4LawSchool.

com Outlines Bank

OUTLINE DETAILS: Author: School: Course: Year: Professor: Text: Text Authors: Anonymous University of California, Davis School of Law Evidence Spring, 2004 Professor Onwauchi Evidence, 10th Edition Waltz and Park

DISCLAIMER: This outline is written by a law student and it may contain some inaccurate information. 4LawSchool and its officers make no warranties as to the accuracy of the information this outline contains. This outline is provided as-is. Use it at your own risk, and do not rely on it for legal advice. Do not use this outline during exams if your law school or law professors do not permit usage of material that is prepared by others.

This outline is copyright 2004 by 4LawSchool.com. A limited license for personal academic use is permitted. This outline may not be used for any other purpose and may not be posted on any other web site without permission.

Evidence Outline Relevancy

FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence

Inadmissible o All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. In order to be relevant, evidence must o Have probative relationship- evidence must make the factual proposition more or less likely than it would be without the evidence. o Material- must be link between the factual proposition which the evidence tends to establish and the substantive law FRE 401 Definition of Relevant Evidence o Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. o Knapp v. State charged with murder and claims that killed victim in self defense and had heard a story that victim had killed an old man. Prosecution intends to introduce evidence that old man died of natural causes. Is this evidence relevant. Held relevant. An item is relevant when it tends to prove or disprove, however slightly, an issue at trial. Here the fact that old man died a natural death makes it less likely that heard the story. o Sherrod v. Berry Officer shot and killed a robbery suspect because reasonable believed that reaching for his gun. s wanted to present evidence that victim was not armed. Held irrelevant. When the officer had reasonable belief that victim was reaching for the gun, the absence of the gun is irrelevant. 4 Part Test for Relevance o what fact am I trying to prove with this piece of evidence? o Is the fact that I am trying to prove a fact of consequence to this case? o Does the evidence help establish that fact? o What is the probative value of the evidence vs. risks of unfair prejudict. FRE 403 o Even if evidence is relevant, the judge can still exclude it if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Old Chief v. US D was charged with possession of weapon while having prior felony. D offers to stipulate that has prior felony but judge allows the prosecution to read the prior jury verdict from which new jury finds that D was convicted with assault. Held that probative value of the reading and stipulation same but the prejudicial effect of the reading very great. So trial judge erred. Ballou v. Henri Studios sued for wrongful death of her husband. tried to introduce into evidence blood test showing that husband was highly intoxicated when died. presented testimony of nurse who said husband not drunk. Trial judge excluded the blood test because though was not reliable. Held, it is not the function of the trial judge to see whether evidence reliable or not. Under 403, the question for the judge is whether, if believed by the jury, the probative value of the evidence is substantially outweighed by unfair prejudice. It is up to the jury to determine the credibility and reliability of evidence.

Character Evidence FRE 405 o 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. o 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 persons conduct. Cleghorn v. New York Central o Switchman failed to give proper signal and injured in train accident. introduced into evidence the intemperance habits of switchman. Held admissible. In this case, the evidence was not being introduced to prove that switchman was negligent. It was being admitted to prove knowledge by s officers of switchmans intemperate habits. Character as circumstantial evidence o FRE 404(a)

Evidence of a persons character or a train of character is not admissible for the purpose of proving action in conformity therewith or a particular occasion, except: Character of accused- evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of 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; Character of alleged victim- 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; Character of witness- evidence of the character of a witness, as provided in Rules 607, 608, and 609. o Summary of 404(a) A prosecutor in a criminal case cannot offer evidence about the s bad character in his case-in-chief to show that the defendant committed the crime with which he is charged. A can offer character evidence to prove that he did not do it. Such evidence is limited to two forms: reputation evidence and opinion evidence. Once the offers that good character, the prosecutor can cross-examine those character witnesses. In the course of cross-examination, the prosecutor can inquire about specific acts in s past, acts that might affect reputation or opinion. o Michelson v. US The prosecution may inquire into prior acts of on crossexamination of s reputation witnesses. This is done not to prove has propensity to commit the crime charged, but to prove that the witnesses are really familiar with s rep. When cross-examination involves prior arrest or conviction, the prosecution has a duty to prove that the arrest or conviction did, in fact, occur. REMEMBER, all this may be done only after has called character witness. Prosecution after opens the can of worms, can present their own witness to present the bad character of the . Prosecutor can cross-examine s character witnesses. Or prosecutor can attack the character of the witness. Evidence of prior-crimes offered for some other purpose than to show propensity o If evidence of other crime is relevant to some issue in the current case, it is admissible even though it may also show criminal disposition.

FRE 404(b) 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.12 Evidence of character can be used to: To show motive Opportunity Person had some special skill Intent Preparation of plan Knowledge ( knew cocaine not sugar) Identity Absence of mistake or accident Two important things to remember about Rule 404(b) Pre-trial notice requirement in criminal cases. Even if admissible under this rule, but still subject to Rule 403 Four Steps to Apply to Specific Act Evidence Is the evidence being offered as support for an inference that the acted in conformity with a general trait of character? If so, then it is not admissible. If not, is the evidence being offered to support a theory of relevance that would fit under Rule 404(b)? Could a reasonable juror find by preponderance of the evidence that committed the other crimes? Is the probative weight of the evidence outweighed by its danger of prejudice? Overall context Other crimes evidence may be used to place crime in context. E.g. two officers tried to arrest and shot and killed one officer and wounded the other. Other officer can testify as to the attempted murder at the murder trial. Larger Plan Evidence may be used to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. Preparation Evidence may be used to show preparation for the crime charged. Identity

1 2

But still subject to Rule 403. Advanced notice to the other party of such use is required.

Evidence of other crimes may be used to establish identity. Other crimes must be so similar in method as to be the signature of . Requirements: The accused must deny his participation in the crime charged. The methods of other crimes must be so very similar to those used in the crime charged that the similarity is substantially probative of identity. US v. Carrillo In order to establish that was the one who sold drugs to undercover officer, prosecution offered evidence that on one previous occasion, sold drugs in the same location to an officer in the same way (in balloons). Court held that this was not similar enough. The modus operandi mehod of showing identity requires that the method used be uniquely different from the standard practice. Here, drug sales in balloons is common practice and same location is not enough.

Intent Other crimes evidence may be used to prove that acted maliciously, deliberately, or with specific intent required by the crime.3 Knowledge May be used to show that act wasnt committed inadvertently or accidentally. Huddleston v. U.S. prosecuted for knowingly receiving stolen property from W. claims didnt know that property was stolen. Prosecution introduced evidence that on previous occasions has purchased stolen property from W. Evidence admitted to prove knowledge. Motive U.S. v. Cunningham prosecuted for stealing some painkiller drug. Prosecution introduced into evidence that had previously had her nursing license suspended for stealing the same drug, was addicted to this drug, and had previously lied to hide her drug addiction. Court held that this evidence was admissible because it was not used to show that had the propensity to steal the drug. But this evidence was used to show that had a motive to steal which the other nurses who had access to the cabinet didnt. Opportunity

Courts usually require the crimes to be similar.

Usually this evidence is used to show that had access to the scene of the crime, or was present at the scene at the time of the crime. E.g. Video in class. had affair with V and that evidence used in Vs murder trial to show that could have entered Vs house without forceful entry. o Impeachment Other crimes may be used to impeach an accused who takes stand. o U.S. v. Beasley Before admitting evidence of prior crimes, a trial judge must identify the exception that applies to admission of that evidence and evaluate whether the evidence is sufficiently probative to outweigh any dangers or prejudice to the . o Under FRE, the evidence of s other crimes may be given to the jury even though that other crime has not been proved even by a preponderance of the evidence. Rule 404(b) requires that evidence of other crime be strong enough that the jury could reasonably find that the other crime was committed by . o Evidence of other crimes for which was acquitted can be used without violating the Double Jeopardy or Due Process Clause of the Constitution- Dowling v. US. But courts are split on this issue. o Limiting Instructions: has the right to ask the judge to give limiting instruction to the jury so that the jury may not use evidence of other crimes for improper purposes (e.g. to establish propensity). o Tucker v. State found dead body in house and reported to police. not charged. Six months later same thing and now charged. Prosecution presented evidence of previous incident to show s intent and common scheme. Holding: Evidence of a prior crime may not be used to prove common scheme or plan if not convicted for that previous crime. Before evidence of collateral offense is admitted for any purpose, the prosecution must establish by plain, clear and convincing evidence that the committed that offense. o Huddleston v. US The district court need not make a preliminary finding that the prosecution has proven a s similar criminal acts by a preponderance of evidence before submitting the evidence to the jury. o Perrin v. Anderson Officer shot son and at trial introduced testimony of four other officers to show the violent nature of son. Evidence of specific incidents cannot be used as circumstantial evidence of out-of-court conduct (e.g. aggressive behavior of party). But opinion and reputation can be used by prosecution. Cases where character is the

main issue on trial (e.g. defamation cases), evidence of prior specific incidents can be used. Character Evidence- in a nutshell Three ways to prove character Opinion testimony Reputation Specific instances of conduct- Cant be used where used to prove 1. circumstantial evidence of out of court conduct or character as main issue on trial. But can be used when character is an essential issue at trial. Under FRE 404(b), evidence of specific instances may be sued to show things like intent, motive, plan, etc.

Habit Evidence

Habit evidence describes a persons regular response to a specific set of

circumstances. Character evidence, on the other hand, describes a persons general way of responding to a specific set of circumstances. Lara is very conscientious about the maintenance of her car.CHARACTER Lara checks the brakes on her car every Sunday before church.Habit 3 factors whether habit or trait of character o specificity/similarity of situation: the more specific, the more likely is to be deemed a habit o regularity/consistency: the more regular the behavior, the more likely it is to be habit o degree of reflection: behavior is more likely to be habit if its unreflective or semiautomatic than if its volitional and conscious. FRE 406 o Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Reasoning: One who has demonstrated a consistent response under given circumstances is more likely to repeat that response when circumstances arise again. Halloran v. Virginia Chemicals o Issue: whether the prior incidents of the mechanic using the heating sources can be used (whether habit)? o Must be sufficient number of times to act to admit for habit exception. o Suppose in this case had presented evidence, that likes a lot of cords in house, like to shave while sitting in tub not admissible because not relevant. Rape Shield Laws Etc.

o FRE 412- Sex offenses cases; relevance of alleged victims 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 victims sexual predisposition. B. Exceptions 1. in a criminal case, the following evidence is admissible if otherwise admissible under these rules: o 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; o 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 o evidence the exclusion of which would violate the constitutional rights of the . 2.In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim. C. Procedure to determine admissibility 1. a party intending to offer evidence under subdivision (b) must: o 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 o B. serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victims 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. State v. Cassidy Victim and accused had prior sexual relationship. Evidence in question: witness who testified that victim started talking about Vietnam war and dead husband. Trial court excluded the evidence. Said cant include unless show that victim made false claim before. argued that this showed a pattern of conduct and showed consent and exclusion violated his 6th amendment rights. Ruling: Evidence could be excluded. This was insufficient to show pattern. 1. only one incident and also not similar to the current case. How to judge this case under 412(a) (could be excluded) 412(b)- any exceptionsdoesnt really fit in. Probative value of the evidence very low. Olden v. Kentucky Facts: bar and rape case. claimed consent was given and victim lied to keep it from her boyfriend. wanted to present evidence to show that living together and thereby establish motive. Court of appeals upheld the decision under rule 403 (interracial rape claim said that it would be prejudicial). SC- overruled. Held that it was constitutional error because it prevented the from presenting the entire defense. Such evidence is not always admitted but in this case different and evidence probative because boyfriend saw the victim coming out of s car. US v. Platero claimed to be officer and then raped the woman. s defense was sex was consensual and just lied in order to save relationship with coworker. Evidence in question: at the time of the incident, V was having affair with the coworker. Evidence important to show motive to lie. Rule 412, allowing evidence of an alleged sexual assault victims prior sexual behavior, requires that the jury, not the judge, determine whether a prior sexual relationship occurred. FRE 413 Evidence of similar crimes in sexual assault cases A. in a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. B. In a case in which the gov. intends to offer evidence under this rule, the atty for the gov. shall disclose the evidence to the , including statements of witnesses or a

10

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. D. for purposes of this rule and rule 415, offense of sexual assault means a crime under federal law or the law of a state that involved Any conduct proscribed by Chapter 109A of title 18, USC Contact, without consent, between any part of the s body or an object and the genitals or anus of another person Contact, without consent, between genitals or anus of the and any part of another persons body Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or An attempt or conspiracy to engage in conduct described in paragraphs 1-4. o FRE 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 partys alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that partys commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. B. a party who intends to offer evidence under this rule shall disclose the evidence to the party against whom it will be offered, 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. Johnson v. Elk Lake School District o High school counselor case. Evidence at issue was testimony of school teaching assistant. Issue was whether this evidence was admissible? o Court was worried was unfair prejudice. o Court does a 403 analysis and says that the act wasnt similar enough, wasnt detailed enough and was an isolated incident.

11

But where past act is specific and detailed enough and similar, it is presumed to have more probative value than the risk. 4 step test (LOOK AT PP) is the other offense sexual assault or child molestation? Is the other offense relevant? Could a reasonable jury find by preponderance of the evidence that committed the offense? Then rule 403 question?

SIMILAR HAPPENINGS Simon v. Kennebunkport Facts: Old lady slipped on the sidewalk and sued the town. Lady wanted to present evidence of witnesses who say about 100 other people fall at the same spot under the same circumstances. Trial ct. excluded this evidence. o Holding: Evidence should be allowed. Evidence of similar happenings is allowed if there exists a substantial similarity between conditions of the present accident and those surrounding the other accidents and the evidence is probative as a material issue in the case. Also, the trial judge has the discretion to exclude the evidence if the probative valued of the evidence is outweighed by prejudice. Sometimes wants to introduce evidence that no such accidents have occurred in the past. Most courts allow such evidence if shows that 1. the conditions were the same during the historical period as during the moment of s injuries and 2. had there been any injuries, they would have been reported to the . Subsequent Precautions

FRE 407 Subsequent remedial measures

o When after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a products design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Hearsay Hearsay is a statement or assertive conduct which was made or occurred out of court and is offered in court to prove the truth of the facts asserted.

12

 Has to be presented to prove the truth of the facts asserted. E.g. P falls in store because wet floor. Ds wife testifies that D shouted at P dont step on the wet floor. This is not hearsay because testimony not presented to show that the floor was in fact wet. Why hearsay evidence bad: o Because declarant not under oath, jury cant observe his demeanor, is not subject to cross-examination. FRE 801(a) o A statement is 1. an oral or written assertion or 2. nonverbal conduct of a person, if it is intended by the person as an assertion. FRE 804(b)(3) A statement against interest o A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. State v. English- Husband charged with killing wife and argues that another person confessed to the murder and accurately described the murder scene. Court excluded this testimony. According to the court, this statement not made under oath so unreliable and obviously hearsay. Three-step hearsay test o Is there out-of-court statement? o What does the statement assert? o Are we using the statement to prove that what it asserts is true? Performative Utterance o A performative utterance is an expression that serves to effect a transaction or that constitutes the performance of the specified act by virtue of its utterance. Statements with legal consequences. Statements that are legally significant are not hearsay because not admitted to prove the truth of the matter asserted. o E.g. D accused of running brothel. W testifies that while at Ds bar, two ladies asked him to have sex for money. Womens out-of-court statements not hearsay. The mere fact that statement made was relevant and not whether true or not. o E.g. D tells P youre no-good thief who would sell his mother for a dollar. Not hearsay because not used to prove the truth of the matter asserted in a slander lawsuit. o E.g. D says Ill sell you my house for 2K and P accepts. D later refuses. Statement not hearsay because legally significant. Estatemv v. Murdock- Question was whether husband or wife died in the plane crash. Sheriff wanted to testify that he heard husband say that he is still alive. Trial court excluded this statement as hearsay. But appellate court admitted it. The hearsay rule does not exclude out-ofcourt statements which are not offered for the truth of the matter

13

asserted. Here the credibility of the declarant, Arthur, is not at issue and danger of hearsay statements do not exist. Note, even if husband had made the statement I am dead, that statement would still have been admissible. Two Definitions of Hearsay o Assertion-centered definition- an out-of-court statement is hearsay when it is offered in evidence to prove the truth of the matter asserted o Delarant-centered definition- an out-of-court statement is hearsay when it depends for value upon the credibility of the declarant. Effect on hearer or reader o If a statement is offered to show its effect on the listener, it will not be hearsay because the statement is not being offered to prove its truth, but merely to prove the effect it had or should have had on the listener. E.g. in a murder case, claims self defense. W testifies that V told D that he was going to cut off his balls and shove them up his ass. This is not hearsay. o Subramaniam v. Public Prosecutor claims that he is captured by terrorists and worked under duress. tried to introduced statements of terrorists to show duress but trial court denied. Court of appeals said statements were not hearsay. Statements of the terrorists were not offered to prove the truth of the matter asserted but to prove duress. So not hearsay. o Such statements also admitted in negligence cases to show whether hearer or reader on notice. Johnson v. Misericordia Community Hospital- sued hospital for negligently hiring a doctor who was incompetent. presented evidence of previous bad reports made in other hospitals against the doctor and witness testimony about the bad reputation of the doctor. This evidence was admissible because it was not admitted to show that these opinions were true, but to show that had access to this information when the hospital hired the doctor. s attorney should ask for limiting instructions under such circumstances. Vinyard v. Vinyard Funeral Home, Inc.- fell on slick sidewalk on s property and witnesses testified that they heard others complaint to that the sidewalk was slick. Court admitted this evidence because this evidence was not offered to prove the slickness of the sidewalk, but to prove that had knowledge. Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule does not apply. RULE: Out-ofcourt statements introduced to prove notice and knowledge of unsafe conditions are not hearsay. In such instances, all objecting party can do is to ask for limiting instructions. Emotion: out-of-court statements may be introduced to show that they produced certain emotion in the hearer or reader. Declarants State of Mind

14

Statements introduced to show the state of mind of the declarant are not barred by the hearsay rule. o Ries Biologicals v. Bank of Santa Fe- Statements of a bank manager promising to pay were admitted. These statements were introduced not non-hearsay purpose. Statements were admitted not to show that truth or falsity of the statement but the fact that these statements took place. o Fun-Damental v. Gemmy- Trademark infringement case where in order to show actual confusion, introduced testimony of manager who claimed that customers told him that was selling same product (in fact s product) at a lower price to other retailers. This statement is not hearsay because not used to argue that was selling at lower price but to show that confusion actually existed. Statements trying to prove state of mind not hearsay. o Untied States v. Hernandez- sold drugs to an undercover agent. Prosecution introduced statement of a custom officer to the agent that was a drug smuggler. Prosecution argued that this statement used to show the state of mind of agent and why started investigation. Held: in order to be admissible, out-of-court statements offered to prove state of mind of a party must be relevant to an issue in the case. Here the state of mind of the agent as the reason for the inception of s investigation is irrelevant. o OJ Hypo: Furman testified that he interviewed Kato and Kato said that last night I heard thumping on the wall outside my room. Then Furman went there and found the bloody glove. Not hearsay because shows state of mind of Furman and why he went there. Impeachment o Ws previous out-of-court statements used to impeach Ws current testimony are not hearsay because only used to show that W is changing story and not to show that those statements true. Statements of Conduct o FRE 801(a)- A statement can also consist of nonverbal conduct of a person, if it is intended by the person as an assertion. o Assertive Conduct: conduct, although nonverbal, is nonetheless intended as an assertion. o Silence: Non-assertive Conduct: The FRE 801(a) limits the meaning of statement to a nonverbal conduct of a person that is intended by him as an assertion o U.S. v. Zenni Agents searching s house and received phone calls where people asked to place bets. Under the FRE, implied assertions or non-verbal conduct are excluded from the hearsay rule. In this case, the betters phone calls were nonverbal conduct which was not intended as a particular assertion. o Silence A persons silence may in some situations lead to the reasonable inference that a particular fact is true. o

15

Silver v. NY Railroad P claimed that got ill because of extreme cold temperature in s train car. introduced evidence of the absence of complaints from other passengers to prove that the train car was not cold. Evidence as to absence of complains is not excluded under the hearsay rule when it is offered to prove that defects do not exist. But there has to be certain safeguards: e.g. there was someone to take complain, reasonable people under circumstances would make complaint etc. Two ways to admit absence of complaints To treat such evidence as non-assertive conduct To argue that not offered to prove the truth of the matter asserted. US v. Jaramillo-Suarez Government presented pay/owe drug sheets and other records found in s apartment to show the character and use of s apartment. Drug related documents used as circumstantial evidence of the character and use of the place where they were found do not constitute hearsay. In this case, the documents are not used to prove the truth of the statements contained within them, but as evidence of the use and character of the place where they were found. It might be helpful to ask 2 questions Does the evidence contain statements which are assertions, What is the evidence offered to prove US v. Rhodes Case involved a soft film which was made by s cococonspirators. This could have been admitted as non-hearsay if it is offered to prove something other than what is contained in it. The evidence may have been offered to show that the Soviet agents know about and knew about the Soviet Agents. May qualify as statement of co-conspirators (discussed below) Government may have presented film to show their incentive to follow Rhodes US v. Brown Tax returns filed fraudulently. Statement at issue was statement of IRS agent that 90-95% of tax returns were overstated. Ct. held that hearsay because in order for the agent to reach that conclusion, it was absolutely necessary for the agent to talk to the

16

people and couldnt tell just by looking at the document. Dissent: IRS agent didnt say that he relied on out-ofcourt statements. Other objection could have made is lack of personal knowledge. In this case the government introduced the IRS agents testimony to prove that Brown did in fact overstate deductions on the returns that he prepared. Thus, the statements by the agent are used to prove the truth of the matter that they assert. Although the agent purportedly testifies from personal knowledge, her knowledge is gained directly from relying on hearsay statements which cannot be examined by Brown or by the jury. Circumstantial Evidence Courts generally ignore the hearsay problem in situations where proponent presents an out-of-court assertion on the way to trying to present circumstantial evidence about the nature of a place or item, the existence of a relationship between people, the nature of an activity, and the like. E.g. Suitcase has the tag with the name John Doe. Most courts under FRE 801 will not consider it to be hearsay on the theory that the tag is not being introduced to show its literal truth (suitcase ownership), but merely some inferred fact (when a person owns a suitcase, he probably has some involvement with the contents of that suitcase). E.g. W testifies that I saw that the getaway car had license plat ABC133, offered to prove that the person to whom that plate is registered was somehow involved with the crime and the getaway. E.g. envelope with postmark saying Missoula found in Ds apartment, offered to show that D was acquainted with someone from Missoula Hotel receipt offered to show that person whose name is on receipt stayed at that hotel on the night stated on the receipt. In all of these situations, most courts would allow statements because its being offered not principally to prove that the assertion on the physical document is correct but to prove some further inference. (e.g. not offered to show that postmarked letter was in fact sent from Missoula but to prove that a person receiving a letter postmarked Missoula probably knows someone in Missoula.) Hearsay vs. lack of first-hand knowledge If W says Car that hit him was a red Volvo and you know that W is relying on Ps statement, the proper objection is

17

lack of personal knowledge. If W says P told me that the car was red Volvo then the proper objection is Hearsay. Two part test o What is the statement at issue? o Is the statement offered to prove the matter that it asserts? (if no, then not hearsay). o [e.g. Murdock Case- 1. I am still alive. 2. this statement is not asserted to show that what husband was saying was true. Result would have been the same if husband had said something completely different (e.g. I am dead). So not hearsay.] Exceptions & Exemptions o Four-step hearsay test Is there an out-of-court statement? What does the statement assert? Are we using the statement to prove that what it asserts is true? Even if statement is being offered to prove the truth of the matter asserted, is it admissible under some exception to the hearsay rule? o Important! Keep in mind that the exceptions about to study, some require the declarant to be unavailable while others dont. o Dying Declarations Fed Rule 804(b)(2): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: . . . (2)Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what he believed to be his impending death. FRE 804(a) Definition of unavailability unavailability as a witness includes situations in which the declarant o is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or o persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or o testifies to a lack of memory of the subject matter of the declarants statement; or o is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or o is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b)(2), (3),

18

or (4), the declarants attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. Four Step test for admissibility of dying declarations Is the declarant unavailable as a witness, as defined by FRE 804(a)(1)? Is the statement being used in either a civil action or in a prosecution for homicide? Was the statement made upon a belief of impending death? Did the statement concern the cause or circumstances of what the declarant believed to be impending death? Under the Federal Rules, dying declarations only applicable in homicide and civil cases. No such restriction in CA. Requirements: Statement must be made while declarant believing that his death was imminent. Under Common Law, actual death was required. But under Federal Rules, declarant has to be unavailable but not dead. So if person becomes disabled, statement allowed under Fed rules but not under CL. Under CL, statements only allowed in criminal homicide cases. But under the Fed rules, statement can be used in homicide and civil suits. But still cant use in non-homicide criminal cases. Must relate to circumstances of killing: declaration must be one concerning the cause or circumstances of what declarant believed to be his impending death. Dying declarations may be admitted on behalf of the . Declarant has to have first hand knowledge. E.g. if shot in the back, couldnt see the shooter so statement will more than likely not get admitted. The judge makes the preliminary factual determination as to the admissibility of the statements and then the jury decides on the credibility. Soles v. State So in Soles, it was the role of the judge to determine whether statement made under sense of impending death. FRE 104(a) questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence exception those with respect to privileges.

19

Hypo: X charged with murder of A. B will testify that A told B that he was about to die and X did not shoot him intentionally. Prosecution has a nurse Y who talked to A before B and claims that A felt that he was going to survive. Should Bs testimony be admitted: Yes if the judge believes that the declarants statement to B accurately reflected his state of mind a the time. No if the judge is not convinced by the evidence of existence of the disputed preliminary factthat the declarant was aware of the imminence of death. Hypo: same facts as 1 except that the judge admits in evidence of As statement to B. Then prosecutor calls Y, the nurse, to testify before the jury to As statement to her. X objects that Ys testimony is inadmissible in view of the courts ruling admitting As statement to B. Should be overruled. This is not second attack on admissibility. It is an attack on the weight or credibility of the admitted evidence, which is permissible.4 FRE 104(c) Weight and credibility This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. Spontaneous and Contemporaneous Exclamations o FRE 803(2) The following are not excluded by the hearsay rule, even though the declarant may be available as a witness. A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition. o Three Step test for excited utterances Was there an exciting event or condition? Was the declarant under stress of excitement caused by the exciting event or condition? Does the statement relate to the exciting event or condition? o Rationale: where the event is so startling that the declarants reflective capacity is eliminated, the declaration is unlikely to be motivated by self-interest or otherwise insincere. o Sufficiently startling: physical violence is not required, even seeing photograph or newspaper may suffice. o Time Factor Rule of thumbstatements made during the exciting event or within half an hour afterward are usually admitted, statements made an hour or more after the event are usually excluded, while statements made within thirty minutes to an hour of the event are dealt with by a close look at the surrounding circumstances.

For more on judge-jury allocationsee EM Pg. 569

20

event- it is sufficient that the excited utterance is one relating to a startling event or condition.5 o Cases Tucker Insurance Exchange v. Michigan In order to prove that deceased injured at work, wife introduced statements of deceased after his accident but one month before his death to prove that he died in the scope of employment. For declarations to be admissible in evidence as part of the excited utterance, they must be made in connection with an act proven. In other words there must be evidence of an act itself admissible in the case independently of the declaration that accompanies it. NOTE: federal law is more flexible and if judge believes the wife, then ok. Present Sense Impressions o FRE 803(1) The following are not excluded b the hearsay rule, even though the declarant is available as a witness: Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. o Two-part test for present sense impressions Is a statement describing an event or condition? Was the statement made while the declarant was perceiving the event or soon thereafter? o Perception The declarant must be a percipient witness. That means that must have perceived the event rather than have learned about it from other means (e.g. newspaper) o Opinions allowed even a declaration that expresses an opinion may be admitted as long as it is an attempt to explain something that the declarant is perceiving. o There is no requirement that there be corroboration of the statement. State v. Jones V claimed that D, a police officer, sexually assaulted her and then she gave him a car chase. A police officer testified that he heard on his radio two people (probably truckers) saying that look at that little car chasing the police car. Hearsay statements do not need to be corroborated by an equally percipient witness in order to be admitted into evidence under present sense impression exception to the hearsay rule. So shows that
5

o Under FRE, the declaration need not explain or refer to the startling

Compare this with federal rule on present sense impression where the statement of present sense impression must be one describing or explaining an event or condition.

21

declarants identity need not be established and the declarant need not be present at the trial for the purposes of cross-examination. IMPORTANT: You have to be able to tell from the statement that person perceiving it. For example, in this case, one person said look at that police car speeding and the other said look at that little car chasing the police car. So from this it can be concluded that declarants perceiving it. But if just said that there is a police car speeding on highway 35, then more tricky. o Lira v. Albert Medical Center sued hospital for her throat injures. As evidence of her injury, introduced a statement of another physician who after seeing throat said who butchered you? Statement hearsay because used to show that throat butchered. But doesnt fit under excited utterance because throat abnormality is hardly an event that causes shock or excitement in a physician. Also not under present sense impression because it was not shown to be a product of reflex. It was opinion based on experience and training rather than reflex. Admissions By Party Opponent o FRE 801(d)(2) (d) Statements which are not hearsay Admission by party-opponent. The statement is offered against a party and is o The partys own statement, in either an individual or a representative capacity or o A statement of which the party has manifested an adoption or belief in its truth, or o A statement by a person authorized by the party to make a statement concerning the subject, or o A statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or o A statement by a coconspirator of a party during the course and in furtherance of the conspiracy The contents of the statement shall be considered but are not alone sufficient to establish the declrants authority under subdivision (c), the agency or employment relationship and scope thereof under subdivision (d), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (e). o So categories of Admissions by party opponent Own statement

22

o o

o o

Adoptive admission Authorized admission Admissions by employee/agent within scope of employment, during employment Admissions by co-conspirator during the course of and in furtherance of conspiracy Basic Rule for Admission of Party Opponent An admission of a party opponent is a statement made by your party opponent or by someone whose statements are attributable to your party opponent. FRE 801(d)(2) treats admissions by party-opponents as not being hearsay at all. Admission against party opponent vs. declaration against interest An admission need not be against interest when made An admission does not have to meet any of the requirements that are applied to declarations against interest The party need not be unavailable The declaration need not have been against the partys interest when made, and The party need not have had first-hand knowledge. Can be opinion or conclusion (e.g. The accident was my fault) First hand knowledge not required. Nothing in rule requires that the statement be based upon facts personally known to the agent nor does anything else in FRE require an implied condition of personal knowledge. Reed v. McCord Personal injury action for death of s intestate. introduced s own statements made to corner regarding the cause of injury and death of s intestate. s statement were not based on his personal knowledge of the accident. He heard about the accident from other employees. Out-of-court statements of a made without the s personal knowledge regarding the cause of an accident are admissible against the . These statements are trustworthy because no one is likely to make statements against himself if those statements are not true. Note: can testify that these statements were not based on his personal knowledge and the rest is up to the jury. Personal Admissions E.g. D is suspected of murdering his wife. Originally police thought murder @ 7pm and D stated that left house at 6:45pm. Later turned out that murder at 6:30pm. Ds statement may use Ds statement against him since it is an admission. This is so even though the statement is not a declaration against interest.

23

Pleadings: statements a party makes in his pleadings are treated as pleadings. E.g. Civil pleadings, subsequent case (statements made by a litigant in one case may be used against him in subsequent cases) Guilty Pleaa guilty plea that is not withdrawn is generally admissible as an admission. Guilty plea which is later withdrawn may NOT be used in a later civil or criminal case. Conduct as admission A criminal s flight after a crime, or his attempt to obstruct justice, are admissible against him in the criminal prosecution as admissions. Adoptive Admissions A statement is not hearsay if it is offered against a party and is a statement which he has manifested his adoption or belief in its truth. Most issues in this area involve implied adoption. When implied adoption situation, the test: Whether, taking into account all circumstances, As conduct or silence justifies the conclusion that he knowingly agreed with Bs statement. US v. Hoosier charged with armed robbery of a bank and prosecution presented testimony of a witness regarding statements made by s girlfriend in s presence. Girl said that had bags of money in their hotel room and just remained silent. State v. Carlson Police asked if shooting drugs and said no but wife called him a liar. just hung his head and didnt respond. A partys intent to adopt, agree with or approve of another persons statement, a precondition to admissibility of statements under adoptive admission, constitutes a preliminary question of fact for the judge. Giving the jury this power will expose the jury to inadmissible evidence that is necessary to see if really adopted. In this case s non-verbal conduct is too ambiguous to be an adoption of his wifes statements. (however, admissible as an excited utterance) DOES IT GO TO THE EXISTENCE/RELEVENCY OF THE EVIDENCE? THAT IS A JURY QUESTION DOES THIS FACT GO TO THE ADMISSIBILITY OF THE EVIDENCE?--> LEGAL QUSTION FOR THE JUDGE Hypo: , lawyer, sued airline for rough landing and claiming that wasnt able to work to her capacity after that.

24

presents records signed by in which she billed clients an average of 104 hours for 6 weeks after the landing. Admissible? Yes admissible as admission (not adoptive) Hypo: accident and Police officer said to : the accident was all your fault, and remained silent. Then said, Im putting you under arrest because you are drunk. didnt say anything. Admissible. First statement yes but second no because now under arrest and right to remain silent. Representative admissions Admission is made by a person other than the party against whom it is sought to be introduced, but it is usable against that party because it was in some way authorized by him. Requirements for Admission of Agent or Employee The statement must concern a subject that was within the scope of the agents duties to act on behalf of the principal The statement must have been made while the agentprincipal relationship was still in existence. Mahlandt v. Wild Canid alleged that bitten by wolf at center. Poos, director of s center, immediately informed president with a note that wolf has bitten a child. Later Poos personally spoke to the president and explained the incident orally. Incident was also discussed at the directors meeting. UNDER FRE801(d)(2) [a statement by the partys agent within the scope of the agency and during the relationship], a statement is admissible, once it is established that the declarant is an agent and the statement in question was made within the scope of employment. This rule does not require that the declarant have personal knowledge of the fact underlying his statement. So the first 2 statements admissible. However the board minutes were not admissible against Poos because no agency or servant relationship existed there. In FRE, there is no reverse agency relationship which would make the minutes of the board admissible against Poos. Also, none of the 801(d)(2) exceptions to the hearsay rule require personal knowledge. Big Mack Trucking Co. v. Dickerson s driver struck and killed another. After the accident, driver spoke to the president and an officer regarding the faulty brakes. In order to be admissible against , the statements of the driver to the witnesses must be authorized. did not authorize driver to speak of the accident. s express authority to driver to drive the truck does not grant driver authority to speak of the accident. Also,

25

no excited utterances exception because driver not in shock or was speaking under nervous excitement. Also, not under declarations against interest exception because it was not properly shown that driver was not available. NOTE: Under FRE 801(d)(2)(D), an agents statements are admissible against eh principal if statements are within the scope of employment, regardless of whether the agent was authorized to speak. So all have to worry about whether the statement was made by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. Sabel v. Mead Johnson & Co. Court held that outside experts in a brainstorming session were not the agents of . Agency relationship has 3 essential characteristics: o Power of agent to alter legal relationships between principal and 3rd parties and to principal and himself o Existence of fiduciary relationship toward the principal with respect to matter within the scope of the agency o Right of principal to control the agents conduct with respect to matters within scope of agency. In this case, experts were more like independent contractors then Employees. Quote from FRE 801(d)(2) The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Other exceptions: Always consider other exceptions if dont fall under admission. E.g. excited utterance. FRE 801(d)(2)(e) Statement by Co-conspirators Primary facts required to use statements by co-conspirators Show that the party opponent and the declarant were members of a conspiracy Show that the declarants statement was made during a conspiracy Show that the declarants statement was in furtherance of the conspiracy NOTE: This exception is NOT limited to cases where conspiracy is actually charged. Even statements of previously acquitted co-conspirator may be introduced if the

26

requirements of the conspirator exception are otherwise satisfied. Rationale for this exception: conspirators are partners in crime During the Course of The statement must have taken place during the course of the conspiracy. Statements made after the conspiracy has ended are admissible only against the declarant, not against the other members of the conspiracy. o E.g. if main members of the conspiracy arrested, the statements of the aresttes cannot be used against others. But if prosecution succeeds in arguing that conspiracy continued after arrest, then can be used. Ongoing conspiracy. A and B begin conspiracy and then make statements. Then C joins. May those statements be used against C. Yes. When a conspirator joins an ongoing conspiracy, he is held implicitly to have adopted the earlier statements of fellow co-conspirators and these statements may be introduced as admissions against him. US v. Goldberg In furtherance requirement: statement should be admitted against a co-conspirator only if it was made for the purpose of advancing the conspiracys objectives United States v. Doerr o In this prostitution conspiracy case, two statements in which one coconspirator talked about the red curtain hund in the window of one or Doerrs clubs as an invitation for trouble with the police and a second statement where Dale said that he cannot believe that John does not know what is going on. o FRE requires that statements of a co-conspirator must be made in furtherance of the conspiracy in order to be admitted against the other members of the conspiracy. It is unlikely that the discussion concerning the red curtain was intended to lure M into conspiracy and it was just a narrative of a past event. The second statement also didnt further conspiracy and it was just mocking Johns ignorance of the activities of the club. Procedure: Who is to decide whether requirements have been met? Existence of the conspiracy and satisfaction of the other factual requirements is to be decided by the judge. He msut find that requirements are satisfied by a preponderance of the evidence.

27

FRE 801(d)(2)- the contents of the statement shall be considered but are not alone sufficient to establish the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision. But a court need not determine by independent evidence that a conspiracy existed by a preponderance of evidence. HYPO: Mr. Pillar is inside an apartment trying to sell cocaine to drug dealers. He tells them that his partner, Al Capone, is waiting outside. Might that statement be admissible against Al Capone? Assuming there is other evidence besides the statement that they were members in the conspiracy, it would be admissible. But statement alone isnt enough. Question of whether declarants are members of the conspiracy is the question of law for the judge. Hypo: Undercover agents arrested Mr. Pillar for possession with intent to sell. Fro jail, he writes to a friend and asks the friend to cover up the fact that he and Al Capone were involved in selling cocaine. Is the letter admissible against Al Capone? Inadmissible, conspiracy to sell the drugs has ended upon arrest. So cant be used against Al Capone because not conspiracy to sell drugs o FRE 104(a) Questions of admissibility generally Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. o FRE 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, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. E.g. P borrows Ds car and tire blows out. D claims that when P leaving, D yelled that left tire bad so keep it under 50. P claims that never heard so didnt assume the risk. In order for Ds testimony to be relevant (that P assumed the risk), P has to have heard it. It is a jury question whether P heard D or not. But before Ds testimony gets in, judge has to decide whether a reasonable jury could find that the preliminary fact exists. Former Testimony o FRE 804(b)(1) Hearsay Exception

28

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness6: Former testimony: Testimony given as a witness at another hearing of the same or 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. Requirements for Former Testimony The hearsay declarant must be unavailable as defined in Rule 804(a) The testimony must have been under oath, whether at a trial or hearing or similar proceeding. There must have been an opportunity to examine the declarants testimony at a former proceeding with similar interest and motive. The prior testimony must have been given against the same party, or, in a civil case, against a predecessor in interest of the present party. FRE 804(a) Definition of unavailability Unavailability as a witness includes situations in which the declarant Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or Persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or Testifies to a lack of memory of the subject matter of the declarants statement; or Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or Is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means. A declarnat 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.

So now moving to exceptions where the declarant has to be absent.

29

Rationale: Cross-examination, oath, the solemnity of the occasion, and in the case of transcribed testimony the accuracy of reproduction of the words spoken, all combine to give former testimony a high degree of credibility. o This exception is not limited to transcripts. First-hand observer may orally recount the testimony. o Meaning of hearing and proceeding: what is covered A prior trial A preliminary hearing in a criminal case A grand jury investigation A suppression hearing in a criminal case A deposition o What is not covered Affidavits, even those prepared for use in a trial or other proceeding because they are not given at a hearing. Statements made to police or other law enforcement officials. o Testimony must be given under oath. o Opportunity to cross-examine. This is to comply with Constitutions Confrontation Clause. Actual cross examination not needed. All that is required is an opportunity to cross-examine. o Direct examination: If party opposing the former testimony had opportunity to do direct examination, this will be considered equivalent to the opportunity to conduct cross examination. o Similar motive: FRE requires similar motive This is required because if the adverse party had no incentive to cross-examine- for instance, because the issues were different, or the stakes were very different- we dont have the requisite assurance that equivalent cross-examination was, or at least reasonably could and should have been performed. Similar motive can always be shown if similarity of issues, similarity of stakes and similarity of parties. o In a grand jury, the never gets chance to cross examine. So only time when grand jury statements can come in when wants to use. But very difficult because prosecution doesnt have the same motive to cross examine in a grad jury proceeding than as in a trial. United States v. Salerno charged with organized crime of influencing and controlling local cement companies. Two cement company owners testified at grand jury that were not influenced by . Later these two take the 5th. wants to introduce the grand jury testimony of these two witnesses. Holding: In order to permit a criminal to introduce, against the government, grand jury testimony of a witness who asserts the 5th, it must be shown that the o

30

o o

government has the same motive at the trial as it did at the grand jury hearing. Hypo: OJs limo driver testified at his criminal trial that OJ wasnt home at the time of the crime. OJ acquitted. Then limo driver leaves the county. Victims parents sue OJ for wrongful. Limo drivers testimony can be used in civil trial because OJs lawyers had the same motive to cross examine driver in criminal trial that they do now. Depositions: Depositions are admissible at a trial of the same action, if the deponenet is unavailable at trial, regardless of whether the opponent had the same motive to cross-examine. Identity of parties: it is not required that both parties be the same in two actions. All that is required is that the party against whom the former testimony is offered must have been a party to the prior proceeding. FRE 804(b)(1)- testimony admissible 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. Predecessor in interest- courts have held that this requirement means that a person with a like motive to develop the same testimony about the same material facts. E.g. Lloyd v. American- the cost guard case. But in criminal cases, the same party requirement is strictly followed. Travelers Fire v. Wright The former testimony exception requires proof that the witness whose testimony is being introduced is unavailable fro the subsequent trial. This requirement is fulfilled if witness takes the 5th. Former testimony of the witness however, must have been made under oath. Also, the party against whom the testimony is being offered must have had the opportunity to crossexamine the witness at the former trial. This requirement is fulfilled not only when the parties in both trials are identical, but also when the party who cross-examined the witness at the former trial, had the same motive in cross-examination as the party against whom the evidence is now offered. This means that the parties at both trials need not be identical. Note however, that a party cannot introduce the prior testimony of a witness at a civil trial against a part in a subsequent criminal trial. Sixth Amendments right to confront. So if in this case if the civil action had occurred first, the former testimony of the witness could not be introduced at a later criminal trial because the criminal defendant has not had the opportunity to confront the witness in his criminal trial.

31

 Declarations Against Interest o FRE 804(b)(3) Thoe following are not excluded by the hearsay rule if the declarant is unavailable as a witness (3). Statement against interest. A statement which was at the time of its making so far contrary to the declarants pecuniary or propriety interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. o Requirements for declaration against interest The declarant must be unavailable as defined in Rule 804(a) The statement must have been so far against the declarants interest when made that a reasonable person in the declarants position would not have made the statement unless believing it to be true. In a criminal case, if the statement tends to expose the declarant to criminal liability and to exculpate the accused, the statement is not admissible unless circumstances corroborate the statement. o G.M. McKelvey v. General Casualty Co. of America Requirements for statement against interest The person making such declaration is either dead or unavailable as a witness due to sickness, insanity or absence from the jurisdiction The declarant had peculiar means of knowing the facts which he stated The declaration was against his pecuniary or proprietary interest, and He had no probable motive to falsify the facts stated Here employees admitted to embezzling money and admitted because employees not available in jurisdiction, had personal knowledge of the fact, statements were not in their interest, and no motive to falsify the facts. o Williamson v. United States H found with 19K cocaine and indicated that cocaine belonged to W and H was suppose to deliver to W. At Ws trial, H refused to testify and prosecution introduced Hs statements as against his interest. Holding: FRE 804(b)(3) does not allow admission of non-selfinculpatory statements even if they are made within a broader narrative that is generally self-inculpatory. So this complicates things because portions of statements which are

32

truly self-inculpatory can be admitted into evidence under this exception. o re: Fatal Attraction Clip: what about confession of Michael Douglas, would it be inadmissible hearsay. This is not hearsay at all because showing state of mind. Now suppose woman dead: statement might be used motive and opportunity. Would confession repeated by the wife inadmissible hearsay? It is hearsay but is admissible but fits under exception (RULE 801(D) admission of party opponent. Now suppose the husband is found dead, and woman is on trial. Would testimony of wife obviously hearsay, wouldnt fit under 804 because not against peanl, property etc. interest. IN CA would be admitted, because social ridicule it counted Declaration Against Interest Admission of Party Opponent Declarant must be unavailable No unavailability requirement Based on personal knowledge Requires no personal knowledge May be offered against anybody Offered against party opponent only Against interest at time made Can be in interest at time made State of Mind o FRE 803(3) The following are not excluded by the hearsay rule, even though the declarant is available as a witness The existing mental, emotional, or physical condition. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will. o Adkins v. Brett H sues D for alienation of Ws affection. H repeats in court Ws earlier statements that D could give W a better time than P could and that W now dislikes P Heldstatements admissible. When intention, feelings or other mental state of a certain person at a particular time is material to the issues under trial, evidence of such persons declarations at the time indicative of his then mental state, even though hearsay, is competent as within the exception to the hearsay rule. o Hypos

33

Bs statement I believe that person was the one who robbed the bank at persons bank trialnot admissible because based on memory. D said of his older cousin I believe hes as sharp as he ever was. Statement used at trial to show that cousin was sane inadmissible because not presented for state of mind but to prove the truth of the matter asserted On day 5 mother gave necklace to niece and day 20 died. Children want necklace. On day 1 mother said I love my niece more than my childrenadmissible. Declarant had that state of mind 4 days before the alleged loan, a reasonable inference can be drawn that it continued until day 5. On day 10 D said I love my niece more than childrenadmissible. No memory danger here D said to children at family gathering I gave the necklace to niece, too bad kids! Inadmissible. Based on memory. But could be admitted as statement against interest. Mother unavailable and against her property interest. Mutual Life Insurance v. Hillmon claiming that dead body of husband but insurance claiming that body of W. To prove that W had gone to Crooked Creek with husband introduced into evidence Ws letter to family indicating his intent to go to Crooked creek with H. When intention of a party is in itself a distinct and material fact in a chain of circumstance, it may be proved by contemporaneous oral or written declarations of the party. Shepard v. United States V said My husband has poisoned me. Not admissible under present state of mind because used to prove a past event. United States v. Pheaster D was charged with kidnapping L. Gov used statement of L to friends before kidnapping indicating Ls intentions to meet Angelo in the parking lot of a restaurant. The Hillmon doctrine allows admission of hearsay statements to prove intentions of a declarant, even if the intentions involve another partys actions. Hypos Question whether V with A? I am going to parking lot tonight admissible A is going to the parking lot tonight inadmissible because it is Ds statement of Angelos intent. I will not go out with anyone other than A tonight evidence shows that A left apartmentAdmissible under state of mind exception although A is mentioned the statement only describes Vs own state of mind.

34

I am going to wait at home for A until he picks me up and we will go out admissible to show Vs intent to go out with A. A can ask for limiting instruction stating that evidence only show Vs intent and not to how As intent.

Hypos B charged with killing V and B claims that accident when both cleaning a gun and went off Vs statement I hate B. Prosecution could argue that present state of mind and makes it less likely that both cleaning the gun together. V told friend B has been stalking me. He threatened to kill me. NOT HEARSAY because not used for its truth. But only to show Vs animosity or fear. A limiting instruction would be needed. o FRE 803(3) The following are not excluded by the hearsay rule, even though the declarant is available as a witness The existing mental, emotional, or physical condition. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will. o Hypo: I dont wanna give _____ a cent? This statement would be admissible. o Hypo: When I ripped the will, I didnt want to give this person a cent? Even though this is past event, it is admissible because of the last exception (revocation) o Hypo: X charged with murdering his brother. X calls B, a police officer, to testify that several hours after the shooting, X told him that he was just sick and grief-stricken over As death. Admissible as present state of mind. It is circumstantial evidence of what the declarants state of mind probably was at an earlier time. Medical Diagnosis or Treatment o The Following are not excluded by the hearsay rule, even though the declarant is available as a witness 4. Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. o Three-Step Test for Statements For Medical Diagnosis Was the statement made for the purpose of seeking medical diagnosis or treatment? o

35

Prior o

Does the statement describe medical history, or past or present symptoms, pain, or sensations, or the cause or external source of the injury? Was the statement reasonably pertinent to obtaining medical diagnosis or treatment? Hypos- Personal injury action P said to friend my neck hurtsadmissible under 803(3) as present physical condition. P told doctor my neck has been hurting for six monthsadmissible because made for medical diagnosis and treatment. P told same to doctor only for testifying at tiraladmissible under 803(4). Statements made to forensic physicians whose only function is to provide testimony fall within the ambit of the rule because of the rules reference to diagnosis. I slipped an fell on a banana that was dropped by a stocker I slipped and fell on banana is admissible under 803(4) but the portion of the statement attributing the dropped banana to the stocker is inadmissible. It is not relevant to seeking medical treatment. Also, it attributes fault to another person, and courts usually exclude parts of statements that attribute fault. 5 year old child, Doc asks what happened to arm child says My father burned me. Here admissible under 803(4) even though identity of guilty party revealed. Child abuse cases present special problems. Identification 801(d)(1)(C) (d) Statements which are not hearsay. 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(c) one of identification of a person made after perceiving the person. United States v. Owens V beaten badly and at hospital identifies D. At trial, V suffers from loss of memory. Under FRE 801(d)(1)(c) out-of-court identification statements qualify as non-hearsay if the declarant testifies at trial or hearing and is subject to cross-examination. In this case, V was available at trial even though he testified to lack of memory. Therefore, no violation of the confrontation clause. If declarant is present but has completely lost his memory, he is still considered to be subject to cross-examination. Requirements of prior identification

36

o o
Past o

o o

The declarant must testify at the trial or hearing and must be subject to cross-examination concerning the statement. The statement must one of identification of a person made after perceiving Hypo- V testifies that robbed and next day went to police station and identified the right person. But now cant remember who he identified. Police officer testified that while V at station, D passed by and V yelled that is the man who robbed me admissible. Vs identification of D made after perceiving D. V also subject to crossexamination Hypo- Same facts as above but now V doesnt even remember making the identification. Same results. The FRE doesn not specifically require the witness be able to recollect making the identification. Hypo- The robbery victim identifies D at a line-up but at trial too sick. Can officer testifyno, has to present for corss-examination The robbery victim testifies at trial that he identified Ds car out of court. AdmissibleNO has to be a person. Recollection Recorded Three different ways Refreshing memoryWitness just recalls what he saw heard etc. Past recollection recorded Present recollection received. Present recollection received is not an exception to the hearsay rule. It is just used to bring back the memory of the witness. Evidence is what the witness testifies after the memory revived not what he/she looked at. Foundation for Present Recollection Refreshed The witness testifies to an inability to recall a fact or event. The witness indicates that a certain writing or object could help refresh his or her memory The proponent has the writing marked as an exhibit for identification and shows the writing to the witness The proponent asks the witness to read the writing silently The witness testifies that reading the document has revived a forgotten memory of a fact or event. The witness then testifies to his or her recollection of the fact or event. One thing to remember is that if recollection based on writing, be prepared to present the writing to the other side. FRE 612 SEE EE Pg. 250 When a witness uses a document to refresh his recollection and then testifies from present recollection refreshed, the opposing party is entitled to see the document, crossexamine the witness about it, and introduce parts of it that are relevant to the testimony. Baker v. State

37

o o

D on trial for murdering V. D claims that while Officer with V and confronted D, V said that D didnt kill him. O cant recall the incident so D attempts to introduce a police report prepared by another officer to refresh Os memory. A report or memorandum prepared by another party may be used to refresh a witness memory at trial. In this case, report used for present recollection revived so not actually being admitted into evidence but just providing the stimulus. But if Past recollection recorded, then more stringent standards and requires personal knowledge. FRE 803(5) The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (5) Recorded recollection: A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. The requirements for this rule Witness must have personal knowledge of the fact or event recorded The witness must now be able to remember that event or fact sufficiently to describe it fully and accurately The witness must have prepared or adopted the record at the time the event was fresh in his memory. The record must be accurate recording of witnesss recollection of the even or fact. The document must be the record that was made. Important thing to remember is that it is not admitted into evidence but only read into evidence. Adams v. NY Central Railroad Insurance agent cant remember the interview with so show him report that he prepared after interview. Admitted that prepared after interviewing but could not refresh his memory. A written statement prepared by a witness may not be admitted as a past recollection recorded if the witness memory is not refreshed by the written statement. PLEASE SEE HYPO FOR FEB. 26 Foundation for Past Recollection Recorded The witness must have personal knowledge of the fact or event recorded

38

The witness must now be unable to remember that even or fact sufficiently to describe it fully and accurately The witness must have prepared or adopted the record at a time whent eh fact or event was fresh in his memory The record must be an accurate recording of the witnesss perception of the event or fact The document must be the record that was made. Business and Public Records o FRE 803(6) The following are not excluded by the hearsay rule, even though the declarant is available as a witness Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. o Elements of Business Records Exception The records in question maintained by an activity or organization that comes within the broad definition of business (almost any institution- doesnt have to be for profit) It was the regular practice of the business to keep this type of record and the entries in the record were made close to the time of the event to which they relate The source of the information must have had personal knowledge There must be real business purpose for accurately recording the particular piece of information the party wants to rely on There is a proper authenticating witness on the stand who knows about this business record and can supply the other elements of the foundation The record is trustworthy. o Under FRE, person opposing the introduction of records has burden of showing lack of trustworthiness o FRE 805- Double Hearsay H included w/in H is not excluded under H rule if each part of combined statements conforms w/an exception to H rule o Johnson v. Lutz

39

Wrongful death action and P wants to introduce police report which has statements of witnesses that Ds truck hit Ps whatever. Statements of third parties contained within a written report prepared during the regular course of business may not be admitted into evidence under the business records exception. The purpose of this exception is to admit into evidence business records without calling to the stand those who had the obligation of preparing them. It was not intended to exclude form hearsay otherwise inadmissible hearsay statements of third parties who are under no duty to report. US v. Duncan Ds charged with insurance fraud for staging accidents. Insurance reports admitted and these reports based on medical records and doctor statements. Biz records prepared form other admissible biz records or non-hearsay statements are permitted under the biz records exception. The medical records themselves fell within the biz rec exception. The doctors statements under the authorized admissions or agency admissions rule. Williams v. Alexander P claimed that while crossing street, D hit him with car. D claims that he stopped but car behind smashed into his car. Introduces hospital record to show the manner of accident. Holding: It is not within the regular course of a hospitals business to make detailed record of the manner in which the patient was injured. So dont fit under BRE. How could the avoid the problem? Have the doctor testify and though still hearsay, but anything the opponent says is admissible. Hypos A sues B for accident and this is what police report includes I was standing at beat and saw B hit A admissible under FRE 803(6)- biz record I arrived 20 minutes later and notice skid marks leading to Bs caradmissible under 803(6) I arrived 5 minutes later and bystander yelled did you see that car run the red lightadmissibe under 803(6), 803(1) and 803(2) officer under biz record, bystander under present sense impressions or excited utterances. The bystanders statement is a good example of a question that is intended to make an assertion. I arrived a few minutes later and B said he fell asleep admissible under 803(6) and 801(d)(2)(A)

40

I arrived few minutes later and officer Jones told me that B hit A Admissible under 803(6) because both officers within the organization I arrived few minutes later and Officer Jones told me that B told him that fell asleep Admissible under 803(6) and 801(d)(2)(A) FRE 803(7) Following are not excluded by the hearsay rule, even thought eh declarant is available as a witness (7) absence of entry in records kept in accordance with the provisions of paragraph 6. Evidence that a matter is not included in the memoranda reports, records, or data compilations in any form, kept in accordance with the provision of paragraph 6, to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. Hahnemann v. Dudnick Once a foundation is laid, computerized business records are deemed trustworthy unless the opposing party presents evidence to question their reliability. Made in regular course of business Palmer v. Hoffman After a railroad accident, engineer interviewed and report made. Supreme Court concluded that accident report did not qualify under the statute since it was not in the regular course of railroads business. Unlike, say, payroll or accounts receivable records, the accident reports are calculated for use essentially in the court, not in business. Their primary utility is in litigation, not in railroading. Modern Fed rule Modern statutes are more lenient and require merely that it have been the regular practice of that business activity to make the memorandum. There is no requirement that the making of such records be frequent or routine. But still have to be trustworthy so accident reports like in Palmer may be still ruled as self-serving. Lewis v. Baker Accident and report created by someone not a party in the accident. Court said falls under the business record exception. Unlike Palmer, made by employee who is not a party. Reports were prepared in the regular course of the railroads business and they were writted at a reasonable time after the accident. The fact that accident reports may ultimately be used in a

41

lawsuit does not exclude those records from evidence if all the other requirements of the business records exception are satisfied. Yates v. Bair Transport Inc. Re: trustworthiness Reports by s physicians are self-serving w/no added degree of trustworthiness. o FRE 803(8) The following are not excluded by the hearsay rule, even though the declarant is available as a witness Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth a. the activities of the office or agency or b. matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or c. in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. o VS Business record exception o Does not require materials recorded regularly o No need for sponsoring witness if public record certified o Judges will often take judicial notice that record is public record o Use of public records allows the person offering the evidence to put in evidence based on reports of someone who is not part of the public office. o FRE 803(10) following not excluded even if declarant is available as a witness Absence of public record or entry. TO prove the absence of a record, report, statement or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. o Few Good MenUnder FRE 803(10), you can prove absence of public record or entry. Also can argue that is absence of something isnt even an assertion, so it is not even hearsay. o Some ways gov. reports relevant Accident- police report Antitrust Plane crash Job discrimination

42

Public records and reports divided into three categories Activities of the office Matters observed under duty observations made in the line of duty and official had a duty to report those observations (but not against criminal police observations) Investigative reportsagain, cant use police reports against criminal s o Subsection C- factual vs. evaluative Beech Aircraft v. Rainey There is great analytical difficulty in drawing a line between fact and opinion. Therefore, portions of investigatory reports otherwise admissible under 803(8)(c) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rules trustworthiness requirement, it should be admissible along with other portions of the report. o United States v. Oates Law enforcement and government reports prepared in the regular course of business are not admissible against a defendant in criminal proceedings o Routine Police Reports US v. Grady Ds charged with federal weapons violations. The prosectuion seeks to introduce routine Irish police records of serial numbers and weapons receipts, showing that certain weapons were found in Ireland after certain date These records were admissible under 803(8)(B) because the exclusionary language covers only police officers reports of their contemporaneous observations of crime, not routine bureaucratic observations of events that were not in themselves criminal acts. Unlike Oates, here reports not used to prove the governments case. So remember: reports of law enforcement personnel may be admitted into evidence when the reports do not prove the governments case in chief. SEE HYPOS ON PG. 280, 291-292 Miscellaneous Exceptions o Judgment of Previous convictions FRE 803(22) The following are not excluded by the hearsay rule, even thought the declarant is available as a witness: o Judgment of previous convictions: Evidence of a final judgment , entered after a trial or upon a plea of guilty (but not upon a plea of nolo o

43

contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. Requirements A person must have been convicted of a crime That conviction must have been for a crime punishable as a felony The fact that the judgment is now being offered to prove must have been one that the trier of fact in the previous case had to resolve in order for that judgment to be rendered. Or if used by the government in a criminal prosecution for any purpose other than impeachment, it must not be a judgment against a third party Stroud v. Cook Evidence at issue: prior evidence that found that Judge says that under the federal rule, this would not be admissible under 803(22) because only applies to Felonies. But in 9th circuit would be admissible under the Public record. But 4th cir said not admissible. He further says that normally the FRE would apply but here we have The exception of prior judgments applies only to prior criminal convictions. A prior judgment in a civil case is not covered, either under modern state-law approaches or the FRE. Learned Treatises FRE 803(18) not excluded by hearsay even if declarant is available: Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Requirements

44

The statements must come from a published treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art The published work must have been established as a reliable authority, either by expert testimony or by judicial notice The published work must have been relied on by an expert or called to the attention of an expert witness If admitted, the statements form the published work may only be read into evidence. FRE 807 Residual Exceptions A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that a. the statement is offered as evidence of a material fact, b. the statements is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and c. the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse arty sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponents intention to offer the statement and the particulars of it, including the name and address of the declarant. Requirements for Residual Exception It must not be covered by Rule 803 or 804 (depending on interpretation of court) It must be trustworthy It must be offered as evidence of a material fact It must be more probative on point for which it is offered than any other evidence which the proponent can procure through reasonable efforts The admission of the evidence must serve the interest of justice The opposing party must be provided with notice of the proponents intended use of the statement before trial Turbyfill v. International Car fire caused s injuries and a mechanic wrote down his account of the accident. But mechanic later died. Almost contemporaneous written accounts are recognized by FRE as having circumstantial guarantees of trustworthiness. Also, statement would have been admitted as past recollection recorded if mechanic was alive. This letter is not admission by party opponent Not present sense impression- too long afterward

45

Not excited utterance- nothing indicating under influence of event Not biz record prepared in anticipation of litigation, motive to lie, See Paler v. Hoffman

Sixth o
o

US v. Dent Grand jury testimony offered against a by a witness not unavailable may not automatically be admitted Nothing inherently reliable about this kind of testimony Here, noting indicating reliability Remember: Such testimony can never be admitted under former testimony exception (804(b)(1)) b/c wasnt present at grand jury, and thus couldnt cross-examine witness See good hypos on Pg. 315 Truck driver killed in accident and family sues truck company. Company offers evidence that while at hospital, driver told a family member that his trousers caught on fire and he was trying to put out the fire when lost control. Not admission because guy dead. Not party against interest because not admitting that fire not caused by some defect in truck. But should be admitted under residual because has guarantees of trustworthiness. Amendment- Confrontation Clause Applies only to criminal prosecutions. Both fed and state courts. For the benefit of criminal s only. Ohio v. Roberts Prosecution wants to introduce into evidence statement of Anita from preliminary hearing. Test 2 prong Prosecution demonstrate that declarant unavailable Hearsay have adequate indicia of reliability and trustworthiness Here unavailable and since s attorney was able to question Anita at the hearing, there is that adequate indicia of reliability US v. Inadi Facts: D was convicted for conspiring to manufacture and distribute methamphetamine. At trial, prosecution introduced statement made by Ds coconspirators which the police had legally recorded. These statements were admitted under FRE 801(d)(2)(E). D claimed that since the coconspirators were available to provide live testimony, the use of statements was a violation of the confrontational clause. Issue: Was the admission of statements of co-conspirators proper even though the declarants were available to testify? Holding: Yes Rationale: The unavailability rule is usually applied because live testimony is more accurate and reliable then out of court

46

statements. But in the case of statements of co-conspirators, out of court statements made in furtherance of the conspiracy are really important and cannot be replicated in a live in-court testimony. Furthermore, requiring all coconspirators to testify in court will place a lot of burden on the system. Therefore, the statements were properly admitted. Bourjaily v. US No independent inquiry into reliability is required when the evidence falls within a firmly rooted exception to the hearsay rule. A co-conspirators admission is one such exception, and has been repeatedly affirmed by this court as such. Basic Rule from Inadi and Bourjaily We prefer live testimony with an opportunity to crossexamine, but we will accept less if: The declarant is unavailable and the evidence has a high indicial of reliability, or The declaration falls within a firmly rooted hearsay exception, whether or not the declarant is unavailable. Things held to be firmly rooted Statements made for medical Co-conspirator statements Dying declarations Biz records Public records Excited or spontaneous declarations Not firmly rooted Residual exceptions Accomplice confessions that inculpate a criminal Idaho v. Wright In order to satisfy the reliability requirement of the Confrontation Clause, a hearsay statement, admitted under the residual exception, must be shown to bear particularized guarantees of trustworthiness based on the circumstances which surround the making of the statement. For clear explanation see Sup Ct. Sum Pg. 79 White v. Illinois Child abused and shortly after told to babysitter and then to nurse and doctor. Admitted under spontaneous and medical diagnosis exceptions. Child not available because of trauma. SC held: The Confrontation Clause does not require proof of unavailability of a declarant before the declarants statements are admitted under the medical diagnosis and spontaneous exclamations exceptions to the hearsay rule. Crofford v. Washington Evidence at issue: Wifes statements to the police officer about what victim was doing

47

Where testimonial statements are at issue, the only reliability are confrontation. TestimonialWitnesses who make a statement with the purpose of proving a fact. RULE FROM CRAWFORD We prefer live testimony with an opportunity to cross examine, but we will accept less if: Where the statements are testimonial, the declarant is unavailable and the has an opportunity to crossexamine or confront the witness, or Where statements are not testimonial (possibly), if the statement falls within any hearsay exception, or Where statements are not testimonial (possibly), if the statement falls within a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness, whether or not the declarant is unavailable.

Impeachment

FRE 602- A witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. FRE 601- Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. In direct examination, cant ask narrative or leading questions. Narrative question: Can you tell us everything you did that day? Non-narrative: what did you do next? Exception: Expert witnesses can answer in narrative form. o Leading question: Of course, you crossed the street, didnt you? o Acceptable form: Did you cross the street? Exceptions to the rule: o A lawyer can use leading questions on direct when: They concern preliminary matters on issues that are not in dispute (in order to speed up the testimony on non-essential points); They are used to refresh a witnesss recollection; They are directed at a handicapped witness, i.e. very young, extremely old, or infirm; They are directed at a hostile or adverse witness; or They are allowed by the trial judge within his/her discretion as a means of better ascertaining the truth, avoiding a waste of time, or protecting a witness from harassment. FRE 611(c)- Leading questions

48

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. FRE 611(b)- Scope of cross-examination o Cross-examination should be limited to subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. o Can cross witness beyond the scope of direct if the witness opens the door herself. o Attack the witness on: bias, motive, interest, untruthfulness, or any kind of prior inconsistency. FRE 607- The credibility of a witness may be attacked by any party, including the party calling the witness. Methods of Impeachment o You can impeach the witness with the use of a prior inconsistent statement, action, or omission. o You can prove that the witness lacked capacity to perceive correctly. o You can show that witness is biased. o You can impeach the witness with character evidence. o You can impeach the witness by contradiction. FRE 801(d)(1) o 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 with the declarants testimony, and was given under oath subject to penalty of perjury and a trial, hearing, or other proceeding, or in a deposition US v. Hogan o Prosecution called Carpenter as a witness solely for presenting evidence to contradict his testimony. o Held: it was improper to call him to the witness stand for the sole purpose of introducing evidence that would otherwise be inadmissible under hearsay (it was made by police officers in investigation so hearsay and dont fit under public records exception. Why not statement against interest? HE IS NOT UNAVAILABLE IN THIS CASE! What about grand juryno cross examination for hogans so also inadmissible) o Jury is going to listen to this evidence and despite the limiting instruction, jury is still going to use it improperly. o In this case, if prosecutor was totally surprised by the testimony of witness, then could have used the evidence to impeach. Methods of Impeachment o

49

Impeachment by Contradiction When you impeach by offering contradictory evidence by someone or something other than the witness State v. Oswalt was charged with robber that took place in Seattle. presented the defense of alibi and claimed that he was in Portland on the day of the robbery. Prosecution, in order to impeach s witness based on contradiction, presented evidence of a police officer (extrinsic evidence) that about a month before the robbery, he talked to in Settle. Holding: The extrinsic evidence showing where was a month before the robbery is collateral issue and is not important to the case. Therefore, the state could not use this to impeach the witness and since prejudicial error, conviction must be reversed. United States v. Copelin during cross-examination said that only seen drugs on TV. Prosecutor then asks about his prior positive results for drug tests. argues that this evidence of prior bad acts should not have been used. Held: A party may impeach the credibility of a witness based on a contradiction by introducing evidence of the partys prior bad acts. Impeachment is covered under FRE 404(b). Furthermore, even if the evidence in this case was collateral, it was still admissible because it was not introduced through some extrinsic source (i.e. some other witness, or some other form of evidence) but through s own answers in crossexamination. But still reversed because trail judge didnt give limiting instructions. So unlike Oswalt, allowed even though collateral matter because no extrinsic evidence used. SO the lesson, can contradict by extrinsic evidence only when relevant. But if not relevant and witness brings it in, can contradict him by questioning him. Character of the Witness Prior Bad Acts FRE 608(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: 1. the evidence may refer only to character for truthfulness or untruthfulness, and 2. evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

50

FRE 608(b)- Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.7 United States v. Owens o charged with killing his wife and on witness stand claimed that it was an accident. The prosecutor asked if had intentionally omitted his previous 3 crimes form his warrant officer application in order to challenge s truthfulness as a witness. o Held: A party may impeach a witness by eliciting on cross-examination an admission to a prior act of intentional falsehood. Rule 608(b) prohibits specific instances of conduct for purpose of impeaching the witnesss credibility from being proven by extrinsic evidence. United States v. Drake o This is the case where was cross-examined about him not receiving a degree that he asserted in direct examination that he did. o First of all, the matter was not irrelevant because himself brought up the issue in direct examination by testifying that he had a BA in psychology. o Even though the prosecutor referred to some record in the cross-examination, this did not result in introduction of extrinsic evidence. Therefore, although the prosecutor referred to extrinsic documents not in evidence, she did not rely on the documents to impeach . s own testimony was sufficient to call his character into question. o But the court found that questions were improper because they assumed facts not in evidence. But was harmless error and affirmed conviction. United States v. Saada o introduced hearsay statement of declarant to show that s actions accidental. Declarants

BUT CANNOT BE DONE THROUGH EXTRINSIC EVIDENCE

51

statement was admitted on excitement utterances to hearsay exception. The prosecution introduced extrinsic evidence of previous misconduct by the declarant to attack declarants credibility. The declarant had died before the trial began. o So issue is whether can admit extrinsic evidence when declarant is unavailable for crossexamination. o Holding: 806 doesnt modify 608(b) so even when declarant is unavailable you cant admit extrinsic evidence to attack his credibility. Prior Convictions FRE 609 o A. General Rule. For the purpose of attacking the credibility of a witness, 1. evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused8; and 2. evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. o United States v. Sanders FRE 609(a)(1) does not allow admission of prior convictions for impeaching a witness credibility, when the probative value of the evidence does not outweigh its prejudice. Where the witness in question is the accused, the Rule requires that the presiding judge perform a balancing of probative value of the conviction against its prejudicial effect. Probative value of such evidence must exceed its prejudicial effect. But where the witness in question is anyone other than the accused, the presiding judge must find that the probative value of the evidence is not

Note the difference in standard.

52

substantially outweighed by the evidence. But where the prior conviction involves a crime of dishonesty, however, no balancing is required regardless of the identity of the witness and the length of the sentence. o United States v. Wong was charged with mail fraud and racketeering activities. Prosecution introduced into evidence s two previous convictions involving mail fraud and Medicare. claims that court should have conducted the balancing test before admitting this evidence. Holding: Balancing test not required under FRE 609(a)(2). A court does not have discretion to exclude as unduly prejudicial evidence that a witness had previously been convicted of a crime involving dishonesty or false statement. o Crimes of dishonesty involve perjury, false statement, criminal fraud, embezzlement, or false pretense, among others. o United States v. Brackeen Bank robbery does not per se qualify as a crime of dishonesty under FRE 609(a)(2). Only applies to those crimes that factually or by some other element involve misrepresentation or dishonesty. SO can look at the statute or the actual conduct of the criminal. Luce v. United States o A must testify at his trial in order to be entitled to raise and preserve for review the claim of improper impeachment with a prior conviction. Hypo- Betty in the last 5 years convicted of petty larceny at a store for shoplifting. When caught with the items, she said that she bought them at another store. Would be admissible because dishonesty involved. Here we looked at the facts. Psychiatric Condition US v. Lindstrom s charged with mail fraud and prosecutions key witness, s employee, testified. s claimed that witness had something against them and it was due to her mental illness. Wanted to question her and introduce records of her hospitalization.

53

Holding: Evidence of a witness psychiatric condition can be admitted in order to impeach the credibility of the witness. Prior Statements to Impeach or Rehabilitate General rule is that when a witness testifies at trial, evidence of his prior inconsistent statement is admissible to impeach his credibility FRE 613 Prior Statements of Witnesses A. examining witnesses concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. B. Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. The provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). Coles v. Harsch To impeach a witness based on statements inconsistent with those uttered at the trial, a party must relate the statements to the witness with the circumstances surrounding the making of the statements. But Federal rule does not require a party introducing the prior inconsistent statement to relate the statement and the circumstances surrounding them to the witness Impeachment for Bias A witness is biased whenever his emotions or feelings towards the parties or towards some aspect of the case make the witness desire one outcome rather than another. Bias may be shown by the fact that a witness belongs to a particular organization and subscribes to its beliefs. US . Abel Prosecution was entitled to show that a defense witness and D were both members of a secret prison organization which had a creed requiring members to lie to protect each other. A witness and a partys common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of bias.

54

Foundation be laid so in Abel: ask W whether belong to group, if says yes, end of matter. If says no, only then can introduce extrinsic evidence.

Rehabilitating the impeached witness The federal rules agree that if the use of a prior inconsistent statement amounts to a charge of recent fabrication or toehr wrongdoing by the witness, a prior consistent statement may be used to rehabilitate the witness. FRE 801(d)(1)(b)- where a witness testifies at trial and is available for crossexamination, his prior statement is admissible if it is consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. In other words, in such circumstances, the prior consistent statement is not hearsay. But remember, such statements must have been made before the witness had a motive to falsify! Tome case where daughter testified against father for sex abuse. This exception can be used any time other side accuses the witness of making contradictory statements or of just coming up with false story.

CONFIDENTIALITY AND CONFIDENTIAL COMMUNICATIONS I. Atty Client Privilege Rule 503 a. Rule: communications btw an atty and client made during professional consultation are privileged from disclosure. Client has a privilege to refuse to disclose and prevent others from disclosing confidential communications. Objects and preexisting docs are not protected. b. the client owns the privilege, but atty can assert on clients behalf. i. negligent disclosure by atty sometimes waives the privilege even though client is the holder of the privilege. (923) c. Who can claim the privilege? i. client, atty, various reps of the atty on behalf of the client. ii. Corporate Clients: 1. Upjohn case (899): privilege does not only extend to the control group and adopts more of the subj matter test, says control group test too vague. a. control group test: certain group of pple that are involved in the decision making fxn. i. Sup Ct rejects this test bc cant tell who is in the group and cant plan ahead on reliance of who has privilege. b. subject matter test: anyone involved in the subj matter or issue is covered including any old employee.

55

i. considerations: 1. goal of communication was to get legal advice for the corp 2. communication had something to do with the job of the person who is making the communication 3. everybody understood that communication was meant to be confidential 4. everyone behaved accrdg to that idea of confidentiality. c. can claim work product privilege agst the IRS YES i. can be overcome by a showing that cant get the info any other way without undue hardship. d. Lawyer: a person authorized or rsnbly believed by the client to be authorized to practice law in any state or nation. e. 503(a)(3): Representatives of the lawyer is one who assists the lawyer in the rendition of professional legal services. i. US v. Kovel (888) involving or disclosing to communicative intermediaries. Accountant employed by tax law firm treated as an interpreter and falls under the privilege bc his role was to aid attys with their work. 1. Test: a. did the client say things in confidence b. in order to get legal services from atty c. after the relationship of atty-client has been estb (anything before is not covered) 2. 503(b)(2) cover the ancillary conversations that isnt btw lawyer and client, pple that work for the atty. a. atty-expert privilege: ancillary rule protects and the work product privilege will also protect b. NOTE: stmts by client to expert not protected f. Confidential Communications (503a4) - 503 only protects those communications made for the purpose of facilitating the rendition of professional legal services to the client - meaning if the stmts made to the atty were not re the matter the client is seeking legal advice/service for, then stmts will not be privileged. i. Prelim Q for the judge: judge must hear what it is (in camera hearing) ii. you cant make evid privileged by giving it to an attorney iii. communications are privileged as long as they were not intended to be communicated to outside parties iv. Suburban Sweep Case: P went thru Ds trash for 2 yrs. Involves inadvertent discloser bc inadequately

56

safeguarded by putting in trash not privileged (dumpsterdivers) must look to see what measures were taken to safeguard. 1. considerations the ct made: a. will it discourage clients from talking to attys in the future by allowing the evid in? (NO) b. could they have protected their materials better? (YES) c. expectations of privacy is also a consideration. 2. considering the answers to these 2 Qs, ct says no harm by allowing this in and denying privilege. 3. involuntary disclosure in spite of all possible precautions privileged a. here, throwing in trash means that they probably intended the documents to be privileged, but didnt take sufficient measures. v. Eavesdroppers (Note 4, p897) 503(b) protects info that is intended to be confidential, so client can prevent any other person from disclosing confidential communications. g. Legal Services: you either received legal services or consulted a lawyer with legal services in mind (legal advice). i. soliciting business, financial or personal advice not privileged bc not legal service ii. p.878, Note 2: list of things not considered professional legal services 1. Note 3: talks abt tax returns if all you are doing is preparing the return then probably not privileged, content of the return isnt covered. h. Communicative Gestures are privileged: observation is usually not covered UNLESS the observation relates directly to the matter the client is seeking legal services for. i. physical conditions of client observed by atty not privileged such matters are observable by anyone, nothing suggests that client intends attys observations of such matters to be confidential. i. Exceptions 503(d): (matters that are not privileged under this rule) i. Future Crimes Exception to furtherance of crime or fraud: if the services of the atty were sought or obtained to enable or aid anyone to commit or plan to commit a crime. 1. State v. Phelps (916) a. facts: hires atty for drunk driving charge and tells atty that he will commit perjury during trial, atty withdraws and makes client promise not to perjure. D still does and is

57

ii.

iii.
iv. v.

vi.

vii.

viii.

acquitted, later discovered perjury and is indicted for that. Old atty is subpoenaed to testify agst D that D told him he intended to perjure. b. Ct says the crime at issue was the perjury which was a future crime at the time that D made the communication when you try to engage a lawyer with goal of getting away with a crime no privilege. 2. 503d1: client has to know that what he is planning is a crime (know or rsnbly should have known) claimants through some deceased client when client suing for malpractice or suing for breach of duty of lawyer or client document attested by lawyer: communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness Joint Clients- 503(d)(5): when clients are jointly represented by one atty, and they have a falling out and subsequently sue each other, their stmts to that earlier common atty are not privileged re each other. 1. when clients are represented by different attys in a matter of common interest stmts to each others atty are privileged. disclosure of the id of your client (not included in the rejected rules) 1. exceptions to this disclosure requirement: a. legal advice exception: ??? b. last link in a chain of incriminating evid exception: if saying your clients name would result in your client being implicated in the matter, the very reason they came to see you, then dont have to reveal clients name. (e.g. ID is an issue) c. disclosure of confidential communications exception: disclosure would be tantamount to revealing confidential communication. 2. Durant recognized the last link exception to disclosure of identity, but ct says that atty didnt apply it properly. a. person retained atty and used stolen checks to pay for legal fees, connected client to the stolen checks matter. When refreshing recollection of witness under FRE 612, any written material used during this time is discoverable, any privilege is waived during this process. Meredith (881): makes an exception for cases in which atty moves or alters the condition of the evid so that atty must tell where he found it, but what was said is still protected.

58

II.

that was taken from its orig location. Pros was allowed to tell the jury that the wallet came from Scotts yard. a. cant keep evid for an indeterminate amt of time j. After Meredith, atty has 2 options: i. atty can look at the evid as long as dont move it, can pick it up. 1. recent cases with better forensic evid if you make contact you are interfering with trace evid so you may now be required to testify as to where you found it. ii. 2nd choice is for atty to take the evid directly to the police or lab without revealing where you got it from 1. restraint on attys is disbarment. Psychotherapist Patient Privilege Rule 504 a. General Rule: patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communication made for the purposes of diagnosis or treatment. b. Requirements: i. a confidential communication: ii. made to a psychotherapist or doctor (or person rsnbly necessary for the transmission of the communication including family member) iii. made in connection with diagnosis or treatment c. no future crimes exception i. therapists can incur tort liability (Tarassoff case) warning necessary in certain situations. d. no privilege in child abuse cases where child involved is under 16 i. mandated reporters: any medical personnel licensed by the state must report child abuse if they know about it (but attys are licensed but are exempt from reporting) 1. photo lab included in CA state must report child porn e. Jaffee case (925) recognizes this type of privilege even if it did not exist in CL. Jaffee extends protection to session with licensed clinical social workers. i. P wants the notes to police dept licensed counselor who interviewed the officer. Officer and what P believes happened conflict. Judge instructs that refusal to turn over notes is no way an admission of wrongdoing, there is no privilege in other words and can presume that if the notes had been turned over, they would be unfavorable to the officer. ii. Sup Ct: says the permissive inference was wrong bc there is such a privilege and it is not a qualified privilege.

1. Facts: atty and attys investigator examined wallet

59

1. want to encourage the idea that there is absolute freedom to speak to mental health professionals. 2. rejects the idea of qualified privileged which can be overcome bc otherwise no way for pple to plan ahead not knowing if their communication will be protected. Want to encourage absolute freedom to spk to mental health professionals. The Marital Privileges o Rationale: promote marital harmony o Two Privileges Privilege against adverse spousal testimony Gives a spouse complete protection from adverse testimony by the other spouse regardless of the subject matter of the testimony. The privilege protecting confidential communications Only protects confidential communications made by one spouse to the other during the marriage. End of marriage- adverse testimony privilege applies only if parties married at the time of trial. Confidential privilege applies so long as the parties were married at the time the communication was made even if marriage ended at the time of trial. Pre-marital communication- if communication before marriage, confidential communication privilege doesnt apply but if married at time of trial, adverse testimony privilege will apply. o Federal court recognize both privileges. The confidential communications privilege is generally held to belong to the spouse who makes the communication. The adverse testimony privilege belongs only to the testifying spouse. o Trammel v. United States W, Ds wife, was caught smuggling drugs and in made a deal with prosecution where for testifying against D, she was not prosecuted. Supreme Court held hat adverse testimony privilege didnt apply here. If one spouse is willing to testify against the other, their relationship is almost certainly in disrepair, there is probably little in the way of marital harmony for the privilege to protect. The confidential communication privilege also didnt help D much because W was testifying about their actions and not the confidential communications that took place between them. o In federal courts, adverse testimony privilege is limited to criminal cases. Privilege also applies in federal grand jury proceedings. o Confidentiality Only confidential communications are protected. If third persons present at the time of the communication will show that it was not intended to be confidential.

60

 Parties must be married at the time of the communication Miscellaneous Privileges o Priest-penitent privilege Most states recognize privilege for confidential communications between a clergyman and penitent. o Parent-Child Privilege In re Grand Jury Parent-child privilege is not recognized under FRE 501. Such privilege doesnt serve public purpose and is disproportionately burdensome on the society. o The News-Persons Privilege Rationality reporters have argued that they must be able to promise confidentiality to their sources. Matter of Farber A newspaper is not privileged to withhold relevant, material information obtained from confidential sources. The shield law in this case violated the 6th Amendment rights of . INFO HAS TO BE RELEVANT! Why would here want to info revealed in trial? One possible explanation is that he probably wanted to prove that the sources of the info were unreliable. NEED TO READ 671-684 Fifth Amendment Privilege o 5th Violated Compulsion Testimonial evidence Self-incrimination o Idea is that you dont want people to lie to protect themselves. o SC has interpreted this privilege in 2 Privilege of the accused Privilege of every witness o Privilege of the accused arise when the police take a person in custody or deprive his freedom in any significant way and accuse that person of committing a crime. At that point the person has a right not to be a witness. Has to be testimonial so would exclude variety of acts (test is whether the person can lie about it, if yesTestimonial). Person can waive the privilege. If the person waives the privilege at one stage doesnt mean person has waived it entirely. If choose not to testify at trial, judge will instruct the jury that they shouldnt make any negative inferences from it. If the person chooses to testify, then if someone asks question on crossexamination, then cannot refuse to answer if within the scope of the direct examination. Privilege of witness o Applies to any person who is asked to given testimony in a proceeding. Any context where can be forced to appear as a witness. Only gives witness the right to not answer a question if

61

the true answer can incriminate him/her to a crime for which the person can still be punished. So if given immunity, cant invoke the privilege and also if statute of limitations passed, cant invoke. WRITINGS

The Best Evidence Rule

In proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent. o Sirico v. Cotto asked the doctor (witness) to explain the results of the Xrays but original X-ray plates were not produced. Under the best evidence rule, a party who seeks to prove the contents of a document must enter into evidence the original copy of that document and if the original copy is unavailable, the party may introduce secondary documents and must explain the failure to produce the original copy. Here doctors report on the X-rays was secondary evidence and s failure to provide explanation as to the failure to provide the original plates renders the secondary evidence inadmissible. Would the same results be reached under FRE: Yes. Doctor trying to prove that the content of the X-rays and didnt provide any excuse for not producing the originals. Suppose offered photograph of the X-ray instead of the original. Would the photograph print be admissible? Can argue that unless can contest the authenticity of the original or make some other fairness argument would be admissible. But other side can argue that viewing photograph is not the same as viewing the original X-ray. SEE RULE 1003 o Pg. 688 Case Note Incriminating statements recorded. Police had policy of transferring recording to the disk. This disk admitted over the objection of the . The appellate court said that the disk was not the best evidence and should have been excluded. Here the disc would be considered a duplicate under 1001(4). o Hearsay reviewcould the conversations between two prisoners fit in any hearsay exception? Admission of a party opponent. o Herzig v. Swift & Co. In order to prove the earnings of the deceased husband who was a partner in a business, offered testimony of another partner as to the amount of partnerships earnings. No book records were offered. The trial judge excluded the evidence because violated best evidence rule. o

62

Holding: reversed. The best evidence rule does not require introduction of a writing when the content of the writing are not being proven. In this case, the contents of the partnerships accounting books were not being proven. This issue in question was the earnings of the partnership which were for the sake of convenience recorded into books and transformed into writing. o Question to ask: Whether necessary to go through writing to reach your conclusion. o Meyers v. United States In this case for subornation perjury, the counsel who examined the testified as to what said under oath and the transcript was presented after the testimony. The best evidence rule is limited to cases where the contents of the writing are to be proved. Here there was no attempt to prove the contents of the writing; the issue was what had said, not what the transcript contained. If hearsay objection o People v. Enskat Police officers took pictures of an obscene film. These pictures were presented at the trial but not the film. A motion picture constitutes a writing under the best evidence rule. In this case, the contents of the film are at issue and the pictures were secondary evidence. The prosecution had the burden of proving that the original film was in the control or possession of and that it made a request that the originals be produced at trial. But the prosecution failed and as such, the photographs may not be used under the best evidence rule. Would the result be the same under FRE? Yes1001(2)includes motion pictures. Authentication o All real and demonstrative evidence must be authenticated before it is admitted. It must be shown to be genuine. o Rule 901. Requirement of Authentication or Identification General Provision The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. o United State v. Dockins Dockins was convicted for illegal (he was felon) possession of firearm. Judgment of a robber conviction under different name. Also fingerprint card to show arrest. No seal or certified. Presented writing expert and fingerprint expert. Police officers testified that documents were exact copies. Trial court admitted the documents.

63

Court holds that abuse of discretion. Documents were not self-authentication. Were not certified and no sealed. The custodian of the police record didnt testify. No evidence to conclude that actual records from the Denver police department. o LOOK AT KEGAN V. GREEN GIANT ON PAGE 697 Under the federal rules the result will be different. Rule 902(7) make such label self-authenticating. o First State Bank v. Maryland Casualty Co. claimed by an injury

EXPERT WITNESSES

First-hand knowledge and lay opinions

o Two other rules arising from the preference form the best available evidence are the rule requiring that a witness have first-hand knowledge of the facts about which he testifies and the rule purporting to forbid ordinary witnesses form expressing their opinions. First hand knowledge If the witness testifies about a fact that could have been perceived by the senses, the witness must have perceived it himself, not learned of it from someone else. Hearsay vs. Personal knowledge objection If the witness statement on its fact makes it clear that the witness is merely repeating what someone else said, the objection is to hearsay. If the witness purports to be stating matters which he personally observed, but he is actually repeating statements by others, the objection is to lack of firsthand knowledge. E.g. W testifies that car that hit was a Volvo and from other testimony that W wasnt there, then the proper objection is not based on personal knowledge. This objection even if clear that P told W. Now if W testifies that P told me that the car was Volvo, then hearsay objection. FRE 602 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Lay Opinions FRE 701 Opinion Testimony by Law Witnesses

64

If the witness is not testifying as an expert, the witness testimony is the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific technical, or other specialized knowledge within the scope of Rule 702. So lay witness can testify to matters such as vehicular speed, intoxication, another partys emotions, among many other matters. But: Opinion has to be rationally based on the perception of the witness Helpful to a clear understanding of the witness testimony or determination of a fact in issue and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Commonwealth v. Holden charged with murder and claims that he was at Ws house. W was questioned by police and W testified while he was being questioned, winked at him. Prosecution asked W what he thought the wink meant and W said that probably wanted him to lie to the police. Dissent: a statement of interpretation of a s action may be not be admitted as proper opinion testimony. Under FRE 701, if the court believes that the opinion W regarding the meaning of s wink was rationally based on his perceptions, and was helpful to an understanding of the witness testimony, then it would be accepted. This is much more flexible than the common law standard but remember that lay witness must still have personal knowledge of the facts to which he/she is testifying so that the hearsay rule would not be violated. Government of Virgin Islands v. Knight was beating V and shot him. claims that gun went off accidentally. presented testimony of a W who witnessed the fight and a police officer who both stated that in their opinion the gun went off accidentally. Holding: In order for lay opinion testimony to be admissible, the witness must have personal knowledge of the facts about which he is testifying. Here the testimony of W should have been allowed because he had first-hand knowledge because he personally observed the struggle. Allowing the W to relate what he and seen and his opinion as to why the shooting

65

was accidental and unintended would have allowed W to relate his story with more clarity and would have aided the jury in understanding the Ws testimony. The police officers testimony, on the other had was property excluded because he didnt have first-hand knowledge. FRE 704(a) provides that except as provided in subdivision B dealing with mental state of criminal s, testimony in the form of an opinion or inference otherwise admissible is not objectionably because it embraces an ultimate issue to be decided by the trier of fact. Expert Opinions o FRE 702 Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based on sufficient facts or date, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. o Rule 702 imposes 5 requirements that expert testimony must meet in order to be admissible It must be the case that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. (e.g. expert will not be allowed to show eyewitness reliability because lay people can do that) The witness must be qualified as an expert by knowledge, skill, experience, training, or education (no formal edu required) The testimony must be based on sufficient facts or data The testimony must be product of reliable principles and methods and The witness must have applied these principles and methods reliably to the facts of the case. o State v. Odom was charged with possession of drugs with intent to distribute. Prosecution introduced testimony of Detective as expert and since participated in 8000 investigations and had extensive drug knowledge, detective was considered to be an expert. After detective given the facts surrounding the arrest of , he testified that he was of the opinion that had possessed the drugs with the intent to distribute. Holding: an expert witness may testify about areas of specialized knowledge even if that opinion or testimony embraces an ultimate issue to be determined by the jury. The opinion of expert may be presented to a jury if it will

66

genuinely assist the jury in comprehending the evidence and determining the issues of fact. Here it is not reasonable to expect average persons to make decision whether drugs for personal or sale purpose. This is a matter of specialized knowledge of experts. However, an experts testimony that expresses a direct opinion that the is guilty of the crime is improper. FRE 703 Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or date need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect. FRE 704 Opinion on Ultimate Issue Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. No expert witness with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. FRE 705 Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons thereof without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. United States v. Scop Expert witness testified against and during crossexamination admitted that his opinion based on testimony and documentary evidence produced at trial. Furthermore, witness repeatedly described s as active participants, material participants and referred to their actions as manipulation and fraud. Holding: Rule 704 does not allow an expert witness to express his opinion in statements which embody legal conclusions. His use of the words came right out of the relevant statutes and were not words that are commonly

67

used.9 Secondly, an expert witness may not offer opinions on relevant events based on their personal assessment of the credibility of another witness testimony. The credibility of witness is an issue to be decided solely by the jury. Rule 705 does not require an expert witness to reveal the source of his opinion. Rule 703 allows an expert witness to rely on technically inadmissible evidence as a basis for their opinions. This rule, however, does not allow witnesses to assess the credibility of testimony given in the same trial or offer opinions based on such assessments. SEE HC Pg. 189! Ingram v. McCuiston In order to be competent, a hypothetical must include only facts which are already in the record or those which the jury may logically infer therefrom and not rely on the opinion testimony of other witnesses. United States v. Brown FRE 703 allows experts to rely upon data which itself would not have been admissible, if this data is of a type reasonably relied upon by experts in the particular field in forming opinions. This rule encompasses hearsay statements in a context where the government expert specifically testified that his opinion was based on his experience and expertise, in conjunction with the information he received from a DEA intelligence agent and Bermudan authorities, and that such sources of information were regularly relied upon in evaluating narcotics. Also the court rightly excluded the list because agent testified that didnt rely on the list and also the list only listed US prices. Even if list relevant, can exclude under FRE 403 because can give the jury the wrong impression. People v. Gardeley The gang beating case where the expert was allowed to testify to the inadmissible hearsay statements that he based his opinion on because used by experts in the field. But this is a CA case and FRE 703 doesnt go this far. Expert testimony Information based on experts personal knowledge Facts learned at trial, i.e., if expert listens to other testimony or if the attorney asks the expert to assume hypothetical at trial Reports from third parties. Expert cannot judge to the truth of witness testimony, all can say is that they are assuming that what the witness said is true

o Expert cannot testify as to legal conclusion

o

e.g. Telling the jury that a acted as a steered or participated in a narcotics transaction differs from opining that the possessed narcotics, to with, heroin, with the intent to sell, or aided and abetted the possession of heroin with intent to sell.

68

state. Question here is whether the question was designed to get testimony about s mental state? o An expert can testify as to whether a fact similar to those in evidence are consistent with the conduct of a hypothetical person who is suffering from some condition. Scientific and Demonstrative Evidence o Frye Standard Only scientific evidence that was generally accepted could be admitted. o Daubert v. Merrell Dow Scientific evidence must be Shown to be scientifically valid, and The evidence must fit at least one issue in the case, i.e., be relevant to the task at hand. o SC gave some factors that courts might consider (not required to use) Can the experts theory or technique be tested, and if so, has it been tested? Has the experts theory or technique been published in journals subject to peer review? With respect to a particular technique, what is its known or potential rate of error, are there standards for controlling the techniques operation? If so, were these used in developing the experts testimony? Has the experts theory or technique achieved general acceptance with a relevant community? o These factors are not exclusive. Other factors that may be relevant include things such as whether the experts opinions proposing to testify about matters that stemmed directly from their research independent of litigation or whether opinions specifically from litigation. o REMEMBER, THE STANDARD OF REVIEW IS ABUSE OF DISCRETION o Kumho v. Carmichael Tire expert case. SC held that principles of Daubert apply to all expert testimony, whether based on scientific principles or not. Furthermore, up to the trial judge to determine whether a particular factor is or isnt sensible to consider in a particular context. Trial judge also gets procedural flexibility because abuse of discretion now standard for appeals. Remember: Trial court as the gatekeeper should focus on the procedure not the results of the scientific or other experiment. o United States v. Saelee o

o An expert cannot give ultimate questions with regard to s mental

69

Rule 701 prohibits testimony of experts in the clothes of lay witnesses. In this case, the gov. argued that the writing expert was only going to testify as to the similarities and differences between the two writings and he wasnt going to testify to the ultimate fact as to whether two writings belong to the same person. But court still ruled that expert witness because will be using his specialized knowledge. Also the gov. failed to meet the Daubert standards. State v. Porter Ct. upheld a per-se ban on the use of polygraph tests because dont pass the Daubert test and even if though, probative value doesnt outweigh the prejudice. Neutral questions: Name age Relevant question: did you strike x on this day? Control question: did you ever want to hurt someone in the past Liars will respond more to relevant than control questions whereas honest people will respond more to control than relevant questions. US v. Piccinonna The results of polygraph tests may not be held inadmissible based on a per se exclusionary rule. United States v. Scheffer A per se exclusion of all polygraph evidence from trial is constitutional and does not abridge and accuseds right to present a defense. As a general matter, polygraph evidence should be excluded because too uncertain. Also evades the function of the jury. In jrx where allowed, 2 ways admitted: 1. stipulation before the actual test is given- parties have to agree who examiner is, what questions, nature of questions, all the things that can affect the results of result, 2. can use to impeach or corroborate the testimony of a witness if proper notice is given and doesnt go against the rules of evidence. E.g. can ask under 608ab with regards to prior bad acts of witness and confront them that they lied and deceived a polygraph examiner. Horn Case Sobriety tests. Gaze testbecause other causes of gaze, test can only be used as circumstantial evidence. Hasnt been subject to peer review. Officer cannot testify as to terms used in test and cant use pass fail terms. But can give lay witness opinions e.g. smelled alcohol, looked drunk. State v. Chappel Case involve photo lineup identification of . introduced testimony of expert regarding the photographic and in-court identification. Held: Expert testimony regarding eyewitness identification is admissible if the trial court finds that he expert is qualified,

70

the subject of the testimony is proper, experts explanatory theory conforms to the generally accepted theory, and the probative value of the testimony outweighs it prejudicial effect. Expert testimony on a subject is proper if the jury is not qualified without expert testimony to determine intelligently and to the best possible degree the particular issue without enlightenment form an expert on the subject. But the court noted that this opinion does not change the general rule against the admissibility of expert testimony on eyewitness identification.

71