witness remember facts – the law places no limits on the manner in which the witness’s recollection may be refreshed.

• If the witness still can’t remember, and the lawyer wishes to prove the forgotten fact, she must present admissible evidence. That is when recorded recollection exception kicks in.

FR 612: WRITING TO REFRESH MEMORY:

Except as otherwise provided in criminal proceedings by X, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

• When a party uses a writing in an effort to refresh a witness’s recollection.

• 612 allows the opponent to examine any writing used to refresh the recollection of a witness if the doc was used during her testimony and to examine if it was used to refresh her recollection before she testified if the ct in its discretion determines it is necessary in the interests of justice.

• Rule also allows adverse party to x-examine the witness concerning the writing, and introduce into evidence those parts of the writing that relate to the witness’s testimony.

• D counsel can do a voir dire, ask a series of q’s, most of them leading, seeking to establish that the witness does not actually remember that the TV was missing. Ex) object to the question on grounds of lack of PK.

• Purpose: gives the adverse party a chance to show that it is the writing, not the witness’s memory that is the true source of the testimony – if the judge agrees, she can strike the testimony as inadmissible hearsay.

Questions for Classroom Discussion [p. 231]

1. Prosecution of Defendant, a Caucasian man, for assault and battery on Victim following a barroom brawl. Defendant denies being involved. To prove that he was not involved, Defendant calls Witness, the bartender, and asks the bartender to describe the person who started the fight. Witness testifies that she cannot remember what the person looked like. Defendant then wishes to show Witness a copy of a note Witness wrote after the event, which contains a description of the attacker as an Asian male. The prosecution objects. Defendant responds that he is merely trying to refresh Witness’s recollection. How should the court rule?

Use of the note is acceptable - the lawyer may use anything he wants to refresh the witness’s recollection.

The lawyer is not offering the note into evidence, so no need to worry about objections to admissibility.

2. Same case. Assume that the court allows Defendant to show the note to Witness, but that after looking at it, Witness states that he still has no independent memory of the attacker’s appearance. Defendant then asks Witness if, shortly after the brawl, she wrote an account of the incident that included a description of the person who started the fight, whether the person’s appearance was fresh in her memory when she wrote the document, and whether the document contained an accurate description. After each question, Witness answers, “Yes.” Defendant then shows Witness the same document referred to in Question 1, and Witness identifies it as the account she wrote. Defendant asks Witness to read the part of the account that describes the person who started the fight. (The document states that the perpetrator was an “Asian male.”) The prosecution objects on hearsay grounds. How should the court rule?

Lawyer is not successful in refreshing the witness’s recollection.

Hearsay objection overruled – MET ALL 803(5) requirements. Witness is allowed to read the part that describes the person.

3. Same case. Assume that instead of objecting, the prosecutor makes a motion to interrupt the direct examination to conduct a “voir dire” of Witness concerning the document. Should the court grant that motion?

YES – 803(5) lays out a series of preliminary facts pertinent to admissibility.

The party offering the evidence, must show these preliminary facts by preponderance of the evidence.

Prosecutor may voir dire (mini cross exam where he asks a series of q’s – most of them leading q’s – seeking to establish that

one or more of the elements of the recorded recollection doctrine have not been established.)

During voir dire - Lawyer will try to poke holes in the foundational elements of this exception. That’s ok.

4. Same case. During the voir dire examination, Witness admits that she can’t remember exactly when she wrote the description, and that it might have been several weeks after the brawl took place. The prosecutor renews her objection. How should the court rule?

One element of 803(5) – must have been made while FRESH in her memory.

Several weeks may be too long.

5. Same case. Assume the court overrules the prosecutor’s objection and allows Witness to read into the record her description of the perpetrator. The prosecutor, having seen a copy of the document, knows that Witness had apparently written “white” before “male,” but had crossed it off and written the word “Asian.” The prosecutor moves for admission of the document into evidence as an exhibit. Defendant objects. How should the court rule?

Overruled. If there s something about the doc that the adverse party that is opposing admissibility wants the jury to see – it can

now get admitted into evidence as an exhibit – go into the jury room with the jury during deliberations. The fact that the

witness crossed out the race and changed it to Asian – suggests maybe he was uncertain about the attackers race.

6. Same case. Assume that Witness did not write the document. Instead, it was written by Officer, a police officer to whom Witness spoke shortly after the brawl. After Witness testifies that she no longer remembers what the perpetrator looked like, Defendant calls Officer, elicits testimony about the document, and asks Officer to read the description into the record. The prosecutor objects. How should the court rule?

Officer did not observe the events – does not have knowledge of the facts described. Objection sustained.

7. Same case. Suppose that instead of calling Officer, Defendant asks Witness whether she gave a description to Officer when the perpetrator’s appearance was fresh in her mind. Witness answers that she did. Defendant then asks whether her description was accurate. Witness says yes. Defendant then asks if she saw what Officer wrote down. Witness says yes. Defendant then asks whether Officer accurately wrote down what Witness told Officer. Again, Witness answers yes. Defendant asks Witness to read the description into the record. The prosecutor objects. How should the court rule?

Objection overruled. It is okay that the witness herself did not write the report.

Witness told Officer what happened and Officer wrote it down - was ADOPTED by the witness. Witness on stand.

The police report may be read to the jury as the recollection of the bartender, the witness to the crime.

Question for Classroom Discussion

Casebook page 231

Civil action for personal injuries. Plaintiff testifies that defendant sexually assaulted her. On cross-examination defendant reveals many inconsistencies between plaintiff’s testimony and the statement she gave to the police shortly after the alleged assault. Plaintiff also admits during cross-examination that she reviewed her daily diary prior to testifying to help refresh her recollection. Defendant asks to have the diary produced and plaintiff objects, asserting that the diary contains personal reflections and other matters that would be embarrassing to reveal to others, especially defendant. Must the court order plaintiff to produce the diary? If the court orders the diary produced and plaintiff still declines, must the court strike her testimony? Answer according to the Federal Rules and the C.E.C.

FR 612 & CEC 771 = use writing to refresh the memory of a witness either while witness was testifying or before testifying.

§ 771. Production of writing used to refresh memory

(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.

(b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.

(c) Production of the writing is excused, and the testimony of the witness shall not be stricken, if the writing:

(1) Is not in the possession or control of the witness or the party who produced his testimony concerning the matter; and

(2) Was not reasonably procurable by such party through the use of the court's process or other available means.

FR – the court has discretion to require that the writing be produced at the hearing. As justice requires. Except w/ crim

prosecution – the court shall order the striking of the testimony. Here, this is a civil case.

CA – the diary MUST be produced – not a matter of discretion. Unless the writing is so produced, the testimony of the witness

shall be stricken. If P refuses to produce her diary – her testimony is stricken from the records and jury instructed to ignore it.

BUSINESS & PUBLIC RECORDS

Hearsay Exceptions: DECLARANT CAN BE AVAILABLE

803(6) Records of Regularly Conducted Activity

803(7) Absence of entry in records kept in accordance w/ the provisions of paragraph (6).

803(8) Public records and reports

803(10) Absence of public record or entry

FR 803(6): Records of Regularly Conducted Activity “Biz Records Exception”

• Declarant can be available.

• Assumes records of regularly conducted activity are sufficiently reliable to admit, even if hearsay.

1. MEMO/REPORT/RECORD/DATA compilation, in any form: all modern forms of digital data collection & conventional.

2. Of ACTS/EVENTS/CONDITIONS/OPINIONS/DIAGNOSIS: notes of an attending doctor, employee performance eval, etc.

3. MADE AT/NEAR THE TIME: Mundane and complex details should be recorded quickly – cuz likely to forget.

4. By/from info transmitted by, a PERSON W/ KNOWLEDGE: the person who makes the biz record either has PK of the matters described in it or receives input form another person who has that knowledge. E

Ex) regional sales manager compiles sales data from employees in the field and produces report summarizing facts he has no personal knowledge about. Admissible under 803(6).

Ex) VP for sales receives reports from various regional sales managers and compiles the data into yet another doc summarizing sales nationally. Admissible under 803(6) bc each employee in the filed had PK of their own data, each regional sales manager had PK of what each employee in the field said, and VP had PK of what each rs manager said.

- Each person must be acting in the course of business.

5. If kept in the course of a REGULARLY CONDUCTED BIZ ACTIVITY: Ex) Company makes and sells widgets: doc’s concerning the sales of widgets to the firm’s customers. BUT if that firm rents its factory out to movie studio – the firm may not have internal policies to ensure that records concerning this rental transaction are accurate. So wouldn’t be admissible under 803(6).

6. Was the REGULAR PRACTICE OF THAT BIZ TO MAKE THE MEMO/REPORT, etc: That type of report. Ex) if sales manager had been keeping sales info in his head, the record in question would not be admissible.

7. All as shown by the testimony of the CUSTODIAN or other qualified witness, or by certification: ANYONE can give testimony as long as he is familiar w/ the biz, its mode of operation, and its record keeping practices.

• Sometimes it is unnecessary to call a witness to lay the foundation for the record.

• Rule 902 – proponent may present a DECLARATION of a qualified person certifying the record was made at/near time of the occurrence by person w/ knowledge of those matters, was kept in the course of the regularly conduct activity, and was made by the regularly conducted activity as a regular practice.

• Must give advance written notice of intention to introduce the record in this manner, make it available for inspection, and give opponent opportunity to challenge it.

• ALLOW DECLARATIONS INSTEAD OF LIVE WITNESSES!

8. Unless the source of info/method/circ’s of preparation indicate LACK OF TRUSTWORTHINESS – court still may refuse.

9. Term ‘biz’ includes biz/institution/association/profession/occupation/calling of every kind/even non-profits. BROAD.

Questions for Classroom Discussion [p. 238]

1. What parts of Saul Supervisor’s testimony established each foundational requirement of Rule 803(6)? Was the court correct in overruling defendant’s hearsay objection?

YES. Falls under BIZ RECORDS EXCEPTION.

1. RECORD? YES - Exhibit 1 = Delivery record signed by a delivery driver.

2. EVENT? YES – delivery.

3. NEAR TIME? YES – the driver fills out form at the time the delivery is made – completed before the end of the shift.

4. MADE BY PERSON W/ KNOWLEDGE? YES – driver fills out form everytime he makes a delivery.

5. REGULARLY CONDUCTED BIZ ACTIVITY? YES – making thousands of deliveries. Company manufactures and sells widgets.

6. REGULARLY MAKE THOSE REPORTS? YES – must fill out info on delivery form for delivieries over 10 widgets.

(*Does the company normally DO that activity? AND Does the company normally make REPORTS of that activity?)

7. CUSTODIAN? Every driver gives him their delivery records he makes sure they properly complete them. Kept in his office.

8. LACK OF TRUSTWORTHINESS? Unlikely.

9. BIZ? YES.

2. Civil action to recover for personal injuries suffered in an automobile accident. After the accident, Plaintiff was taken to the emergency room at General Hospital. To prove the extent of his injuries, Plaintiff offers into evidence a record of the emergency room, written by the attending physician, which states “Preliminary diagnosis: Permanent impairment of anterior keester.” Is this hearsay? If so, what must Plaintiff show to have the record admitted as a business record?

Yes, this is hearsay. But admissible under the biz record exception. Hospital record – ER record written by doctor. Meets all req’s.

2. P is offering this into evidence. Wants to show that it is true. Assuming it is hearsay – what do we have to show to get this admitted as a biz record. Hospital record. Non-profit hospital is a biz. ER record written by the physician. He meets all the requirements. This is definitely a biz record.

3. NO. Does it matter the record contains a diagnosis as opposed to an observation. That’s fine. Diagnosis included.

4. Nurse informs me. Doctor writing it down and quoting the admitting nurse. That’s ok. Nurse is also an employee of the business. This is a double hearsay problem. BUT this one exception can cover multiple levels of hearsay so long as each level is contributed by an employee of the business. Then the exception covers it. Very important. If doctor’s statement was made orally – biz records would not apply. HYPO: doctor on stand, wants to tell us what the nurse said, “patient showed up unconscious.” Not admissible under 803(6) because not in tangible form. Could be statement made for medical diagnosis/treatment. If nurse is giving this info to help dr give a treatment or diagnosis – could be admissible under 803(4).

HYPO: dr made verbal statement that she has permanent. Not admissible under 8036. Must be a record. 803(4) – statement made for purposes of medical diagnosis or treatment. Covers statements made by the injured person – if you are making the statement for getting a diagnosis – but the rule does not cover the giving of the diagnosis. So if not in writing neither applies. If nurse says to the doctor, here’s the info so that you can make a diagnosis – that is covered. Not the dr’s diagnosis itself.

3. Same case. Under Rule 803(6), does it matter that General Hospital is a non-profit hospital? That the record contains a diagnosis rather than merely reciting observations?

NO – applies to non-profit biz’s too and diagnoses is included in the exception.

4. Same case. Assume the record states, “Admitting nurse informs me that patient was unconscious when he arrived. My preliminary diagnosis is permanent impairment of anterior keester.” Defendant objects to admissibility on the ground this is double hearsay. How should the court rule? Suppose the doctors’s statement was not contained in the record, but was an oral statement reported in the testimony of a witness who heard the doctor make the statement. Would it be admissible?

ER doctor wrote record – writes down what the nurse told him – and includes his diagnosis.

Admissible under Biz Records Exception! The Nurse works for the hospital – employee of the business. Covered by the exception!

BUT – if the doctor made the statement orally – and not in a biz record – this biz records exception would not apply. This is not

covered by 803(4) bc he is giving the diagnosis.

5. Same case. Assume the record states, “Admitting nurse informs me that patient stated he had abdominal pain. My preliminary diagnosis is permanent impairment of anterior keester.” Defendant objects to admissibility on the ground this is triple hearsay. How should the court rule?

Statement is ADMISSIBLE.

The patient is NOT an employee of the business – not acting in the course of business.

Patient’s statement to the nurse = 803(4) for purposes of medical diagnosis/treatment (not under biz records)

Nurse and Doctor’s statement covered by biz records exception.

6. Same case. Assume the record states, “Admitting nurse informs me that patient stated the other driver ran the red light. My preliminary diagnosis is permanent impairment of anterior keester.” Defendant objects to admissibility on the ground this is triple hearsay. How should the court rule?

Patient’s statement to nurse = other driver ran the red light. HEARSAY. Not admissible. Not for purposes of diagnosis.

7. Action by Hospital against Patient to recover under an unpaid bill. Hospital offers evidence that its accounting records reveal Patient owed $100,000 for services and has paid nothing. Patient offers his checking account register, which shows he paid in full. Are these both admissible under Rule 803(6)? Can you argue that the provision’s preference for the records of a business over the personal records of an individual is unwarranted?

Hospitals accouting records = admissible biz record.

Patient’s personal checking account register = not admissible under biz record exception.

Patient could offer a BANK STATEMENT as a biz record – must get the bank to provide a certificate/witness to testify to accuracy.

Questions for Classroom Discussion

Casebook page 238

1. Civil action to recover for personal injuries sustained in an industrial accident. Plaintiff, an employee of defendant’s, was injured on the job. Immediately after the accident, defendant directed the factory foreman to prepare a report of the accident, which was the first accident in the history of the factory. The foreman’s report states, “In my opinion plaintiff got hurt because he wasn’t paying attention to what he was doing.” The foreman is unavailable to testify and defendant offers the report into evidence. Assuming the custodian of the records for defendant identifies the document and testifies as to how it was prepared, is it admissible over a hearsay objection under the Federal Rules? The C.E.C?

NOT ADMISSIBLE under FR 803(6) exception: his report was not something that is regularly created. No regular practice.

Note: Under the FR’s, OPINIONS are admissible.

§ 1271. Admissible writings

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered

to prove the act, condition, or event if:

(a) The writing was made in the regular course of a business;

(b) The writing was made at or near the time of the act, condition, or event;

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

*CA does NOT require that it be the regular practice of that biz to make the memo/report – like the FR requires.

*EASIER in CA to establish admissibility for biz records – no need to regularly make those reports. Just once is ok!

CA = SIMPLE OPINIONS/DIAGNOSIS are admissible. “Broken leg” ok, but more complicated than that will be excluded.

Trustworthy? Foreman might be worried about his employer’s liability or his own liability. Judge could exclude.

PUBLIC RECORDS & REPORTS 803(8)

• There are THREE types of public records/reports: (A), (B), (C).

• Does not require the regularity of activity or record making.

• Admissible as long as authenticated. Can be self-authenticating under 902.

• Rationale: Public officials are trustworthy or have legal duty to be accurate.

• Rationale: W/out this exception – hard to prove the activities of public offices or the facts uncovered by investigations conducted by those offices. If called to testify, they usually can’t remember from mountains of records in their office.

(A) Records setting forth the ACTIVITIES of public offices or agencies: internal workings of an agency; or

• Ex) Payroll records, personnel files, purchase receipts, etc.

(B) Rec’s concerning MATTERS OBSERVED by public officials when there was a DUTY to make the observation & report it; or

• Ex) Gov’t reports on all manner of observable data: weather records, maps, ct reporter’s transcript.

• Applies to records that simply describe observed data w/out analysis leading to factual findings.

• *Criminal cases: excludes matters observed by cops or other law enforcement personnel. No police reports! BUT – if D wants to admit police report – that is fine!

(C) In CIVIL CASE and when offered AGAINST THE GOV’T IN CRIM CASE FACTUAL FINDINGS resulting from an INVESTIGATION made pursuant to authority granted by law. Included are reports of an evaluative nature that produce factual findings from investigation.

• Does not extend to records offered by the prosecution in a criminal case.

• Ex) Administrative finding about employment discrimination. Ex) Admin finding about the safety of a plane that crashed.

• Applies to reports that contain OPINIONS as long as they are based on investigations and factual findings.

• Applies even if the factual finding is based on statements from persons who are not public officials. Ex) FAA report based in part on interviews w/ eyewitnesses to the crash.

• Admission under (c) is denied when the sources of info LACK TRUSTWORTHINESS.

Questions for Classroom Discussion [p. 241]

1. Murder prosecution. The state offers into evidence the report of the police forensic specialist who retrieved and then tested two blood samples she found at the murder scene and a blood sample she took from Defendant after his arrest. The report describes the genetic characteristics of each sample and concludes that one crime scene sample is a match for Defendant’s blood sample. Defendant objects to the report on the ground of hearsay. How should the court rule?

Does this fall under (b) ? NO – there is an analysis here. Not simply a description about what he saw at the crime scene.

Does this fall under (c)? Yes report includes factual findings: he evaluated the blood from the crime scene and here is the result.

NOT ADMISSIBLE under 803(6)(c) because the prosecution is offering this report against D in a CRIMINAL case.

2. Same case. Assuming the prosecution could establish all the requisite foundational facts, should the court admit the report as a business record under Rule 803(6)?

No – we have these limitations in 803(8) for a reason. Congress was concerned about admittign this evidence against D in crim

case. Allowing it in under the Biz Record Exception would subvert Congress’ clear intention.

3. Same case. The defense offers into evidence a portion of the same report that states the other crime scene sample does not match Defendant’s blood. The prosecution objects on the ground of hearsay. How should the court rule?

ADMISSIBLE. D can offer this into evidence under (c) factual finding.

4. Same case. If the defense successfully admits the portion of the report described in Question 3, what argument can the prosecution make about the admissibility of the portion of the report described in Question 1?

Rule 106: if part of a writing is offered, the rest of it should come in too, otherwise the part admitted will mislead the jury. This

opens the door to letting in the unfavorable part too.

5. Same case. The prosecution offers into evidence just that portion of the report in which the forensic specialist stated that she found the crime scene blood samples under the victim’s fingernails. The defense objects on the ground of hearsay. How should the court rule?

803(8)(b): This is a public record that refers to matters observed – But INADMISSIBLE when offered by the prosecution against D.

6. Same case. The police forensic specialist testifies that Defendant’s blood matches a blood sample found at the crime scene. On cross-examination, the defense challenges the witness’s expert qualifications. The prosecution then offers into evidence records from the witness’s personnel file at the police department that shows he passed all regular proficiency tests with flying colors. The defense objects on the ground of hearsay. How should the court rule?

Offering into evidence: Police forensic specialist’s personnel file ( ADMISSIBLE under 803(8)(a).

2. Prosecution for drug possession. The prosecution offers into evidence a written report from the police lab that states the substance discovered in defendant’s apartment was cocaine. Is it admissible over a hearsay objection under the Federal Rules? The C.E.C?

NOT ADMISSIBLE under FR 803(c) – police report offered by prosecution against D.

CEC 1280 does not have the same limitation as 803(c).

§ 1280. Record by public employee:

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:

(a) The writing was made by and within the scope of duty of a public employee.

(b) The writing was made at or near the time of the act, condition, or event.

(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

*Even tho CEC doesn’t have same limitations as the FR’s, could still argue CONFRONTATION CLAUSE as basis for objection.

ABSENCE OF ENTRY IN BIZ/PUBLIC RECORD 803(7)&(10):

• 803(7) = makes evidence that a matter is not included in a biz record admissible to show the nonoccurrence of that matter.

• Ex) Credit card company records pertaining to a certain person’s account could be admissible to prove those records have no entry showing payment for charges to that account.

• 803(10) = same thing, but for public records.

• Ex) absence of public record or an entry in such a record shows that a required public filing did not take place, as in a prosecution for possession of an unregistered firearm.

• HYPO: PI case – P wants to recover his hospital expenses incurred after the accident. D claims P’s injuries were minor and was not hospitalized. To prove – D calls hospital’s custodian of records (where P claimed to be admitted).

Question for Classroom Discussion [p. 244]

State court prosecution for possession of an unregistered firearm. The prosecution calls the custodian of records of the State Department of Public Safety, who offers to testify that a diligent search of the records of that public agency reveals the absence of any registration for the firearm found in Defendant’s possession. Defendant objects on the ground of hearsay. The state evidence rules do not have a provision comparable to Rule 803(10) but follow a definition of hearsay identical to that in Rule 801(c). Make an argument that the testimony does not contain hearsay.

§ 1284. Statement of absence of public record

Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent

search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in

that office.

EXCEPTIONS TO THE HEARSAY RULE: UNAVAILABILITY OF DECLARANT REQUIRED

Rule 804. Hearsay Exceptions; Declarant Unavailable

(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant--

(1) is exempted by ct ruling on privilege grounds from testifying concerning the subject matter of declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the ct; or

(3) testifies to a lack of memory of the subject matter of the declarant's statement; or

(4) unable to be present or testify at the hearing because of death or then existing physical/mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process OR other reasonable means.

• A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.

• Availability s a preliminary fact decided under Rule 104(a) bc relevant regardless of the availability of the declarant.

• 3) a witness who doesn’t remember the subject matter of her prior statement is unavailable as a witness for purposes of the exceptions in 804 even tho she is considered ‘subject to cross-exam’ for purposes of prior statements offered pursuant to 801(d)(1). The language of (3) seems to apply only when declarant has no memory of the subject matter of her prior statement, but it would be reasonable for a ct to declare the witness unavailable if she remembers the subject matter of the statement, but doesn’t remember sufficient detail to maker her testimony very useful. This ground doesn’t apply unless declarant herself testifies to lack of memory.

Questions for Classroom Discussion [p. 246]

1. Civil action for battery. Defendant denies involvement in the fight. Shortly after Plaintiff was attacked, she named Defendant as her attacker. She then lapsed into a coma and has not recovered. Plaintiff wishes to offer her statement into evidence under the dying declaration exception to the hearsay rule. Defendant objects on grounds Plaintiff is not unavailable. How should the court rule?

Overruled. Declarant is unavailable because she is in a COMA: then-existing physical/mental illness or infirmity.

2. Same case. Suppose Plaintiff is not comatose but is still hospitalized because she is not well enough to go home. Defendant makes the same objection. How should the court rule?

Overruled. Declarant is hospitalized so she in unavailable. Then-existing physical/mental illness or infirmity.

5. Prosecution of Defendant for corporate securities fraud. At Defendant’s preliminary hearing, the prosecution called Witness, an alleged co-conspirator of Defendant. Witness testified that Defendant was involved. Witness refuses to testify at trial, however, asserting her privilege against compulsory self-incrimination. The prosecutor then confers “use immunity” on Witness, meaning that the government may not use any of Witness’s testimony against her. Despite having use immunity, and despite the court’s demands that Witness testify, she persists in her refusal. The prosecution now offers the transcript of Witness’s preliminary hearing testimony under the former testimony exception. Defendant objects on the ground Witness is not unavailable. How should the court rule?

(2) – persists in refusing to testify despite court order. Unavailable if she refuses.

Might be able to use the Prelim testimony if can qualify it under 804(b) exceptions.

6. Retrial of a negligence action by Plaintiff against Defendant arising from a skateboard collision. At the first trial, Plaintiff called Witness, who testified that Defendant skated directly into Plaintiff’s path. Plaintiff calls Witness at the second trial, and although Witness remembers the incident vaguely, she does not remember the events immediately before the actual collision. Plaintiff asks to have the transcript of Witness’s testimony from the first trial read into the record. Defendant objects on the ground Witness is not unavailable. How should the court rule?

Maybe prior statement admissible under 804(b) exception.

8. Same case. Suppose Plaintiff sent a letter to Witness asking her to appear at the second trial. Witness responded in writing that she would appear. However, Witness does not show up on the specified date. Plaintiff offers into evidence the transcript of Witness’s testimony at the first trial. Defendant objects on the ground Witness is not unavailable. How should the court rule?

(5) Unable to procure? Need to AT LEAST SUBPOENA her.

Questions for Classroom Discussion

Casebook page 246

1. Prosecution for racketeering. The prosecution calls an alleged member of defendant’s crime “family” to testify to the organization of the family’s criminal enterprises. The witness refuses to take the stand despite a court order to testify. Is the witness “unavailable” under the Federal Rules? The C.E.C?

Yes, UNVAILABLE under FR. No, not unavailable under CEC.

FR804(a)(2): UNAVAILABLE: refusing to testify concerning the subject matter of the declarant's statement despite court order.

CEC 240 has no comparable section (does not consider a person who refuses to testify unavailable).

§ 240. Unavailable as a witness

(a) Except as otherwise provided in subdivision (b), “unavailable as a witness” means that the declarant is any of the following:

(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.

(2) Disqualified from testifying to the matter.

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.

(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.

(b) A declarant is not unavailable as a witness if the exemption, preclusion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.

(c) Expert testimony which establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term “expert” means a physician and surgeon, including a psychiatrist, or any person described by subdivision (b), (c), or (e) of Section 1010.

The introduction of evidence to establish the unavailability of a witness under this subdivision shall not be deemed procurement of unavailability, in absence of proof to the contrary.

2. Same case. The witness is willing to take the stand and testify, but refuses to take an oath or give an affirmation to testify truthfully. Is the witness “unavailable” under the Federal Rules? The C.E.C?

FR: UNAVAILABLE if you refuse to take oath (same thing as refusing to testify).

CEC 240(a)(2) – could argue the witness is disqualified by refusing to testify/take oath. Stretching it a little.

3. Same case. The witness is sworn and takes the stand, but claims to remember nothing about the family’s business. Is the witness “unavailable” under the Federal Rules? The C.E.C?

FR: UNAVAILABLE under (3) testifies to a lack of memory of the subject matter of the declarant's statement.

No comparable provision in 240. Not considered unavailable if witness can’t remember (unless due to mental infirmity).

4. Same case. The prosecution has been unable to serve the witness with a summons to appear at trial, notwithstanding repeated attempts to do so. The prosecutor knows the witness’ cellphone number but never calls to ask if he would voluntarily appear. Is the witness “unavailable” under the Federal Rules? The C.E.C?

FR(5): No, not unavailable. Need to try both ways: serve subpoena AND try to call him. Process AND reasonable means.

CEC: Yes, UNAVAILABLE. Unable to serve subpoena alone is enough. Don’t have to call.

5. Prosecution for child abuse. Witness is a ten year old child who the prosecution alleges was sexually abused and beaten by defendant. While the witness is in the courthouse, his psychiatrist testifies in a pretrial hearing that Witness is deathly afraid of defendant and, if made to testify in open court, will suffer significant psychological trauma. Is the witness “unavailable” under the Federal Rules? The C.E.C?

CEC: UNAVAILABLE. No comparable provision in FR.

FORMER TESTIMONY EXCEPTION 804(b)(1)

(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

Foundational req’s in addition to unavailability:

1. Testimony was given as a witness at another hearing of the same or diff proceeding, or depo taken in compliance w/ law.

2. If current case is CRIM prosecution, the party against whom the evidence is now offered:

• Had opportunity to develop the testimony by direct/cross/redirect exam; and

• Had a similar motive to develop the testimony by such exam.

3. If current case is CIVIL action, the party against whom the evidence is now offered, or a predecessor in interest of that party, must have had an opportunity and similar motive to develop the witness’s testimony.

NOTES

• Declarant must have been a WITNESS/DEPONENT at another trial/hearing

• Witness at a preliminary hearing in criminal case might be ok – but D could argue there is little motive to cross-examine the prosecution’s witnesses in that forum.

• CRIM case: the other side must have been a PARTY to the earlier trial.

• CIVIL case: more relaxed – can be either a party to the earlier action or “predecessor in interest.”

• “Predecessor in interest” = not limited solely to people in privity w/ the party against whom the evidence is now offered.

• “Predecessor in interest” = as long as anyone had an opportunity to examine the witness in the earlier trial and had a motive to do so sufficiently similar to the motive that the party against whom the evidence is now offered has.

• Prior party must have had the opportunity to develop the witness’s testimony = party had chance to cross-examine the witness if the witness was called by the other side.

• If the party against whom the evidence is now offered (other side) initially called the witness, and witness provided evidence on cross-exam that was detrimental to the interest of the party who called the witness, redirect exam suffices.

• Ex) Car accident. P’s witness testified on direct that D’s car ran the light. On cross-exam, witness admitted it might have been the other car that ran the light. If P had the opportunity to conduct redirect – opportunity is satisfied.

• Motive = earlier trial and now are of the same case and parties have not changed purpose for which the testimony will be used.

HYPO:

• Trial #1: criminal prosecution for vehicular manslaughter.

• Trial #2 (present trial): civil trial for wrongful death from same car accident.

• D’s motive to examine the witness is similar in trial #1 as that at trial #2.

HYPO:

• Trial #1: P called a bunch of eyewitnesses who had the same view of the scene as the witness in question – all witnesses said he ran the light. D might have had motive cross-examine the first few witnesses vigorously – but decided to limit cross-exam of the rest of the witnesses to avoid boring the jury. Witness in q – D spent little time on cross-exam.

• Trial #2: P calls only a couple of eyewitnesses and then offers the testimony of the unavailable witness through FT exception. D now has a more urgent need to cross-examine that witness and if he isn’t there he can’t. Ct could hold that D’s motive was not sufficiently similar in these two trials to allow P to use the FT of the unavailable witness.

HYPO: purpose change

• P sued driver (employee of the owner making delivery for the owner) AND car’s owner.

• Trial #1: veh. manslaughter – driver x-examined the witness, seeking to discredit her direct exam that the driver ran stop sign.

• Trial #2: civil action for wrongful death – P wants to hold both driver and owner liable.

o If D argues along w/ driver that driver did not run the stop sign – driver’s cross-exam at the earlier crim trial suffices = evidence admissible pursuant to FT exception.

o If D argues that the driver was at fault, but owner shouldn’t be liable, driver deviated from route, not appropriate to bind the owner w/ the driver’s crim trial cross-exam. Witness’s FT should be admissible only against the driver, and not the owner. If danger jury won’t abide by limiting instruction – might need 2 sep trials.

• If FT admissible, most accurate way to prove witness’s prior testimony is by offering the court reporter’s transcript – qualifies as a business record and might also qualify as the reporter’s recorded recollection or even as a public record.

• Another way – call witness w/ first-hand knowledge of that testimony – not the truth – just the testimony itself.

Questions for Classroom Discussion [p. 253] – Former Testimony

1. Prosecution of Defendant for bank robbery. At an earlier trial, which resulted in a hung jury, Witness testified for the prosecution that she saw Defendant and Zed point weapons at the bank tellers and demand all the money. At the new trial, the prosecution calls Witness to give the same testimony, but Witness refuses to testify, claiming a non-existent privilege, and continues to refuse even after the court orders Witness to testify. The prosecution wishes to offer into evidence the transcript of Witness’s testimony from the first trial. Defendant objects on hearsay grounds. How should the court rule?

Overrule. Witness is 804(a) UNAVAILABLE. Gets in under Former Testimony Exception 804(b).

1. Earlier crim trial – witness testified for prosecution against D.

2. D had opportunity to cross-examine and the same motive.

2. Same case. Assume Zed, the other person with whom Defendant allegedly robbed the bank, disappeared after the robbery and was not found until a few weeks before the second trial. The prosecutor at the second trial offers the transcript of Witness’s testimony against both Defendant and Zed. Is it admissible against Zed?

Current case is Crim = Not if Zed was not a party in trial #1 . Not admissible against Zed.

3. Same case. Assume once again that Witness’s former testimony is only being offered against Defendant. Instead of offering the transcript of Witness’s testimony, the prosecution calls a newspaper reporter who was in court during Witness’s testimony at the first trial, covering the case. The prosecutor asks the newspaper reporter to relate the substance of Witness’s testimony. Defendant objects on hearsay and best evidence rule grounds. How should the court rule?

Overruled.

Newspaper reporter CAN testify – there is no requirement that the “best evidence” be used: BER only applies w/ writings.

4. Second trial of a negligence action by Plaintiff against Defendant arising from a skateboarding accident. Plaintiff claims Defendant suddenly swerved into Plaintiff’s path and struck Plaintiff. At the first trial, to prove Defendant swerved into Plaintiff’s path, Plaintiff called Witness, expecting Witness to testify to that effect. But Witness’s direct examination testimony was at best ambiguous, and on cross-examination, Witness testified that it was Plaintiff who swerved into Defendant’s path. Plaintiff’s redirect examination failed to discredit Witness’s testimony. Defendant prevailed. On appeal, the court reversed and remanded the case for a new trial. Unfortunately, Witness died between the two trials. Defendant wishes to introduce the transcript of Witness’s testimony from the first trial. Plaintiff raises a hearsay objection. How should the court rule?

Trial #1: P called witness to testify against D – but on cross, witness testified for D! On re-direct exam, P failed to discredit.

Trial #2: Witness died. D wants to introduce transcript of Witness’s testimony.

Overrule hearsay objection. Admissible under FT exception. Similar motive.

5. Same facts. Suppose Plaintiff did not attempt to undermine the testimony Witness gave on cross-examination, preferring to leave well enough alone and not risk making the situation even worse. May Defendant introduce the transcript of Witness’s testimony at the retrial?

Admissible under FT exception. P had the opportunity to re-direct witness and chose not to – he chose not to take it – tough luck!

6. Prosecution of Defendant for racketeering. The indictment resulted from a grand jury investigation during which Witness, an alleged member of Defendant’s “family,” testified that Defendant ran a huge illegal drug importation operation. At trial, the prosecutor calls Witness, but Witness refuses to testify despite a court order, citing fear of reprisal. The prosecutor then offers into evidence the transcript of Witness’s grand jury testimony accusing Defendant. Defendant objects on hearsay grounds. How should the court rule?

Grand jury proceeding: Witness testified for P against D.

Trial: Witness unavailable. P offers transcript of witness’s grand jury testimony against D.

Objection sustained. NOT ADMISSIBLE under FT exception!

Typically, D does not have the opportunity to cross-examine the witness during a grand jury proceeding.

Also - confrontation clause!

11. Civil action for battery by Plaintiff against Zed and Corporation. Plaintiff alleges that Zed, who worked as a security guard at Corporation headquarters, committed battery when she forced Plaintiff to submit to an invasive full body search in the lobby of the building before allowing Plaintiff to take an elevator to a Corporation office. The state also filed criminal assault and battery charges against Zed. At that trial, the prosecution called Witness, who testified that she observed Zed’s search of Plaintiff. Zed cross-examined Witness, seeking without success to get Witness to admit that Zed did not conduct the invasive search alleged by the government. Zed was acquitted. Witness died before the civil action came to trial. Plaintiff now offers against both defendants the transcript of Witness’s testimony at the criminal trial. Assume Plaintiff claims Corporation is liable on a theory of respondeat superior. Both Zed and Corporation raise hearsay objections to admission of the transcript. How should the court rule?

Crim trial against Zed: P called witness to testify that she observed Zed’s search of P. Z cross-examined.

Civil trial against Zed and Corporation: Witness unavailable. P offers witness’s transcript against both defendants.

Against Zed? ADMISSIBLE. Opportunity and similar motive.

Against Corp? Issue: Is Zed a PII for Corp with the same motive?

In “privity”? Employer/employee relationship is not typically a “privity” relationship.

Some cts think PII means “similar” interest = Corp may argue that Zed did do it, but was outside the scope of his employment.

Seems like Corp’s motive is different.

Questions for Classroom Discussion

Casebook page 253

An airplane crashes, killing all passengers. Estate of passenger “X” sued Airline for wrongful death and an expert testified at that trial against Airline concerning defects in the airplane design. The expert is now dead. Estate of passenger “Y”, who died in the same crash, subsequently sues Airline for wrongful death and offers against Airline the former testimony of the expert witness given in X v. Airline. Admissible under the Federal Rules and C.E.C. in Y. v. Airline? What if Airline offered the former testimony against Y?

Civil trial #1: Estate of X sued Airline. Witness testified against Airline.

Civil trial #2: Estate of Y sued Airline. Witness unavailable.

FR admissible against X? Yes.

CEC admissible against X (yes a party)? Yes.

FR admissible against Y (not a party)? If PII means “privity” – No. If PII means “similar” – Yes.

CEC admissible against Y (not a party)? Unavailable, civil, opportunity, X&Y similar motive – Yes. No requirement of privity!

§ 1291. Former testimony offered against PARTY to former proceeding

a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:

(1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or (no counterpart in FR!)

(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.

§ 1292. Former testimony offered against person NOT a PARTY to former proceeding

(a) Evidence of former testimony is not made inadmissible by the hearsay rule if:

(1) The declarant is unavailable as a witness;

(2) The former testimony is offered in a civil action; and

(3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing. (Not privity! Easier to get under this in CA than the FR’s)

First proceeding was nuisance suit brought against Airline for noise pollution. Airline offered Expert’s testimony in that case. Expert is now dead. Estate of Y now offers that testimony in wrongful death case against Airline. Admissible under Federal Rules or C.E.C. even though issues in this case are different?

Trial #1: Nuisance. D offered expert witness. Offered witness on P’s behalf.

Trial #2: Wrongful death. Estate of Y offers P’s expert witness testimony.

FR: Similar motive? Unclear. Need more facts.

CEC: Admissible under 1291(a)(1). P offered it in first trial, now being offered against P in second trial. Admissible in CA! No analysis of motive required!

3. [The following is based on question 7 from page 254 of the casebook, with the query concerning the C.E.C.] Prosecution of Defendant for racketeering following a grand jury indictment. The prosecution called Witness to testify before the grand jury but, to the prosecution’s surprise, the Witness testified that defendant had no involvement in the alleged racketeering. Other witnesses, however, provide sufficient evidence to lead the grand jury to indict Defendant. Witness dies in a plane crash before trial, due to no fault of the prosecution or Defendant. At trial, Defendant offers into evidence the transcript of Witness’s grand jury testimony. The prosecution objects on hearsay grounds. Should the objection be sustained under the Federal Rules? The C.E.C?

Grand jury proceeding: P calls witness to testify against D. To P’s surprise, witness testified in favor of D.

Crim Trial: Witness unavailable. D offers witness’s grand jury testimony.

FR: The party against whom the evidence is now offered (gov’t) had a similar motive to develop the testimony? Maybe not. When the gov’t conducts a witness exam in front of a grand jury – just trying to get enough evidence to demonstrate probable cause – not showing guilty beyond a reasonable doubt. So sometimes P holds back and don’t ask all the q’s they will ask at trial. The motives may not be similar! NOT admissible under FR!

CEC: Admissible.

4. Civil action for breach of contract. Plaintiff conducted a deposition in this case of one of defendant’s employees. The witness is unavailable at trial and plaintiff offers the testimony into evidence. Defendant was present at the deposition and examined the witness extensively. Defendant objects on the ground of hearsay. Is the deposition testimony admissible under the Federal Rules or in California?

Deposition: P conducted depo of D’s employee. D examined witness extensively.

Civil Trial: Witness unavailable. P offers depo testimony.

FR: Party against whom the evidence is now offered (D) had opportunity/similar motive? YES. DEPO testimony Admissible.

Under FR – Depo from same or different proceeding ok.

CEC: 1290c) Depo IN ANOTHER ACTION. This is in the same case. CA FT exception does not work here!

BUT if witness is unavailable – the depo is admissible at trial! Even if he just lives too far away!

EXCEPTION: Dying Declaration 804(b(2)

• Statement under belief of impending death. In a prosecution for homicide or in a civil action/proceeding, a statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

• Rationale: Person who thinks she’s about to die is not likely to lie. Not really true tho!

Prerequisites:

1. Case is CIVIL or HOMICIDE PROSECUTION.

2. Statement made WHILE BELIEVING that his death was IMMINENT; and

3. Statement concerned the CAUSE or CIRCUMSTANCES of what the declarant believed to be impending death.

• Does NOT require that declarant actually die! Just as long as unavailable, statement is admissible.

• 104(a) – court may consider the statement itself in deciding whether made in anticipation of imminent death.

Questions for Classroom Discussion [p. 257]

1. Prosecution of Defendant for the attempted murder of Victim. Defendant denies involvement. The attack on Victim left her critically injured, and she lapsed into a coma from which she has not recovered at the time of trial. The prosecution wishes to offer evidence that before becoming comatose, Victim told an attending nurse, “I don’t expect to make it. I hope Defendant pays for this.” Defendant objects on hearsay grounds. How should the court rule?

Attempted murder is NOT a homicide. This rule only works for homicides as far as criminal cases are concerned!

2. Same facts, except assume that Victim died and the charge is murder. Defendant lodges a hearsay objection to the evidence of Victim’s statement. How should the court rule?

Did declarant believe death was imminent? “I don’t expect to make it” – unclear!

Gotta show the declarant believed her death was imminent. Can consider the statement itself to determine.

If she means “D put me in the hospital and D is responsible for my dying” – admissible.

3. Same facts. Assume Victim did not die until several weeks after making the statement. How does this affect its admissibility as a dying declaration?

Rule requires that declarant believes her death is imminent. Just bc she doesn’t die – doesn’t mean inadmissible.

Key is what she believes, not how long she lasts.

4. Civil action for battery by Plaintiff against Defendant. The action stems from a barroom brawl during which Plaintiff, who claims he was an innocent bystander, was seriously injured. Defendant also claims he was a bystander. To prove that Defendant was involved in the fight, Plaintiff wishes to offer evidence that while Zed, who was injured trying to stop the brawl, was recovering in the hospital, she suddenly sat upright in bed and said to a nurse, “I must follow the white light. Defendant put me here, but I will be at peace soon.” At the time of the trial, Zed has recovered but is on a long trip out of the country and beyond the reach of the court’s subpoena power. Defendant makes a hearsay objection to testimony concerning Zed’s statement. How should the court rule?

Admissible. She seems to believe she is about to die – death is imminent. Also saying that D is the cause.

5. Same case. Suppose that during her argument to the court about the admissibility of the purported dying declaration, Defendant represents that a few minutes before making the statement to the nurse, Zed told a visiting family member, “I plan to sue Defendant when I get out of here.” Based on this statement, Defendant asks the court to exclude Zed’s statement to the nurse. How should the court rule?

Maybe she doesn’t believe her death is imminent.

P could argue: A few minutes later she says to the nurse “I must follow the white light, I will be at peace soon.” Could be DD.

8. Will contest. The testator died from injuries sustained in an automobile accident. Plaintiff offers evidence that, shortly before she died, the testator said, “I’m going fast. My will was the product of undue influence!” Defendant objects on hearsay grounds. How should the court rule?

Not admissible under DD. Statement is not related to the cause/circumstances of her death.

Question for Classroom Discussion

Casebook Page 257

[The following is based on question 7 from page 258 of the casebook.] Prosecution of Defendant for the attempted murder of Victim. Defendant denies involvement. The attack on Victim left her critically injured and she lapsed into a coma from which she has not recovered at the time of trial. The prosecution wishes to offer evidence that before becoming comatose, Victim told an attending nurse, “I don’t expect to make it. I hope Defendant pays for this.” Defendant objects on hearsay grounds. Should the objection be sustained under the Federal Rules? The C.E.C?

FR: Sustained – not a dying declaration bc not a homicide case. This is attempted murder.

CEC 1242: Does NOT limit the applicability to just homicides. Can apply in ANY CIVIL/CRIMINAL CASE, but you MUST DIE!

EXCEPTION: Declaration Against Interest 804(b)(3)

• Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil/criminal liability, or to render invalid a claim by the declarant against another, that a RP in declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circ’s clearly indicate the trustworthiness of the statement.

• Declarant MUST BE UNAVAILABLE.

• When a criminal D offers a statement that subjects the declarant to criminal prosecution and exculpates D, statement will not be admissible unless corroborating circ’s clearly indicate the trustworthiness of the statement.

• 104(a) determination. Consider words themselves, identities of the people present to hear what declarant says.

Questions for Classroom Discussion [p. 262]

1. Negligence action arising from an automobile collision. Plaintiff claims Defendant’s car crossed the center line and struck Plaintiff’s car. To prove that it was Plaintiff’s car that crossed the center line, Defendant calls Zed, a passenger in Plaintiff’s car, and asks Zed if it isn’t true that, after the accident, Zed admitted to a police officer that she grabbed Plaintiff’s steering wheel as a joke and that the car veered left, crossing the center line. Plaintiff objects on hearsay grounds. How should the court rule?

Objection sustained. Hearsay. Declarant is available so this exception does not apply.

2. Same case. Suppose Zed refuses to answer the question even though the court orders her to do so. Defendant now calls the police officer to whom Zed made the statement, and asks that person to relate what Zed said. Plaintiff objects on hearsay grounds. How should the court rule?

D calls Zed and asks Zed – did you tell cop, “I grabbed P’s steering wheel, and the car crossed the center line.”

Admissible as a declaration against interest.

5. Prosecution of Defendant for distribution of cocaine. Defendant denies involvement, and claims that Zed was the guilty party. To prove that Zed, and not Defendant, committed the crime, Defendant offers evidence that Zed, a member of an underworld “family,” told his “don” that he had set up a “terrific cocaine distribution network,” just as the “don” had told him to do. Zed died before trial. The prosecution raises a hearsay objection to the evidence of Zed’s statement. How should the court rule?

Prosecution of D for distribution of cocaine. D says Zed did it.

D offers to exculpate himself: Zed told his don, “I set up a great cocaine distribution network, just as you asked.”

Declaration against Zed’s interest? NO – he wants to impress the don.

Not admissible as a declaration against interest.

6. Same case. Assume, however, that Zed made the statement to an undercover police officer posing as a would-be buyer of a large quantity of drugs. Again, the prosecution objects on hearsay grounds. How should the court rule?

Again, not a declaration against his interest. Not admissible.

7. Same case. Assume that Zed made the statement to a police detective while being interrogated in connection with the cocaine distribution ring. Assume, also, that Defendant presents evidence that when the police searched Zed’s apartment, they found a large quantity of cocaine and a computerized list of prospective buyers. Again, the prosecution raises a hearsay objection. How should the court rule?

Statement was against his interest and there are corroborating circumstances.

Question for Classroom Discussion

Casebook Page 262

Murder prosecution. The victim was a member of the clergy. The defense offers into evidence a note shown to be in the victim’s handwriting that reads, “I have swallowed a bottle of poison because I have lost my faith.” The prosecution objects on hearsay grounds. Should the objection be sustained under the Federal Rules? The C.E.C?

FR: Not a statement against interest.

CA: Committing suicide can create a risk of making him a social disgrace. Broader exception! Embarrassing statements.

§ 1230. Declarations against interest

Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule

if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or

proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by

him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community,

that a reasonable man in his position would not have made the statement unless he believed it to be true.

EXCEPTION: Forfeiture By Wrongdoing 804(b)(6)

• Forfeiture by wrongdoing: statement offered against a PARTY that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

• Can’t prevent a person from testifying by making unavailable or by agreeing to it.

Questions for Classroom Discussion [p. 275]

1. Negligence action by Plaintiff against Defendant arising from an automobile collision. Witness observed the collision, and Plaintiff plans to call Witness to testify at trial. Prior to trial, Defendant pays Witness to “disappear” for a while, making Witness unavailable to testify at the trial. Plaintiff wishes to offer into evidence Witness’s statement to a police officer the day after the accident, in which Witness said that Defendant ran a red light and struck Plaintiff. Defendant objects on hearsay grounds. How should the court rule?

FR: Forfeiture by wrongdoing. Admissible. Bribes even!

CA: CRIMINAL & SERIOUS FELONY? NO. Not admissible under the exception. This is a civil case.

*CA exception is very narrow and hardly ever applies! Must result in DEATH or KIDNAPPING. Very narrow. Not bribes!

§ 1350. Unavailable declarant; hearsay rule

(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is

unavailable as a witness, and all of the following are true:

(1) There is clear and convincing evidence that the declarant's unavailability was knowingly caused by, aided by, or solicited by the party against whom the

statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the

declarant.

(2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the

statement.

(3) The statement has been memorialized in a tape recording made by a law enforcement official, or in a written statement prepared by a law enforcement

official and signed by the declarant and notarized in the presence of the law enforcement official, prior to the death or kidnapping of the declarant.

(4) The statement was made under circumstances which indicate its trustworthiness and was not the result of promise, inducement, threat, or coercion.

(5) The statement is relevant to the issues to be tried.

(6) The statement is corroborated by other evidence which tends to connect the party against whom the statement is offered with the commission of the serious

felony with which the party is charged. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

THE RESIDUAL EXCEPTION Rule 807 (NO CA EQUIVALENT!)

• Statement not covered by 803 or 804 and is trustworthy is not excluded by the hearsay rule if the ct determines that:

o The statement is offered as evidence of a material fact;

o The statement is more probative on the on point for which it is offered than any other evidence which the proponent can get through reasonable efforts; and

o The general purposes of these rules and interests of justice will best be served by admitting the statement.

o Proponent must give the adverse party notice in advance of the trial/hearing to give them fair opp to meet it.

Requirements:

1. RELIABILITY: serves as a reminder to the court to inquire into the trustworthiness and not admit evidence that lacks it.

2. MATERIALITY: simply reiterating the fact that any evidence must be logically relevant. This req. is hardly necessary.

3. PROBATIVE VALUE: Must use reasonable efforts to find other admissible evidence to prove the fact and demonstrate why it is more probative than the other evidence.

4. INTERESTS OF JUSTICE: Administer goals of fairness, efficiency, truth-determination, and justice.

5. NOTICE: Cts have not always followed the strict requirements of this rule. Sometimes admit if notice given after trial began.

• “NEAR MISS” problem: what if it almost fits into 803 or 804 exception – can be admitted under residual? Unsure.

• *In practice, the GOV’T in CRIM cases has been far more successful than criminal defendant’s in using residual exception.

Questions for Classroom Discussion [p. 285]

1. Product liability action by Plaintiff against Defendant, an automobile manufacturer. Plaintiff claims that Husband, her husband, was driving a new car manufactured by Defendant when the car’s defectively designed steering mechanism failed, causing him to lose control and crash. Husband died from injuries he sustained in the crash, but lived long enough to tape-record a description of what happened. Plaintiff offers the tape recording into evidence. Assume that Zed was also in the car with Husband when the accident occurred, and that the car, though badly damaged, has been preserved. Defendant makes a hearsay objection to the admission of the tape recording. How should the court rule?

P sues D auto manufacturer in civil case.

P offers witness’s tape recording describing what happened in the crash. Witness unavailable.

Zed was also in the car when accident happened. Car is also available.

Might not be able to qualify this under 807. Maybe an expert can examine the car to figure out what happened.

*Rule 807 is hardly used!!!

Question for Classroom Discussion

Casebook Page 285

Prosecution for child molestation. Defendant consistently has denied the charges from the moment of his arrest. The prosecution offers into evidence the out of court statement of the child in question in which the child told a police officer that she was molested by defendant. Admissible over a hearsay objection under the Federal Rules? Under the C.E.C.?

FR: unlikely to get in under 807.

CA 1228: Not applicable. Very limited. Does not come in under this exception. Need D to CONFESS. Hearsay admissible for

the limited purpose of deciding whether the confession would be admissible.

§ 1228. Admissibility of certain out-of-court statements of MINORS UNDER THE AGE OF 12; establishing elements of certain SEXUALLY ORIENTED

CRIMES; notice to defendant

Notwithstanding any other provision of law, for the purpose of establishing the elements of the crime in order to admit as evidence the confession of a person

accused of violating Section 261, 264.1, 285, 286, 288, 288a, 289, or 647a of the Penal Code, a court, in its discretion, may determine that a statement of the

complaining witness is not made inadmissible by the hearsay rule if it finds all of the following:

(a) The statement was made by a minor child under the age of 12, and the contents of the statement were included in a written report of a law enforcement

official or an employee of a county welfare department.

(b) The statement describes the minor child as a victim of sexual abuse.

(c) The statement was made prior to the defendant's confession. The court shall view with caution the testimony of a person recounting hearsay where there is

evidence of personal bias or prejudice.

(d) There are no circumstances, such as significant inconsistencies between the confession and the statement concerning material facts establishing any

element of the crime or the identification of the defendant, that would render the statement unreliable.

(e) The minor child is found to be unavailable pursuant to paragraph (2) or (3) of subdivision (a) of Section 240 or refuses to testify.

(f) The confession was memorialized in a trustworthy fashion by a law enforcement official.

If the prosecution intends to offer a statement of the complaining witness pursuant to this section, the prosecution shall serve a written notice upon the

defendant at least 10 days prior to the hearing or trial at which the prosecution intends to offer the statement.

If the statement is offered during trial, the court's determination shall be made out of the presence of the jury. If the statement is found to be admissible

pursuant to this section, it shall be admitted out of the presence of the jury and solely for the purpose of determining the admissibility of the confession of the

defendant.

THE HEARSAY RULE AND THE CONSTITUTION

• CC LIMITS the evidence Prosecution can offer against the Criminal D. *Protects Criminal D!

• When Prosecution offers “Testimonial” Hearsay – INADMISSIBLE – CC objection will be sustained unless at some point in time D had the chance to examine the witness. If witness is present today, no problem, admit the hearsay. Or if witness is not present, was former testimony, had opportunity previously, admissible.

• WHEN CRIMINAL DEFENDANT DOESN’T WANT THE HEARSAY TO COME IN. Hearsay must be testimonial.

• CRIMINAL D gets to raise a Confrontation Clause objection. When hearsay is offered against criminal D.

• If it IS TESTIMONIAL – get to raise CC objection.

• Confrontation Clause in the 6th amendment: “in all criminal prosecutions, the accused shall enjoy the right to be confronted w/ the witnesses against him.”

• Right of accused to confront witnesses is fundamental to our system of criminal jurisprudence.

• 2004 Crawford v. Washington – D charged w/ assault and attempted murder of a man he thought tried to rape his wife.

• Cops took tape-recorded statements from D and Wife. D’s statement set forth self-defense claim. Wife’s statement corroborated D’s in a lot of ways, but provided weaker support for the self-defense claim. Wife didn’t testify at trial bc of Washington’s spousal privilege. But, Washington’s privilege didn’t prevent the adverse party from offering a statement that satisfies a hearsay exception. Wife’s statement was hearsay but qualified as a declaration against interest bc admitted leading her husband to man’s apt. D objected based on the confrontation clause. TC played the tape of her statement to the jury, D convicted. USSC held: admission of her statement violated D’s confrontation rights. Should not have admitted the evidence!

• “Testimonial” = prior testimony at a prelim hearing, before a grand jury or at a former trial, police interrogations.

• Bright-line rule: The only time “TESTIMONIAL” hearsay offered against a criminal defendant IS admissible is if:

o Declarant testifies at trial; or

o Declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.

• Even if hearsay fits w/in exceptions that admit “testimonial” statements, it will not be admissible against a criminal D unless the declarant testifies at trial or is unavailable to testify and D had prior opp for cross-exam.

• Grand jury testimony of a person who does not testify at trial – NOT admissible against criminal D.

• Crawford rule: Criminal D can object based on the CC only where P offers TESTIMONIAL hearsay.

• Davis v. Washington 2006:

o Washington case: Davis’ ex-gf called 911 claiming Davis was jumpin’ on her using his fists – parts of tape admitted.

o Indiana case: Officer asked woman to sign a battery affidavit, she handwrote stating guy broke furnace, shoved her – court admitted the affidavit and her oral statements.

o Held: 911 tape Admissible. NOT testimonial – properly admitted.

o Held: Affidavit was NOT admissible.

o Statements are NON-testimonial when main purpose interrogation is to help police meet an ONGOING EMERGENCY.

o Statements ARE testimonial when the main purpose of interrogation is to ESTABLISH OR PROVE PAST EVENTS POTENTIALLY RELEVANT TO LATER CRIMINAL PROSECUTION.

o Confrontation clause applies only to “testimonial hearsay.”

• 911 call is NOT “testimonial.” Not testimonial if describing an ongoing emergency. Trying to find killer at large & interview witnesses to get description of the perpetrator. Not testimonial.

• Part of investigation into past events is TESTIMONIAL. Ex) LAB REPORTS produced by the police - analyzing crime scene data. Must give him a chance to examine the forensic expert to see if the reports are accurate. Ex) Sometimes a statement given to the police is the equivalent of in-court testimony: when police are collecting evidence for prosecution. Have someone in custody and trying to build a case against him. That is testimonial. If D never has a chance to cross-examine that witness, then it would violate the CC.

• HYPO: perpetrator at large running out the mall. Police ask victim for description of the shooter. Victim gives description. Victim dies. Overcome Dying Declaration hearsay objection. Statement given to police dealing w/ ongoing emergency – overrule the CC.

• HYPO: same case. Shooter in custody. Ask Victim for description – she accurately describes as she is dying. Testimonial hearsay and the CC objection is sustained.

• *If declarant doesn’t die, you can bring him into court now - that satisfies confrontation. Other time – if former testimony.

Questions for Classroom Discussion [p. 306]

1. Prosecution of Bob for bank robbery. Alice, an alleged accomplice, told police while under interrogation that she was the mastermind of the crime but that Bob was also involved. Alice died while in custody. Would admission of Alice’s statement against Bob violate the Confrontation Clause?

Yes, Admission would violate the CC. NOT admissible under CC.

This is testimonial hearsay: she is in custody, police are building the case, no ongoing emergency here.

*Even if pass the hearsay hurdle, if you trip over the CC hurdle – it is NOT admissible!

2. Same case. While in jail, Alice made the same statement to Sally, her cellmate. Unknown to Alice, Sally was a police officer who was posing as a prisoner. Would admission of Alice’s statement violate the Confrontation Clause?

Unclear. SC has not decided a case like this yet. Is this testimonial? If yes, not admissible under CC.

3. Prosecution of Dennis for the shooting murder of Victim on a street corner. Dennis claims he was just in the wrong place at the wrong time, and that the killing had been committed by another person. At trial, the prosecution calls Wilma to testify that she arrived at the street corner moments after the shooting and saw Walker kneeling next to Victim, sobbing. If permitted, Wilma will testify that Walker suddenly pointed to Dennis and screamed, “You did it!” Walker died before the trial. Would admission of Walker’s statement violate the Confrontation Clause?

NO. This is NOT Testimonial hearsay. Overrule the CC objection.

*Might still have a hearsay objection – this might be an excited utterance.

CONSTITUTIONAL LIMITS ON THE EXCLUSION OF HEARSAY

• A criminal defendant’s rights can REQUIRE the TC to permit him to present otherwise INADMISSIBLE hearsay!

Chambers v. Mississippi (1973):

• Chambers tried in Mississippi TC – convicted of murdering a cop. Mississippi SC affirmed. Appealed up to USSC.

• Issue: Was D’s trial was conducted in accord w/ Due Process under the 14th Amendment?

• Woodville policemen went to bar to arrest young kid, Jackson. Jackson resisted.

• A bunch of guys came in and had bar fight. Shots fired. Cop was shot and before he died shot man in the crowd – Chambers.

• Chambers was then charged w/ cop’s murder.

• McDonald was in the crowd that evening. He left Woodville right the day after and moved to Louisiana and took a job.

• McDonald later came back and gave sworn confession to Chambers’ attorneys that he shot the cop. He also stated that he had already told his friend that he shot the cop. He used to own the gun which he got rid of right after the shooting. Affirmed the confession was voluntary. Confession was transcribed, signed, and witnessed – McDonald turned over to cops and put in jail.

• At preliminary hearing: McDonald repudiated his sworn confession.

• At trial: Chambers tried to show that McDonald shot the cop.

• Defendant wanted to attack the credibility of McDonald, try to get him to admit he is now lying. TC refuses to allow him.

• TC refused to let D introduce testimony of 3 wit’s who would have testified to McDonald’s 3 separate confessions bc hearsay.

• Constitutional rights directly affect the ascertainment of guilt so hearsay rule may not be applied mechanistically to defeat.

• Held: The exclusion of this critical evidence, coupled w/ State’s refusal to permit Chambers to cross-examine McDonald, DENIED him a trial in accord w/ DUE PROCESS.

• RULE: Hearsay rule and other rules of evidence sometimes must yield to a criminal defendant’s constitutional rights.

• Criminal D sometimes has the right to present evidence otherwise inadmissible hearsay or other rules.

• Due process works to allow the D to present evidence. Right to DP will trump evidence law!

• Constitution is supreme over evidence law statutes!

Questions for Classroom Discussion [p. 314]

1. In Chambers, what factors appear to have motivated the Supreme Court to hold that the Mississippi evidence rules could not be used to prevent Chambers from presenting evidence of McDonald’s confession and other statements?

The evidence rules ended up in the conviction of a person who based on that evidence seemed to be factually innocent!

The evidence that was being excluded was highly probative and highly exculpatory.

Also – the evidence that was being excluded seemed trustworthy. Many people her heard him confess. Corroborated. Reliable.

Must be: 1) HIGHLY PROBATIVE and 2) RELIABLE.

2. Prosecution of Defendant for murder. The crime was witnessed by several people, each of whom independently identified Defendant in non-suggestive line-ups. At trial, Defendant calls Witness and wishes to have her testify that Zed, a casual acquaintance of Defendant, confessed that she had committed the murder. Zed is unavailable. Defendant is unable to present any evidence corroborating the trustworthiness of Zed’s statement to Witness. The prosecution objects on hearsay grounds. Defendant responds that exclusion of the evidence would violate his constitutional rights. How should the court rule?

No – does not violate his Constitutional rights.

D calls Witness to testify, “Zed told me she committed the murder.” Zed unavailable.

This is not a declaration against interest bc you need corroborating evidence and there is none. Hearsay objection sustained.

Q: Does the exclusion of D’s evidence violate D’s DP right ot present a defense? This is not a Chambers situation where an innocent

person is being convicted. Many eyewitness ID’ed the D as the perpetrator. He looks factually guilty. The evidence is not

particularly reliable – nothing corroborating it.

Excluding the evidence and enforcing the usual evidence rules here is OK – does NOT violate D’s DP rights!

CH. 4 - CHARACTER EVIDENCE

• US law disfavors trial by character. Should be about what people have done, not the kind of person they are.

• Parties are usually FORBIDDEN from offering CE.

• CE = makes GENERAL STATEMENT about a person and CONVEYS A MORAL/ETHICAL JUDGMENT about the person.

• Ex) “Joe is a reckless person, violent, honest, peaceful.

3 main purposes a party may want to offer CE:

1) Prove character when character itself is an essential element of the charge, claim, or defense (character in issue).

2) Prove character as circumstantial evidence of how a person behaved other than as a witness while testifying.

3) Prove character as circumstantial evidence of the truthfulness of a witness (impeachment Ch. 6).

Rule 404. Character Evidence Not Admissible To Prove CONDUCT; Exceptions; Other Crimes

(a) Character evidence generally.--Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused.--In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

(2) Character of alleged victim.--In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;

(3) Character of witness.--Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other Crimes, Wrongs, or Acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

• The accused has the key to the door! He can open the door. “Mercy Rule.”

• *CIVIL cases – CE is always inadmissible to prove conduct!

405: Methods of Proving Character:

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

• REPUTATION or OPINION. Proof may be made by testimony as to reputation or in form of an opinion.

• On CROSS-EXAM – inquiry is allowable into relevant SPECIFIC INSTANCES of conduct.

• In cases in which CE of a person is ESSENTIAL ELEMENT OF A CHARGE/CLAIM/DEFENSE – proof may be also be made of SPECIFIC INSTANCES of that person’s conduct.

• Reputation: what the community is saying about him – collective statements everyone is making. If witness wants to testify to D’s reputation, and does not live or work in D’s community, could object: lack of personal knowledge. Must be familiar w/ the relevant community! Honest and law-abiding. Reputation for peacefulness.

• After D asks witness on direct exam about D’s reputation (honest and law-abiding) – Prosecution can ask about specific instances of conduct on cross-examination of the witness. Q: Did you hear about the times D stole goods? Ok on cross.

• Opinion: one who knows a person well and for a long time likely has a sufficient basis for testifying about the person’s honesty, peacefulness, and other traits that manifest in daily life. If person works closely w/ another, likely to have a sufficient basis for testifying about her character for care in her work: promptness. Not about peacefulness.

Character in “Issue”:

• Character is RARELY “in issue” in a case. Ex) defamation of character, negligent entrustment, libel.

• When a person’s character is an essential element of a charge/claim/defense, all forms of CE are admissible.

• When character is an essential element of a charge/claim/defense, specific instances evidence may be used to prove character evidence on direct exam, in addition to reputation and opinion. Character is “in issue.”

• Ex) Defamation action by P. D wants to prove that the article was true and that P really is a liar. P’s character is in issue and to establish the defense of truth, D must prove that P is what D claimed: a liar. D can call witness to testify that he bought a car from P and the cars lacked the standard equipment P promises would be included.

• Ex) Negligent entrustment. D loaned her boat to Z, who ran into P. P theory is that Z is a reckless operator, D should have been aware of that fact, and D was negligent by letting Z borrow the boat. To prove Z’s recklessness, P can offer evidence of Z’s reckless character.

Questions for Classroom Discussion [p. 330]

1. Negligence action by Plaintiff against Defendant arising from an automobile accident. Plaintiff claims Defendant ran a red light and struck Plaintiff’s car, causing the injury. To prove Defendant ran the light, Plaintiff calls Witness, who is familiar with Defendant’s community reputation, to testify that Defendant is known as a careless driver. Defendant objects. How should the court rule?

Sustained. “Careless driver” = Character evidence. Moral judgment. NOT admissible in CIVIL cases to prove conduct!

2. Same case. Is the evidence Plaintiff wishes to present relevant? Why or why not?

3. If the evidence is relevant, why does the rule require its exclusion? Why not allow the court to admit it unless its probative value is substantially outweighed by the danger of unfair prejudice or other concerns contained in Rule 403?

Yes it is relevant, but the law has for centuries banned the admission of CE to prove conduct! Fear the jury will decide based on who

has the better character, rather than the merits of the case.

People must be tried based on their conduct ON THE CHARGED OCCASION, not on their past conduct or how highly they rate in

the pantheon of human character.

Evidence of a Criminal D’s Character

Michelson v. US (1948)

• Michelson convicted of bribing federal agent.

• D took the stand and admitted passing the money, but it was due to the agent’s demands/threats = entrapment.

• Issue turned on whether the jury believed D or the agent.

• D called 5 witnesses to prove he had a good reputation (honest, truthful, law-abiding). 2 testified they knew him for 30 years.

• ACCUSED has the KEY to the door. “Mercy rule.”

• Rule 404(a)(1) – prosecution may not offer evidence of D’s character to prove D acted in conformity with her character, but D may offer evidence of her character to prove her innocence.

• Once D has opened the door, the prosecution may respond by cross-examining D’s character witness and also by offering its own character witnesses to contradict the testimony D offered.

• When D offers evidence of a pertinent trait of the victim’s character, prosecution may respond by offering evidence concerning the same trait of D’s character! If D charged w/ assault and battery, claims SD, wants to prove victim had a violent character, prosecution can offer evidence concerning D’s character for violence!

Sexual Assault & Child Molestation

• Rules 413, 414, 415.

• These rules do away with the character prohibition in sex assault and child molestation prosecutions as well as in CIVIL cases on those types of misconduct!

• Similar conduct of the charged person can be allowed bc a person who has done it in the past is likely to do it again. CE.

• Court still maintains 403 power – can exclude the evidence.

Rule 413/414. Evidence of Similar Crimes in Sexual Assault Cases/Child Molestation

(a) In a criminal case in which the defendant is accused of an offense of sexual assault/child molestation, evidence of the defendant's commission of another offense or offenses of sexual assault/child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

(b) In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

(c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule.

Rule 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

Questions for Classroom Discussion [p. 340] – Evidence of Criminal D’s Character

1. Why does the law allow a criminal defendant to prove her innocence by offering evidence of her good character, but, except in very limited circumstances, does not allow the prosecution to present character evidence during its case-in-chief to prove the defendant’s guilt? Fear of jury prejudice and bias.

2. What restrictions do Michelson, and Rules 404-405, place on the defendant’s right to prove innocence with character evidence?

1) The character trait must be “pertinent” – relevant. Ex) Theft case: honest. Ex) Murder: violent.

2) Accused can present character evidence only in the form of reputation or opinion. Not specific instances.

3. Once the defendant offers character evidence to prove her innocence, how may the prosecution respond?

Prosecution may rebut with pertinent character evidence.

4. Does the court still retain the authority to forbid the prosecution from asking about specific instances of conduct on cross-examination? If so, why?

If the door is open, P may ask about specific instances of conduct on cross-exam. ??

5. If the prosecution chooses to call its own witness to “rebut” the defendant’s character evidence, may defendant raise specific instances of conduct on cross-examination of that witness?

Yes.

6. Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant’s business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule?

Sustained. Door is closed.

7. Same case. During his case-in-chief, Defendant calls Witness to testify that she has lived in the same community as Defendant for many years, that she knows Defendant’s reputation for peacefulness, and that Defendant’s reputation is that he is a peaceful person. The prosecution objects that Defendant has offered inadmissible character evidence. How should the court rule?

Overrule.

8. Same case. If the prosecution also objects to the evidence in Question 7 on hearsay grounds, how should the court rule?

Fr 803(21): hearsay exception.

9. Same case. On direct examination, Defendant also asks Witness, “Have you heard about an occasion two years ago when Defendant refused an opportunity to fight with a person who had attacked Defendant’s child?” The prosecution objects. How should the court rule?

Sustained. Specific instances not admissible on direct.

10. Same case. During its cross-examination of Witness, the prosecution asks, “Did you hear that last year, Defendant was involved in a violent altercation while attending a high school football game?” Defendant objects. How should the court rule?

Overruled. Can use specific instances on cross.

15. Civil action for battery by Plaintiff against Defendant following a brawl in a bar. Defendant denies striking Plaintiff. To prove that Defendant did not strike Plaintiff, Defendant calls Witness to testify that she knows Defendant well, and that in her opinion, Defendant is a non-violent person. Plaintiff objects. How should the court rule?

Sustained. Civil action: no CE admissible!

16. Prosecution of Defendant for rape of Victim, who was attacked while walking to her car after seeing a movie. Defendant denies being the perpetrator. To prove that Defendant committed the crime, the prosecution calls Witness to testify that Defendant has committed several rapes in the past few years. Defendant objects. How should the court rule?

Overruled. Sex assault door is wide open!!! Can admit prior instances of sexual assault.

17. Same case as in Question 16. The prosecution also wishes to offer evidence that Defendant has a community reputation as a dangerous sexual criminal. Defendant objects. How should the court rule?

Sustained. CANNOT admit REPUTATION/OPINION. Only CAN admit PRIOR INSTANCES OF SEX ASSAULT.

18. Same case as in Question 16. The prosecution wishes to offer evidence that Defendant has committed two acts of child molestation. Defendant objects. How should the court rule?

Overrule. This is a SEX ASSAULT CASE. You CAN admit prior acts of CHILD MOLESTATION.

Sex assault includes child molestation.

Questions for Classroom Discussion

Casebook page 340

1. [The following is based on question 6 from page 341 of the casebook.] Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant planned and carried out the murder of Victim, Defendant’s business rival. To prove Defendant committed the crime, the prosecution calls Witness during its case-in-chief to testify that she has known Defendant for many years, and that in her opinion, Defendant is a violent person. Defendant objects. How should the court rule under the federal rules of evidence? The C.E.C.?

§ 1101. Evidence of character to prove conduct – same as FR – CE to prove conduct is inadmissible.

§ 1102. Opinion and reputation evidence of character of criminal defendant to prove conduct

In a criminal action, evidence of the DEFENDANT'S CHARACTER or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:

(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.

(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a).

*Key difference: in CA, CANNOT use SPECIFIC INSTANCES to prove Criminal D’s character.

2. [The following is based on question 7 from page 341 of the casebook.] Same case. During his case-in-chief, Defendant calls Witness to testify that she has lived in the same community as Defendant for many years, she knows Defendant’s reputation for peacefulness, and Defendant’s reputation is that he is a peaceful person. The prosecution objects that the defendant has offered inadmissible character evidence. How should the court rule under the Federal Rules? The C.E.C.?

Overruled. Admissible.

3. Same case. On cross-examination of Defendant’s witness, the prosecutor asks, “Did you know that when he was in law school Defendant beat up his Evidence professor?” How should the court rule under the Federal Rules? The C.E.C.?

Admissible in FR, but in CA: not admissible bc specific instance of conduct.

4. Prosecution for assault. Victim claims that Defendant hit her. Defendant claims Victim hit Defendant first and that Defendant acted in self-defense. Defendant offers evidence that Victim has violent character. Prosecution then offers evidence that Defendant also has violent character. How should the court rule under the Federal Rules? The C.E.C.?

FR: D opens door to Victim’s character, opens the door to D’s SAME character trait. Admissible.

CA: Under 1103 – same thing – Admissible.

5. Prosecution for theft of diamond ring. Victim claims defendant stole her ring. Defendant claims ownership of the ring and claims it was Victim who stole it and that defendant just took it back. Defendant offers evidence that Victim has character for dishonesty. Prosecution then offers evidence that Defendant has character for dishonesty. How should the court rule under the Federal Rules? The C.E.C.?

FR: Admissible. FR is broader.

CA: NOT admissible! Evidence concerning VICTIM’S CHARACTER: to open the door, D must show Victim is VIOLENT, which opens the door for the prosecution to show that D is VIOLENT. Doesn’t work for dishonesty – only 1 trait: violence.

D can open the door to Victim’s character – in CA – with ALL 3 – opinion, reputation and specific instances (whereas w/ FR can only use specific instances on cross-exam).

§ 1103. Character evidence of crime victim to prove conduct; evidence of defendant's character or trait for violence; evidence of manner of dress of victim; evidence of complaining witness' sexual conduct

(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the VICTIM of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:

(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.

(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).

(b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

CA doesn’t distinguish between direct and cross-exam like the FR’s.

CA distinguishes between WHO’s character we are trying to prove.

If trying to prove D’s character = can only use reputation and opinion.

If trying to prove the Victim’s character = can use all 3!

Evidence of Victim’s Character

• D’s proof of victim’s character: D may offer evidence of a pertinent trait of the VICTIM’S character.

• Ex) D charged w/ assault/battery. D claims SD. To prove she acted in response, D can offer evidence that victim is violent.

• On direct D may offer only reputation/opinion.

• If D opens the door, prosecution may rebut by cross-examining the witness w/ reputation/opinion, and specific instances.

• Prosecution can also call its own witnesses to establish victim’s character for peacefulness, rather than violence.

• D can then cross-examine the prosecution’s witnesses - on cross, D can inquire about reputation/opinion, and specific.

• DEFENDANT HAS THE KEYS.

• D opens door #1 by offering evidence of his own character.

• D opens door #2 by offering evidence of the victim’s character – opens door to rebuttal evidence of victim’s character.

• *When D offers evidence about VICTIM’s character – prosecution can present evidence that D has the SAME trait!!!

• Ex) D presents evidence that victim has a violent character. Prosecution can present evidence that D is also violent.

Rape Victim (Rape Shield)

Rule 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition

(a) Evidence generally inadmissible.--The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

(b) Exceptions.--

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim.

(c) Procedure to determine admissibility.--

(1) A party intending to offer evidence under subdivision (b) must--

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.

(2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

• In CRIM/CIVIL involving SEX MISCONDUCT: evidence VICTIM engaged in other sexual behavior/predisposition is inadmissible.

• Exception in CRIM cases: evidence of specific instances of victim’s sex behavior is admissible to prove that a person other than the accused was the source of semen/injury; and evidence of victim’s sex behavior with the accused is admissible at the request of D if offered to prove consent, or at the request of prosecution to prove other things; and otherwise banned evidence is admissible if its exclusion would violate D’s constitutional rights.

• Except in CIVIL cases: evidence of victim’s sex behavior/predisposition admissible if not excluded by any other rules and if its probative value substantially outweighs danger of harm to any victim and unfair prejudice. Places heavy burden on the proponent to demonstrate the ct should admit the evidence! HARDER TO ADMIT. REVERSE 403. Also – evidence of victim’s reputation is only admissible if victim placed her reputation in controversy.

Questions for Classroom Discussion

Casebook Page 340

1. [The following is based on question 16 from page 342 of the casebook.] Prosecution of Defendant for rape of Victim, who was attacked while walking to her car after seeing a movie. Defendant denies being the perpetrator. To prove that Defendant committed the crime, the prosecution calls during its case-in-chief Witness to testify that Defendant has committed several rapes in the past few years. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

Rape case. Admissible under FR & CA.

§ 1108. Evidence of another sexual offense by defendant; disclosure; construction of section

(a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered in compliance with the provisions of Section 1054.7 of the Penal Code.

2. [The following is based on question 17 from page 342 of the casebook.] Same case as in Question 1. The prosecution also wishes to offer evidence that Defendant has a community reputation as a dangerous sex criminal. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

Rape case. In FR & CA: can only use prior instances of sex assault – not reputation or opinion. NOT admissible!

3. [The following is based on question 18 from page 346 of the casebook.] Same case as in Question 1. The prosecution wishes to offer evidence that Defendant has committed two acts of child molestation. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

Rape case. Evidence of prior specific instances of child molestation.

FR: Admissible. Prior instances of child molestation = sex assault.

CA: Admissible.

*In FR: if child molestation case – want to admit prior instances of sex assault on an adult – not admissible!

*In CA: if child molestation case – want to admit prior instances of sex assault on an adult – admissible!

4. Civil action for assault. Plaintiff alleges Defendant sexually assaulted her. Plaintiff offers evidence that Defendant committed other acts of sexual assault. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

Sex assault CIVIL case. P offers evidence of D’s prior acts of sex assault.

FR: Admissible in civil.

CA: NOT admissible – only in criminal!

5. Criminal prosecution for assault. Defendant allegedly beat his wife. Prosecution offers evidence that Defendant beat his wife on previous occasions. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

Not a sex assault case. FR: NOT admissible.

*But in CA – DOMESTIC VIOLENCE – special statute: ADMISSIBLE! Prior instances of OTHER DV!

§ 1109. Evidence of defendant's other acts of domestic violence

(a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

Olden v. Kentucky – Exception when constitutional rights of accused so require.

• Black guy convicted of rape (sex assault). Victim was white.

• Victim said that they told her that her friend was in a car accident, got in a car with them, and D sexually assaulted + raped her.

• Russell testified that right after he saw her get out of the car, she told him both had raped her.

• D’s claimed she consented to the sex acts and then dropped her off at Russell’s. Other witnesses corroborated D’s version.

• She and Russell were both married and were having an affair.

• D wanted to cross-examine the Victim and get her to admit that she was in a romantic relationship w/ Russell, so when Russell saw her get dropped off by D, she had a motive to lie and say D raped her in order to protect her relationship w/ Russell.

• Held: D has a constitutional right to confront the witnesses against him – including the right to conduct cross-examination!

Questions for Classroom Discussion [p. 348] - Special rule for rape victims

1. What exactly was the questioned evidence in Olden?

D wanted to show that Victim was having a relationship w/ Russell.

2. Why was this evidence relevant?

Provided motive for her to lie. Evidence would have shown that Victim had a motive to make up the false story of rape.

3. Does this evidence carry significant probative value?

YES. Motive or bias of a witness is especially probative of their credibility!

4. Why did the trial court exclude the evidence? Was the court’s reason rational?

TC excluded bc afraid jury would be unfairly prejudiced against the Victim bc Victim was White and Russell was Black. Interracial

relationship – to admit into evidence that they were having an interracial relationship was a scary thing at that time.

5. After Olden, would any sexual-assault defendant be encouraged to investigate the alleged victim’s sex life to determine if she is engaged, or has ever engaged, in an illicit relationship? If so, would that situation undermine the purposes of the rape-shield laws?

FR 412c) Exception: evidence the exclusion of which would violate the constitutional rights of the defendant.

They are violated her by denying D the right to cross-examine the victim. High concern of truthfulness.

6. Prosecution of Defendant for sexual assault on Victim. Defendant admits having sex with Victim but claims Victim consented. To prove consent, Defendant wishes to testify that prior to the alleged sexual assault, Defendant and Victim had engaged in consensual sexual intercourse on two occasions. The prosecution objects. How should the court rule?

FR: CRIMINAL: Evidence they had consensual sex twice before – typically ADMISSIBLE!

FR 412b) CRIMINAL exceptions: b) evidence of specific instances of sexual behavior by the alleged victim with respect to the

person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution! The fact that had sex on

prior occasions is typically admissible under the FR’s!

FR: ALLOWS D to prove that on prior occasions had consensual sex w/ D.

Question for Classroom Discussion

Casebook Page 348

Civil action for assault. Plaintiff claims defendant raped her. Defendant, a professional basketball player, claims he and plaintiff engaged in consensual sex. There were no other witnesses to the encounter between plaintiff and defendant and the physical evidence is inconclusive on the question of consent. On direct examination, plaintiff said nothing about her sexual conduct with others. Defendant offers evidence that plaintiff engaged in consensual sex with other members of the same basketball team on the night in question. Plaintiff objects. How should the court rule under the Federal Rules? The C.E.C.?

FR: 412b2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is

admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to

any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed

in controversy by the alleged victim.

FR: CIVIL case – matter is tossed over to the judge to balance probative value v. unfair prejudice. Largely in judge’s discretion!

***CA: NOT admissible!!!

§ 1106. Sexual harassment, sexual assault, or sexual battery cases; opinion or reputation evidence of plaintiff's sexual conduct;

inadmissibility; exception; cross-examination

(a) In any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, opinion evidence, reputation evidence, and evidence of specific instances of plaintiff's sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium.

(b) Subdivision (a) shall not be applicable to evidence of the plaintiff's sexual conduct with the alleged perpetrator.

(c) If the plaintiff introduces evidence, including testimony of a witness, or the plaintiff as a witness gives testimony, and the evidence or testimony relates to the plaintiff's sexual conduct, the defendant may cross-examine the witness who gives the testimony and offer relevant evidence limited specifically to the rebuttal of the evidence introduced by the plaintiff or given by the plaintiff.

(d) Nothing in this section shall be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff

as provided in Section 783.

HOMICIDE PROSECUTIONS: special rule

• 404a2: Only in HOMICIDE prosecutions, where D claims victim was the FIRST AGGRESSOR – prosecution may offer evidence of victim’s character for PEACEFULNESS to rebut ANY evidence offered by D to prove victim was the first aggressor.

• W/ homicide – can open the door to evidence of victim’s 2 ways:

o 1) D evidence of victim’s character; or

o 2) D evidence that victim attacked first.

• D might seek to prove victim attacked first by having D or another witness testify that victim was the first aggressor.

• Then prosecution can rebut w/ evidence of victim’s peaceful character.

• W/ Homicide door can be opened w/ something OTHER THAN CE!

Questions for Classroom Discussion [p. 353]

1. Prosecution of Defendant for arson. The prosecution claims that Defendant set fire to the office building of Victim, a business rival, after Victim beat Defendant in bidding on a large contract. Defendant claims Victim burned the building for the insurance money. To prove that Victim was responsible for the fire, Defendant calls Witness to testify that she has known Victim for many years, and that in her opinion, Victim is a dishonest person. The prosecution objects. How should the court rule?

Admissible.

2. Same case. During its rebuttal case, the prosecution calls Witness 2 to testify that Defendant is known in the community as a dishonest person. Defendant objects. How should the court rule?

Admissible. Same trait.

3. Same case. The prosecutor asks Witness 2 to relate an instance of Defendant’s dishonesty. Defendant objects. How should the court rule?

Inadmissible. On direct, P cannot use specific instances.

4. Same case. During its rebuttal case, the prosecution calls Witness 3 to testify that Defendant is known in the community as a mobster. Defendant objects. How should the court rule?

Dishonest = mobster? Not sure. If different trait: inadmissible.

5. Prosecution of Defendant for the murder of Victim. To prove that Victim was the first aggressor, Defendant calls Witness, who testifies that she knew Victim for many years, and that in her opinion, Victim was a violent person. During its rebuttal case, the prosecution calls Witness 2 to testify that she knew Victim for many years, and that in her opinion, Victim was a non-violent person. Defendant objects. How should the court rule?

Admissible. 1st part of 404a2. D offered pertinent character trait of victim – opened the door.

6. Same case. Assume that instead of testifying as in Question 5, Witness states that she was present at the time of the incident, that Victim attacked Defendant with a knife without notice or provocation, and that Defendant responded by shooting Victim. During its rebuttal case, the prosecution wishes to call Witness 2 to testify to Victim’s character for peacefulness. Defendant objects. How should the court rule?

Admissible. 2nd part of 404a2 - Homicide. D offered evidence that D attacked first – opened the door – P can rebut w/ peacefulness.

Questions for Classroom Discussion

Casebook Page 353

1. Murder prosecution. Defendant testifies he acted in self defense after victim attacked him. The prosecution offers the testimony of victim’s sister, who says victim had a reputation for peacefulness. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

FR: Admissible under 404a2

*CA: NOT admissible!

1103: D must offer CE of Victim first. Then prosecution can only REBUT w/ opinion/reputation/specific instances of V’s conduct.

2. Same case. Defendant offers the direct examination testimony of victim’s neighbor that he once saw the victim assault his Evidence professor. The prosecution objects. How should the court rule under the Federal Rules? The C.E.C.?

FR: Not admissible – on direct cannot use specific instances.

***CA: Admissible! If offering evidence of VICTIM’S character can use reputation, and specific instances of conduct!!

But, in CA, if offering evidence of defendant’s – can never use specific instances, even on cross!

OTHER CRIMES, WRONGS, OR ACTS

• FR 404b) Evidence of other crimes/wrongs/acts is NOT admissible to prove CONDUCT. However, it may be admissible for other purposes in CIVIL & CRIMINAL: MOTIVE/OPPORTUNITY/INTENT/PREPARATION/PLAN/KNOWLEDGE/ID/ABSENCE OF MISTAKE/ACCIDENT, etc. (can’t use character evidence!)

• In CRIM case: Pros. must provide notice, preferably before trial, of its intention to introduce the evidence and its general nature.

• OTHER CRIMES/WRONGS/ACTS = UNCHARGED misconduct: that is NOT the SUBJECT OF CURRENT CHARGE/CLAIM.

• Evidence of other crimes/wrongs/acts is not admissible only if its relevance requires an inference of character at any point in the chain of inferences leading from the evidence to the conclusions sought to be proved.

• Nothing requires that the uncharged misconduct evidence consist of acts committed before the act at issue in the case.

• Ex) Charged w/ arson. To prove D had a plan, motivated by hatred, to destroy V’s property, P offers evidence that D set first to two other properties owned by V – one set before the fire at issue, the other set after. OK.

HYPO:

Bank robbery. Perp uses explosives to break into safe. D claims he didn’t do it – was too drunk. Prosecution wants to present evidence that just before the robbery took place and during the time D claims to have been drunk, D robbed another bank nearby.

• Evidence = At time D claims to have been drunk, D committed another bank robbery before the current charged robbery.

• 1) INADMISSIBLE: could demonstrate D’s character: D is a person who commits serious crimes, so committed this robbery.

• 2) Potentially ADMISSIBLE: evidence shows he had ability/opportunity to commit the crime: D was sober to rob another bank, so was sober enough commit this robbery for which she is charged. Not looking at D’s character.

HYPO:

Murder. D admits backing her car over victim, but that it was an accident. Prosecution wishes to present evidence that the day before the incident D and V had robbed a bank together, getting a lot of $.

• Evidence = day before the incident, they robbed a bank together making a lot of money.

• 1) INADMISSIBLE to prove that D is the kind of person who would commit a serious crime like murder.

• 2) Potentially ADMISSIBLE to show D had a motive to get sole possession of the money and killed Victim to get all the money.

• *Potentially admissible bc ct must also decide whether a limiting instruction sufficiently protects D from unfair prejudice.

• As long as the propensity inference is not character-based, the rule does not forbid it. Ex) D stole getaway car (D had plan to commit the robbery (D committed the bank robbery. A person who has a plan to act in a certain way is more likely to carry it out. Especially true if we take a step in the direction of implementing our plan – theft of the getaway car.

HYPO:

• Stealing cocaine lab. Lab was using the cocaine for gov’t research. To prove D’s involvement – pros want to present evidence: D is addicted to cocaine.

• 1) INADMISSIBLE to prove D as a cocaine addict has a criminal character that would lead him to commit crimes like theft.

• 2) Possibly ADMISSIBLE to prove D had a motive to commit the crime, so D might have done it. (Most cts would admit.)

• Problem: line btw motive and character is thin.

o If addiction = character flaw – no diff btw using the evidence to prove motive and character: ct should exclude.

o If addition = disease – disease affects behavior – not a character trait: ct could admit it. Strange result.

• HYPO: D accused of violent crime wearing batman costume. D says it wasn’t him. If D committed other crimes wearing the same batman outfit – can connect him to the current charge w/out drawing any inference on his character. Identity is D.

DOCTRINE OF CHANCES

• Rex v. Smith: Smith charged w/ murder of woman he married found drowned in bathtub. D said she drowned by accident. Prosecution offered evidence that after her death, he went through marriage ceremonies w/ 2 other women, they also drowned in the bath, and all 3 women had gotten life insurance at D’s suggestion.

• Evidence regarding the deaths of D’s subsequent wives = doctrine of chances.

• Doctrine of Chances = That can’t be a coincidence!!! What are the odds!?! Odds that 3 wives of same man would all drown in bath tub accidentally are very small. Series of acts, taken together, likelihood of coincidence is small, and the evidence of the uncharged acts is relevant and likely admissible.

Robbins v. State (2002)

• Murder case. D convicted of killing baby of his gf.

• D presented evidence that he loved his baby it died of SIDS.

• Issue: whether during the guilt/innocence phase of his trial, TC erred by admitting evidence of previous injuries the victim suffered while she was in D’s care. Testified that on 3 separate occasions the baby was injured while in D’s care.

• TC w/in its discretion to decide that the probative value of the relationship evidence was not substantially outweighed by the danger o funfair prejudice – especially in light of the defensive theories D presented.

• Held: Evidence ADMISSIBLE to prove something other than character: that his relationship was not loving w/ his daughter.

• Prosecution’s evidence is admissible under 404b) DOCTRINE OF CHANCES: every time D was left w/ the child to babysit, the child got injuries. The fact that it was a REPEATED OCCURRENCE let’s us infer it was an intentional act.

• Can do this w/out inferring D is a violent guy.

Questions for Classroom Discussion [p. 364]

1. Veep, the vice-president of a bank loses money betting with a bookie.  To cover his losses, he embezzles money from the bank.  He learns that bank examiners will examine the bank’s books the next day.  Fearing they will discover that cash is missing, he sets the bank on fire.  Veep is charged with arson, and the prosecutor offers evidence of Veep’s gambling and embezzlement. Veep objects. How should the court rule?

Admissible under 404b. MIMIC fact (motive, intent, mistake, identity, common plan). Shows MOTIVE.

2. Murder prosecution.  Victim Roadrunner was shot.  Defendant Coyote admits shooting Roadrunner but claims it was accidental.  The prosecution offers evidence that, in the week before the shooting, Coyote tried to drop an anvil on Roadrunner, gave Roadrunner a birthday cake with sticks of dynamite for candles, and put a black widow spider in Roadrunner’s athletic supporter. Coyote objects. How should the court rule?

This fits into a couple of MIMIC facts: INTENT, ABSENCE OF MISTAKE.

3. Prosecution of Defendant for bank robbery. The perpetrator entered the bank wearing a Smokey the Bear costume, approached a teller, told the teller that money was needed to “feed the hungry bears,” held out a large burlap sack for the teller to fill, and left after the teller did as she was told. Defendant claims to have been in another city when the crime was committed. The prosecution calls a witness to testify that on two occasions in the past month, he served as lookout for Defendant when Defendant committed bank robberies in the same city using the method just described. Defendant does not deny committing the other robberies, but objects to admission of the evidence on the ground it violates the character evidence rule. How should the prosecutor respond? How should the court rule? Inadmissible? Check.

4. Same case. Defendant argues that because the charged and uncharged crimes are so similar, there is a great danger that the jury will convict Defendant for being a bank robbing type, without finding whether Defendant committed the charged robbery. As a result, Defendant argues, the court should exclude the evidence as too prejudicial. How should the court rule?

Possibly admissible under 404b) MIMIC fact = IDENTITY.

D says you got the wrong guy – I didn’t do it! Prosecution wants to prove he is the guy. This tends to prove he is the guy.

Evidence shows that he did the same thing in the past wearing the same costume – could be admissible under 404b Identity.

Could be a 403 objection to the admissibility of the evidence for this limited purpose.

5. Prosecution of Defendant for possession of a stolen laptop computer. Defendant admits possessing the computer, but claims she had just found it at a bus stop and planned to turn it in to the bus company. To prove Defendant planned to keep the laptop, the prosecutor wishes to present evidence that police found three other laptops in Defendant’s home. None of these machines belonged to Defendant. Defendant objects to the prosecution’s evidence on the ground it constitutes inadmissible character evidence. How should the court rule?

DOCTRINE OF CHANCES. Allows you to infer that this laptop was stolen. Not likely that he has innocent explanations for all 4!

6. Prosecution of Defendant for failing to stop her car on police orders after she ran a red light. The police followed Defendant for many miles before finally shooting out Defendant’s tires, forcing her to stop. Defendant claims she did not know the police were chasing her. To prove Defendant’s knowledge, the prosecution wishes to offer evidence that a few days before the incident, Defendant robbed a bank. Defendant objects on grounds the evidence is irrelevant except on the basis that it shows her bad character, and that it is not admissible for that purpose. How should the court rule?

D is trying to prove that she didn’t know they were following her – she wasn’t try to run away from the cops.

Possibly admissible under 404b MIMIC fact = MOTIVE for why she was trying to avoid arrest.

Degree of Similarity

Varies: sometimes must be virtually identical or no similarity at all.

HYPO #1: Robbery of convenience store in Elvis costume, gathered all donuts, told clerk he was hungry, to clean out register before step on him w/ blue suede shoes. P wishes to present evidence on 2 occasions close in time to this robbery, D robbed convenience stores wearing an Elvis costume acting same way. Modus operandi - bc of the unusual way they were committed, likely same D. Evidence may be admitted under 404b to prove IDENTITY of the perp.

HYPO #2: Murder stabbed in heart. Offer evidence D previously stabbed another person in the heart. Not enough similarity. Lots of ppl do this. To allow modus operandi – similarities must related to something UNIQUE.

HYPO #3: Murder by poison of sister. They were only surviving kids of wealthy sick woman. Offer evidence D killed the other 2 siblings, one w/ gun, other w/ kitchen knife. D had a monetary motive to kill her siblings – the previous killings show the existence of a plan to get all the money. The fact of the prior killings shows D is more likely to have committed the current crime.

HYPO #4: Armed robbery of supermarket. Robber approached manager, demanded open the safe, and took all money. Offers evidence that 2 weeks before the robbery, D robbed two other supermarkets near using same method. Absent more similarities, admissibility would invite forbidden character inference! Type of guy that robs supermarkets. Not enough for modus operandi.

HYPO #5: Sale of cocaine. Offers evidence that in several months surrounding the sale, D sold heroin in same city. Not modus operandi – nothing unique about the circumstances of the charged and uncharged sales.

Questions for Classroom Discussion [p. 369] - Degree of Required Similarity Between Charged and Uncharged Conduct

1. Prosecution of Defendant for the murder of Victim. The murderer waited outside Victim’s home, accosted him when he got out of his car, forced him into the house, took all the money and jewelry from the house, and shot him. Defendant denies committing the crime. To prove Defendant was the killer, the prosecution wishes to present evidence that several weeks earlier, Defendant had committed a murder in a nearby town using the same method. Defendant objects on the ground the two acts are not sufficiently similar. How should the court rule?

Identity? To prove need: 1) similarity; and 2) uniqueness. If this is the way lots of ppl commit a crime – doesn’t tell us much!

2. Prosecution of Defendant, a restaurant parking valet, for car theft. The day before the car was stolen, its owner had driven it to the restaurant, and Defendant parked it. Defendant denies committing the crime. To prove Defendant committed the crime, the prosecution wishes to present evidence that when Defendant parked the car the day before it was stolen, he made a clay impression of the key. Defendant objects on the ground that the uncharged and charged acts are not sufficiently similar. How should the court rule?

Intent, Identity. Copying the car and charged conduct are part of a larger scheme to commit the crime. Admissible under 404b.

Purposes for which evidence may be offered

• Key is RELEVANCE.

• HYPO #1: Murder of bf by person wearing camo. Offers evidence D stole camo clothing day before.

• HYPO #2: Same case, admits killing, but in heat of passion that found out he’s been cheating. Offers same evidence.

• For both: theft of camo tends to prove the existence of a plan to commit the crime.

• #1: theft (plan to kill (proves D was the perp; whereas #2: theft (plan (acted w/ malice aforethought.

Determining Admissibility

• Evidence offered for a proper purpose? Violate ban on CE to prove conduct? Why goes to identity, why goes to intent.

• Evidence relevant? Easy to figure out.

• Probative value not substantially outweighed by unfair prejudice? Ct must determine.

• Limiting instruction?

Questions for Classroom Discussion [p. 373] – Putting it All Together

1. Prosecution of Defendant for possession of cocaine. Defendant admits that the cocaine was found in his apartment, but claims he thought it was flour. To prove Defendant knew the substance was cocaine, the prosecution wishes to prove that several months earlier, Defendant was convicted of cocaine possession. Defendant objects. How should the court rule?

Admissible. Goes to ABSENCE OF MISTAKE or Knowledge. Trying to prove D knew.

He was convicted of possessing it – so he must know what it is.

2. Same case. Assume Defendant argues that the prosecution should not be permitted to offer the evidence because Defendant was acquitted in the prior trial. How should the court rule?

Admissible. Still saw and heard about cocaine during the trial, so he should know what cocaine looks like. He knew it was not flour.

3. Prosecution of Defendant for bank robbery. After obtaining the money, the robbers fled in a minivan. Defendant denies involvement. To prove Defendant’s involvement, the prosecution offers evidence that Defendant stole the minivan the day before the bank robbery. Defendant objects. How should the court rule?

Stole the minivan = preparation/plan. Mimic fact. Admissible.

HYPO: Instead, evidence offered: he robbed 7 other banks in the state over the past 6 months. NOT admissible! That is just

character evidence – that he is a bank robbery type of person. Typically, CRIME SPREE EVIDENCE = NOT ADMISSIBLE.

4. Prosecution of Defendant for the murder of Victim. Defendant admits running Victim over with a car, but claims it was an accident. The prosecution alleges that Defendant, Victim, Zed, and Abel had all participated in a successful bank robbery. The prosecution wishes to present evidence that just after killing Victim, Defendant shot Zed to death and cut the brake cable on Abel’s car, causing Abel to be involved in a fatal accident. Defendant objects to evidence of the killings of Zed and Abel, alleging lack of similarity between those acts and the charged crime. How should the court rule?

Admissible. Goes to MOTIVE: kill all the people involved in the bank robbery.

7. Plaintiff sues Defendant for battery following an altercation in a bar. Defendant claims she was not involved, or even present, at the time of the fight. To prove that another person, Zed, was the responsible party, Defendant wishes to offer evidence that Plaintiff had previously attacked Zed at a football game. Plaintiff objects. How should the court rule?

Maybe Zed had a MOTIVE. Since P had attacked him, maybe Zed had a motive to get him back.

8. Prosecution of Defendant for sexually molesting Victim, Defendant’s ten-year-old child. Defendant admits entering Victim’s bedroom on the night in question, but claims he only “tucked Victim into bed,” and committed no act of molestation. To prove that an act of molestation occurred, the prosecution wishes to offer evidence that on two prior occasions, Defendant sexually molested the same child. Defendant objects. How should the court rule? How should the court rule in the absence of Rule 414?

Admissible under 414. Sexual molestation case. Admissible: prior acts of sexual molestation.

Absent 414 , maybe 404(b) fact – PLAN to continually molest the child.

9. Same case. Assume, however, that the victim of the uncharged molestation was not Victim, but Victim’s sibling, also a young child. Would the evidence be admissible absent Rule 414?

Admissible under 414.

Maybe MOTIVE? PLAN? Some cts would still admit this in the absence of 414 w/ just a bigger plan to molest kids in that home.

Some courts would say if it is not the same kid then it is not similar enou.g

10. Same case. Assume, however, that the uncharged acts of molestation were committed on a child or children not related to Defendant. Would the evidence be admissible absent Rule 414?

Admissible under 414. But most courts will NOT allow this in under 404(b) – too tenuous.

JUDGE/JURY FUNCTIONS: REQUIRED QUANTUM OF PROOF OF UNCHARGED MISCONDUCT

• Sometimes D will deny that these uncharged misconduct acts never happened.

• How much evidence of the uncharged misconduct is needed to be admitted under 404(b)?

o Prior criminal prosecution: if convicted (guilty beyond reasonable doubt) – admissible.

o Conviction can be proved is by official record, admissible under 803(22) – judgment or previous conviction.

o If acquitted? Must be sufficient to support a finding.

Huddleston v. US (1988)

• Held: do NOT need to prove the other act by a preponderance of the evidence to be admissible.

• H charged w/ selling stolen gods and possessing stolen property – shipping Memorex videotapes.

• Prosecution had to prove that H knew the tapes were stolen.

• To prove H knew the tapes were stolen: shortly before the charged incident, H offered to sell a number of new TV’s for $28, and not long after the charged events, H tried to sell a large number of stolen appliances. (other instances of selling stolen items).

• Held: 404(b) evidence admissible if there is SUFFICIENT EVIDENCE TO SUPPORT A FINDING that D committed the act.

• Same standards as the relevance standard of 104(b) – sufficient to support a finding.

• Don’t need to prove it by a preponderance of the evidence. But don’t forget to apply Rule 403!!!

• Reasoning: 404(b) applies in both civil and criminal cases – motive/opportunity/knowledge.

• The fact that he stole the TV’s was could relevant to show he D had engaged in a series of sales of stolen stuff from the same suspicious source – strong evidence that he knew each of these items were stolen.

p. 379

1. Ct would say: demonstrating that the D was the driver in that prior attempt, that it was D that committed that bad act is a relevancy q – if it wasn’t him then the evidence is not relevant. 104b deals w/ relevance. If prelim fact goes to relevance – 104b question. That is the logic.

2. Evidence sufficient to support a finding that D committed those prior robberies? Even tho the evidence might be in conflict. Could a reasonable person show that it was D. 104b issue according to USSC – easy to demonstrate these prior wrongs/crimes/acts.

Questions for Classroom Discussion [p. 379]

1. Explain the reasoning behind the Supreme Court’s holding in Huddleston that Rule 104(b) applies to the question whether a person actually committed the uncharged misconduct. Use the following hypothetical to illustrate your explanation: Prosecution of Defendant for the murder of Victim, the lover of Defendant’s spouse. Defendant denies committing the crime. To prove guilt, the prosecution offers evidence that a week before Victim was killed, Defendant attempted to run Victim over while Victim was crossing the street. Defendant denies being the person whose car nearly ran Victim over.

One would think the jury would disregard any uncharged misconduct evidence if it finds the person didn’t commit the misconduct.

So the matter should be decided under the sufficient to support a finding standard of 104(b).

Prosecution wants to offer the evidence that he tried to kill the victim before. That fact is relevant only if it was D who tried to do it.

The preliminary fact goes to relevance so it is a 104b question.

The jury will ignore the evidence if they don’t think it was D who committed the prior act.

3. An earlier hypothetical stated as follows: “Prosecution of Defendant for bank robbery. The perpetrator entered the bank wearing a Smokey the Bear costume, approached a teller, told the teller that money was needed to ‘feed the hungry bears,’ held out a large burlap sack for the teller to fill, and left after the teller did as she was told. Defendant claims to have been in another city when the crime was committed. The prosecution calls a witness to testify that on two occasions in the past month, he served as lookout for Defendant when Defendant committed bank robberies in the same city using the method just described.” Suppose Defendant denies committing the two previous robberies and objects to admission of the evidence. How should the court rule?

Sufficient to support a finding? YES. Witness testifies that he served as the lookout.

*EASY TO ADMIT PRIOR WRONGS/ACTS.

HABIT EVIDENCE

• Rule 406: Habit; Routine practice: evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity w/ the habit/routine.

• Habit is much more specific than character evidence. Neutral from moral/ethical standpoint.

• Ex) Going own a certain stairway two stairs at a time, giving hand-signal for left turn. Semi-automatic.

• Habit = evidence concerning the propensity of a person repeatedly to act in a certain manner in a specific situation.

• Unlike CE – Habit is generally ADMISSIBLE. Always does this or almost always does this.

• Party offering habit does NOT need to jump through procedural hoops to get it in – but 403 still applies.

• Ex) check all gas burners on the stove before going to bed every night.

• Ex) store’s routine practice of issuing a specific type of receipt to each customer.

Questions for Classroom Discussion [p. 382]

1. Negligence action arising from an intersection collision. Plaintiff claims that Defendant ran the stop sign. To prove that Defendant did so, Plaintiff calls Witness to testify that for the past year, she has ridden with Defendant almost every day to school, that they always cross the intersection in question, and that Defendant almost always fails to stop at the stop sign. Defendant objects on grounds Witness’s testimony is inadmissible character evidence. How should the court rule?

Admissible as habit evidence.

2. Same case. Suppose Witness’s testimony will be that she has ridden with Defendant three times, and that Defendant failed to stop at the stop sign all three times. Again, Defendant objects on grounds Witness’s testimony is inadmissible character evidence. How should the court rule?

Only 3 times? Only a few times generally would not be sufficient to prove habit.

3. Same case. Defendant calls Witness 2 to testify that she has known Defendant for many years, has ridden with Defendant on hundreds of occasions, and that in her opinion, Defendant is a careful driver. Plaintiff objects on grounds Witness 2’s testimony is inadmissible character evidence. How should the court rule?

“Careful driver” = character evidence! Not habit. Not admissible. This is a civil case – can’t use CE!

EVIDENCE OF SIMILAR EVENTS

• Sometimes party wants to prove that an event occurred in a certain way using evidence that similar events have occurred in similar circumstances.

• HYPO: P suing supermarket for injuries after exited store carrying groceries and accidentally walked into a pole near the exit door. D installed the pole to prevent drivers. P alleges the pole’s location makes it unreasonably dangerous. P wants to present evidence that since D installed the pole a year ago, 5 patrons doing the same thing had similar accidents!

• No specific rule to similar happenings evidence. Determined by analyzing relevance and probative value.

• Also the ABSENCE of similar accidents under similar conditions has a tendency to prove LACK of reasonable danger too!

• So ct would allow evidence that since they installed the pole, no other customer has reported falling over it.

Questions for Classroom Discussion [p. 384]

1. Negligence action by Plaintiff against Defendant, a railroad company, following a collision between Plaintiff’s vehicle and Defendant’s train. Plaintiff was driving her vehicle when she approached a railroad crossing. Plaintiff claims that the gate was not down and the light was not flashing, so she started to cross the tracks. Defendant denies that the gate and signal were not working. To prove that the gate and signal were not working, Plaintiff wishes to present evidence that on two occasions in the year before her accident, drivers narrowly avoided collisions at the same crossing because the gate and signal were not operating. Defendant objects. How should the court rule?

Relevant. Sufficiently similar. Admissible.

* The more times was can say same/similar the better the argument for relevancy!

2. Negligence action by Plaintiff against Defendant, a supermarket owner, for injuries suffered when Plaintiff slipped and fell on the floor of the produce section. It was raining outside when the accident occurred. Plaintiff claims the floor was wet and slippery, causing her fall. Defendant denies that the floor was unreasonably slippery when wet. To prove that the floor surface was unreasonably dangerous, Plaintiff wishes to present evidence that in the past two years, several customers have suffered slip-and-fall accidents in the produce section. Defendant objects. How should the court rule?

We need to know more facts abut how similar the conditions were. Raining? SIMILARITY is what makes it RELEVANT.

3. Negligence action by Plaintiff against Defendant, a store owner, following an incident in which Plaintiff tripped on the sidewalk in front of Defendant’s store. Plaintiff alleges that the cracked sidewalk created unreasonable danger to customers and others passing by the store. Assume Defendant is responsible for maintaining a reasonably safe sidewalk. Defendant admits the presence of the crack but denies that the sidewalk is unreasonably dangerous. To prove the existence of unreasonable danger, Plaintiff wishes to present evidence that in the period from six months before Plaintiff’s fall until six months after Plaintiff’s fall, five other people had tripped on the same crack, all of them under similar weather conditions. Defendant objects. How should the court rule?

Weather is similar here. But need to know about the victim. Was this plaintiff old and unbalanced? Were the others?

Overrule. Looks sufficiently similar.

4. Same facts. Assume that in support of its motion to exclude Plaintiff’s evidence of the other falls, Defendant wishes to present evidence that during the same time period, thousands of pedestrians walked over the same spot in the sidewalk, and that Defendant had received no other reports of falls or injuries. How should the court rule?

Admissible. Relevant if the conditions were similar. So both could come in!

Ch. 5 – Exclusion of Other Relevant Evidence for Reasons of Policy

SUBSEQUENT REMEDIAL MEASURES

• Rule 407 – Subsequent Remedial Measures: When, after an injury or harm allegedly caused by an event, measures are taken that, if take previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence/culpable conduct/product defect/design/need for warning/instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership/control/feasibility of precautionary measures, if controverted, or impeachment.

• Rationale: Primary goal of tort law – avoid accidents. Don’t want to penalize ppl for taking steps to avoid accidents.

• Want to avoid discouraging repairs and similar conduct by excluding such evidence when offered to prove fault.

• P sues D for negligence after slipped and fell on fruit on supermarket sidewalk. P offers evidence that after the accident, D required employees to clean the sidewalk in front every 15min instead of once an hour. Had that been the policy before, P probably would not have fallen.

• If evidence offered to prove D’s previous policy posed an unreasonable danger to store customers = NOT admissible.

• If evidence offered to prove D was responsible for maintaining the side-walk in front of the store = Limited admissibility – court must issue a limiting instruction and if the ct believes the danger substantially outweighs, exclude.

• Evidence of changing the cleaning schedule – not admissible for fault, admissible for issue of D’s control of the sidewalk.

• Ex) fixing stairs after person trips, replacing burned-out bulb, post-accident change in policy, investigation, firing or reassigning an employee, recall letters, changes in instructions, design chances. Must be taken AFTER.

• A party may introduce evidence of SRM to prove “feasibility of precautionary measures” if the issue is in controversy. P injured when lost control of motorcycle. D manufacturer says the wobble is unavoidable in motorcycles – not feasible to change the design to avoid it. P can present evidence that after the accident, D thickened struts and eliminated the wobble.

• IMPEACHMENT: Rule 407 permits a party to offer evidence of SRM to IMPEACH the credibility of a witness.

• Ex) Contradict the witness. Design engineer testifies that it is NOT POSSIBLE to change the design. Evidence of the subsequent design change directly contradicts his testimony and impeaches him. Likely ADMISSIBLE.

• If passes 403, ct will issue limiting instruction informing the jury of the proper use of the evidence.

• Similar to feasibility

Tuer v. McDonald (1997) – “Feasibility” – Evidence that they changed the Heparin protocol INADMISSIBLE.

• Medical malpractice. P died, sued 2 cardiac surgeons.

• TC properly excluded evidence that after his death, D’s changed the protocol regarding the administration of Heparin to patients awaiting heart surgery. EVIDENCE INADMISSIBLE.

• P was going to have heart surgery. Gave him Heparin before.

• In accordance w/ protocol, Heparin stopped at 5:30am to allow the drug to metabolize.

• Right before the surgery, the Dr. was called out to deal w/ another emergency. 3-4 hr postponement. Died.

• Their decision: Stop Heparin 3-4hrs before surgery.

• New protocol: continued until patient taken into the operating room.

• The doctors could have restarted the Heparin after the postponement of his surgery, but decided not to risk it.

• Didn’t want to risk P having surgery w/ a ton of Heparin in his blood.

• Feasibility = Doctors never asserted that the remedial measure was medically unsafe.

• Dr. never asserted that restarting the Heparin would have been unsafe. Just that they weighed the risks.

• Restarting the Heparin was feasible, but not advisable.

*”Feasibility” = more than saying I was not negligent. Means: it is IMPOSSIBLE to do this – he would certainly die.

But, if, as in here, the evidence was – look, we might have been able to do it, but we decided it was too dangerous – inadmissible.

Feasibility - Needs to be EXTREME! We couldn’t possibly have done that! But then you did it!!!

• Impeachment = SRM evidence has been held inadmissible to impeach testimony that, at the time of the event, the measure was not believed to be as practical as the one employed or that D was using due care at the time of the accident.

• Here, the protocol was NOT admissible to impeach the Dr.’s statement that restarting the Heparin would have been unsafe. He made a judgment call based on his knowledge and experience at the time. The fact that the protocol was changed following P’s death does NOT suggest that he did not honestly believe that his judgment call was appropriate at the time.

• They simply reevaluated the risks and decided that a safer course was to continue Heparin. That’s ok!

Questions for Classroom Discussion [p. 401]

1. Plaintiff sues Defendant, the owner of a convenience store, for negligence after Plaintiff tripped and fell over a can of fruit that had fallen off a shelf on a display near the store’s front door. Defendant admits that Plaintiff tripped in this way, but denies its negligence led to Plaintiff’s fall. To prove Defendant was negligent in allowing the can to fall from the shelf, Plaintiff wishes to present evidence that after the accident, Defendant began placing the cans in staggered (brick-like) stacks rather than one directly on top of the other. Defendant objects. How should the court rule?

Objection sustained. Typical 407 example.

2. Same case. Defendant claims the can on which Plaintiff tripped was no longer the store’s property, but had fallen out of a customer’s bag after the customer had paid for his purchases. How should the court rule on Defendant’s objection to the subsequent remedial measures evidence?

Not admissible to prove negligence. BUT Admissible to prove ownership/control. 403 objection.

3. Same case. Defendant admits that the can fell from the display, but testifies that this was the “best possible way” to stack cans. How should the court rule on Defendant’s objection?

Objection overruled. Admissible “best possible way” for both FEASIBILITY and IMPEACHMENT purposes.

4. Same case. Defendant admits that the can fell from the display. Instead of testifying that this was the “best possible way” to stack cans, Defendant testifies that this method was “safe.” How should the court rule on Defendant’s objection?

Most cts will say inadmissible - just saying it was “safe” is not enough. Gotta be “I did the best way possible, can’t do it better.”

Question for Classroom Discussion

Casebook Page 401

Products liability action seeking to hold defendant, manufacturer of an intrauterine birth control device, strictly liable for manufacturing an allegedly defective product that injured plaintiff. Plaintiff offers evidence that, after many doctors reported that patients using the device were rendered sterile, defendant altered the design of the device. Defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

FR = NOT admissible to prove negligence – product design defect. Broader than the CA rules!

CA = ADMISSIBLE!

1151. Subsequent remedial conduct: When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.

*CA does NOT include PRODUCT LIABILITY!

*Product liability in CA – it will come in. In FR – it cannot come in! FR’s are stricter – won’t let it in!

COMPROMISE AND PAYMENT OF MEDICAL EXPENSES

• Rule 408: Comprise and Offers to Compromise: Evidence of the following is NOT admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (need claim and it is disputed)

1) Furnishing/offering/promising or accepting, a valuable consideration in compromising or attempting to comp the claim.

2) Conduct/statements made in compromise negotiations regarding the claim, except when offered in a CRIM case and the negotiations related to a claim by a public office/agency in the exercise of regulatory, investigative, or enforcement auth.

• Permissible uses: Proving a witness’s BIAS or PREJUDICE; negating a contention of UNDUE DELAY, proving an effort to OBSTRUCT A CRIM INVESTIGATION/PROSECUTION.

• *Rule applies to both parties, claim must be DISPUTED as to validity or amount, excludes statements of fact, even if they would be admissible as a party admission. Compromise evidence may NOT be used to IMPEACH a witness through contradiction or prior inconsistent statement.

• Rule not limited to the parties currently at trial. Evidence that X previously settled a claim is excluded if offered to prove, in a case involving Y, liability for that claim, its invalidity, or proper amount.

• Biased Witness = ct may admit compromise evidence to prove bias/prejudice of witness. If D agrees w/ P to settle for $10 but stays a party to the suit and keeps a financial stake in the outcome of P’s action against the remaining D’s. The settling D has a significant incentive to testify against the interest of the non-settling D’s bc the greater the P’s recovery against them, the less the settling D will ultimately have to pay. Majority of states say those are admissible to prove bias/prejudice.

Questions for Classroom Discussion [p. 405]

1. Plaintiff sues Defendant for negligence following an intersection collision between their cars after one of them ran a red light. Plaintiff’s car was damaged, though Plaintiff suffered no physical injury. Plaintiff wishes to testify that immediately after the collision, Defendant got out of his car, approached Plaintiff, and said, “It’s my fault. Please let me pay your damages.” Defendant objects on hearsay grounds. How should the court rule?

Objection overruled. Evidence comes in! This is a simple PARTY ADMISSION – comes in. Statement by D offered by P.

2. Same facts. Defendant objects on grounds of the compromise rule. How should the court rule?

Overruled. Evidence comes in!

Also, the claim is not yet IN DISPUTE as to validity or amount! Needs to be in dispute. Right after accident, not in dispute!

NO LAWSUIT YET! NO LAWSUIT THREATENED! Foundational requirement = need a CLAIM brought or threatened.

Ex) lawsuit filed, or at least the victim says something that indicates he is going to bring him to court – “my neck hurts, I’m going to

contact my lawyer.” Claim needs to be threatened!

*ACCIDENT SCENE = frequently ADMISSIBLE.

3. Same case, except that Defendant’s statement to Plaintiff was “It’s my fault, but I don’t want to go through our insurance companies. If you’ll agree to bypass he insurance companies, I’ll pay you now for your damages.” Defendant objects. How should the court rule?

Same answer – still not in dispute. Evidence comes in!

4. Same case. Assume that at the scene, both parties claimed the other ran the red light. Plaintiff wishes to testify that a month later, after Plaintiff notified Defendant in writing that it cost $2,500 to fix the car, Defendant called Plaintiff and said, “I admit that I ran the light, but there’s no way your car had that much damage. I think we can work things out more reasonably.” Defendant objects. How should the court rule?

Objection sustained! The claim is in dispute. Cannot come in!

5. Same as Question 4, except that Defendant’s statement to Plaintiff was “I was in the wrong, but I can only scrape together $1,000. Will you accept that?” Defendant objects. How should the court rule?

Objection overruled. The claim is not being disputed – he’s saying he agrees w/ the amount – just can’t afford it.

8. Plaintiff, a pedestrian, sues Defendant, a driver, for negligence for striking Plaintiff as Plaintiff crossed the street in a crosswalk. Defendant denies striking Plaintiff, and claims she was elsewhere when the event took place. The police began a criminal investigation, and, based on Plaintiff’s identification of Defendant as the driver, charged Defendant with reckless driving. At trial, Defendant wishes to testify that shortly after Defendant was charged, Plaintiff phoned Defendant and said that if Defendant agreed to a private settlement of the civil case, Plaintiff would tell the police she was mistaken in her identification of Defendant as the driver. Plaintiff objects. How should the court rule?

Admissible!!! Being offered to show an effort to OBSTRUCT A CRIMINAL INVESTIGATION/PROSECUTION

9. Plaintiff sues Defendant, a store owner, after Plaintiff slipped and fell in the store. Plaintiff claims she suffered an injury in the fall. A few days after the accident, Defendant said to Plaintiff, “That floor was slippery, but I’m not sure you were really injured.” Defendant then offered to pay some of Plaintiff’s medical expenses in exchange for a signed release. The case did not settle. At trial, Defendant testifies that the floor was not slippery. Plaintiff wishes to testify about Defendant’s prior statement admitting that the floor was slippery. Defendant objects. How should the court rule?

Not admissible. Objection sustained. Exclude the offer to settle along w/ the factual statements made during the neg’s.

10. Action by Plaintiff against Defendant to recover a debt Defendant allegedly owes. Defendant claims that the debt was discharged. To prove discharge, Defendant wishes to testify that the parties negotiated a settlement of the matter, and that the parties performed their obligations pursuant to the agreement. Plaintiff objects. How should the court rule?

Admissible! Compromise rule has no application here! Not arguing about the claim.

This action is based on the settlement agreement itself. Can offer evidence that the settlement agreement has been fulfilled or

breached. Trying to prove the settlement agreement was made and the payments were made.

11. After a three-car collision involving Plaintiff, Defendant, and Zed, Plaintiff brought suit against both Defendant and Zed. After some negotiation, Plaintiff agreed to settle with Zed for a small percentage of the total damages. Zed, in turn, agreed to remain a party to the action but testify favorably to Plaintiff at trial. In addition, Plaintiff agrees that if she obtains a judgment against Defendant in excess of a certain amount, Zed will receive a share of the excess. At trial, Zed testifies that Defendant started the chain of events by speeding and running a red light. Defendant wishes to ask Zed on cross-examination about the settlement agreement with Plaintiff. Plaintiff objects, citing the compromise rule. How should the court rule?

P settled w/ Z. Z stayed party but testified in P’s favor. P agreed that if he wins against D for more than $10k, Z will get some too!

Z testifies at trial that D was responsible. D wants to cross-examine Z about the settlement agreement – compromise rule.

Admissible under 408(b) – witness bias. Evidence showing a witness is biased can come in. Here, the settlement agreement proves

Z had an incentive to favor P over D. Objection overruled.

Humanitarian Measures

• Rule 409: Payment of Medical and Similar Expenses: Evidence of furnishing/offering/promising to PAY med/hospital occasioned by an injury is NOT admissible to prove LIABILITY for the injury.

• 409 protects those who offer/promise to pay medical expenses occasioned by an injury.

• Rule 409 applies: Car crash. After accident, A offers to pay B’s hospital bill.

• Any person’s offer will be excluded by the rule if offered to prove liability for the accident. Doesn’t have to be right after either.

• Note: offer to pay another’s towing charges or payment of lost wages after accident would be ADMISSIBLE! Not medical.

• Can have both a 408 and 409 statement: “We disagree on who is responsible for the car accident, but I’ll pay your hospital bill.”

• That is both an offer to compromise a disputed claim and humanitarian assistance covered by 409.

• Differences:

o 409 – excludes offers/payments even if it is not in dispute!

o 409 –statements of fact made in connection with the conduct are admissible. Need those facts.

• *What about evidence of conduct that heals psychic injury? Not just medical expenses? Acts/statements including apologies have a beneficial effect on parties. Can lead to peaceful settlement.

• CA enacted rule that excludes evidence of APOLOGIES or other BENEVOLENT GESTURES in CIVIL CASES. CA 1160.

Questions for Classroom Discussion [p. 409] - Humanitarian Measures

1. Plaintiff v. Defendant for negligence following Plaintiff’s fall in Defendant’s restaurant. Plaintiff claims Defendant’s employees failed to mop up a coffee spill near one of the tables, and that Plaintiff slipped on the coffee, causing her injury. Defendant denies that there was spilled coffee on the floor. To prove Defendant’s responsibility, Plaintiff wishes to testify that after her fall, Defendant offered to send her to a doctor “at our expense.” Defendant objects. How should the court rule?

Offered to pay medical expenses. NOT admissible under 409.

This is not a settlement offer.

(Hearsay objection: P offering D’s statement. Party admission. Not hearsay.)

2. Same case. Assume the statement had been made by a waiter rather than by Defendant. Defendant objects. How should the court rule?

Still NOT admissible under 409. Doesn’t matter who says it.

Vicarious party admission? Statement by employee – is it concerning a matter w/in the scope of his employment? No.

3. Same case. Assume, as in Question 1, that the statement was made by Defendant, and that the entire statement was, “looks like the floor was pretty slippery. Why don’t you see your doctor at our expense?” Defendant objects. How should the court rule?

FR: “Looks like the floor was pretty slippery” = ADMISSIBLE!

FR: “Why don’t you see your doctor at our expense.” = NOT admissible under 409! Break it up. (Not broken up under CA – all out!)

*CA 1152 OFFER TO COMPROMISE: excludes any statements or conduct in connection w/ these things – much BROADER.

§ 1152. Offers to compromise: (a) Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or

promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she

has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to

prove his or her liability for the loss or damage or any part of it. EXCLUDES STATEMENTS/CONDUCT W/ MEDICAL OFFER.

*Only 1 rule in CA. EXCLUDE ALL OF IT IN CA! Broader rule.

4. Same as Question 3, except that Defendant says, “looks like the floor was pretty slippery. If you will sign a release, you can see your doctor at our expense.” Defendant objects. How should the court rule?

None of this is admissible under FR. 408 excludes the offer to compromise and the statements made therewith. Same in CA.

*Would need to the foundational req’s to meet 408.

5. Same case, and same statement as in Question 3. Suppose Defendant made the statement to Plaintiff during a telephone call after being contacted by a waiter about Plaintiff’s fall. Defendant argues that the statement about the spill is inadmissible for lack of personal knowledge. How should the court rule?

PK rule does NOT apply. PK is not required for a simple party admission.

Question for Classroom Discussion

Casebook Page 405

Action for personal injuries suffered in an automobile accident. At the scene, defendant said to plaintiff, “You seem to be in a lot of pain. I am so sorry that I ran the red light.” Defendant then followed plaintiff’s ambulance to the hospital and paid plaintiff’s hospital bill. After filing of the suit, defendant’s lawyer offered to settle plaintiff’s claim for $100,000. Plaintiff offers to testify to all these matters and defendant objects. How should the court rule under the Federal Rules? The C.E.C.?

- After filing, D offered to settle P’s claim = INADMISSIBLE bc offer to settle, claim has been brought, assuming something is

dispute – then valid settlement offer and inadmissible under CA and FR.

- The payment of the hospital bill = INADMISSIBLE under both CA and FR. Humanitarian gesture.

*“You seem to be in a lot of pain. I am so sorry I ran the red light.” = FR: ADMISSIBLE! CA: INADMISSIBLE (sympathy)!

§ 1160. Admissibility of expressions of sympathy or benevolence; definitions

(a) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence of an admission of liability in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall not be inadmissible pursuant to this section.

*CA: if you say, “I’m so sorry I ran the red light, you seem to be in a lot of pain” – all inadmissible. Sympathy. Kept out.

BUT All of that would be admissible under the FR’s! Comes in!

PLEA EVIDENCE

• Rule 410: Inadmissibility of Pleas/Plea Discussions/Related Statements: Except as otherwise provided, evidence of the following is NOT ADMISSIBLE in civil/criminal proceeding against D who made the plea or involved in plea discussions:

o Plea of GUILTY which was LATER WITHDRAWN;

o Plea of NOLO CONTENDERE

o Any statement made in the course of any proceedings under Rule 11 of the FR of Crim Pro (entering plea)

• Any STATEMENT made in the court of PLEA DISCUSSIONS w/ a PROSECUTING ATTORNEY which does not result in a guilty plea or guilty plea is later withdrawn. (Statements made in course of plea bargaining – suspect who tries to plea bargain w/ cops by offering info in exchange for leniency are NOT protected!!! Need prosecuting atty there.)

• BUT will be admissible:

o In any proceeding where the statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously w/ it (completeness). Ex) D offers one statement made during plea bargaining, ct finds another statement is necessary to clarify the meaning of the first); or

o In a CRIM proceeding for PERJURY or false statement if made by D under oath, on record, in front of counsel. Ex) Murder D agrees to plead guilty w/ prosecutor, in exchange for leniency. During his plea hearing, D testifies under oath, that it was another guy that did it. Gov’t charges D w/ perjury.

*We want to encourage plea bargains.

Questions for Classroom Discussion [p. 420]

1. Prosecution of Defendant for possession of narcotics with intent to distribute. At trial, the prosecution wishes to present evidence that after being read her Miranda rights, and while she was being transported to the police station after her arrest, Defendant said to one of the officers, “Can’t we work something out? I was only going to sell enough of the stuff to make sure I could pay the rent.” Defendant objects. How should the court rule?

410 makes inadmissible statements w/ prosecuting atty. Statements to police will NOT qualify. 410 objection overruled.

Hearsay objection? Party admission!

2. Prosecution of Defendant and Zed for murder. At trial, the prosecution wishes to present evidence that while in custody, during a meeting with the prosecutor, Defendant admitted being involved and said she would testify that Zed was the “trigger man” if the prosecutor would drop the charges against her. Defendant and Zed both object to the testimony. How should the court rule?

Statement made to the prosecuting atty here. 2 different D’s against whom this is offered. Co-defendants.

410 applies to a statement that a D makes to the prosecutor when offered against that same D.

410 doesn’t address the q of whether it makes inadmissible statements made by 1D to prosecutor when offered against 2D.

Courts seem to treat the rule as assume the rule would extend to this situation.

Zed could use this 410 objection even tho it is not his statement to the prosecutor.

Party admission? Not made by Zed – admissible against D as not hearsay – but is hearsay when offered against Zed!

Declaration against Interest? Need unavailability – person who made the statement unavailable? Maybe takes the 5th?

Inadmissible for both.

3. Same case as in Question 2. Assume, however, that Defendant’s statement was made to police rather than to a prosecutor. Both Defendant and Zed object. How should the court rule?

Admissibility against D? 410 Objection overruled. Must be made to prosecuting atty. Comes in.

Hearsay objection against D? Overruled. D’s statement offered by P = Party Admission. Comes in.

What about against Zed? 410 Objection overruled. Same as above.

Hearsay objection against Zed? Not a party admission. Inadmissible against Zed.

*So now the evidence can come in against D, but not against Zed! Instruct only to use against D. 403 objection! “I D was involved,

but Zed was the triggerman.” That sounds bad for Zed. Unfairly prejudicial.

4. Prosecution of Defendant for bank robbery. The perpetrator approached a teller with a realistic-looking gun fashioned from a large bar of soap, told the teller that he was the “Mr. Clean Bandit,” and ordered the teller to place all the small bills from her cash drawer into the laundry sack he was carrying. After the teller did this, the perpetrator sprayed her with Mr. Clean and fled. Defendant denies involvement. To prove Defendant’s guilt, the prosecution offers evidence that a year earlier, Defendant had pled guilty to a bank robbery committed in exactly the same way. That plea was never withdrawn. Defendant objects. How should the court rule?

410 objection overruled. The guilty plea was never withdrawn!

Character evidence objection? Evidence that he committed this prior bank robbery is probative of his character as a thief and

therefore inadmissible under 404(a). Non-character purpose? 404(b) MIMIC fact? Modus operandi? Motive?

5. Same case as in Question 4. Assume, however, that in the earlier case, Defendant pleaded nolo contendere instead of guilty. The prosecution wishes to offer evidence of the nolo plea to prove Defendant’s guilt in the present case. Defendant objects. How should the court rule?

Inadmissible under Rule 410.

6. Prosecution of Defendant for bank robbery. At a hearing before the judge, the court accepts Defendant’s guilty plea after being satisfied that there is a factual basis for the plea and that Defendant understands all the rights she is giving up by pleading guilty. Before the sentencing hearing, Defendant changes her mind and moves to withdraw the guilty plea and substitute a plea of not guilty. The court agrees, and the case goes to trial. At trial, the prosecutor wishes to offer evidence that Defendant first pled guilty at a hearing at which all her rights were explained and the court satisfied itself that there was sufficient factual support for the plea. Defendant objects. How should the court rule?

Inadmissible under Rule 410. Statement made during hearing entering plea cannot come in.

7. After Defendant’s arrest for the crime of murder, Defendant worked out a plea bargain, the terms of which required him to give a full statement of facts at his plea hearing. At the hearing, the court accepted Defendant’s guilty plea to a lesser charge after hearing Defendant’s statement, which named Zed as also involved in the crime. Later, upon investigating Zed, the prosecution learned that Zed was not involved in the crime. Defendant had lied at the plea hearing about Zed’s involvement. Defendant is now being prosecuted for perjury, and the prosecution wishes to put in evidence the statement Defendant gave at the plea hearing. Defendant objects. How should the court rule?

Prosecution for PERJURY = the statement D gave at plea hearing is ADMISSIBLE. (Also not hearsay – independent legal sig.)

8. Prosecution of Defendant for murder. Earlier, Defendant pled guilty in exchange for leniency in sentencing. As a condition of entering into the agreement, the prosecutor stated that Defendant would have to waive the right not to have statements made during plea bargaining admitted against her if she later withdrew her plea and testified at trial inconsistently with those statements. Defendant agreed to the term. Later, Defendant asks the court to allow her to withdraw the plea and enter a plea of not guilty. The court grants Defendant’s motion. At trial, Defendant testifies inconsistently with a statement made during plea negotiations, and the government offers her prior statement to impeach Defendant. Defendant objects. How should the court rule?

Objection overruled. ADMISSIBLE. Mezzanatto SC held: D CAN WAIVE THE PROTECTIONS OF 410 as part of the plea bargain!

*Prosecutors now do this a lot! Cuts the legs of the 410 objection!!!

Question for Classroom Discussion

Casebook Page 420

Prosecution for murder. In a plea bargaining discussion between defense counsel and the prosecutor in the presence of defendant, the latter said, “You might as well take me to the gas chamber right now.” No plea agreement was reached and the prosecution offered defendant’s statement into evidence at trial to prove his consciousness of guilt. Is the statement admissible under the Federal Rules? The C.E.C?

FR: INADMISSIBLE under 410. Statement made in the course of plea discussions w/ prosecutor. *FR & CA are the same!!!

EVIDENCE OF LIABILITY INSURANCE

• Rule 411: Liability Insurance: Evidence that a person was or was not insured against liability is NOT ADMISSIBLE upon the issue whether the person acted NEGLIGENTLY or OTHERWISE WRONGFULLY. Does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

• Rationale: Irrelevant to the issue whether he acted w/ care in the occasion in question. Irrelevant. Also getting it before. Also supported by concerns of unfair prejudice. Juries see it as an excuse to compensated an injured victim w/out regards to merits.

• Ok if offered for another purpose: ownership/responsibility - evidence that Owner had liability insurance covering the vehicle in the case would show he was responsible for the car. Also ok to prove a witness’s bias – if D’s witness is a claims adjuster for D’s insurance company – want to inform the jury that he is biased. Cts let this in. Also ok to use during jury selection – don’t want juror to be employed by the insurance company, or holds stocks in the company, or is insured by the company might be biased.

• *Only LIABILITY insurance! Not fire insurance.

Questions for Classroom Discussion [p. 425]

1. Negligence action by Plaintiff against Defendant, the owner of a grocery store, for injuries suffered when Plaintiff fell on the floor of the store’s produce section. To prove that Defendant negligently permitted the floor to become slippery, Plaintiff wishes to offer evidence that Defendant was covered by a policy of liability insurance. Defendant objects on relevance grounds. How should the court rule? Most likely it is Irrelevant.

2. Same case. Assume the court overrules Defendant’s relevance objection. Defendant also objects on the ground that the evidence is excluded by Rule 411, the liability insurance rule. How should the court rule? Sustain. Excluded by 411!

3. Same case. Defendant claims that the produce section of the store is stocked and maintained by a separate company, and that the company operates as an independent contractor. Plaintiff offers evidence that Defendant maintains a liability insurance policy covering accidents in the produce section caused by such things as slippery floors. Defendant objects on grounds the evidence is excluded by Rule 411. How should the court rule? Admissible!!! To prove D’s ownership/control of that area – why else would they buy the insurance?!

4. Same case. Prior to trial, Plaintiff asks the court to permit inquiry of prospective jurors concerning their employment status, to learn whether any of these individuals are employed by Defendant’s insurance company or by any insurance company. Defendant objects. How should the court rule? Admissible for that purpose. If you can show a witness is tied to an insurance company – admissible to show bias. Impeach the witness.

Ch. 6 – Examining Witnesses; Attacking/Supporting Credibility

Mode of Witness Exam

• Rule 611: a) Control by court: ct shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective to get the truth, avoid wasting time, protect witnesses from harassment/embarrassment. b) Scope of Cross-exam: Limited to the subject matter of the direct exam and matters affecting the credibility of the witness. Ct may permit inquiry into add’tl matters as if on direct. c) Leading questions: Should NOT be used on DIRECT exam of witness except as may be necessary. Ordinarily leading q’s should be permitted on cross. When a party calls a hostile witness, an adverse party, interrogation may be by leading questions.

• JUDGE will exercise he powers under 611 more often than any other evidence rule!!!

• Question is Ambiguous when unclear what facts it seeks to reveal. Confusing when may cause jury to misconstrue. Misleading if mischaracterizes earlier evidence. Argumentative is a question only in form. It is an argument bc it asserts facts w/ such a forceful tone it suggests those facts are established. “Isn’t it correct that your testimony on direct makes absolutely no sense?” Sustain objection, allow atty to rephrase and remove argumentative aspects. Compound q is when poses more than one inquiry and more than one answer. Assumes facts not in evidence goes beyond mischaracterizing prior evidence, and invents facts not supported by any admitted evidence. If on direct, can be objectionable as leading. Can do it on cross as long as the cross-examiner believes in good faith the assumed fact may be true. Asked and answered simply repeating a q which there was already a good response. Calls for narrative answer “Tell the jury what you know about the accident.” Too broad.

• SCOPE OF CROSS-EXAM: 611b) Limited to the SUBJECT MATTER of the DIRECT exam and matters affecting credibility of witnesses. But grants the judge discretion to allow inquiry into additional matters as if on direct. Unsure what “subject matter” really means – up to the judge.

• *BROAD RULE!

Questions for Classroom Discussion [p. 431] - Scope of Cross

1. Prosecution for bank robbery. At trial, Defendant takes the stand and denies any involvement in the robbery. On cross-examination, the prosecutor asks Defendant to admit that she owed thousands of dollars in gambling debts at the time of the robbery. Defendant objects on the ground that the question goes beyond the scope of the direct examination. How should the court rule? Relevant to prove MOTIVE. Typically, this will be considered w/in the scope of the subject matter. BROAD. Admissible.

2. Plaintiff sues Defendant for negligence after the two skateboarders collided on a sidewalk. Plaintiff claims she was skating along when Defendant struck her head-on. Defendant denies this and claims Plaintiff lost control of her skateboard and ran into Defendant. At trial, Plaintiff testifies that she was skating carefully and that Defendant skated into her path. On cross-examination, Defendant asks Plaintiff to admit that this was the first time she had gone skateboarding. Plaintiff objects on the ground the question goes beyond the scope of the direct examination. How should the court rule? Overrule. Might be pertinent.

3. Same case as in Question 2. Plaintiff calls Witness, who testifies that she saw Defendant looking backward just before the two skaters collided. On cross-examination, Plaintiff asks Witness to admit that Plaintiff paid Witness to testify as she did. Plaintiff objects on the ground that the question goes beyond the scope of the direct examination. How should the court rule? Ok to impeach the witness’ credibility. Anything that goes to credibility of the witness if fair game for cross-exam!

• LEADING QUESTIONS: “You ran the red light, didn’t you?” “Isn’t it true you shot Victim?”

• Usually permissible on cross. Also permissible on direct when the witness is adverse or hostile to the direct examiner.

• Transcript p. 432: Divorce case. P calls the adverse witness, H. Permissible to ask him leading questions.

• If allowed on direct, not allowed on cross!

IMPEACHMENT

• CA 780: jury can consider in determining the credibility of a witness any matter that can prove/disprove truthfulness at hearing: his demeanor while testifying, character of his testimony, extent of capacity to perceive/recollect/communicate, extent of his opportunity to perceive, character for honesty, existence of bias/interest/motive, inconsistent statement w/ party of his testimony at the hearing, existence of any fact testified to by him, attitude toward the action, his admission of untruthfulness.

1) What is the evidence?

2) Is it offered to support the credibility? Has credibility been attacked?

3) Is it offered to impeach the credibility? If so – what is the method of impeachment? Is the evidence relevant and admissible?

o Does the law require proof of the impeaching facts be elicited during cross of the witness being impeached? OR can they prove from other sources (EE?

o Are all the foundational req’s met for this method of impeachment?

4) Would admission of the evidence violate any other rules, like 403?

• Impeachment evidence is “extrinsic” if it comes from any source other than the MOUTH OF THE WITNESS WHO IS THE TARGET OF IMPEACHMENT while that witness is testifying in the proceeding in which the impeachment is attempted. So anything the witness says during her direct/cross/redirect is not EE. But her statement during a depo = EE! Also the testimony of another witness to impeach the principal witness = EE! Doc evidence = EE!

Who May Impeach

• Rule 607: Credibility of a witness may be attacked by ANY PARTY, including its own.

• Hogan case:

o Prosecution of 2 brothers for smuggling drugs from Mexico to Texas.

o Carpenter (witness) arrested in Mexico and confessed while in the custody of the Mexican authorities and implicated the bros in drug smuggling. He later took back his confession.

o At trial, prosecution called Carpenter to testify hoping he would deny the smuggling and the brother’s involvement.

o Prosecution then offered into evidence his prior statement which was inconsistent w/ his trial testimony to impeach Carpenter’s credibility. Hogans were convicted.

o Argument – they just brought in the evidence under the guise of impeachment. Danger is that the jury will hear the impeachment evidence and use it to prove guilt.

o Carpenter’s testimony and the subsequent impeachment evidence should NOT have been admitted!

o The primary if not sole purpose in calling him to testify was getting Carpenter’s prior statements before the jury.

Questions for Classroom Discussion [p. 439]

1. The prosecution called Carpenter to testify even though the prosecution knew he would deny the smuggling and defendants’ involvement. Why did the prosecution do this? To get in the prior inconsistent statement where he said that the Hogan’s WERE INVOLVED. Sneaking hearsay in.

2. Was the prosecution prohibited from attacking Carpenter’s credibility merely because the prosecution was trying to impeach its own witness? Read Rule 607. NO. It is ok to impeach your own witness.

3. If Carpenter’s prior statement implicating defendants was offered to prove defendants were involved in the smuggling, what’s the objection? If the prior statement is offered to prove that the witness made an inconsistent statement and is unreliable, does the same objection apply? A different objection? How should the court rule on that different objection?

If prior statement was offered to prove D’s were involved in the smuggling – Hearsay. Sustained. The evidence has no probative

value for impeachment purposes. This is just a dishonest way of getting hearsay in front of the jury.

Objection - Not proper impeachment – not admissible!

4. Same facts as in Hogan except assume Carpenter made his prior inconsistent statement while testifying under oath before a grand jury. Should this produce a different result? Different result. This is NOT hearsay under 801(d)(1) Prior Inconsistent Statement!

5. Same facts as in Hogan except assume the prosecutor was surprised by Carpenter’s testimony because the prosecutor assumed Carpenter would testify consistently with his earlier statement in which he incriminated defendants. Should the prosecution then be permitted to introduce evidence of the prior statement to impeach the witness? YES.

6. Assume you are defense counsel and you suspect the prosecution is going to call a witness just for impeachment as in Hogan. If that happens, you can always move to strike the witness’s testimony. Is there anything you should do before the witness even testifies? Object outside of the hearing of the jury. Tell Judge you think it’s a set-up.

D. IMPEACHMENT METHODS NOT GOVERNED BY SPECIFIC COMMON LAW OR STATUTORY RULES

• Reliability of out-of-court statement based on 4 factors: perception/memory/sincerity/narration.

• Factors affecting the witness’s opportunity to perceive = view obstructed by a tree casts, facing bright sun, another event distracted, etc. Common way to impeach. No rules limit the way in which opportunity to perceive may be proved.

• Factors affecting the witness’s capacity to perceive = poor vision and not wearing lenses, hearing impairment, five senses. NO rules limiting the use of this technique. Mental disorder prevents her from knowing diff btw reality and fantasy. The fact that a person isn’t that smart or has depression is NOT proper subject of proof – only embarrass. Ok to reveal witness was drunk or using drugs at time he observed the events. Not ok to present evidence the person is an alcoholic or habitual drug – status.

• Factors affecting the witness’s capacity to recollect: person’s drunkness at the time of events might affect her capacity to perceive and also her memory of the events perceived. Etc.

Questions for Classroom Discussion [p. 447]

All of the following hypotheticals are based on the following facts: Prosecution of Defendant for a murder committed in the course of a bank robbery. The prosecution calls Witness 1, who testifies that she was in the bank and saw Defendant shoot the victim. On cross-examination, Witness 1 claims to have had “an unobstructed view” of the shooter. In each case, assume that the prosecution objects, claiming the impeachment is improper. How should the court rule in each case?

1. Defendant calls Witness 2, a friend of Witness 1, who testifies that she was with Witness 1 in the bank, that the two of them were about 50 feet from the robber at the time of the shooting, and that there were many people between them and the shooter. Objection – impeachment is improper! Overrule. Admissible. This witness can testify to impeach! Witness #2 is saying the there was a problem with Witness #1’s perception and that diminished her credibility as a witness. Extent of witnesses opportunity to perceive – there is no rule limiting the admissibility of evidence offered for this purpose. EE ok.

2. Witness 2 testifies that Witness 1 is nearsighted and normally wears eyeglasses, but that she was not wearing them in the bank on the day in question. Overrule objection. Admissible. Witness #2 may testify to impeach Witness #1. Questioning Witness #1’s capacity to perceive/recollect. Admissible to attack the witness’ credibility.

3. On direct examination, Witness 1 testifies that she had just made a withdrawal at a teller window when the shooting occurred. Witness 2 testifies for Defendant that Witness 1 had made a deposit, not a withdrawal.

Objection sustained – Witness #2’s testimony is NOT admissible!

“Impeachment By Contradiction” = show the existence or non-existence of any fact testified to.

*EE IS NOT ADMISSIBLE TO CONTRADICT ON A COLLATERAL MATTER (any fact NOT material to the issues in the case and says nothing about credibility other than to demonstrate the CONTRADICTION). Here, the fact that he made a deposit, not a withdrawal is NOT material to the murder case and doesn’t say anything about Witness #1’s credibility except to contradict him.

Compare:

- If Witness #1 testified: “I was in the bank w/ my friend, Witness #2, when I saw the robbery, we had just come from Starbucks.”

-If Witness #2 testified: “We were at a bar getting hammered, not Starbucks.”

This is EE, it is not material to the case – but it says more about Witness#1’s credibility than just the contradiction – this is questioning Witness#1’s capacity to perceive since he was drunk at the time. NOT a collateral matter.

4. Witness 2 testifies for Defendant that recently Witness 1 told Witness 2, “When I hit 40, my memory started slipping away.” Sustain objection – this is HEARSAY.

5. Witness 2 testifies for Defendant that she is familiar with Witness 1’s community reputation, and that Witness 1 is notorious for having a bad memory. Reputation = Hearsay! Bad memory is not a character trait. INADMISSIBLE hearsay!

6. Witness 2 testifies for Defendant that she has known Witness 1 for many years, and that in her opinion, Witness 1 has a terrible memory. Objection overruled. Admissible – next chapter!

7. Defendant calls Witness 3, a psychiatrist who sat in the courtroom during Witness 1’s testimony. After qualifying Witness 3 as an expert in psychiatry, Witness 3 testifies for Defendant that, based on her observation of Witness 1 while testifying, she believes that Witness 1 suffers from a mental disorder that renders her unable to distinguish reality from fantasy. Rule 702 – If person can demonstrate that it is enough for him to diagnose based solely in the ctroom as having this disorder - it is possible that this testimony could be admitted to impeach the witness.

8. Defendant also wishes to have Witness 3, the psychiatrist, testify that, based on her observations of Witness 1 while testifying, she believes Witness 1 was lying. NOT admissible. Objection sustained. Can only give opinion as to whether the witness has a mental disorder, not whether he is lying! Let the jury figure that out!

9. During her closing argument, Defendant’s attorney makes the following statement: “Did you notice that during her testimony, Witness 1 never once looked directly at you or at the defendant? Did you notice that when Witness 1 answered my questions about her identification of my client, Witness 1 looked toward the floor? What is Witness 1 hiding? Could it be that she isn’t as certain of her testimony as she, and the prosecutor, would like you to believe?” Is this proper argument? YES. Can consider the witnesses demeanor and manner. Is the witness shifty?

WITNESS’S CHARACTER

• Admissibility of a witness’s character for TRUTHFULNESS OR UNTRUTHFULNESS can take place in 3 forms:

1) OPINION/REPUTATION for truthfulness

2) SPECIFIC INSTANCES OF CONDUCT involving lying/telling truth

3) CRIM CONVICTIONS that suggest character for untruthfulness.

• Ex) Murder prosecution. D offers evidence: eyewitness once lied on a job app unrelated to the murder. Permits the inference that she is generally untruthful = CE. Conveys moral/ethical judgment about the witness.

• These rules only apply when CE is offered to attack/support witness credibility.

• Ex) Bank robbery. D testifies and denies committing the crime. Evidence that D has prior conviction for car theft permits the inference that D is not law-abiding and therefore may be willing to commit perjury when he testified. Rule 609 applies.

• BUT if the CE is offered to show D’s conduct in connection w/ the bank robbery Rule 404 applies.

Discussion

• FR 608(a): credibility of a witness may be attacked/supported by opinion/reputation evidence but 1) evidence may refer only to character for truthfulness/untruthfulness; and 2) evidence of truthful character is only admissible AFTER it’s been attacked.

• Once Witness#1 has testified, Witness#2 (character witness), may be called to give an opinion concerning witness #1’s reputation for truthfulness. Usually cannot testify to specific instances. 403 may exclude.

• Opinion evidence = personal assessment of character by one who has sufficient knowledge of person’s character.

• Requires proof of foundational facts: person had sufficient exposure to the witness being impeached to form reliable opinions about her character. Also had sufficient contact w/ the community in q to form accurate conclusions about her rep there.

• Evidence of TRUTHFUL character is admissible only AFTER been attacked.

Questions for Classroom Discussion [p. 452]

1. Civil action for personal injuries suffered in an auto accident. The defense is contributory negligence. Plaintiff testifies that Defendant ran the red light. Plaintiff then calls his minister who offers to testify that he has known Plaintiff for years and that he believes Plaintiff to be a truthful person. Is the minister’s testimony admissible under Rule 608(a)? Objection sustained. Cannot present evidence that Witness is truthful until his truthfulness has been attacked.

2. Same case. Defendant calls a witness who offers to testify that he has worked in the same small office with Plaintiff for years and that, in his opinion, Plaintiff is careless. Is the witness’s testimony admissible under Rule 608(a)? Is it admissible if offered to prove that Plaintiff was negligent? Careless is not truthful/not truthful. Inadmissible.

3. Same case. Defendant calls a witness who offers to testify that he has lived in the same large apartment building with Plaintiff for years and that, in his opinion, Plaintiff is a liar. Is the witness’s testimony admissible under Rule 608(a)? Admissible – going to truthfulness. Attacking credibility. Opinion s worth listening to here.

4. Same case. Defendant calls a witness who testifies that he has lived next door to Plaintiff for years and that, in his opinion, Plaintiff is a liar. On cross-examination Plaintiff asks, “Isn’t it true that everyone else in the neighborhood says Plaintiff is truthful?” The witness answers, “Yes.” Is the cross-examination testimony admissible under Rule 608(a)? Should it be excluded as hearsay? We have attacked credibility of his truthfulness on direct, now on cross it is ok to introduce evidence to support his character for truthfulness. Hearsay objection? Overruled w/ 803(21). Character witness. Comes in!

Conduct Probative of Truthfulness 608(b)

• SPECIFIC INSTANCES OF CONDUCT of witness to attack/support witness’s TRUTHFULNESS may NOT be proved by EE!

• Ex) He lied on his law school application in the past – therefore this witness is lying now!

• May, under ct discretion, if probative of truthfulness/untruthfulness, be inquired into on CROSS-EXAM of the witness:

1) concerning the witness’s character for truthfulness/untruthfulness or

2) concerning the character for truthfulness/untruthfulness of another witness as to which character the witness being cross-examined has testified.

• Admitting evidence of instances in a witness’s life in which she lied or told the truth can reveal her character for truthfulness/untruthfulness. But we shouldn’t overestimate its value. Probative value is low and dangers/costs are high!

• Ex) Lie on his law school application. Can be very prejudicial. The only permissible inference from the evidence of lying on law school app is that D might have lied when he testified at his tax fraud trial.

• This would be incredibly time consuming. People lie on occasion! If they start to get into that – would take forever!

• EXTRINSIC EVIDENCE = Testimony of a witness while being cross-examined is not EE. From another other source is!

• Ex) Breach of k. D testifies he never accepted P’s offer. Witness testifies that D once lied about his military service = EE.

• Atty can ask a witness about that witness’s conduct – but if the witness denies the conduct it cannot be proved through other evidence! Atty must usually take the answer of the witness!

• *Discretion to admit specific instances of conduct may be admissible under discretion of the court. Only if all other aspects of the rule are satisfied. Only if it is probative of truthfulness or untruthfulness and fits into one of the 2 situations. And only if character for truthfulness has been attacked. Cross-exam.

• 1) Principal witness – testimony given by him = NOT EE.

• 2) Character witness - witness who testified as to the principal witness’s character for truthfulness/untruthfulness = EE.

• Ex) D prosecuted for murder. On direct exam by gov’t A testifies she saw D commit the crime. On cross, D asks, “Isn’t it true you lied on your tax return?” Yes. ALLOWED.

• Ex) B testifies that A is a truthful person. On cross, D asks, “Did you know that A lied on a job app?” Yes. ALLOWED.

• Ex) Fraud, lying, using false name, making false claim, engaging in deceptive biz practices.

Questions for Classroom Discussion [p. 456]

1. Prosecution for drug dealing. Defendant testifies and denies committing the crime. On cross-examination, the prosecutor asks defendant if he lied on a job application about a misdemeanor conviction for marijuana possession. Is evidence of the marijuana conviction admissible to prove Defendant was dealing drugs in this case? No! 404: Inadmissible to prove conduct!

2. Same case. Is evidence of the marijuana conviction admissible under Rule 608(b) to impeach Defendant? NO, inadmissible. We are looking for evidence of acts of lying or telling the truth.

3. Same case. If the marijuana conviction is not admissible to impeach under Rule 608(b), does the prosecutor’s cross-examination in Question 1 refer to any other specific instance of conduct that is probative of truthfulness or untruthfulness? Yes – lying on his job application.

4. Same case. If your answer to Question 3 is “yes,” on what basis might the court still exclude the evidence under Rule 608(b)? Jury might infer he’s a bad guy and a drug dealer. Inferring his character and thus conduct – 404(a). 403.

5. Same case. Assume that on cross-examination Defendant denied lying on his job application. Could the prosecution prove the lie with the application itself? NO. With testimony from the personnel officer who received the application? NO.

6. Same case. Assume the prosecution calls a witness who testifies Defendant has a reputation for lying. Is this permitted under Rule 608? YES. Under 608(a) If so, can the defense cross-examine and ask, “Have you heard that Defendant truthfully admitted to chopping down the cherry tree?” YES. Character witness testified that D is a liar. On cross, asking about specific instance of truthfulness – that is okay.

Questions for Classroom Discussion

Casebook Page 456

1. Civil action for wrongful death. Defendant calls a witness who testifies that, at the time plaintiff’s decedent was shot, defendant was with witness eating dinner across town. On cross-examination, plaintiff asks, “Isn’t it true that you lied on your law school application.” Defendant objects. How should the court rule under the Federal Rules? The C.E.C?

FR: Admissible. Asking principal witness. Goes to truthfulness.

*CA 787: INADMISSIBLE! CANNOT IMPEACH USING SPECIFIC INSTANCES OF CONDUCT IN CIVIL CASE!

2. Prosecution for murder arising out of the same events described in the preceding question. The same witness testifies for the defense and the prosecution asks the same question on cross-examination. Defendant objects. How should the court rule under the Federal Rules? The C.E.C?

*MURDER CASE! FR: Admissible. CA: CA Constitution overrides! All relevant evidence is admissible in CRIM case!!!

CA: If specific instance of conduct – trying to impeach witness – if act of MORAL TURPITUDE it is RELEVANT to impeach

and thus ADMISSIBLE under CA constitution!

CA CRIMINAL CASE = can impeach witness w/ specific act of MORAL TURPITUDE (lying, violence, theft, recklessness, sex

misconduct). You can IMPEACH A WITNESS w/ an act of MORAL TURPITUDE in CA CRIM case!

Review: CE offered to IMPEACH a witness

608a = only one type of character trait admissible under this rule = truthful/untruthful.

608b = can attack/support credibility of witness w/ specific instances of conduct – no ee.

1) Principal witness: Can ask witness about her own specific instances of conduct that have bearing on truthfulness (not ee).

2) Character witness: if a witness has already testified under 608a as to reputation/opinion concerning another witness’ truthfulness on cross you can ask about specific instances of conduct of the witness whose credibility is in question.

CONVICTION OF CRIME 609

• For purposes of ATTACKING the character for TRUTHFULNESS of a WITNESS: 1) Evidence a witness (not accused) had been CONVICTED of crime SHALL BE ADMITTED, SUBJECT TO 403, if punishable by DEATH/FELONY. Evidence accused has been convicted of such a crime shall be admitted if ct determines probative value outweighs prejudicial effect; and 2) evidence that any witness has been convicted of a crime SHALL BE ADMITTED regardless of punishment, if readily determined that establishing the elements of the crime require proof/admission of act of DISHONESTY/FALSE STATEMENT by witness (perjury, forgery, fraud, lying) – no discretion – shall be admitted!

• Time Limit: Evidence of a conviction under this rule is NOT admissible if >TEN YEARS has elapsed since date of conviction or release of the witness, whichever is later – unless ct determines probative value outweighs and must GIVE NOTICE.

• If on appeal – evidence of conviction is still admissible – can admit evidence that it is on appeal.

• 608b = applies when evidence of misconduct that DID NOT RESULT in conviction is offered to impeach a witness.

• Only applies when conviction is offered to prove the CHARACTER FOR TRUTHFULNESS of the witness.

• Ex) Murder prosecution. D’s Witness testifies D was w/ him at time of crime. P offers evidence witness has conviction for felony assault. Admitted under 1 unless D shows probative substantially outweighs. If D testifies he did not commit the crime and P offers evidence D has conviction for felony assault, P must show probative value outweighs prejudice.

• If Witness = ACCUSED. Evidence admitted only if prosecution shows probative value outweighs prejudice! (Diff! Flip!)

• If Witness (not accused) = evidence admitted unless party opposing shows probative value is substantially outweighed (403).

• *For prosecution – burden to show it should be included. Whereas normally w/ 403 objection – burden show to be excluded.

• Ex) Murder prosecution. Witness testifies the accused was w/ him during the crime. Prosecution offers evidence witness has conviction for felony assault. Evidence may be admitted only if probative value outweighs prejudice!

• Flipping the 403 objection for the accused – makes it harder for the prosecution to get it in! High risk of unfair prejudice!

• 403 is heavily slanted in favor of admission – only if prejudice substantially outweighs will it be excluded.

• Old Convictions = if OVER TEN YEARS. Can be admitted if prove probative > prejudice. To get it in.

|CRIME |IMPEACH ACCUSED |IMPEACH WITNESS |

|Dishonesty/False statement |Admissible. (no discretion to exclude) |Admissible. (no discretion to exclude) |

|Death/Felony |Admissible only if prosecution shows probative value |Admissibly unless 403 unfair prejudice substantially |

| |outweighs danger of unfair prejudice. (Prob > Prej) |outweighs probative value. (Prej>Prob) |

|Misdemeanors |Not admissible |Not admissible |

Questions for Classroom Discussion [p. 464]

1. What assumptions does Rule 609 make about the connection between a witness’s prior conviction and that witness’s character for truthfulness? Do you agree with the assumptions? If an accused testifies and denies committing the crime charged, does evidence that the accused has a prior conviction for an unrelated offense tell us much about the reliability of his testimony that we do not already know? Assumption = if person committed a crime – tells us they are a law-breaker. That assumption is more powerful if crime of dishonesty because he a LYING criminal! If willing to lie to commit a crime, then maybe he’ll lie here! If get a pardon – inadmissible! If juvenile – inadmissible!

2. Recall that Rule 608(b) limits the admissibility of misconduct evidence bearing on truthfulness because, in part, resolving doubts concerning whether the misconduct occurred might require time consuming presentation of extrinsic evidence. Why doesn’t Rule 609 place greater limits on the admission of conviction evidence on the ground there may be doubts about whether the witness committed the crime? No limits on EE. He either plead guilty or proved beyond reasonable doubt! Pretty sure you did it!

3. Prosecution for perjury. Defendant testifies that, while he made false statements, he did not know they were false at the time. On cross-examination of Defendant, the prosecutor asks, “Isn’t it true that last year you were convicted of a misdemeanor for lying on your driver’s license application? Defendant answers “Yes.” Admissible? Is there discretion under Rule 403 to exclude for unfair prejudice? What if the conviction is more than ten years old? Admissible under 2 – this is a crime of LYING! Admissible to impeach. No 403 objection available! ADMISSIBLE! If over 10yrs – not admissible unless probative value outweighs prejudice (flip).

4. Same case. The defendant denies the conviction. Is a certified copy of the judgment of conviction admissible? YES.

5. Same case. Defendant denies the conviction occurred. A police officer is prepared to testify that he arrested Defendant for lying on his driver’s application. Is the officer’s testimony admissible? No conviction – just arrested. No good.

6. Same case. Prosecutor offers evidence that Defendant was convicted of petty theft, a misdemeanor. Admissible?

*THEFT IS NOT AN ACT OF DISHONESTY!

7. Prosecution for bank robbery. Defendant testifies and denies committing the crime. The prosecutor offers evidence Defendant has a prior conviction for bank robbery, a felony. Admissible? Admissible if prosecutor shows that the probative value outweighs prejudice. Burden on the prosecutor to get it in. Skewed AGAINST admissibility.

8. Same case. An alibi witness testifies for the defense that he and Defendant were at the movies at the time the crime was committed across town. The prosecutor offers evidence that the witness had an eight-year-old prior conviction for bank robbery, a felony. There is no other evidence concerning the witness’s credibility. Admissible? Admissible and burden is on the objecting party for 403 objection.

9. Same case. The alibi witness was convicted of felony bank robbery but was sentenced to probation and was never imprisoned. Admissible? YES! Punishable, not sentenced. Even if never serves a year still applies!

10. Same case. The alibi witness was convicted of perjury and was released from prison in 1988. Admissible? Over 10? NO!

• Luce v. US – preserving right to appeal. D prosecuted for drug crime. D asked ct to exclude evidence of his prior drug conviction under 609. TC said evidence admissible to impeach D if he testified. D didn’t testify. Appealed. Requiring that D testify in order to preserve Rule 609a claims will enable the reviewing ct to determine the impact any erroneous impeachment may have had in light of the record as a whole, etc. To preserve for review the claim of improper impeachment w/ prior conviction – D must testify!

Questions for Classroom Discussion

Casebook Page 464

In the following questions, how should the court rule under the Federal Rules? Under California law?

1. Prosecution for perjury. Defendant testifies in his own defense that he did not knowingly lie when he testified under oath. On cross-examination, the prosecutor asks, “Isn’t it true that you were convicted last year of lying on your driver’s license application, which is a misdemeanor? Defendant objects.

FR: Admissible. Crime of lying.

BUT § 788 only felony convictions admissible. the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony.

Under CA 788 crime of lying NOT ADMISSIBLE! CA only recognized FELONIES as basis for impeachment/conviction!

*BUT under CA Constitution: in CRIM case – conviction evidence is admissible if involves crime of MORAL TURPITUDE which this is! Lying is a crime of moral turpitude!

Crime of moral turpitude = lying, violence, theft, sex misconduct, extremeness recklessness.

2. Same case, except this time the prosecutor asks defendant, “Isn’t it true that you were convicted of felony child molestation? Defendant objects.

FR: Admissible if prosecution proves probative outweighs prejudice.

CA 352: Balancing – even w/ CA Constitution bc sex crime is a crime of moral turpitude – conduct 352(403) balance!

3. Same as preceding question, except defendant’s child molestation conviction is twenty years old.

FR: Not admissible unless probative outweighs prejudice (reverse 403).

CA: Older the conviction the weaker the inference about credibility. No age limitation!

4. Same case. Prosecution offers evidence Defendant was previously convicted of felony involuntary manslaughter in an unrelated case.

FR: Admissible if reverse 403.

CA: CA Constitution crime case: all relevant evidence is admissible. Must be conviction involving crime of moral turpitude. Felony involuntary manslaughter is a negligent act and negligent acts are not crimes of moral turpitude!

*CA = Irrelevant for impeachment purposes in CA! FR = might be admissible!

5. Action for breach of contract. Defendant testifies he never entered into a contract with plaintiff. On cross-examination, plaintiff asks “Isn’t it true that you were convicted last year of a misdemeanor for lying on your application for a driver’s license?” Defendant answers “Yes.”

FR: Admissible.

*CA 788: NOT admissible. CA Constitution - conviction of moral turpitude? Yes, but this is a CIVIL case!!!

6. Prosecution for bank robbery. Defendant testifies he was in another city when the robbery happened. On cross-examination, prosecutor asks, “Isn’t it true that you were convicted last year of misdemeanor theft of a church poor box?” Defendant answers, “Yes.”

FR: NOT admissible! Theft is not a crime of lying!

CA: Admissible! Theft is a crime of moral turpitude! Subject to balancing.

CA: Any CRIME (felony/misdemeanor) involving act of MORAL TURPITUDE is relevant to impeach! Subject to 352.

RELIGIOUS BELIEFS OR OPINIONS (610)

• Evidence of beliefs/opinions of witness on religion is NOT ADMISSIBLE for to show credibility is impaired/enhanced.

• Religion = mainstream religions, unconventional beliefs. BROAD.

• But not intended to make inadmissible the fact a witness subscribes to an ideology that is political/philo, not religious.

• Religious v. political? Hard to tell.

• Inadmissible only if offered to show that a witness’s character for truthfulness/untruthfulness is influenced by the belief.

• If evidence of religious belief offered to show bias, privilege, damages, m.o., motive, conduct: 610 not applicable!

• BUT 403 objection gives ct discretion to exclude. Limiting instruction.

Questions for Classroom Discussion [p. 466]

1. Prosecution of Defendant for tax fraud. Defendant’s accountant testifies that Defendant scrupulously observed the requirements of the Internal Revenue Code. The prosecutor offers evidence that the accountant is a member of a religious organization that believes in animal sacrifice and worships a golden calf. Admissible? NO!!!

2. Same case. The prosecutor offers evidence that the accountant is a member of a religious organization that believes Defendant is the messiah. Admissible? For another purpose – impeachment for BIAS.

BIAS, MOTIVE, AND INTEREST

• Bias = state of mind that may influence testimony.

• Ex) Witness may be biased in favor of a party if they are friends.

• Ex) Witness may have motive to alter her testimony if been threatened w/ physical harm.

• Ex) Witness has interest in the outcome of the case.

• Bias can only be proved circumstantially.

• Ex) family/financial relationship, romantic entanglement, friendship, employment, shared beliefs, payment of money, enmity from fight, insult, prior lawsuit, fear. Self-interest – important.

• Abel – Witness bias should be ADMISSIBLE! Favored and powerful basis to attack credibility. Can use EE. 403 and 611(a).

• Ex) Prosecution witness testifies she doesn’t know D. D has EE the witness made prior statement that she had a fight w/ D.

• If witness denies the facts indicating bias – the EE is admissible. But if admits to saying it – EE might be cumulative.

Abel

• Bank robbery. Accomplice testified for P.

• Abel called Mills to impeach Accomplice by testifying that accomplice said he would falsely accuse P to gain favor w/ the prosecutors.

• P recalled Accomplice to impeach Mills: said they were all members of secret prison gang that required lie, cheat,steal – showing that Mills had lied to protect P. (Admissible testimony? Accomplice’s testimony to impeach Mills?)

• Evidence showing Mills’ and Accomplice’s membership in prison gang ADMISSIBLE! Accomplice’s testimony admissible!

• Accomplice’s testimony about the prison gang made the existence of Mills’ bias more probable.

• Their membership supported the inference that Mills’ testimony was slanted in P’s favor. Ok to impeach him w/ it.

Questions for Classroom Discussion [p. 473]

1. The prosecution in United States v. Abel offered evidence that defendant and a defense witness were members of the same secret society that required its members to lie, cheat, and steal to protect each other. Identify three relevant facts that might be inferred from this evidence. Was it admissible to prove each of those facts?

1) Prove D’s character: he’s a thief, so he robbed the bank. 404. Probably inadmissible.

2) Prove D’s witness would lie/cheat/steal: inadmissible. EE!

3) Prove D’s bias – member of same gang – biased in favor of P. ADMISSIBLE for that purpose. Impeach by showing bias ok!

2. What does Abel say about the relationship between the Federal Rules of Evidence and the common law of evidence that was in existence at the time the Federal Rules were enacted? What does Abel say about the power of the courts to make evidence law after enactment of the Federal Rules? CL recognized bias as a method to impeach and that CL remains in effect unless there is something in the FR that says otherwise. FR’s do not talk about bias. So invoke CL power.

3. The Court in Abel adopted the traditional common law approach that extrinsic evidence is admissible to prove bias. Recall that there are limits on the admissibility of extrinsic evidence when offered to impeach under other methods of impeachment, such as contradiction or specific instances of conduct under Rule 608(b). Why is the law more willing to admit extrinsic evidence of bias? Bias is very probative of credibility. Bias is powerful!

4. Murder prosecution. Defendant calls Joe, who testifies, “Defendant was with me at the movies on the night of the crime.” On cross-examination, the prosecutor asks, “Defendant paid you $1,000 for the alibi, didn’t he?” The witness answers, “No.” The prosecutor then calls a second witness who offers to testify, “Joe told me that Defendant paid him $1,000 to provide an alibi.” Does Rule 613(b) apply? Prior statements evidencing BIAS (similar to impeachment w/ prior inconsistent statement) = must give Joe a CHANCE TO EXPLAIN/DENY – doesn’t matter when – could be after the EE is presented.

5. Prosecution for cruelty to animals. Defendant is charged with sacrificing a goat in a religious ritual. A defense witness testifies Defendant did not commit the act charged. The prosecution offers evidence that both the defense witness and Defendant are members of a religious sect that believes in animal sacrifice. Is this evidence admissible to impeach the witness? Offered to prove bias for impeachment. Evidence is EE and is admissible! Prosecution could argue MIMIC fact: motive. D could argue this is an inadmissible character trait which is inadmissible to show his conduct.

6. Civil action to recover for personal injuries sustained in an automobile accident. A witness testifies for the defense that Plaintiff drove through a red light and then struck Defendant’s car. On cross-examination, Plaintiff’s counsel asks the witness, “Isn’t it true that you are the president of Defendant’s automobile insurance company? Doesn’t defendant have $100,000 of liability insurance? What objection should Defendant raise? How should the court rule? 411 liability ins! Could be admitted to show bias – 403 problem. Ask for limiting instruction.

IMPEACHMENT BY CONTRADICTION

• Mere fact a person is wrong about one fact doesn’t make that person generally unreliable.

• Impeachment by contradiction is common. Cloudy v. sunny. Tall v. short. Up to trier of fact to sort out differences.

• Law generously allows impeachment by contradiction when the matter they disagree about is important to the case.

• Ex) bank robbery. Prosecutor calls W who testifies she was driving and saw male run out of bank. D is male. If D then offers testimony of another witness that the bank robber was a woman has 2 purposes: 1) prove innocence 2) impeach.

• EXTRINSIC EVIDENCE is NOT admissible to CONTRADICT a witness on a COLLATERAL matter.

• Ex) Murder. P claims D started the fight and killed V w/out provocation. D claims he acted in SD. W1 testifies D started the fight. W2 says Victim threatened to kill D.

• Collateral matter = Factual matter that has NO importance to the case except in its tendency to undercut the credibility of a witness by contradiction rather than some other way.

• W2’s testimony does NOT concern collateral mater. Substantive value.

• W1 testified that when the fight broke out she was sitting alone at a table watching the other people in the bar. D offers evidence W1 was watching a football game. Contradicts and casts doubt on whether W1 observed the events. IF was watching – less likely she saw the events. Evidence is NOT collateral. Tends to impeach her by showing impaired opp to see.

• Ex of Collateral Matter) W1 testified she observed the fight while drinking Diet Coke. D offers evidence she was sipping reg.

• EE = Any evidence offered to contradict a witness that comes fro ma source other than that witness while she is testifying.

• If D asks W1 on cross “weren’t you drinking a reg cola – not diet?” That is permitted – not EE. Admissible.

• But if W1 still says NO – D may NOT prove otherwise through testimony of W2 – this would be using EE! Must accept answer.

• Cts can use 403 to forbid EE that impeaches by contradiction on collateral matter but waste of time/distraction.

• If evidence might also impeach by another means – that evidence is not collateral.

Questions for Classroom Discussion [p. 478]

1. Negligence action by Plaintiff against Defendant following a collision between their two cars. Plaintiff calls Witness 1, who testifies that she was a passenger in Plaintiff’s car, that she looked down for a moment to change the radio from a rock station to a country music station, and that when she looked up, she saw Defendant cross the center line, veer into Plaintiff’s path, and strike Plaintiff’s car head-on. On cross-examination, Defendant asks Witness 1, “Isn’t it true that Plaintiff is the one who crossed the center line?” Defendant objects that this is improper impeachment. How should the court rule? Contradiction – admissible. Not EE. Asking the witness we are trying to impeach.

2. Same case. Assume Witness 1 refuses to acknowledge that it was Plaintiff who crossed the center line. May Defendant now call Witness 2 to testify to that effect? Collateral matter? No! There is substance to this – material to the issues!

3. Same case. Defendant calls Witness 3, a back-seat passenger in Plaintiff’s car, to testify that just before the accident, Witness 1 was not looking down to tune the radio, but had her head turned toward the back seat, was engaged in a conversation with Witness 3, and never turned her head forward before the crash. Plaintiff objects that this is improper impeachment. How should the court rule? Collateral matter? Never turned her head forward – material. Admissible!

4. Same case. Assume that instead of testifying as in Question 3, Witness 3 will testify that Witness 1 was not changing the station from rock to country, but from country to rock, just before the accident. Plaintiff objects that this is improper impeachment. How should the court rule? YES COLLATERAL! Not admissible!

***Collateral matter = regular instead of diet. Country instead or rock.

PRIOR STATEMENTS OF WITNESSES

1. Prior inconsistent statement:

• 801d1a = a statement is NOT hearsay if the declarant testifies at the trial/hearing and is subject to cross-exam concerning the statement and the statement is inconsistent w/ declarant’s testimony, and was given under oath.

• 613 = examining witness concerning prior statement – need not be shown nor contents disclosed at the time – but on request.

• 613 = EE of prior inconsistent statement of witness = NOT admissible unless witness gets opp to explain/deny and opposite party has opp to interrogate the witness. Does not apply to admissions of party-opponent.

• Substantive use of prior inconsistent statements:

1) declarant testifies at trial/hearing;

2) declarant subject to cross-exam concerning the statement; and

3) inconsistent statement made under oath at a trial/hearing/depo (not affidavit).

• US v. Owens = is W subject to cross-exam concerning the statement if doesn’t recall the prior incident/statement? Victim’s memory was severely impaired. Interview w/ FBI – named Owens as attacker. On cross – victim admitted that he could not remember seeing the person who attacked him. Even tho couldn’t remember – was still subject to cross-exam! Admissible. Admissible under 801d1c – statement of ID. Subject to cross-exam.

• Impeachment use of prior inconsistent statement = inconsistency. Not necessary to show witnesses prior statement or disclose its contents before using it to impeach the witness. EE of a prior statement is admissible so long as the witness is afforded at some time during the trial an opportunity to explain/deny and opponent has chance to examine. EE inadmissible to impeach a witness by contradiction on a collateral matter. 403.

• 806 = Attacking/Supporting Credibility of Declarant?

• Ex) Murder. P offers evidence of victim’s dying declaration accusing D of committing the crime. D can offer into evidence a prior statement of the victim accusing a different person. Even if the prior statement is not a dying declaration – still admissible to impeach – not hearsay for this limited purpose. EE of the prior statement admissible to impeach.

Questions for Classroom Discussion [p. 488]

1. Prosecution of Defendant for robbery of Victim’s jewelry store. The prosecutor calls Witness, who testifies that she saw a woman running from the store just after the alarm started to sound. On cross-examination, Defendant asks Witness, “isn’t it true that just after the robbery, you told the police that the robbery was committed by a man?” Is this evidence admissible? If so, for what purpose? Logically relevant to prove 2 things: 1) impeach by prior inconsistent statement (403); 2) to prove the fact asserted. Admissible only for impeachment.

2. Same case. To prove that Witness made the prior statement, Defendant calls the police officer with whom Witness spoke, and asks the officer to relate Witness’s statement that the robbery was committed by a man. Is this evidence admissible? If so, for what purpose? Is there any additional foundational requirement imposed on the officer’s testimony? This is not a collateral matter. Admissible only for impeachment. EE allowed so long as witness is given a chance to explain/deny.

3. Same case. Assume that Witness’s prior statement was made in a deposition rather than orally to the police officer. The prosecutor objects. Is this evidence admissible? If so, for what purpose? What if the prior statement was contained in a sworn affidavit? Deposition – admissible. Not in affidavit (hearsay) – admissible for impeachment.

4. Same case. The prosecutor calls Victim, who testifies about the robbery but states that she cannot remember what the robber was wearing. On cross-examination, Defendant asks Victim if it isn’t true that hours after the robbery, Victim told the police that the robber was wearing blue jeans. If the prosecutor objects, how should the court rule? This is not an inconsistent statement. She is saying she doesn’t remember now – not inconsistent.

5. Same case. Suppose Victim’s prior statement that the robber was wearing blue jeans was made just before Victim took the stand. May Defendant now offer the statement as a prior inconsistent statement? Now there is an inconsistency. Prior statement made right before the testimony. Saying something about her credibility now. Impeachment.

6. Civil fraud action by Plaintiff against Defendant arising from a failed land development deal. At trial, Defendant testifies that he warned Plaintiff that land development deals are risky and that Plaintiff should consult an attorney before investing. On cross-examination Plaintiff asks Defendant to admit that Defendant never made such a statement, and in fact told Plaintiff that the deal was “good as gold.” Defendant denies making that representation and sticks to his story that he warned Plaintiff about the risks of investing. May Plaintiff call a witness to testify that she overheard the conversation, that Defendant never mentioned the risks, and that Defendant made the “good as gold” statement? For what purposes, if any, is the evidence admissible? Impeachment to contradict – this is not collateral – admissible. “Good as gold.” = not being offered for the truth so not hearsay – statement amounting to fraud – independent legal sig. Not hearsay. Also party admission. Admissible to impeach D and to prove the statement was made!!!

7. Prosecution of Defendant for the murder of Victim, allegedly committed during a brawl at a football game. Defendant denies involvement. The prosecutor calls Witness 1, Victim’s spouse, who testifies that a week after the incident, just before Victim died, Victim said, “I’m done for. See to it that Defendant pays for this.” Defendant objects on hearsay grounds. How should the court rule? Dying declaration – not hearsay. Admissible to prove fact asserted!

8. Same facts as in Question 7. After Witness 1 testifies Defendant calls Witness 2, the doctor who treated Victim at the hospital following the incident. Witness 2 testifies that some time before Victim made the statement apparently accusing Defendant, Victim said, “Zed is the one who did this, and when I get out of here, I’ll see that she suffers for it.” Is Witness 2’s testimony about Victim’s earlier statement admissible? If so, for what purpose? Is the evidence objectionable on the ground Victim was never given an opportunity to explain or deny the statement to Witness 2? Not a dying declaration - hearsay. Admissible to impeach for contradiction – that victim in fact said he was going to get D – not collateral. Must be given opportunity to explain/deny. But victim is dead! He can’t explain/deny! Still admissible! 806!

9. Prosecution of Defendant in a California state court for robbery of a convenience store. Witness testifies for the prosecution that she saw Defendant commit the crime. On cross-examination of Witness, Defendant establishes that on the day of the crime, Witness identified another person as the robber. California Evidence Code § 1235, a hearsay exception, provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” (Section 770 is similar to Fed. R. Evid. 613(b).) For what purpose, if any, is Witness’s prior statement admissible? How does this differ from the result under the Federal Rules? In CA = ok to prove the fact asserted! 1235 covers inconsistent statements of witnesses whether or not made under oath! MORE LIBERAL IN CA to admit evidence to prove the facts asserted in prior inconsistent statement of the witness – does not need to be under oath like FR!

10. Prosecution of Defendant for bank robbery. The prosecution alleges that Defendant, a man, approached a teller, showed the teller a firearm hidden under his raincoat, demanded that the teller fill a bag with cash, and then struck the teller over the head before escaping with the cash. At trial Defendant calls the teller who testifies that the robbery was committed by a woman. On cross-examination the prosecutor asks the teller to admit that he testified before the grand jury that the robber was a male. The teller responds that she has suffered from memory problems since being struck on the head and has no recollection of testifying before the grand jury. The prosecutor then offers into evidence a certified transcript of the teller’s grand jury testimony in which she stated, “The robber was a man.” Defendant objects on the ground the transcript is inadmissible hearsay and teller’s memory problem means the teller is not “subject to cross-examination” as required by Rule 801(d)(1)(A). How should the court rule? Owens – ADMISSIBLE – not hearsay! Transcript of testimony given before grand jury – inconsistent w/ declarants testimony at trial – give under oath at proceeding/hearing. (Grand jury proceeding = hearing/proceeding.) She is subject to cross-examine now, even though she cannot remember.

Questions for Classroom Discussion

Casebook page 488

1. Action for personal injuries in an automobile accident. Plaintiff’s witness testifies that defendant struck plaintiff in the crosswalk. On cross examination, defendant asks, “Didn’t you tell the investigating police officer at the scene that plaintiff was jaywalking and was not in the crosswalk at the time of impact?” Plaintiff objects on the ground of hearsay. What result under the Federal Rules? The C.E.C?

FR: W testifies D struck P in crosswalk. Prior inconsistent statement was NOT made under oath! Inadmissible hearsay!

***CA: Admissible for all purposes under 1235! Doesn’t matter prior inconsistent statement was not under oath.

2. Same case. On cross examination, defendant asks, “Didn’t plaintiff offer you $1,000 yesterday if you would testify that he was in the crosswalk? Plaintiff then offers the witness’ deposition testimony, given months ago, in which he stated that plaintiff was in the crosswalk. Defendant objects on the ground of hearsay. What result under the Federal Rules? The C.E.C?

FR: Not hearsay – Admissible! Made before the alleged bribe. Rebuts the improper influence.

Same in CA – hearsay, but admissible.

2. Prior Consistent statement:

• 801d1b = statement is NOT hearsay if declarant testifies at trial/hearing and is subject to cross concerning the statement, and the statement is consistent w/ declarant’s testimony and offered to rebut an express/implied charge against the declarant of recent fabrication or improper influence/motive.

• STINGY admission! ADMISSIBLE ONLY IN VERY NARROW CIRC’S.

• Foundation = ONLY IF CREDIBILITY ATTACKED.

• Even if credibility attacked – must LOGICALLY REFUTE the specific focus of the attack.

• If impeacher charges that witness’s testimony is the product of a fabrication or a motive to lie that emerged before witness took the stand, a consistent statement logically rebuts that charge if it was made before that fabrication/motive arose. TIMING.

• HYPO: P claims D paid Witness to testify P fell while trying to ride bike. If Witness told her friend the same story before D allegedly paid Witness, strongly rebuts P’s claims that Witness was improperly influenced. More likely truthful.

• Tome v. US = prior inconsistent statement is admissible only if made before the claim of fabrication was made or before the motive/improper influence arose.

Admission of Prior Consistent Statements – TIMING!:

1. Declarant testifies at trial/hearing;

2. Declarant is subject to cross-exam concerning the statement;

3. The prior consistent statement is offered to rebut an express/implied charge or recent fabrication or improper influence or motive; and

4. The prior consistent statement was made before alleged improper influence motive arose.

Questions for Classroom Discussion [p. 501]

1. Negligence action by Plaintiff against Defendant arising from an intersection collision. Plaintiff claims Defendant ran the red light; Defendant claims Plaintiff ran the red. Plaintiff calls Witness, who testifies that she saw Defendant run the red light. Plaintiff then seeks to elicit from Witness testimony that she said the same thing when Defendant took her deposition prior to trial. Defendant objects to admission of the deposition testimony on hearsay grounds. How should the court rule? Her testimony has not been attacked.

2. Same case. In response to Defendant’s objection, Plaintiff argues that the prior statement is only being offered to support Witness’s credibility, not to prove that Defendant ran the red light. How should the court rule? Doesn’t matter.

3. Same case. Assume Plaintiff did not try to elicit Witness’s prior statement during direct examination. On cross-examination, Defendant asks Witness to admit that Plaintiff offered Witness money in exchange for Witness’s favorable testimony. Witness denies this (or admits receiving the offer but claims that her testimony would have been favorable in any event). On redirect examination, Plaintiff wishes to elicit testimony that Witness’s deposition was taken before the date on which Defendant claims Plaintiff offered the bribe. If Defendant objects to admission of the deposition testimony, how should the court rule? Supports the credibility – witness making the consistent statement before the bribe.

4. Prosecution of Defendant for murder. Defendant denies any involvement. The prosecutor calls Witness, who was arrested for the crime along with Defendant and who previously pleaded guilty in exchange for leniency. Witness testifies that she and Defendant planned and executed the murder together. On cross-examination, Witness admits that she was arrested for and has been charged with the same crime. On redirect, the prosecutor proposes to ask Witness whether she made the same statement to the police (that she and Defendant planned and executed the murder together) shortly after she was arrested. If Defendant objects to admission of the prior statement, how should the court rule? Not admissible. After.

CHAPTER 7: LAY & EXPERT OPINION EVIDENCE

1. LAY OPINION 701

• If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions/inferences which are

a) rationally based on perception of witness;

b) helpful to clear understanding or determination of fact; and

c) not based on scientific/technical/specialized knowledge w/in 702.

• Ex) substance appeared to be blood.

• Lay opinion cannot be based on hearsay.

• Ex) Witness heard person say, “I am Czar.” Witness may offer her opinion that the speaker is insane. Witness perceived the statement by hearing it and her opinion is based only of the fact that the statement was made – not the truth of the matter.

• Cts are given a lot of flexibility in deciding whether an opinion is helpful. 1) Conveys info the witness cannot otherwise clearly relate – identify voice is their friend. 2) can describe some but not all of the perceptual details – witness who offers opinion person appeared angry can say he furrowed his brow, etc. 3) describe all components – 50mph. 4) witness interpret evidence – ID robber in poor quality photo bc know him. 5) saves time – summarizes single statement – looked drunk.

• Ex) Lay opinion parent was drunk on given occasion – fitness of parent to keep custody. OK.

• Must balance benefits/costs.

• Ex) Lay opinion as to sanity/insanity/feelings/knowledge/intent/character/appearance/age/suffering/intoxication/appearance of objects, condition of an accident site, value of property/quality/adequacy of safety precautions/nature of substance/smell/speed of car/meaning of statement/cause of accident/modus operandi/voice ID/handwriting/person depicted. Usually admitted.

• HYPO – witness gave opinion the screeching tires caused by hard application on brakes ok. Speed of car ok.

Questions for Classroom Discussion [p. 518]

1. Divorce action. The issue is which parent should have custody of the children, who currently reside with their mother. The father calls a neighbor to testify that, in her opinion, the mother is not fit to retain custody. Is the opinion admissible? Why or why not? Not admissible. “Not fit” is a legal conclusion. He was “negligent” too. Not helpful.

2. Same case. The neighbor offers to testify that, in her opinion, the mother frequently had many male guests stay overnight. The opinion is based on the fact that the neighbor saw cars other than those owned by the mother parked in the mother’s driveway at night when the neighbor went to bed and would see the same cars in the driveway in the morning. Is the opinion admissible? Why or why not? Not helpful – does not give the jury more info. Her conclusion didn’t add anything to the facts. All she saw were cars – her inference they were there all night were not based on her perceptions.

3. Same case. The neighbor offers to testify that, in her opinion, the mother is an alcoholic because the neighbor once smelled alcohol on the mother’s breath. Is the opinion admissible? Why or why not? NO – one time – not enough to show she is an alcoholic. Okay if he said one time she was drunk.

4. Same case. The neighbor offers to testify that, in her opinion, the mother uses drugs because she has a tattoo and a nose ring. Is the opinion admissible? Why or why not? Not admissible! Not logical!

5. Same case. The father calls a psychologist who offers to testify, based on the testimony of other witnesses, that the mother is not fit to retain custody. Is the opinion admissible under Rule 701? Why or why not? NO. 702.

EXPERT OPINION 702

• If scientific/technical/specialized knowledge will assist jury understand the evidence or determine a fact, a witness qualified as an expert by knowledge/skill/experience/training/education may testify in the form of opinion or otherwise, if:

1) testimony is based upon sufficient facts/data;

2) testimony is product of reliable principles/methods; and

3) witness has applied the principles and methods reliably to the facts of the case.

• Expert testimony relevant? Most important factor: will it help jury determine the facts accurately?

• Helps when relates to esoteric matters beyond experience of most laypeople and this knowledge is needed to determine facts.

• Helps when concerns complex matters that challenge the comprehension of laypeople.

• Helps when other evidence is confusing and can only be explained by expert.

• Helps when laypeople need expert bc incomplete or inaccurate w/out it.

• *Generally EXCLUDE expert opinion as to whether witness is TELLING TRUTH.

• *Courts are HOSTILE TOWARDS POLYGRAPH. Courts exclude evidence he was “negligent.”

Questions for Classroom Discussion [p. 520]

1. Murder prosecution. The defense calls an astrologer to testify that, based on Defendant’s birthday and the alignment of the planets on the night of the murder, Defendant could not be the perpetrator. Does the testimony “assist the trier of fact”? NO – NOT RELEVANT!

2. Same case. A prosecution witness with a PhD in criminology testifies that, based on the fact that bloody shoeprints led from the murder scene to Defendant’s apartment, defendant must be guilty. Does the testimony “assist the trier of fact”? NO – same bloody shoeprints – don’t need a PhD for that! Lay opinion! Don’t need expert! Not admissible under 702!

3. Same case. A prosecution witness who has extensive experience analyzing shoeprints testifies that the shoeprints leading to Defendant’s apartment were made by a size 12EEE shoe, which other evidence demonstrates to be Defendant’s shoe size. Does the testimony “assist the trier of fact”? YES. Specialized opinion.

4. Prosecution for sexual assault. The alleged victim testifies that Defendant attacked her. The defense calls a psychiatrist to testify that, based on his observation of the alleged victim, she is suffering from psychosis and is not telling the truth. Does the testimony “assist the trier of fact”? Cannot say that he is not telling the truth – just telling them what conclusion to reach. Not admissible expert or lay opinion.

5. Same case. A psychiatrist testifies that, based on his observation of the alleged victim, she is suffering from psychosis and that people who have this condition often cannot distinguish between fantasy and reality. Does the testimony “assist the trier of fact”? Yes. Telling the jury that a person has a condition and what that condition entails ok.

Expert Witness must be QUALIFIED

• Just needs enough to assist the trier of fact. Doesn’t have to be formal education.

• Ex) Scientist w/ expertise in dealing w/ animal diseases might not be qualified to give opinion on cause of human disease.

• Q: Whether the expert’s area of expertise is relevant.

• Expert witness qualification 104(a) – TC will hear qualification evidence b4 letting witness give opinion testimony.

• B4 court rules on whether qualified – opposing party should get opp to conduct voir dire exam of the witness.

Questions for Classroom Discussion [p. 522]

1. Murder prosecution. The victim was killed when a washing machine exploded. The defense claims it was an accident. The prosecution calls a plumber, who quit school after the sixth grade, to testify that, based on 20 years of professional experience fixing washing machines, it is impossible for one to explode accidentally. Is this testimony admissible, even though witness lacks any academic qualifications? YES. He is qualified!

2. Medical malpractice action against a cosmetic surgeon. Plaintiff seeks damages for injuries following from an alleged botched nose job. Plaintiff’s expert is shown to be an experienced cosmetic surgeon. If permitted, she will testify that the procedures followed by Defendant doctor were improper and that Plaintiff suffered $1,000,000 lost income as a result of her injuries. Is the witness’s testimony admissible? Witness is expert in cosmetic surgery – not in calculating lost income. 1st part of opinion admissible – 2nd part not admissible.

3. Same case. Defendant calls a physician with a general family practice who offers to testify that procedures used by Defendant to perform surgery conformed to the professional standard of care. Is the witness’s testimony admissible? Unsure. General practitioners can testify about areas of specialty. Sometimes they don’t have enough knowledge.

4. Prosecution for burglary. The sole witness to the crime speaks only Bulgarian. A police officer translates the witness’s testimony. The officer took one year of college Bulgarian several years ago. Does the officer have to be an expert to translate the witness’s testimony? Is she qualified as an expert? Probably not.

Expert Witness must be RELIABLE

• Frye (scientific evidence) = if based on GENERALLY ACCEPTED PRINCIPLES as valid by relevant scientific community. (0ld!)

• Test excluded cutting-edge scientific evidence. Not easy to determine – general is hard to determine.

• DAUBERT = 1) TESTED? 2) SUBJECT TO PEER REVIEW/PUBLICATION? 3) RATE OF ERROR 4) GENERAL ACCEPTANCE?

Question for Classroom Discussion

Casebook page 541

[The following is based on question 1 from page 541 of the casebook.]

Murder prosecution. Defendant is an aging, bald, overweight law professor. A prosecution expert witness offers to testify that, based application of a radical new technology for DNA testing, the perpetrator’s blood found at the crime scene reveals perpetrator had all these characteristics. While the validity of the test is not yet generally accepted among scientists, the test has been published in scientific journals, has a low error rate, the results are subject to retesting, and the test at least has a reasonable level of acceptance in the scientific community. Is the expert’s opinion admissible under Rule 702? Under C.E.C. 801?

FR = YES admissible! Fits DAUBERT standard for reliability.

*CA 801 = NOT admissible! Gotta show it is generally accepted by experts in the field in CA!

Questions for Classroom Discussion [p. 541]

2. Same case. A prosecution expert witness testifies that conventional DNA tests of blood stains on Defendant’s clothing show a match with the victim’s blood. The validity of this DNA technology is well established. However, the expert admits that the lab technician who performed the tests utterly failed to follow procedures aimed at avoiding contamination and degradation of blood samples. Under what subpart of Rule 702 should Defendant object? Reliability!

3. Same case. Assume that the lab technician deviated from established procedures only in that, while on a lunch break, she failed to refrigerate one of the blood samples. While this might lead to degradation of the sample, the test results show that degradation did not occur. Should the court exclude expert testimony based on the test results? If still reliable – can argue it is admissible. By preponderance 104a.

4. Action against a seatbelt manufacturer for personal injuries suffered in an auto accident. Defendant alleges Plaintiff was injured because he did not secure his seatbelt properly. Plaintiff calls an accident reconstruction expert, who proposes to testify that Plaintiff was injured because the seatbelt popped open upon impact even though it was secured prior to the crash. The expert admits she failed to consider eyewitness testimony that Plaintiff did not buckle his seatbelt properly. Under what subpart of Rule 702 should Defendant object? Insufficient facts/data. There was objective evidence out there concerning this issue – how the seatbelt didn’t work – and the expert ignored it! Not based on sufficient facts/data!

5. Same case. The expert admits she failed to test the seatbelt to determine if the force of impact could have caused the seatbelt to open. Under what subpart of Rule 702 should Defendant object? Accident reconstruction expert. For a scientist to come to a conclusion need testing. Test your hypothesis. ?

6. Action for wrongful death against a pharmaceutical company, manufacturer of the product that allegedly caused decedent’s fatal disease. Plaintiff’s expert testifies that Defendant’s product can cause this disease. She bases her opinion on laboratory studies with mice that show these animals developed this disease after exposure to Defendant’s product. Under what subpart of Rule 702 should defendant object? Mice v. humans. Maybe not reliable.

EXPERT TESTIMONY MUST HAVE A PROPER BASIS

• 703 = facts/data in the particular case upon which an expert bases an opinion/inference may be those perceived by or made known to the expert at or before the hearing. If a type reasonably relied upon by experts in the particular field in forming opinions/inferences upon the subject, the facts/data need not be admissible in evidence in order for the opinion/inference to be admitted. Facts/data otherwise inadmissible shall not be disclosed to jury unless ct determines prob>prejudice.

Allows expert opinion to be based on 3 sources of info: firsthand knowledge, admitted evidence, facts/data not admitted into evidence if reasonably relied upon by experts in the field. TC judge is gatekeeper. 104(a).

Questions for Classroom Discussion [p. 547]

1. Murder prosecution. The murder victim died when a toilet exploded. The defense calls Dr. Bidet, the famous French expert on exploding toilets. Dr. Bidet has no personal knowledge of the facts. His opinion was that the explosion was caused by an accidental build-up of water pressure. May he base this opinion on already received testimony of the investigating officer? On his personal inspection of the debris? Yes – admitted evidence. Yes – PK.

2. Same case. The investigating officer testifies that water was shooting 200 feet up into the air from a crater in the bathroom floor, there was no trace of explosives, and the victim was clutching a note in his lifeless hand that read, “You are a dead man!” The defense calls an expert, Professor Plunge, and asks, “Assume professor, that the investigating officer testified water was shooting 200 feet up into the air from a crater in the bathroom floor and there was no trace of explosives. What is your opinion as to cause of death?” Is this question permissible? NO – he left out the crucial fact of the note in his hand. The opinion is not based on what has been admitted – he mischaracterized by leaving our the crucial fact.

3. Same case. The prosecution calls a pathologist whose knowledge of the case is entirely based on a lab report that already has been ruled inadmissible hearsay. Testifying that she customarily relies on such lab reports when rendering professional opinions at the hospital, the pathologist then offers an opinion that the cause of death was homicide. Is the pathologist’s opinion admissible? Yes.

EXPERT TESTIMONY: LIMITS ON OPINIONS GOING TO ULTIMATE ISSUES

• 704 Opinion on Ultimate issue:

A) Testimony in form of opinion/inference otherwise admissible is not objectionable bc embraces an ultimate issue. B) NO EXPERT witness testifying w/ respect to MENTAL STATE or D’S CONDITION in CRIM case may state an opinion or inference as to whether D DID OR DIDN’T HAVE the mental condition constituting an ELEMENT of the crime charged or of a defense. Such ultimate issues are for the jury. (After attempted assassination of Reagan)

• LAY or EXPERT testimony is not objectionable if embraces ultimate issue! Expert may give opinion the design defect CAUSED.

• Bars expert opinion when it goes to the last step in the inferential process concerning D’s mental state/condition.

• When the issue is D’s sanity, cts permit expert to testify as to the diagnosis of disease, characteristics, effect could have on a person’s ability to appreciate the wrongfulness of conduct. Most cts bar the ultimate question.

• Experts usually CANNOT testify the ACCUSED WAS LEGALLY SANE/INSANE! Cannot say he had or didn’t have INTENT.

• Most cts allow witness to testify that the large quantity of drugs found in D’s possession is consistent w/ intent to sell – but cannot say it means he had the intent to sell!!!

Questions for Classroom Discussion [p. 551]

1. Prosecution for possession of drugs with intent to sell. A police officer, qualified as an expert, testifies that, based on the fact Defendant was arrested with a kilo of cocaine in his possession, he must have had the intent to sell. Permitted under Rule 704(a)? 702? 704(b)? NO.

2. Same case. What could the officer say without violating 704(b)? A person w/ that amt typically possesses w/ intent to sell.

3. Prosecution for attempted assassination of the President. A psychiatrist is called to testify for the defense. Which is more likely to be admissible under 704(b)? (a) “Given defendant’s mental condition, it is my opinion that he did not have the mental state required to commit the crime.” (b) “Given defendant’s mental condition, it is my opinion that he could not have the mental state required to commit the crime.” Could not. Can give b).

EXPERT TESTIMONY: DISCLOSING FACTS UNDERLYING OPINION

• 705: Disclosure of Facts/Data Underlying Expert Opinion = expert may testify in terms of opinion/inference and give reasons therefore w/out first testifying to underlying facts/data unless ct requires. Expert may be required on cross.

• If expert is basing his opinion on inadmissible stuff – cross-examiner can get the expert to disclose the underlying facts/data.

EXPERT TESTIMONY: CT-APPOINTED EXPERTS

• Gives JUDGE the OPPORTUNITY to appoint HER OWN EXPERT. Rare!

CH. 8 – PRIVILEGES

• 501 = General Rule = Privilege of a witness/person/gov’t/state/ shall be governed by CL. In CIVIL actions/proceedings w/ respect to an element of a claim/defense as to which State law supplies the rule of decision – privilege shall be determined by STATE.

Question for Classroom Discussion [p. 560]

Diversity action in federal district court by Plaintiff against Defendant, a trucking company. Plaintiff seeks damages for personal injury following a collision between her car and Defendant’s 18-wheeler. At trial, Defendant calls Witness, who secretly “bugged” Plaintiff’s attorney’s office and listened in during a private conversation between Plaintiff and her attorney. In that conversation, Plaintiff allegedly admitted being responsible for causing the accident. Plaintiff objects on grounds of attorney-client privilege. The federal courts in the state whose substantive law governs the case hold that otherwise privileged conversations overheard by an eavesdropper are privileged if the parties took reasonable steps to ensure confidentiality. The state’s own courts, however, hold that otherwise confidential communications lose their privileged status if they are overheard. How should the court rule on Plaintiff’s objection? Overrule objection. There is NO A/C privilege here. State court says no longer privileged. Apply STATE law.

• Protects “CONFIDENTIAL COMMUNCATIONS” between parties in particular relationship.

• HYPO = P brings negligence action against D. D consults atty and admits that P was in a crosswalk when he hit him and didn’t see him because he was distracted. Privilege would only prevent disclosure of the confidential discussion – not of the facts related by D. Can still ask about the facts – whether P was in a crosswalk, or whether D was paying attention.

• Also – privilege doesn’t cover non-communicative behavior including physical evidence. If give atty gun.

• 503 ATTY/CLIENT privilege = communication is confidential if it is not intended to be disclosed to 3rd persons other than those to whom disclosure is in furtherance of the rendition of prof legal services to the client or those reasonably necessary.

• CA establishes a PRESUMPTION that comm’s taking place w/in certain protected relationships (including lawyer/client) are “made in confidence and opponent of the claim of privilege has burden of proof to establish it was not confidential.”

• Looking at the communication and circ’s would a REASONABLE PERSON in that position belief the comm. was confidential?

• Ex) Client consulted her atty in private conference room w/ doors closed and tone of voice not likely to be heard outside the room – ct likely to treat the comm. as confidential. Even if hidden eavesdropper overheard it.

• Ex) Client chooses to talk to atty in public place in louder tone likely to be overheard by people in plain view – not confidential.

• Presence of legal secretary or law clerk might be necessary to give legal services.

• Can extend to many people so long as all of them are present for the purpose of facilitating the protected relationship.

• Ex) Convo btw clients employee and Atty’s secretary can be protected even tho neither are client or atty.

• Ex) Wife accompanies H on visit to Dr and present during exam. Protected. Spousal – dr/patient.

• Translator’s presence will not break.

• Atty asks client to visit certain Dr – the Dr’s confidential report following the exam will not be subject to the privilege – but will probably be protected by the A/C priv! Dr serves as translator of client’s med condition.

• “Holder” of the privilege = person who can asset or waive it.

• CLIENT = HOLDER OF A/C PRIV! Atty can assert on behalf of holder, but only the holder may WAIVE the priv.

• PATIENT = HOLDER OF DR/PATIENT & PSYCH/PATIENT.

• *CA = BOTH spouses are holders of privilege for confidential comm’s btw spouses!

• *CA CLERGY – law provides privileges for BOTH participants in the communication.

• FR – Makes the person confiding in the clergy the holder of the privilege – though clergy may claim the priv on behalf of the person.

• “Waiver” of the privilege = voluntarily discloses/consents any significant part of the matter or communication.

• Behavior that shows willingness to have comm. revealed outside the privileged relationship = waiver.

• Ex) Patient doesn’t object to her doctor sharing confidential info w/ med students – waived.

• Ex) Client who lets atty disclose conf comm. during contract negotiation – waived.

• Disclosure COERCED is NOT WAIVER. Improper threat does not constitute a waiver.

Questions for Classroom Discussion [p. 567]

1. Plaintiff, who has brought a personal injury action, meets with her attorney in a busy pub to discuss Plaintiff’s case. Though they speak in hushed tones, their conversation is overheard by Witness, a friend of Defendant, who is sitting at the next table. At trial, Defendant calls Witness to testify about the conversation she overheard. Plaintiff objects on grounds the conversation was privileged. How should the court rule? Not privileged. Public place! Objective standard.

2. Defendant, out on bail awaiting trial on a criminal charge, speaks with her attorney about the case using a cellular phone. Unknown to Defendant, a glitch in the signals causes the conversation to be transmitted to Witness, who is located nearby speaking on her own cellular phone. Witness reports the conversation to the police, and the prosecution calls her to testify at trial about what she heard. Defendant objects on grounds of privilege. How should the court rule? Sustained. Conf.

3. Defendant has been charged with murder and is housed in the county jail awaiting trial. In preparation for trial, Defendant meets with her attorney in a conference room provided for that purpose. Unknown to Defendant and her attorney, part of their conversation is overheard by a jail guard who was sitting in the room next to the conference room. At trial, the prosecution calls the employee to testify about the conversation. Plaintiff objects on grounds of privilege. How should the court rule? What if the guard is in plain view but the jail refuses for security purposes to allow prisoners to meet privately with visitors, including lawyers? Privileged for both. He doesn’t have a choice here. Doesn’t intend for him to hear.

4. Breach of contract action. Plaintiff takes Defendant’s deposition, and asks Defendant about conversations she had with her attorney. Defendant objects on the basis of the attorney-client privilege. Plaintiff responds that the privilege does not apply because the deposition is part of the discovery process, not the trial, and the rules of evidence do not apply during discovery. If Defendant persists in asserting the objection, should a court grant Plaintiff’s motion to compel an answer? No. Privilege rules apply throughout the case – even during pre-trial discovery.

5. Same case. At trial, Defendant calls Secretary, who works for Plaintiff’s attorney, and asks Secretary to relate the substance of a meeting between Plaintiff and Plaintiff’s attorney during which Secretary took notes. Plaintiff is not in the courtroom when the question is asked. What should Plaintiff’s attorney do? No. Privileged!

6. Murder prosecution. Prior to trial, Defendant’s attorney held a press conference during which she stated, “My client wants everyone to know that he was halfway around the world when this horrible killing took place. He had nothing to do with it.” At trial, Defendant admits killing the victim, but defends on the basis of self-defense. The prosecutor calls a reporter who attended the press conference to testify about Defendant’s attorney’s statement. Defendant makes privilege and hearsay objections. How should the court rule? Overruled. Privilege waived.

ATTORNEY-CLIENT PRIVILEGE

• Client is the HOLDER of the priv. Only the client may waive the privilege. Atty obligated to assert it on client’s behalf.

• Made for the purpose of getting legal services to client.

• Client = even consultation for purpose of getting legal advice.

• Upjohn – difficult to determine who is the “client.” Communications of lower ranking employees were protected by attorney-client privilege when protection was necessary to defend against litigation. Company could invoke privilege.

Questions for Classroom Discussion [p. 575]

1. Following an automobile accident, Plaintiff consulted Attorney 1, an attorney licensed to practice in another state, about representing her. They spoke in Attorney 1’s office. After hearing the facts of the case, Attorney 1 declined to represent Plaintiff. Plaintiff found another lawyer, Attorney 2, to take her case. Prior to trial, Defendant takes Attorney 1’s deposition and asks about the conversation with Plaintiff. Attorney 2 claims Plaintiff’s attorney-client privilege and Attorney 1 refuses to answer. How should the court rule on Defendant’s motion to compel Attorney 1’s answers? Privileged.

2. Same case. At trial, Plaintiff calls Defendant and asks Defendant whether her attorney suggested that Defendant try to settle the case. Defendant objects on grounds of attorney-client privilege. Plaintiff responds that because she is not seeking disclosure of the client’s communications with the attorney, but only the attorney’s communications with the client, the privilege does not apply. How should the court rule? Privileged.

3. Same case. A few weeks before trial, Plaintiff meets Attorney 2 at Attorney 2’s office to go over Plaintiff’s expected testimony. During the meeting, Zed, Attorney 2’s secretary, is in the office taking notes. In the course of the conversation, Plaintiff says to Attorney 2, “I might have taken my eyes off the road for a moment, but I was distracted by a sudden noise from the car next to me.” Zed, dissatisfied with his salary, goes to Defendant’s attorney and tells the attorney about the conversation between Attorney 2 and Plaintiff. Defendant wishes to have Zed testify at trial about the conversation. Plaintiff objects. How should the court rule? Privileged.

4. Same case. At trial, Defendant calls Plaintiff and asks whether Plaintiff ever took her eyes off the road in the moments before the accident. Plaintiff objects on grounds of attorney-client privilege. How should the court rule? Overruled.

5. Same case. At trial, Defendant calls Attorney 2 and asks whether Plaintiff ever took her eyes off the road in the moments before the accident. Plaintiff objects on grounds of attorney-client privilege. How should the court rule? What other objection might Plaintiff make? Objection sustained. Privileged. Also – lack of personal knowledge.

6. Same case. Suppose that Attorney 2’s office door was open during the conversation mentioned in Question 3. When Plaintiff made the admission about being distracted, a courier from Defendant’s lawyer happened to be in the corridor dropping off a settlement offer, and overheard Plaintiff’s statement. At trial, Defendant wishes to have the courier testify about Plaintiff’s statement. Plaintiff objects on privilege and hearsay grounds. How should the court rule? Sustained. Privileged. Didn’t intend for the courier to overhear the convo.

8. Prosecution of Defendant for murder. Defendant brought her husband along for a meeting with her attorney, and the husband heard the entire conversation. At trial, the prosecution calls the husband to testify about the conversation between Defendant and her attorney. Defendant objects on privilege grounds. How should the court rule? Objection sustained. Privileged.

9. Why shouldn’t all confidential communications between a corporate employee and the corporation’s attorney be subject to attorney-client privilege, assuming the conversation concerns the corporation’s legal matters? Protect communication from company’s employees who are AUTHORIZED to speak for the company.

10. Why did the Court in Upjohn reject the “control group” test for attorney-client privilege in the corporate context? Too narrow. Sometimes there are employees who are speaking on behalf of the company who are not in the corporate office.

SURVIVAL OF A/C PRIVILEGE AFTER CLIENT DIES

• PRIVILEGE SURVIVES DEATH! Encourages ppl to talk freely w/ their lawyers.

EXCEPTIONS TO A/C PRIV 503(d):

1. Furtherance of CRIME/FRAUD – if services of atty were sought/obtained to enable/aid anyone commit/plan crime/fraud.

2. Claimants through same deceased client.

3. Breach of duty by lawyer/client. Malpractice suit. Suit to recover unpaid fees.

4. Documents attested by lawyer. Lawyer attesting witness to client’s will.

5. Joint clients.

CRIM/FRAUD EXCEPTION: 104(a) Zolin case: Crime/fraud exception can be resolved by in camera inspection of the priv material.

• Ct may conduct an in camera review of the materials in question.

• Can look at the confidential communications themselves to determine its admissibility! If just have a good faith basis for believing the exception is applicable. Both civil and criminal.

Questions for Classroom Discussion [p. 589]

1. Bank robbery prosecution. During Defendant’s initial meeting with Attorney, Defendant admitted that he robbed the bank and asked for Attorney’s help in preparing a defense. Defendant later hired a different attorney to represent him. The prosecution calls Attorney and asks Attorney about Defendant’s statement. Defendant objects on grounds of attorney-client privilege, and the prosecutor responds that the crime-fraud exception applies. Assuming the facts about Defendant’s initial meeting with Attorney are true, does the crime-fraud exception apply? No. Privileged.

2. Same case. Suppose the prosecutor simply wants to call Attorney to testify whether Defendant ever consulted her. Defendant objects on relevance and privilege grounds. How should the court rule? Not a communication. But irrelevant.

4. Civil fraud action. Plaintiff alleges that over the course of several years, Defendant, a financial planner, engaged in a scheme to steal money from her clients. Prior to trial, one of Defendant’s former employees approaches Plaintiff and states that Defendant’s attorney, Attorney, was “helping Defendant cover up the scam for three weeks just before the scam fell apart.” She states that during several of the meetings between Defendant and Attorney, she heard the sound of a shredder working for long periods of time. Plaintiff notifies Attorney that she intends to take Attorney’s deposition, and demands that Attorney produce all notes “taken during meetings held with Defendant” during the three-week period. Defendant refuses to produce the notes, asserting attorney-client privilege. Plaintiff responds that the crime-fraud exception applies, and asks the court to take possession of Attorney’s notes and conduct an in camera inspection to determine whether the crime-fraud exception applies. How should the court proceed? 104a Lower Good Faith standard to look at the notes to decide. Judge can look at notes to decide whether crime/fraud exception applies. Based on shredder sound – can look at the notes (good faith). Then preponderance.

5. Several years ago, when Plaintiff and Defendant decided to start a business together, they hired Attorney to prepare their partnership agreement. After meeting several times with Attorney and going over two or three drafts, Plaintiff and Defendant approved and executed a final draft. Recently, Plaintiff and Defendant had a falling out, and are involved in litigation against each other to dissolve the partnership and allocate its assets. Each party has retained her own attorney. At trial, Plaintiff calls Attorney to testify about certain aspects of the discussions surrounding the formation of the partnership agreement. Defendant objects on grounds of privilege. How should the court rule? Joint client exception. No privilege!

6. Malpractice action by Client against Attorney after Client’s breach of contract action against a third party was dismissed for failure to file before the expiration of the applicable statute of limitation. At trial, Client wishes to testify that she discussed her contract dispute with Attorney almost a year before the statute expired, and that Attorney told her she had a valid action and that she would file the complaint within a month. Attorney objects on attorney-client privilege grounds. How should the court rule? No A/C priv – malpractice against the attorney. Client holds the privilege. Atty cannot assert against the client.

7. Same case. Attorney wishes to testify that in several private conversations between the one described above and the expiration of the limitations period, she told Client that she could not file the complaint unless Client provided her with certain documents, that Client always promised to provide the documents, but that Client did not do so until after the limitations period expired. Client objects on hearsay and privilege grounds. How should the court rule? NOT hearsay – independent legal significant – client was put ON NOTICE. Client cannot pick and choose which parts to waive in his favor – can’t take just half a sentence. But if they are lengthy or separate communications – just disclosing one does not waive all of them. Voluntary disclosure of a substantial part of a confidential comm. will wavie the priv at least to the remainder of that communication. Some cts go further and it waives all.

8. Will contest. To prove the testator was incompetent when he made the will, the party contesting the will calls Attorney as a witness. Attorney both prepared the will and served as one of the attesting witnesses. The party asks Attorney to relate the conversations she had with the testator during the meeting at which the will was signed and witnessed. The party representing the estate objects on privilege grounds. How should the court rule? No privilege.

Question for Classroom Discussion

Casebook page 589

1. Prosecution for murder. Prosecution calls defendant’s tax attorney who offers to testify defendant said to him, “I want you to look for some places for me to shelter my income. I am about to come into a lot of money since my parents are about to have an unfortunate fatal accident.” The attorney immediately called the police, who arrived at plaintiff’s home to find both his parents drowned in the swimming pool. Is defendant’s statement privileged under rejected Federal Rule 503? Under the C.E.C?

FR: Getting tax advice? Don’t need legal services for it. Not privileged.

*CA: No privilege in CA! NO PRIV IF LAWYER REASONABLY BELIEVES NECESSARY TO PREVENT CRIME – BODILY/DEATH.

2. [The following is based on question 4 from page 589 of the casebook.] Civil fraud action. Plaintiff alleges that over the course of several years, Defendant, a financial planner, engaged in a scheme to steal money from her clients. Prior to trial, one of Defendant’s former employees approaches Plaintiff and states that Defendant’s attorney, Attorney, was “helping Defendant cover up the scam for three weeks just before the scam fell apart.” She states that during several of the meetings between Defendant and Attorney, she heard the sound of a shredder working for long periods of time. Plaintiff notifies Attorney that she intends to take Attorney’s deposition, and demands that Attorney produce all notes “taken during meetings held with Defendant” during the three-week period. Defendant refuses to produce the notes, asserting attorney-client privilege. Plaintiff responds that the crime-fraud exception applies, and asks the court to take possession of Attorney’s notes and conduct an in camera inspection to determine whether the crime-fraud exception applies. How should the court proceed under rejected federal law? Under the C.E.C?

FR: 104(a) – if judge has good faith belief – can look at it in camera and then decide if falls under crime/fraud exception.

*CA: Don’t do that – presumed to be priviliged – burden on opposing party to shwo crime/fraud exception applies! Kept out!!!

ATTORNEY WORK PRODUCT DOCTRINE

• WP designed to protect efforts of atty. Diff from A/C priv. But some materials are covered by both.

• A/C protects confidential comm’s btw atty and client. WP protects trial prep work.

• Ex) Atty interviews witnesses and records statement in trial prep. Statements are not confidential comm’s btw atty/client – not protected by A/C priv. But covered by WP.

• A/C is ABSOLUTE – will not give way to a showing of need.

Questions for Classroom Discussion [p. 592]

1. Negligence action by Plaintiff against Defendant Corporation.. Plaintiff alleges that one of Defendant’s trucks ran over Plaintiff while Plaintiff was in a crosswalk. Before trial Attorney, representing Plaintiff, sends her investigator to interview the only two eyewitnesses to the accident. The investigator takes notes of what the witnesses said. The investigator then gives his notes to Attorney, who prepares a memorandum describing how each witness might be used at trial. Defendant in pretrial discovery requests a copy of the interview notes and the memorandum. Attorney objects on the grounds of the attorney-client privilege and work product doctrine. Defendant makes a motion to compel production. How should the court rule? What if the witnesses are now both dead? Interview 2 eyewitnesses = WP – no A/C privilege! Communication is not confidential btw A/C! What the witnesses say is not privileged.

MEDICAL PRIVILEGES

• DOCTOR/PATIENT: NOT IN FR. STATES have it - operates much like A/C priv. PATIENT = HOLDER – only patient can waive.

• Confidential Communication = broader – any info gathered during physical exam is privileged. NOT JUST VOICE.

• CA = PATIENT/LITIGANT EXCEPTION = If ct finds the patient made her medical condition an issue in the case – NO PRIV.

• BROAD EXCEPTIONS!

Questions for Classroom Discussion [p. 604]

1. Plaintiff sues Defendant for negligence following a collision between their two vehicles. After the accident, Plaintiff sought treatment for her injuries from Doctor, an orthopedic surgeon. Prior to trial, Defendant takes the deposition of Doctor, and asks Doctor to produce all records relating to the treatment of Plaintiff for injuries allegedly sustained in the accident. Doctor refuses to produce the papers, and refuses to answer any questions relating to injuries sustained in the accident. Defendant asks the court to order Doctor to produce the papers and to answer Defendant’s questions. How should the court rule?

FR: No Dr/Patient privilege. Admissible.

In CA – patient/litigant exception. Admissible under FR and CA.

CA § 997. Exception: CRIME/TORT There is no privilege under this article if the services of the physician were sought or obtained to

enable or aid anyone to commit or plan to commit a crime or a tort or to escape detection or apprehension after the commission of a

crime or a tort.

2. Same case. Plaintiff’s attorney asks Plaintiff to visit Ortho, a different orthopedic doctor, to help the attorney prepare for trial. Plaintiff does so, and Ortho sends the attorney a report concerning Plaintiff’s condition. Plaintiff’s attorney does not plan to call Ortho as a witness at trial. Defendant seeks to take Ortho’s deposition, and demands that Ortho produce a copy of the report she sent Plaintiff’s attorney. Must Ortho comply? A/C privilege applies. The doctor is working for the attorney in furtherance of the case. Privileged!

3. Vehicular homicide prosecution. At trial, the prosecutor calls Witness, who was crossing the street with Victim. Witness was the only eyewitness to the accident other than Defendant. Witness testifies that Defendant drove through a red light and struck and killed Victim, who was crossing the street, and that Defendant’s car narrowly missed Witness. Defendant testifies that she was driving properly and that Victim and Witness had darted out in front of her car. Defendant wishes to establish that Witness suffers from a mental condition that causes her not to be able to distinguish reality from fantasy, and that this condition led Witness to give an incorrect version of the facts. To establish this, Defendant calls Witness’s psychiatrist and asks her about her treatment of Witness. The prosecutor objects on grounds of the psychotherapist-patient privilege. How should the court rule? Here WITNESS IS NOT A PARTY – so the patient/litigant exception does not apply! Psychotherapist/Patient privilege applies here!

4. Proceeding to determine the competence of Defendant to stand trial for a crime. Prior to the hearing, the court appointed Psych, a psychiatrist, to conduct a mental evaluation of Defendant. At the hearing, Defendant raises a privilege objection to Psych’s testimony about the sessions Defendant and Psych had together. How should the court rule? No privilege! NO EXCEPTION IF THE JUDGE ORDERS IT – the court appointed the psychiatrist. Not intended to be confidential!

5. Proceeding to probate the will of Deceased. One party challenges the will on the ground Deceased was not competent to make a will at the time she signed it. To prove lack of competence, the party calls Psych, who had been Deceased’s psychiatrist in the months prior to her death, to testify about Deceased’s mental condition. The other party objects on grounds of the psychotherapist-patient privilege. How should the court rule? Comes in – exception – will contest. No Privilege!

6. Prosecution of Defendant for attempted murder of Victim. At trial, the prosecution calls Psych, a psychiatrist who had been treating Defendant in the months prior to the alleged attempted murder. The prosecutor asks Psych if, during one of their sessions, Defendant said, “I should kill Victim if I ever have a chance.” Defendant objects on grounds of privilege. How should the court rule? Privileged. NOT privileged in CA! Dangerous – reason to believe he is a danger to himself or others.

Questions for Classroom Discussion

Casebook page 604

[Following are the questions appearing on page 604-605 of the casebook adapted for use with the pertinent sections of the C.E.C.]

1. Plaintiff sues Defendant for negligence following a collision between their two vehicles. After the accident, Plaintiff sought treatment for her injuries from Doctor, an orthopedic physician. Prior to trial, Defendant takes the deposition of Doctor, and asks Doctor to produce all records relating to the treatment of Plaintiff for injuries allegedly sustained in the accident. Doctor refuses to produce the papers, and refuses to answer any questions relating to injuries sustained in the accident. Defendant asks the court to order Doctor to produce the papers and to answer Defendant’s questions. How should the court rule under the C.E.C.? No privilege – patient/litigant exception.

2. Same case. Assume Doctor was Plaintiff’s orthopedic specialist before the accident as well as after. At the deposition, Defendant asks Doctor to disclose any treatment of Plaintiff prior to the collision. Does the privilege apply under the C.E.C.? No privilege – patient/litigant exception.

3. Same case. Plaintiff’s attorney asks Plaintiff to visit Ortho, a different orthopedic specialist, to help the attorney prepare for trial. Plaintiff does so, and Ortho sends the attorney a report concerning Plaintiff’s condition. Plaintiff’s attorney does not plan to call Ortho as a witness at trial. Defendant seeks to take Ortho’s deposition, and demands that Ortho produce a copy of the report she sent Plaintiff’s attorney. Must Ortho comply under the C.E.C.? No. A/C priv. (Note: expert witness doctor – intended to testify at trial – not privileged.)

4. Vehicular homicide prosecution. At trial, the prosecutor calls Witness, who was crossing the street with Victim. Witness was the only eyewitness to the accident other than Defendant. Witness testifies that Defendant drove through a red light and struck and killed Victim, who was crossing the street, and that Defendant’s car narrowly missed Witness. Defendant testifies that she was driving properly and that Victim and Witness had darted out in front of her car. Defendant wishes to establish that Witness suffers from a mental condition that causes her not to be able to distinguish reality from fantasy, and that this condition led Witness to give an incorrect version of the facts. To establish this, Defendant calls Witness’s psychiatrist and asks her about her treatment of Witness. The prosecutor objects on grounds of the psychotherapist-patient privilege. How should the court rule? Witness is not a party to the case. Psycho/patient privilege applies!

5. Proceeding to determine the competence of Defendant to stand trial for a crime. Prior to the hearing, the court appointed Psych, a psychiatrist, to conduct a mental evaluation of Defendant. At the hearing, Defendant raises a privilege objection to Psych’s testimony about the sessions Defendant and Psych had together. How should the court rule under the C.E.C? FR&CA – court appointed – no privilege.

6. Proceeding to probate the will of Deceased. One party challenges the will on the ground Deceased was not competent to make a will at the time she signed it. To prove lack of competence, the party calls Psych, who had been Deceased’s psychiatrist in the months pri or to her death, to testify about Deceased’s mental condition. The other party objects on grounds of the psychotherapist-patient privilege. How should the court rule under the C.E.C? FR&CA no privilege.

7. Prosecution of Defendant for attempted murder of Victim. At trial, the prosecution calls Psych, a psychiatrist who had been treating Defendant in the months prior to the alleged attempted murder. The prosecutor asks Psych if, during one of their sessions, Defendant said, “I should kill Victim if I ever have a chance.” Defendant objects on grounds of privilege. How should the court rule under the C.E.C.? CA – dangerous patient exception – no privilege. No similar FR.

***There is a DOCTOR/PATIENT privilege in CA. There NO such privilege in the FR!

***CA has DANGEROUS PATIENT EXCEPTION. There is NO such privilege in the FR!

If Diversity Action in Civil case = Fed court will apply STATE law. Then there is dr/patient priv.

CLERGY PRIVILEGE

• CA recognizes TWO privileges = one for CLERGY and one for the PENITENT.

• CA = penitential communication means in confidence w/ no 3rd person to clergyman in the course of the discipline/practice of his church, is authorized/accustomed to hear such communications, and has a duty to keep such comm’s secret. (Might be narrower than the FR – CONFESSION.)

• CA = protects penitential communications = might be NARROWER. Ex) CONFESSION.

• FR rejected rule 506 – privilege is on the part of the person who makes the confidential communication.

Questions for Classroom Discussion [p. 611]

1. Prosecution of Defendant for the murder of Victim. Shortly after the killing, Defendant, a practicing Roman Catholic, visited the confessional and admitted to committing the crime. At trial, the prosecution calls Priest, the priest who heard Defendant’s confession, and asks Priest what Defendant said. Defendant objects on grounds of privilege. How should the court rule? FR: only the person who makes the communication may waive the privilege. Privileged under both FR & CA.

2. Same case. Assume the case is being tried in a jurisdiction that maintains privileges for both clergy and penitent. Assume further that Defendant objects, but that Priest believes that in this situation, it is appropriate to waive his privilege and testify. How should the court rule? FR – privileged – priest cannot waive. CA – priest may waive the privilege.

3. Prosecution of Defendant for the murder of Victim, which took place in a brothel. Defendant claims self-defense. Assume the jurisdiction grants a privilege to both clergy and penitent. At trial, Defendant calls Witness, a bystander who witnessed the altercation between Defendant and Victim. Witness testifies that Defendant shot Victim after Victim attacked Defendant with a knife. On cross-examination, the prosecution asks Witness if it isn’t true that shortly before trial, Defendant offered Witness a high-paying job with Defendant’s company. Witness admits receiving the offer, but sticks to his story about the fight. Defendant calls Priest, a Roman Catholic priest who heard Witness’s confession shortly after Witness witnessed the altercation. Defendant wishes to elicit Priest’s testimony that during his confession, Witness told Priest that he had been in a brothel when he saw Victim attack Defendant with a knife and Defendant shoot Victim in self-defense. The prosecution makes a hearsay objection, and the priest refuses to testify, asserting his clergy privilege. How should the court rule? Hearsay – being offered to prove the truth of the facts asserted. PRIOR CONSISTENT STATEMENT 801D1 – admissible even for ALL purposes – even hearsay. Made before alleged bribe took place. NOT HEARSAY. Privilege objection sustained.

4. Prosecution of Defendant for bank robbery. At trial, the prosecution calls Lay, a lay minister at Defendant’s church, and seeks to elicit testimony that shortly after the bank robbery, Defendant met with Lay in a church office and told Lay that she had robbed a bank. Defendant objects on grounds of privilege. How should the court rule? Privileged.

5. Bank robbery prosecution. Defendant denies involvement. To prove Defendant’s involvement, the prosecution calls Minister, the leader of Defendant’s church, and seeks to elicit testimony that shortly after the bank robbery, Defendant took part in one of the church’s weekly “group unburdening” sessions, and admitted to robbing a bank. Members of this church are encouraged to attend these meetings to confess their sins in front of other members and Minister. Defendant objects on grounds of privilege. How should the court rule? If many people in the room – NOT confidential.

6. Prosecution of Defendant for assault and battery on Victim. Defendant claims self-defense. At trial, the prosecution calls Bartender, the bartender at the Church of the Holy Mug, and seeks to elicit testimony that shortly after the altercation between Defendant and Victim, Defendant met with Bartender at the church and told Bartender, in confidence over a few beers, that she had just “beat up some guy who looked at me the wrong way.” Defendant objects on grounds of privilege. How should the court rule? Clergyman = FR & CA – functionary of religious organization? Hmm. Probably not.

SPOUSAL PRIVILEGE

• 1) Privilege for confidential comm’s btw spouses.

o BOTH parties are the holders of the privilege.

o Only applies to comm’s made DURING MARRIAGE.

• 2) Privilege not to testify against a spouse.

o Adverse testimony privilege.

o Whether they were MARRIED AT TIME OF TRIAL?

o CA = gives the privilege to the testifying spouse.

Questions for Classroom Discussion [p. 619]

1. Does the Supreme Court’s decision in Trammel take better account of the modern realities of marriage than would a decision to make both spouses holders of the spousal testimonial privilege? To save existing marriage.

2. Why should the privilege for confidential communications between spouses continue to exist after a marriage has ended? Is there something left to “save” at that point? Confidential communications are there to foster open communication during marriage.

3. Murder prosecution. Defendant is married to Witness, but the two have not lived together, or even seen each other, for more than a decade. Each, in fact, is now living with another person. The murder took place when the two were together, however, and the prosecution calls Witness to testify to confidential communications Defendant made that are relevant to the murder. Witness is willing to testify, but Defendant objects. How should the court rule? No testimonial privilege. Witness spouse may testify. Confidential communication objection is sustained.

4. Bank robbery prosecution. Defendant and Witness are married, but the robbery was committed before they got married. At Defendant’s trial, the prosecution wishes to compel Witness to testify that just after she married Defendant, Defendant confided to her that he had robbed the bank. Defendant objects. How should the court rule? Objection sustained. Communication took place while they were married.

5. Prosecution of Defendant for the murder of Victim. The prosecution alleges that Defendant hid in some bushes next to Victim’s home one evening, and attacked Victim when she returned home after work. At trial, the prosecution calls Husband, Defendant’s husband, and seeks to elicit testimony that when Husband saw Defendant later that evening, Defendant had mud on her shoes and leaf residue in her hair. Defendant objects on grounds of privilege. How should the court rule? Testimonial privilege is in his hands. He can testify. D cannot stop him. No communication here.

6. Prosecution of Husband for spousal abuse. At trial, the prosecution calls Wife to testify concerning the abuse. Wife refuses to testify on grounds of privilege. How should the court rule?

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