Escolar Documentos
Profissional Documentos
Cultura Documentos
FRE 105: When a court admits evidence that is admissible for one purpose (but not for another
purpose), the court must upon request, restrict and instruct jury of scope
FRE 104(a): Court must decide any preliminary question about whether a witness is qualified, a
privilege exists, or evidence is admissible
Preponderance of evidence
Not bound by rules of evidence, except those on privilege
FRE 104(b): When relevance depends on whether a fact exists [Conditional Relevance]
Proof must be introduced sufficient to support a finding that the fact does exist (by
preponderance)
o Sufficient evidence to allow the jury to find necessary fact
McNeely: physical changes in D plus testimony matching crime enough for
reasonable jury to believe D was person W spoke to in jail despite inability to
identify at trial
Court may admit on condition that the proof be introduced later
FRE 103: Rulings on Evidence:
Trial judge has a lot of discretion
Objection raised: Error only if affects a substantial right of the party
o Bandera: Basis must be obvious or stated, otherwise failure to preserve error.
No objection raised: Is error plain? Affects substantial rights? Seriously affects fairness?
Hearsay
FRE 801: Hearsay
Out of court statement
o Out of this current proceeding
o Statements can be written, recorded, etc.
o Must have some assertive content (but may be implied)
Introduced to prove the truth of the matter asserted
o Matter asserted is matter asserted by declarant
o Introduced to prove if anywhere in chain of inferences
Sir Walter Raleigh: serious hearsay, unjust historical example.
Leake v. Hagert: W testified Ds son told him red lens had been out. Classic hearsay.
Not offered for the truth of the matter asserted if:
Demonstrably false:
o Morris Costumes: Duffy is Barney shows likelihood of confusion
Verbal acts (committed with words themselves, offered for the fact that they were said):
o Saavedra: I am law enforcement to get credit cards, fraud
o Hanson v. Johnson: this is your corn performative utterance was giving corn.
o Creaghie: said he wanted insurance cancelled, shows oral agreement
o Montana: its going to be $10K was effectively give me (demand/verbal act)
Offered to show mental state of the listener
o Subramaniam: bandits told D they would kill him, evinces D fear
o Southerland: rumor of relationship to show district on notice
o Parry: sons statement he was working with agent to show sons knowledge.
o Johnson: stop writing prescriptions like that, shows D knowledge
*Likely to need 105 limiting instruction
Implied Assertions
Might be a statement for hearsay if its an implied assertion:
Nonverbal conduct with intent to assert: always statement (hearsay)
o E.g. Pointing to identify
Nonverbal conduct no intent to assert: Zenni: not hearsay (no matter asserted), Dullard: hearsay
o Wright v. Tatum: taking family on ship voyage
Verbal conduct, no intent to assert: Zenni: not hearsay, Dullard: hearsay
o Zenni: search house, answer phone, people place bets not hearsay under FRE
o Dullard: note saying black+white facing our direction hearsay common law
*Potentially more dangerous than classic hearsay
Confrontation Clause
Sixth Amendment, applies to Ws against Ds in criminal prosecution, Crawford test overrules Roberts
which equated CC rules with hearsay rules (let in exceptions)
Confrontation satisfied with:
Live testimony and opportunity to cross-ex, OR
o (Not a cross-ex that goes how D wants (Owens, failed to refresh memory))
W unavailable and D had prior opportunity to cross-ex
Confrontation Clause Violation when:
Statement is hearsay
Statement is testimonial:
o Primary purpose test (Clark)
Establishing events for later prosecution OR
Responding to ongoing emergency
Including other potential victims
Examine:
Interrogators and declarants:
o Purpose
o Identity (kids (Clark), cops, teachers)
Informality (Clark, formal means testimonial)
Exceptions No CC violation when:
Dying declaration (most courts like Lewis (TN), unanswered at federal level post-Crawford)
Forfeiture by wrongdoing (Giles, domestic violence)
o If D acted with specific purpose of making W unavailable at trial
[Majority of justices find purpose inherent in classic dv case, victim isolation is
inherent in dv]
Hard cases Maybe CC violation when:
Joint trial and statement of non-testifying co-D (admitted as admission for co-D):
o Bruton:
When admitting a prior statement by co-D admitted as admission (and co-D not
testifying, so not subject to cross-ex)
Govt must redact statement so it no longer implicated the D (or sever trials)
Redaction must be sufficient:
o In linkages of putting facts together required for incrimination,
admit (Richardson) BUT
o If statement reveals name has been redacted and obviously Ds
name, thats insufficient (Gray)
Minority rule: Bruton applies to all statements made by non-testifying co-D that
implicate D
Majority rule: Bruton applies only to statements that are testimonial under
Crawford
Scientific test/records:
Prohibited as testimonial: affidavits that set forth forensic analysis of drugs (unless
analyst testifies and available for cross-ex) (Melendez-Diaz)
Not allowed (testimonial):
Surrogate testimony by analyst not involved with testing (Bullcoming)
Open question (Bullcoming concurrence):
Analysists supervisor or someone who participated obliquely in report
Could argue no CC violation because non-confronted statements are
being relied upon, not communicated (cite Lewis)
Allowed as non-testimonial:
Reports on which expert W relies, when not offered for TOMA and not
created for purposes of a specific prosecution (Williams)
Sex-offense cases:
o Olden: Violation if D prohibited from engaging in otherwise appropriate cross-ex to show
witness bias to shed light on witness reliability
o Smith: CC only guarantees what is important for impeachment purposes, in this case, that
does not include sexual nature of indiscretion
o
Agent Admission (by partys agent or employee on matter within scope of relationship while it
existed)
o Statement can be considered, but does not by itself establish relationship or scope
o Can be related to matter within scope and still good (AC)
Sea-Land: Email in scope of employment
Co-conspirator Admission (by co-conspirator during and in furtherance of conspiracy)
o Statement can be considered, but does not by itself establish conspiracy or participation
(Bourjaily)
o Based on agency theory (sketchtastic)
*Rule of completeness (FRE 106, Beech Aircraft): When one party has made use of a portion of a
document, such that misunderstanding or distortion can be averted only through admitting another
portion, allow that portion.
*In joint trials, Bruton dangers
FRE 803: Exceptions that apply regardless of unavailability
All of these require personal knowledge. Supposedly they are especially reliable.
FRE 803(1): Present Sense Impression
Subject matter:
o Describes or explains what was perceived
Must actually perceive (Bemis, 911 call)
But need not participate
Time:
o While or immediately after
Construed broadly (Obayagbona, near contemporaneity is fine when immediate
not possible)
Elem: self-interest could not have been brought to bear
FRE 803(2): Excited Utterance
Subject matter:
o Relates to startling event/condition
Must actually perceive (Bemis)
Time:
o While under stress of excitement caused by startling event/condition
It can last (Obayagbona)
It can reoccur
Elem: Self-interest could not have been brought fully to bear
Restricts self-serving statements
*Proof of startling event may be made by statement itself (some courts)
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FRE 804(b)(6): Statement Offered Against a Party that Wrongfully Caused the Declarants
Unavailability
Statement offered against party that intentionally caused unavailability of declarant
o Must act with specific purpose of making W unavailable at trial (Giles)
Most justices in Giles would find this intent inherent in a domestic violence case
FRE 807 Residual Exception
Admissible as exception even if statement not specifically covered in 803 or 804 when the following
requirements are met:
Equivalent guarantees of trustworthiness
o Analogize things that supposedly guarantee trustworthiness for other exceptions
(spontaneity, formality in recordkeeping)
Offered as evidence of a material fact
o More than merely relevant
More probative on the point for which it is offered than any other evidence that proponent could
obtain through reasonable means
Admitting will best serve the interests of justice
Proponent gives opponent pretrial/prehearing notice
Not specifically covered
o Majority rule: Close-enough theory (consider under 807 if not admissible under
803/804) (Laster)
o Minority rule: Near-miss theory: Only consider admitting if evidence falls totally
outside the scope of 803/804 exceptions
Due Process and Hearsay
Due process can require the admission of some evidence offered by a criminal defendant, even if
the hearsay rule would otherwise prohibit use of the statements
Hearsay rules may not be applied mechanistically to defeat the ends of justice (Chambers)
Rarely applies, consider (Fortini):
o Weight of interest of D
o Strength and reliability
o Countervailing reasons for exclusion
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Character Evidence
FRE 404(a): Character Evidence
Cannot use evidence of a persons character/character trait in order to show conformity on a particular
occasion.
Exceptions:
Character at issue as an element of the claim, or essential to nature of claim:
o Negligent hiring (Cleghorn)
o Child custody (Berryhill)
o Damage to reputation (Larson)
Exceptions for D or V in criminal case:
o D can offer about himself (low bar, Roldan)
Prosecutor can rebut
o D can offer about V (except 412)
Prosecutor can rebut
Prosecutor can offer evidence of Ds same trait**
o Homicide case and D shows evidence V was first aggressor:
Prosecutor can offer evidence of Vs peacefulness
Ws under 607, 608, and 609
*D in a criminal case that takes the stand is a W under 607-609 (Lollar)
FRE 404(b): Crimes, wrongs or other acts (superfluous with (a))
Cannot use evidence of a crime, wrong, or other act to prove persons character to show conformity on
particular occasion.
Exceptions (Other purposes): - must actually be at issue (Wright)
In a criminal case, all of these require notice to D on request
Motive
o Boyd: evidence D uses pot, motive to traffic
Opportunity:
o DeJohn: evidence of Ds stolen checks from behind YMCA desk shows he had access to
behind desk
Intent:
o Beechum: evidence D stole credit cards and still had them shows intent to keep stolen
silver dollar
o Close in time indicates intent (Lewis, Beechum)
Preparation
Plan or method or modus operandi
o Dossey: W says she robbed diff bank with D who wore blond wig and rose glasses (same
description in robber at issue)
Knowledge:
o Crocker: prior arrest with same guy for counterfeit checks
Identity:
o Wright: do not admit Ds prior convo talking about drugs because they didnt show they
got the right person (identity at issue)
Absence of mistake
Lack of accident
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*No requirement that prosecution prove misconduct actually occurred. 104(b) applies (Huddleston, not
preponderance but reasonable jury could find)
FRE 405: Methods of Proving Character
Generally:
o Character may only be proved by reputation or opinion testimony
o Specific instances are allowed on cross-ex of the character W
Must be in good faith (Krapp)
If D opens door on his cross-ex of prosecutions W, prosecution can inquire into
specific instances of conduct on redirect (Roldan)
(Generally not on direct ex)
Exception:
o When character is essential element off a claim/charge/defense, may prove character
using specific instances of conduct
*FRE 803(21) allows reputation concerning character as a hearsay exception
FRE 406: Habit
A persons habit or an organizations routine practice may be admitted to prove that on a particular
occasion the person or org acted in accordance.
Two theories of habit:
Regular, specific practice (probability theory)
o Loughan:
Adequacy of sampling
Uniformity of response
Psychological/non-volitional:
o Adds element of non-voluntariness
*Some juridcitions reject habit because its straight propensity reasoning (Burchett, Ky., pot smoker)
*Two theories allow flexibility for courts
FRE 412: Character of Victim in Sex-Offense Cases
Sex-Offense Cases: The Victims Sexual Behavior or Predisposition
Prohibited uses: In a civil or criminal proceeding with alleged sexual misconduct:
Evidence to prove a victim engaged in other sexual behavior
Evidence to prove a victims sexual predisposition
o Interpreted broadly: thoughts, fantasies, contraceptive use, dress
Might require court to sanitize (Smith)
Exceptions:
Criminal cases:
o Evidence of specific instances of Vs sexual behavior if offered to prove someone other
than D was source of semen, injury, or other physical evidence
Must have plausibility of proving (Pablo, injuries from violent sex, consensual
encounter not admitted)
o Evidence of specific instances of Vs sexual behavior with respect to person accused of
sexual misconduct if:
Offered by D to prove consent
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Offered by Prosecutor
o Evidence whose exclusion would violate Ds constitutional rights:
Olden: CC requires D be able to impeach/discredit W by exposing Ws
motivation for testifying when there is clear reason for bias.
These things must be fundamental to case.
Court can limit ability to inquire into above if reasonable to do so due to
harassment, prejudice, confusion of issues, Ws safety, marginal
relevance
Civil cases:
o Court may admit evidence offered to prove a Vs sexual behavior or sexual predisposition
if its probative value substantially outweighs the danger of harm to any victim and
of unfair prejudice to any party.
o Court may admit evidence of Vs reputation only if V placed it in controversy
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Uses:
o
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But not:
To show D (South Dakota) has insurance so that jury (citizens of SD)
wont be afraid of ruling against them (Higgins v. Hicks)
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Crime for which an element was a dishonest act or false statement (not Amaechi, shoplifting):
o Admit not subject to 403 (Wong)
Non-dishonesty crime punishable by more than 1 year and either civil case or criminal case where
W is not the D:
o Admit subject to 403
Non-dishonesty crime punishable by more than 1 year and criminal case where W is the D:
o Admit if probative value of evidence outweighs its prejudicial effect to that D (weak
flipped 403)
BUT:
o If more than 10 years since Ws conviction or release from confinement (whichever
later), admit only if:
Probative value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect (flipped 403) + notice
Note:
o Consider importance of credibility in trial, admit if important (Hernandez)
o When it involves the same conduct thats on trial, extremely prejudicial (Sanders, but
Oaxaca: not per se inadmissible)
o Challenging admission of prior conviction on appeal:
D must actually testify and get impeached (Luce, not testifying destroys)
If D brings up prior conviction on direct, D waives right to challenge admission
(Ohler)
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At time of witnessing
Must show ability to perceive events effected (Sasso, not with depression)
Must be clearly probative of perception at time of event:
Henderson: not general drug use
At time of trial
Must show difficulties in memory (Sasso)
*Can allow evidence of other crimes or wrongs (probably only on cross-ex, and subject to 403) (Copelin)
*Collateral evidence rule avoids risk that trial will be derailed by inquiry into side issues.
Rehabilitation
FRE 608: Character for Truthfulness and Prior Consistent Statements (and specific instances)
+801(d)(1)
No limits on other kinds of rehab (like bias can use extrinsic evidence once attacked, thats not
rehabilitating truthful character, thats rehabilitating bias, Lindemann). (402 and 403 limits)
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General acceptance
Common law rule: Frye (still in some states): General acceptance of theories in scientific community
Courts skeptical of animal studies (Joiner)
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Privileges
FRE 501: Common law governs privileges
Attorney-Client Privilege
Elements
Communication:
o Doesnt include:
Fact that communication happened (Kendrick)
Observations anyone could make (like demeanor or sobriety) (Kendrick)
Fee information (Tornay)
Exception: Baird, when revealing identity of client is tantamount to
revealing a confidential communication
In Confidence:
o Third Party rule: Not in confidence when proponent knew or should have known third
parties were present (Gann)
Exception: when third party is:
Necessary to make conference possible
Assists attorney in rendering legal services (Evans)
o Expectation of Maintained in Confidence: when client transmits info to attorney with
intent that attorney will disclose to third party, not in confidence (Lawless, tax)
Exception: if attorney is doing legal analysis before transmitting (SmithKline,
patent)
Between attorney and client:
o Person included on attorney side when working at direction of attorney (Kovel,
accountant)
Mere possibility that statement to non-attorney will end up being used in lit does
not suffice (Pasteris, statement to insurance co. that would provide counsel)
o Common-defense rule:
If info related to any common defense purpose of Ds, that sufficient (McPartlin)
Usually operates through joint defense agreement
Covers: client A to Bs attorney and As attorney to Bs attorney
o Corporate client:
Factors that show privilege applies (Upjohn, rejects control group test, internal
investigation)
Communications made by employees to corporate counsel
At direction of corporate superiors
For purpose of obtaining legal advice
Regarding matters within employees duties
Employees knew purpose of communication
Warned they were confidential
Corporation (not employee) holds privilege
o Work-product doctrine (see 3.2)
To facilitate legal services:
o Must be service traditionally rendered by attorney
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Rowe: fact-finding for legal advice, but not Hughes: returning stolen typewriter
or Davis: tax returns thats accounting
Waiver
Only client can waive:
o Exception: If reasonably appears lawyer had authorization (In re Von Bulow)
Occurs when:
o Client makes voluntary disclosure
Even if lying, Bernard: client tells victim attorney verified loan
Claims ineffective assistance of counsel (Tasby)
o Implied waiver (no affirmative actions taken in a In re Von Bulow scenario)
o NOT:
If forced to testify in depo if objections raised (Hollins)
Inadvertently disclosed communication if reasonable steps taken to prevent
Disclosure pursuant to court order or party agreement
Scope of waiver:
o In court waiver:
Fairness Doctrine: You waive for all communication on the subject matter that in
fairness should be considered together with disclosed info
o Extrajudicial waiver:
Only waive the actually disclosed info itself (In re Von Bulow)
Crime-fraud Exception
No privilege if client seeking advice on future wrongdoing (Zolin)
In camera review by judge is permissible on showing of factual basis adequate to support a good
faith belief by reasonable person that in camera review may reveal exception applies
*Survives death (Swidler & Berlin)
*Fiduciary exception only applies when legal advice obtained as a mere representative (not in a
personal capacity) and some other beneficiary is the real client. (Jicarilla Apache)
Spousal Privilege
Confidential Spousal Communications
Requirements:
o Communication
o Confidential
o During the marriage (still applied to during-marriage communications after divorce)
Either party may invoke
Doesnt apply
o When spouses are adverse (includes in criminal case, spouse is victim)
o When children are involved in proceeding
o To exculpatory evidence in a criminal case (one spouse is D can exculpate self)
o In competency/commitment hearings
o Crime-fraud
Adverse Spousal Testimony
Requirements:
o Criminal case
o Married at time of testimony
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Physical Evidence
FRE 901-902: Authentication
Authentication
o FRE 901(a): Proponent must produce sufficient evidence to support a finding that the
item is what the proponent claims it is:
Nothing more, Long: didnt need to prove contract was legit, just the one seen
Distinctive characteristic can alone provide circumstantial evidence sufficient
But they didnt in Zhyltsou
o Examples in 3.2
o FRE 902 docs are self-authenticating (some public documents, and publications like
newspapers)
Chain of custody:
o Breaks in chain just go to weight, sufficiency standard still applies (Bruther, lightbulb)
o No need to authenticate testimony of live witness, but chain important for relevance
(Grant)
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Evidence
General Procedure
o 105: Instructions upon request
o 104(a): Preliminary Questions
o 104(b): Conditional Relevance
o 103: Rulings on Evidence
Relevance and Probative Value:
o 401: Defines
o 402: If irrelevant, inadmissible
o 403: Probative value substantially
outweighed by
Confrontation Clause:
Hearsay:
o 801: Non-Hearsay
o Implied assertions (are statements
that may be hearsay)
Exclusions and Exceptions to Hearsay:
o 801(d)(1): Declarant-witnesss Prior
Statement (subject to 613)
o 801(d)(2): Admissions (opposing
partys statement)
o 803: Exceptions that apply
regardless of availability of
declarant
(1) Present Sense
Impression
(2) Excited Utterance
(3) State of Mind
(4) Statement made for
Medical Diagnosis
(5) Recorded Recollection
(6) Regularly Conducted
Activity
(7) Absence of Record
(8) Public Records
o 804: Exceptions that require
unavailability
Unavailability
(b)(1) Former Testimony
(b)(2) Dying Declarations
(b)(3) Statement against
interest
(b)(6) Offered against a
party that wrongfully
caused the declarants
unavailability
o 807: Residual Exception
o Due Process:
Chambers and Fortini
Character Evidence:
o 404(a): Rule and 3 Exceptions (only
two in this section)
o 405: Methods of Proving Character
o 404(b): Crimes, wrongs, other acts
o 406: Habit
o 412: Victim in sex-offense cases
o 413-415: Defendant in sex-offense
cases
413: Sexual-assault
414: Child-molestation
415: Civil cases with sexual
assault or child molestation
o 407-411: Other forbidden inferences
407: Subsequent Remedial
Measures
408: Compromise Offers
and Negotiations
409: Offers to Pay Medical
and Similar Expenses
410: Pleas, Plea
Discussions, and Related
Statements
411: Liability Insurance
Impeachment: 607
o Methods:
Character for
Untruthfulness:
608: Ws character
for truthfulness or
untruthfulness
609: Criminal
convictions
613: Ws prior statement,
801(d)(1) not hearsay
Bias
Incapacity
Specific Contradiction
o Rehabilitation
608 again
801(d)(1)(B) - not hearsay
(consistent with declarants
testimony) Tome and (ii)
Lay Opinions and Expert Testimony
o 704: Can go to ultimate issue
o 701: Opinion by Law W
o 702: Testimony by Expert W
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o
o
o
o
Privileges:
o Attorney-client
Elements
Waiver
Crime-Fraud Exception
o Spousal
Physical Evidence:
o 901-902: Authentication
o 1002: Best Evidence Rule
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