1-8-2010

Friday, January 08, 2010 10:29 AM

A. Three Words to Remember a. Relevant b. Reliable - Hearsay c. Social Policy B. This Class is Different a. Criminal Law, Admin Law, Con Law (Broad to Narrow) b. Evidence (Narrow to Broad) C. Tools-Books: Syllabus: Pace a. Three Absences b. Test: Courtroom Problem, IRAC; MC? c. Twenty pages, 4-5 exercises/cases ahead d. Federal Rules of Evidence: Write anything, tab, etc. D. Why Evidence Law? a. Mistrust of Juries: Rational, reasonable, not emotional decisions b. Serve substantive policies relating to the matter being litigated (Burden of proof and persuasion) c. Further substantive policies unrelated to the matter in litigation (Attorney Client Privilege) d. Ensure accurate fact-finding e. To control the scope and duration of trials E. Sources of Evidence Law a. Common Law b. Federal Rules of Evidence 1975 i. Advisory committee to supreme court to congress, vote on by congress, deleted the privilege section c. Others F. How evidence is Admitted or Excluded a. Getting Evidence In i. Foundation ii. Offer b. Types of Evidence i. Testimonial ii. Real Evidence: Tangible things involved in the events in litigation iii. Demonstrative Evidence (Diagrams, Photographs, etc.) iv. Writings c. Keeping Evidence Out i. Objection or Motion to Strike 1. Why: Offering party an opportunity to cure (rephrasing, laying further foundation, ask the question of another witness 2. Timely 3. Include grounds: Irrelevant, Immaterial (legally irrelevant), Prejudicial* Don't use it. ii. Offer of Proof d. Waiver

i. ii.

Error plus prejudice = reversal (Substantial Right) See FRE 103

1-11-2010
Monday, January 11, 2010 10:00 AM

How Evidence is Admitted or Excluded A. Getting Evidence In a. Foundation b. Offer i. Types of Evidence 1. Testimonial Proof 2. Real Evidence - Tangible things involved in the events in litigation 3. Demonstrative Evidence 4. Writings B. Keeping Evidence Out a. Objection or motion to strike b. Why: Opportunity to cure c. Timel d. Include Grounds: Irrelevant, Immaterial, Prejudicial C. Discretion of Trial Judge a. FRE 403: Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time i. Relevant Evidence may be excluded if probative value - "Substantially Outweighed" by 1. Unfair prejudice (crime scene photos) 2. Confusion 3. Misleading 4. Considerations of undue delay (cumulative) or waste of time b. Appellate Review i. Error plus prejudice = Reversal "substantial rights" (affect outcome of trial, FRE 103) ii. Effect of Waiver 1. Objection and grounds iii. Error 1. Reversible 2. Harmless 3. Plain 4. Constitutional D. Article I: FRE a. 102: Purpose: Secure fairness, eliminate unjustifiable expense and delay b. 103: Rulings on Evidence: substantial right affected i. Must object ii. Offer of proof. iii. Record of offer and ruling. iv. Hearing of jury.

v. Plain error. E. Four Basic Procedural Issues a. Should the jury observe the proceedings? b. What party bears the burden of proof? c. What standard of proof applies? d. Do the rules apply on these preliminary questions? i. FRE 104(a): 1. Questions of admissibility generally. Witness Qualification, Existence of Privilege, Admissibility of Evidence, determined by judge. Judge not bound by rules of evidence except for privilege. 2. Relevancy conditioned on fact. 3. Hearing of jury. Admissibility of Confessions determined w/o jury present. 4. Testimony by accused. Testifying doesn't open the door to cross x on other issues. 5. Weight and credibility. Rule doesn't limit evidence relevant to weight or credibility. F. Working a Problem a. What is the legal context? The issue? b. What is the Evidence Rule? c. FRE 611(b) Scope of Cross-Examination i. Subject matter of direct examination 1. Point raised: response from question on direct 2. Transaction described: 3. Issue affected: ii. and "matters affecting the credibility of the witness" iii. Permit inquiry into additional matters as if on direct examination d. MO: 1) "any substantive issue" except proof relevant only to counterclaim 2) credibility of witness G. Problem 1-A p. 25 (Beyond scope of examination) a. Applicable law: 611(b): See above b. Question 1: Witness seeing plaintiff socially i. Credibility: lying for significant other. Objection overruled. c. Q2: Plaintiff turned around in her seat and looking out the back window during accident. i. Subject matter of direct examination 1. Point raised: "Buick ran the red light" a. Narrow: light was red b. Broad: The whole transaction at the stop light. 2. Transaction described: What happened at intersection 3. Issue affected: Contributory negligence ii. Credibility: not paying attention, couldn't see light iii. MO wouldn't allow contributory negligence evidence. Others depend on purpose. d. Q3: Plaintiff drank before the accident. i. Out of scope. Suggesting contributory negligence. Analysis: 1) Is there a proper basis? 2) Did the judge abuse his discretion?

1-13-2010
Wednesday, January 13, 2010 10:03 AM

A. FRE 201. Judicial Notice of Adjudicative Facts a. Adjudicative Facts b. Not subject to reasonable dispute i. Generally known ii. Verifiable by unimpeachable sources c. Supplied with "the necessary information" d. Opportunity to be heard e. Discretionary/Mandatory i. Civil Trials: Mandatory instruction ii. Criminal Trials: Discretionary instruction y If judicial notice disallowed, then use rules of evidence to get it in. y Judicial notice is separate from the Rules of Evidence y R 104 A: Rules admissibility of evidence. Judicial notice is different. Records not being offered into evidence. Hearsay and authentication don't matter. Test: Accuracy cannot be reasonably questioned. Problems - Judicial Notice p. 737 a. 11-A i. It did not rain on that day. Pavement was dry. Submits official weather record. 1. Hearsay objection not valid, not entering document into evidence. Authentication 2. Judicial notice allowed for weather. ii. Pavement dry? No. Subject to reasonable dispute, no evidence. b. 11-B: Judicial Records i. D denies getting subpeona. 1. Reasonable dispute: Can't prove that the specific individual was served, just that it was served to someone. Could take judicial notice that someone was served, not that the D was served. 2. Can take judical notice of documents, but not necessarily the "truth" within. ii. D was held in contempt for failure to appear at an earlier trial of the same case? Could clearly do it within his own court or circuit, not so clear in other jurisdictions. 1. Same parties: Everything's the same: Lawyers, parties, motivations. Makes it more probable that judicial notice will be taken. 2. Courts can generally take judicial notice of records within their own court or circuit. iii. D held in contempt for refusing to testify in related cases. 1. May take judicial notice if "the necessary information" is supplied. If judicial notice denied, admit the convictions under evidence. c. 11-C: i. Crime: Knowingly using telephone in interstate commerce for purposes of transacting bets or wagers. D receives an out of state call. Knowing required for interstate commerce. ii. Time to drive is more than 15 minutes. 1. Judicial notice allowed. Generally known.

iii.

D must have known that the call was from out of state. 1. Judicial notice disallowed. No facts to show subjective knowledge. Leaps in logic. Fact - Knowledge - Element of Offense. A fact doesn't show knowledge. 2. Proving knowledge: confession, cross examination. Could ask other people in the car. Circumstantial evidence: get in evidence of time and distance, and the frequency of the trip.

d. 11-D: i. D asserts alibi that he was watching a football game. Prosecutor has a TV Guide saying there's no football game scheduled at that time. ii. Ask D for more information. Televised? What time/channel? Get affidavit from TV station saying what programming broadcasted that day. iii. Judicial notice: w/o more support, no. iv. Subject to reasonable dispute? If yes, than prove it by FRE.

1-15-2010
Friday, January 15, 2010 10:04 AM

A. Problem 11-H p. 745: a. D prosecuted for extortion. Prosecution has a note that suggests a death threat. Prosecutor wants judicial notice taken. b. R 201: This rule only governs judicial notice of adjudicative facts. c. Evaluative fact. R 201 doesn't apply. B. Adjudicative Fact a. Facts about the parties and events. Who? What? When? How? Why? b. Differentiate between adjudicative facts and policy facts (what legislature would consider). C. FRE 301. Presumptions in general in civil actions and proceedings. a. Presumption: Shifts burden of production, but does not shift burden of persuasion. b. Burden of Proof: Burden of Production, Burden of Persuasion D. FRE 302. State law presumptions apply when state law applies. E. Burden of Proof a. Burden of Production (Allocation) (Usually Plaintiff and b. Burden of Persuasion (Weight) F. Presumptions v. Inferences a. Presumption: Procedural Rule requiring the existence of a presumed fact. i. If one establishes a basic fact, and no counterproof, then a presumed fact exists. ii. Common Presumptions 1. Bailed Goods 2. Mailed Letter 3. Loaned Auto 4. Accidental Death 5. Valid Marriage 6. Death from seven years b. Inference: Deduced by reasoning and logic (negligent when striking a pedestrian with car)

G. Terminology: Very Important! a. Presumed Fact (Negligence of Carrier) b. Basic Fact (Good Condition when picked up, damaged) c. Counter Proof (Damaged when picked up)

1-20-2010
Wednesday, January 20, 2010 10:00 AM

A. Multiple Choice - Judicial Notice a. Judicial Notice: Indisputable, General Knowledge/Verifiable by impeachable evidence b. Can't take judicial notice of knowledge. c. Negligence action - Taking judicial notice that it was cloudy. i. All involve the instruction to jury. ii. Allowing a witness to testify it's sunny. Not allowed to let evidence in contrary to fact judicially noted. iii. Allowing counsel to say it's sunny in closing arguments. Contrary evidence not allowed. iv. May instruct the jury: Used in criminal case v. Must instruct the jury: Correct answer d. Civil Rights Action: Prisoner challenging AIDS test. D doesn't present danger of disease, but asks court to take judicial notice. i. Proper to take judicial notice: Correct ii. Improper b/c facts central to D's defense: Not part of analysis iii. Improper b/c trial had already began: Wrong. Judicial notice allowed always in civil cases. 201(f) iv. Improper b/c requires hearsay: No. Evidence rules don't apply (foundation not required) e. Child molestation prosecution: Element of Crime: victim < 18. Doesn't submit evidence of age at trial. Prosecutor offers birth certificate and asks for judicial notice. i. Improper b/c criminal case, fact works against D: Wrong, allowed in criminal case. ii. Improper b/c element of crime: Okay unless knowledge. iii. May instruct jury that it may disregard the fact: Correct iv. May instruct jury that it must take the fact as conclusive: Wrong, it's a criminal case. B. FRE 301: Presumptions in general in civil actions and proceedings. a. Only applicable in civil cases. b. Presumption imposes on the party against whom it is directed i. The burden of going forward with the evidence ii. Does not shift the risk of non-persuasion c. FRE 302: Applicability of state law in civil actions and proceedings i. If state law applies ii. State presumption law applies. C. Burden of Proof a. Burden of Production: Allocation b. Burden of Persuasion: Weight D. Presumptions v. Inferences

E.

F.

G.

H. I.

J.

K.

L.

a. Presumption: Procedural rule requiring the existence of the presumed fact b. Inference: Deduced by reason and logic Zones a. Zone 1: Judge Resolution b. Zone 2: Jury Resolution c. Zone 3: Judge Resolution Directed Verdict a. Nonsuit b. Judgment as a matter of law Standards of Proof a. Civil i. Preponderance ii. Clear and Convincing b. Criminal i. Beyond reasonable doubt Prima Facie Case: have to establish the elements of the offense before you can go forward. Problem 10-A: The unhappy Harpsichordist p. 683 a. Presumed Fact: Negligence of Carrier b. Basic Fact: Good condition when picke d up, Damaged condition when delivered c. Counter Proof: Damaged when picked up d. Proposed instruction: If the jury finds that harpsichord was undamaged, it must find Atlas responsible for damage to the instrument. e. Argument about basic fact: If it is accepted by jury, it is presumed. f. Truck driver testifies that it was in good condition: The basic fact is still disputed. Problem 10-B: Death of Mason Parnell p. 687 a. Man dies by self-inflicted gunshot wound. Widow claims accident. She has all the burdens (production & persuasion). Insurance co. claims suicide. Her physical evidence: no gunshot residue on chin, a gun had accident discharged, happy, health. Ins. Physical evidence: gun was in perfect working order, not same gun that had accidentally discharged, marital difficulties, possible Alzheimer's disease b. Basic Fact: Sudden violent death c. Presumed Fact: Accident d. Counter Proof: Evidence suggesting suicide, Disputable e. Her evidence: Not suicide f. In-Between situation: It's a problem. Different approaches. g. Presumption disappears, but not eliminated. h. Burden of Production: Met. Shifts to D. i. Burden of Persuasion: Jury question. In-Between situation a. Thayer View (Bursting Bubble): Presumption eliminated when counter-proof introduced. b. Morgan: Presumption shifts the burden of persuasion. Policy: Require counsel to persuade jury. c. Intermediate: Presumption takes case to jury. i. Presumption until "substantial and uncontradicted" evidence is offered against the presumed fact. ii. Presumption until jury believes counterproof iii. "Equipoise" until jury believes presumed fact is as likely as not Only take the case from the jury if no reasonable jury would find for the opposing side.

1-22-2010
Friday, January 22, 2010 10:03 AM

A. Multiple Choice Questions - Burdens of Proof a. Negligence case. P presented evidence of negligence. D doesn't present evidence. i. Jury Question. Correct. ii. Instruction that D was negligent. Burden of Persuasion isn't met. iii. D now has burden of persuasion. Wrong. Burden of Persuasion doesn't shift. iv. Directed verdict. Hadn't met burden of persuasion to keep the case from jury. Negligence proved, but not all elements of the case. Burden of Production met, but not Burden of Persuasion. y b. P doesn't offer any evidence of negligence. D moves for directed verdict. The court should let jury decide. P didn't meet burden. y Deny motion and order D to present her case. No reason, P didn't meet burden. y Judge shouldn't rule until D presented her case. P didn't meet burden. y Grant the motion. Correct. P didn't meet his burden of production. y c. Paternity action. Rebuttable Production of paternity with cohabiting. D gets DNA test. Bursting Bubble jx. P wants instruction that D is the father. Find P met burden of production, give instruction. y Find that all the foundational facts are true, instruct jury that D is the father. Wrong. y Jury finds basic facts. Cohabitation. Find that D's expert produced sufficient evidence to support the conclusion and not y give P's requested instruction. Correct. D's counterproof goes against the presumed fact so the bubble is burst. Find expert is correct that D could not have been the father of the child, don't give y instruction. Counterproof isn't enough to be conclusive. If counterproof only rebuts basic fact, than it is a jury question. If counterproof rebuts y the presumed fact, then bubble bursts. Logical inference: Judge can still instruct on inferences. y d. Paternity action. Presumption: Husband, Cohabiting, not sterile or impotent= conclusively presumed parent. D has DNA test saying he's not the father. Allow blood test and instruct jury to weigh presumption against D's evidence. y Allow blood test and instruct jury that D has burden of persuading that he is not the y father. Don't allow D to present the evidence and should instruct the jury that D is the father. y Don't allow D to present the evidence and instruct that if D finds basic facts, y presumed facts exist. Jury must still find the basic facts. If basic facts found, presumed fact exists. y B. Best Evidence "Original Writing/Document Rule" a. Why we offer evidence Law requires it. y Counsel chooses to do it. y b. When the contents of a "writing" are being proven, the "original" writing must:

Be offered or It's absence satisfactorily explained. c. Problem 14-B p. 887 Private adoption. Doctor gives adoptee a photocopy of the information. Birth mother y sues doctor. Original? It's not the original adoption record, but it's the original photocopy given to y the daughter. FRE 1003: Allows Duplicates. No issue if this applies. y FRE 1001(3): Definition of original. Writing itself. y
y y

1-25-2010
Monday, January 25, 2010 10:02 AM

A. Best Evidence a. A losing lawyer puts in lesser evidence b. Problem 14-E: The XXX-Rated Movies i. Issue: Contents of the film 1. Substantive law requires proof of contents of the film. 2. Central issue in the case. ii. Logic Trail 1. A "photographing": FRE 1001(1) 2. "Photographs" include "motion pictures": FRE 1001(2) 3. Requirement of original includes "photograph" FRE 1002 4. Lawyer must object to the offering of the officer's testimony. c. Problem 14-L: Testimony v. Photocopy (p. 900) i. Original contract destroyed in a fire and has a legible photocopy. P doesn't want to produce photocopy and testify about it instead. 1. FRE 1004 does not require a showing of unavailability of a duplicate. 2. Once the original is destroyed, best evidence no longer applies. 3. Opposing counsel can enter the duplicate if the other side refuses. d. Problem 14-M: The Tax Evader i. An IRS agent wants to testify about the bank record and enter a chart summarizing the bank records. 1. 1006: Summaries allowed, original/duplicates must be available for examination by other parties. The court may order their production. 2. 1006 allows both charts and oral summaries. 3. A foundation must be established showing admissibility of the original documents. e. Problem 14-N: "No Pets" i. No pet provision in lease, but lease can't be found, but has a letter where D acknowledges that pet are disallowed and requesting special permission.

ii.

iii. iv.

FRE 1007: Contents of writings may be proved by testimony of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original. Letter must be authenticated and properly introduced FRE 1007 does NOT extend to oral admissions.

1-27-2010
Wednesday, January 27, 2010 10:20 AM

I.

Authentication A. Parts of Laying a foundation i. Authentication ii. Qualifying an expert. iii. Hearsay exception is satisfied. B. Two parts to Authentication i. Basics 1. What is it? 2. How is it relevant to the case? ii. Object appears to be in the same condition. C. FRE 901: Requirement of Authentication or Identification i. Requirement satisfied by: "Evidence sufficient to support a finding that the matter in question is what its proponent claims." D. FRE 401: Definition of "Relevant Evidence" i. 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. 1. Logically, Ideally 2. (logically) Irrelevant, (legally) Immaterial, Prejudicial ii. FRE 402: Relevant evidence is admissible. iii. FRE 403: Relevant evidence may be excluded if more prejudicial than probative, confuses the issue, misleading the jury. E. Introducing Evidence i. Mark for Identification ii. Authenticate iii. Offering the Exhibit into evidence iv. Permitting adverse counsel to examine it v. Allowing adverse counsel the opportunity to object vi. Submit to judge for examination vii. Ruling viii. Requesting permission to present to the jury (publish) F. US v. Johnson p. 857 i. Challenging the admissibility of an ax used in an assault. ii. Reasons for: used the ax, saw it in D's hand, "pretty sure" it's the same one used on the victim.

Law: Sufficient to support a finding that the matter in question in what its proponent claims iv. Authentication: What is it?, Do you recognize this ax?, When did you see it?, Is it in the same condition? v. Jury must make the final determination of the evidence's credibility and probative value. vi. There'd be other witnesses, like the officer who seized it. G. Chain of Custody i. For laypersons, it's enough to testify that it is in the same condition. ii. Problem 13-A: A White Granular Substance 1. Foundation a. Different from the ax: i. Drugs are fungible(subject to tampering and change of condition) 2. All persons who had custody should be called a. If not, show that the procedure was correct i. What the procedure is and that it was followed, gives inference ii. Always need the person who seized the evidence and a crime lab tech 3. What is it? White granular substance? How is relevant? Seized it from D. Same condition? Chain of Custody preserved. 4. Chain of Custody a. Not mentioned in FRE 901 b. Presumably it is an acceptable method of showing that "a matter is what it is claimed to be"

iii.

1-29-2010
Friday, January 29, 2010 10:03 AM

I.

Laying a Foundation: Authenticate, Hearsay, Best Evidence Rule a. Problem 13-E The Photograph i. Photographs are usually easy to authenticate ii. Photographer need not be called. iii. Someone who is familiar with the object or scene. 1. 701(b)(1) iv. Fair, True, Accurate description of the scene or object v. If Changed, identify the change (Watch Remedial Measures FRE 407) vi. Authentication: 1) Identify; 2) Recognize it's contents, 3) True, Fair, Accurate vii. Changes between photo and scene (if minor, goes to weight, if major, may go to admissibility) b. Problem 13-F: X-Ray

i. ii. iii. iv.

Foundation necessary for x-ray of broken leg: Authentication, Business Records, Best Evidence Authentication: Expertise, Functioning of Machine, Following Procedures, Explain how developed (biz records), 1003: Admissibility of Duplicates X-Ray is a writing, best evidence applies. 1001

2-1-2010
Monday, February 01, 2010 10:00 AM

A. Questions: Authentication Handout 1. P called D's Heating Service. P looks up the number and someone answers "heating service." a. There is sufficient evidence to support a finding that the call was actually placed to D. Correct. b. Ultimate issue, goes to jury. c. Goes to weight, rather than admissibility. d. Can always strike the testimony to keep the jury from considering it. 2. Picture taken 15 minutes after accident. P testifies that the photo accurately depicted the scene. a. Sustain motion, photographer not called. No need to call photographer. b. Cars could've moved. As long as person with knowledge testifies that it accurately depicts the scene, then it's okay. c. Best evidence rule precludes it. No, not a writing. d. Overrule the objection. Correct. 3. , 4. See handout. B. Authentication 1. Problem 13-G: Computer Printout a. A computer printout and the amount of the account. 1. Must show the procedures used and followed, show how it's programmed. Have you had errors before? What kind? 2. Use 901(b)(9). 3. 1001(3): Computer printout is original. 2. U.S. v. Pool p. 870 a. Not always good enough that someone give you their name. 3. Authenticating Phone Calls a. Incoming Calls: No special rule. 1. Reply Doctrine: If you know information that's as good as knowing the identity. 2. Recognize Voice 3. Caller I.D. b. Outgoing Calls 1. Telephone Records, person identifies themselves. 2. Business: call number and business discussed. 4. Self-Authenticating Documents

a. b. c. d.

No extrinsic evidence needed to admit into evidence. Certified Copy 902(4): Original Signature & Seal If no seal, need custodian (I think). Conflict between FRE and FRCP: Gives judge discretion. Better to make sure you comply with all rules. e. Problem 13-J p. 872 1. Death Certificate needs seal.

2-3-2010
Wednesday, February 03, 2010 10:01 AM

A. Relevance I. Hearsay: Statement (Evidence) -> Inference -> Goal (Hypothesis) II. Relevancy: Direct v. Circumstantial Evidence III. 403 Balancing Test i. Relevant, Probabative Value (FRE 401, 402) v. Prejudice, Confusion, Waste of Time (FRE 403) ii. Even admissible evidence can be excluded if its unfair. IV. All evidence against you is prejudicial. Is it unfairly prejudicial? V. Admissibility (FRE 104(a)) v. Weight, Credibility (FRE 104(e)) VI. Relevancy is broad. First test is relevancy, than ask if unfair prejudice. B. Old Chief v. United States p. 52 I. F: D's on trial for a felon in possession of a firearm and assault with a firearm. His felony was assault causing serious bodily injury. II. D's attorney wants to keep the name of the felony from the jury. He offers to stipulate the conviction as a felony. III. Prosecutor wants jury to hear that this guy had been convicted of assault. IV. L: Prosecution is allowed to present its case as it wants, regardless of offers of stipulations. V. H: An offer to stipulate does not render the evidence irrelevant. VI. Relevant: Likely to make the existence of a fact more or less probable. VII. Only way prior convictions are relevant are to go to credibility. C. Problem 2-A p. 60 I. Negligence: D was speeding. II. Evidence: He passed another car 30 miles back going 80 mph. D objects as irrelevant as showing he was speeding at the time of the accident. III. Relevant? Any tendency to show how he was speeding at time. Yes. IV. Factors: Time and Distance V. Hypothesis: People speed on the highway. VI. Admissible under 104(a), might make conditional under 104(b) VII. Conditions: Accident reconstruction, speed limit, lane closures, terrain. i. Conditions precedent ii. Goes to weight iii. Judge can ask for more evidence before admitting evidence D. Problem 2-B p. 60

P had a chunk of concrete fall through his windshield. A Construction Co. was rebuilding the overpass. II. D offers evidence that a witness saw four or five boys running away from the blocks. III. Relevant? Any tendency? Yes. IV. It has little weight. 104(e) V. Variables: Time, distance, VI. Goes to jury, 104(a) VII. D has a hard case. E. Problem 2-C p. 63 I. Joe and Andy robbed, pick Carl as the thief. Police arrest Carl and he tried to run and hid in a closet. II. D objects that the details of the arrest are irrelevant. III. The arrest was for an outstanding warrant. He might be running from a warrant, not the robbery. IV. Tendency to prove anything? No. 50/50 chance. If it is considered relevant, still prejudicial. V. Foundation: Police came to the house, said police, in uniform, then he ran. VI. Keep in mind other inferences. F. Problem 2-D I. Twice before I slipped and fell on the floor when it was over waxed. II. Shows four things. i. Condition ii. Danger iii. Possibility of causation iv. Notice or knowledge III. He received "several reports" of customers falling the past year.

I.

2-5-2010
Friday, February 05, 2010 10:02 AM

A. Relevancy 1. Is it technically relevant? (FRE 401, 402) 2. Is it admissible? (FRE 403) B. State v. Chapple 1. A homicide suspect claims he wasn't the guy identified by witnesses (a guy named Dee). It is undisputed that "Dee" killed the victim. The issue was if "Dee" was the defendant. The prosecution enters pictures of autopsy pictures into evidence. He's convicted. 2. Autopsy pictures relevant. Next the court must see if the probative value outweighs the danger of prejudice. Court must examine the purpose of the offer. 3. The autopsy pictures did not support any disputed fact (identity of perpetrator). They had little probative value. 4. Emotion v. reason: Gruesome Photographs C. Old Chief v. United States (II) 1. Same felon in possession case. Conviction's name already deemed relevant.

2. Test: If alternative with same/great probative value with less unfair prejudice exists, court discounts the probative value of the first offered evidence and excludes it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. 3. Court reiterates that a D's offer to stipulate doesn't mean much. Prosecution entitled to present case in whatever permissible way it wants. 4. Court limits holding to cases involving proof of felon status. 5. Key is unfair prejudice. On appeal, it is an abuse of discretion standard. D. Problem 2-E p. 78 1. Ex-Wife gets mad. Ex-Husband claims that he fell on the knife. On case in rebuttal, Prosecutor calls counselor from battered woman shelter who testifies two years ago that exwife had stayed there a month and divorced the ex at that time. 2. Case in Chief: Irrelevant; Case in rebuttal: D called it into issue, now relevant. 3. Unfair? Possibly. Two years ago v. jury entitled to know? Judge probably would let it in because it's rebuttal, would provide careful instructions. E. The Exploding Gas Tank, Problem 2-F p. 78 1. Car designed with a gas tank that explodes when hit from behind. Defendant manufacturer tries to enter a certified copy of a guilty plea, entered by the driver on the charge of involuntary manslaughter. 2. Relevant? To trooper's testimony, yes, collaborates 68 mph speed. It is confusing and prejudicial, makes it look like that the driver was responsible for the injuries, not the manufacturer. 3. Theory: Cars should be able to endure a collision of 68 miles per hour.

2-8-2010
Monday, February 08, 2010 10:01 AM

A. Old Chief: We allow prosecutors to present the case in whatever way they prefer, unless the evidence does not support any disputed point. B. The Exploding Gas Tank, Problem 2-F p. 78 1. Car designed with a gas tank that explodes when hit from behind. Defendant manufacturer tries to enter a certified copy of a guilty plea, entered by the driver on the charge of involuntary manslaughter. 2. Relevant? To trooper's testimony, yes, collaborates 68 mph speed. It is confusing and prejudicial, makes it look like that the driver was responsible for the injuries, not the manufacturer. 3. Theory: Cars should be able to endure a collision of 68 miles per hour. 4. Speeds relevance to negligent design: Car should be able to endure a collision at a certain speed. i. D tries to prove speed by trooper's testimony and involuntary manslaughter guilty plea. ii. Guilty plea is cumulative of trooper's testimony. It is also confusing, as there is a big difference between tort and criminal law. iii. Could be let in. It is relevant. C. My insurance will cover it, Problem 2-G, p. 80

1. After a car accident, one driver makes the following statement: "I'm sure my insurance will cover it." 2. FRE 411: Liability insurance can't be mentioned on the issue whether the person acted negligently or otherwise wrongfully. i. Inference: I got insurance, no need to be careful. D (& his insurer) has big pockets. 3. Inferences from statement: She was at fault; Insurance will pay damages; She drove negligently since her insurance protected her. 4. FRE 105: When evidence is partially inadmissible, it requires the judge upon request to restrict the evidence to its proper scope and instruct the jury accordingly. 5. Exclusion: throws the case out 6. Admission: Can it be edited, redacted? Limiting instruction (decide matter w/o any assumption about insurance?) 7. Counsel's options: don't object, request limiting instruction. D. Power rollback caused the crash, Problem 2-H, p. 82 1. FRE 106: If writing introduced, other party can ask for the introduction of other writing or recorded statement "ought in fairness" to be considered with it. 2. An instructor and student pilot die in a plane crash. P's husband wrote a report concluding that "power rollback caused the crash." D said it was pilot error. 3. At trial, D calls the husband as an adverse witness, questioning about other things in his report, that make inferences that his findings don't support his conclusion. On redirect, the judge limits P's counsel's ability to re-direct. 4. Not true completeness doctrine, as P couldn't enter his own report (it's hearsay). 5. D opened the door. They chose to put the report into issue. P had a right to redirect. E. Those library books don't prove he stole a truck. Problem 2-I, p. 85. 1. Huddleston: Preponderance of the evidence standard, gives jury the question whether D committed other acts under FRE 104(b). Judge screens (decides if there's enough to give to jury). 2. A detective on a salvage car lot finds a frame with a VIN of the stolen truck and a backpack nearby with library books in it. The backpack belongs to someone who also had a truck stolen. 3. Detective testifies that someone told him that another stolen truck. 4. Prior acts: shows knowledge, intent, modus operandi. 5. Did he do it? Condition precedent, FRE 104(b). It isn't relevant until that is determined. Jury does it in federal cases by preponderance of the evidence. 6. There's an argument for clear and convincing. Some states still require it. i. Books would meet preponderance, not clear and convincing. 7. See notes in book, p. 87

2-10-10
Wednesday, February 10, 2010 10:02 AM

A. Direct Examination 1. Want to hear evidence from the witness. B. Cross Examination 1. Lawyer leads, yes and no.

C. Leading Questions Allowed 1. Develop Testimony 2. Uncooperative: Hostile 3. More trouble than it's worth i. Name, Address, General info. 4. Memory Exhausted: Present Recollection Revived v. Past Recollection Recorded 5. Cross-Examination D. FRE 611: Mode and order of interrogation and presentation 1. (c): Explains leading questions exceptions E. Refreshing Memory: Baker v. State: p. 489 1. F: Court refuses to let officer to refresh his memory with another officer's report. 2. I: Can a witness refresh his memory with a document not written by himself? 3. H: Yes. "Present Recollection Revived" can be completed by a variety of ways. 4. R: The writing was not admitted as a "past recollection recorded." 5. The evidence is the statements from the witness' refreshed memory, not the artifacts used to refresh the memory. F. Refreshing Memory 1. FRE 612: Opposing counsel has right to inspect documents used by witnesses to refresh memory or prepare for testifying, also has rights to cross-examine on it, and introduce in evidence those portions which relate to the testimony of the witness. 2. Foundation: 1) Ask if memory would be refreshed, 2) provide witness with marked document 3) Allow witness to read the paper and then take the paper away from the witness, 4) Is your memory refreshed, 5) Can you answer the question now, 6) ask the question again. 3. Use of protected documents to refresh a witness' memory prior to testifying constitutes a waiver of protection G. Cross-Examining on Witness Preparation Material: James Julian, Inc. v. Raytheon Co. 1. F: D's seek to get binder opposing counsel used to prepare witness' testimony. 2. H: An attorney waives attorney work product privilege by allowing witness' to use documents to prepare for testifying. 3. Attorney-client privilege waived by conduct (using for witness' preparation). 4. Practically: Ask witness if opposing counsel used documents in preparing witness. Did you talk to counsel? What'd you talk about? Did he show you any documents? H. Witness Sequestration, Problem 7-A: A Daily Transcript 1. Counsel suspects that opposing counsel had it's witness has read transcripts of other witness' testimony in preparing for testifying. 2. FRE 615: At request, court should order witnesses excluded. 3. What should judge do? Exclude witness, declare mistrial, say other side won, report to bar. 4. For suspicions: Upon information and belief, I believe that witness has read the transcript and wish to question him about it. I. Witness Sequestration 1. FRE 615 2. Self-Executing: Person can be excluded unless permission granted. 3. Exclusions: Experts

2-12-10

Friday, February 12, 2010 10:01 AM

I. II.

III.

IV.

V.

Problem 5-E a. Goals of Evidence: Propensity, Credibility, Reasonableness Big Picture a. Issue Identification b. Identify Applicable Rule c. Does the Rule Apply d. Do the exceptions apply e. Discretion: 403 Balancing Test f. Constitutionally Prohibited? Witness Overview a. FRE 612: Writing used to refresh memory b. FRE 615: Exclusion of Witnesses Exclusion of Witnesses Continued a. Problem 7-A: A Daily Transcript i. Counsel "suspects" that the other side let witness read transcripts. Judge ordered exclusion. ii. FRE 615: Exclusion of Witnesses 1. Exceptions: party, person essential to presentation of the case. 2. Self-Executing: Must ask judge for permission for an exception to the rule. iii. Reading transcript is the same as being in the courtroom. iv. Options: Prevent witness from testifying, declare mistrial, report to bar. b. Problem 7-B: D asks for witnesses (daughters) to be excluded. Judge declines, stating that they were victims, even though not present at their mother's shooting. i. Look at Statute, determine if judge erred, look for prejudice. ii. Victim? Debatable. No way to know legislature's intent. iii. Abuse of Discretion? Likely no. Being present in trial likely had little effect on collaboration. iv. Prejudice? Likely no. Character (aka Propensity) Evidence a. FRE 404(a) i. If accused presents evidence of good character, prosecutor may rebut. ii. If character of victim attacked, prosecutor may rebut the victim's character. 1. Prosecution may introduce peaceableness of homicide victim if D says victim provoked attack. b. 404(b): Other Crimes, Wrongs, Acts i. Admissible if not for character but for 1. Motive 2. Opportunity 3. Intent 4. Knowledge 5. Etc. c. Overview: i. Statement can't be used if it's just general propensity ii. If used for other purposes, it's admissible, subject to balancing test. iii. Prior convictions can be used for impeachment, felons shouldn't be believed.

d. FRE 405: Method of Proving Character i. Reputation: Can be Cross Examined on Specific Instances ii. Opinion: Can be Cross Examined on Specific Instances iii. Specific Instances of Conduct: if essential element e. Red Dog Saloon: Problem 5A: p. 406 i. Prosecutor has Coach Jones testifies that Defendant is an angry, aggressive person. 1. Prohibited by 404(a): Not rebuttal evidence, must wait for D to open the door. ii. D has Reverend Gram testify that he is peaceable, non-violent, and gentle. 1. Admissible by 404(a)(1): Accused entitled to present character evidence about himself. f. Red Dog Saloon pt 2: p. 407 i. D calls a witness to testify that the victim is aggressive. 1. 404(a)(2): Allows D to present evidence about the victim. 2. Under 405, witness can testify to reputation or opinion. No specific instances. ii. Prosecution isn't allowed to rebut as to "peacefulness," as that applies only to homicide cases. iii. Witness testimony that he struck the first blow is physical evidence, not character evidence. iv. Threats allowed?

Character Evidence
Monday, February 22, 2010 9:58 AM

I.

II. III.

IV.

Overview: Important class, keep in mind the statement, inferences, and goal of evidence. a. Prohibition against propensity evidence i. Only exception is criminal law. ii. Prosecution can't present it in case in chief, only rebuttal if door opened. iii. Defense Case in chief (403(a)(1)): Character of accused, opens the door. iv. Character of the alleged victim (403(a)(2)): Defendant allowed to do it. v. Direct evidence is not character evidence (I saw him start the fight). vi. Threats: shows intent, not presented to show that person was a bad guy. FRE 404: Character evidence not admissible to prove conduct; exceptions; other crimes FRE 405: Methods of Proving Character a. Reputation, Opinion: Allowed generally b. Can be cross examined on specific instances c. Specific instances of conduct allowed if essential element of offense Problem 5-C p. 408 a. Witness testifies that Vince is "a belligerent, fight-picking fellow with a real short fuse." i. It's opinion testimony. Allowed by FRE 405. ii. Foundation: Personally acquainted, how long, in what capacity, opportunity to form an opinion. b. Witness says he is "known to the community" as a belligerent person. i. It's reputation evidence.

V.

VI.

VII.

c. Specific instances: Allowed on cross x if relevant (usually used to impeach to witness) Problem 5-D p. 409 a. After testifying that D is a "peaceable nonviolent fellow," on cross x the prosecutor asks the witness if he knew D beat his wife. i. Make sure to have good evidence of the incident. ii. Infers that witness didn't know the D very well, damages his credibility. b. Cross x: Did you know that he was fired for embezzling? i. Could have been a mere accusation. ii. Relevance: to attack credibility - he didn't know. c. Cross x: Did you know that he was convicted for tax evasion? i. Conviction is a finding that he did it. ii. Relevance: to attack credibility - he didn't know. d. Cross x: Did you know he was arrested for a brawl at a football game? i. Arrest: No conviction ii. Fighting: Relevant to peacefulness iii. Must engage in 503 balancing. Likely admissible. Problem 5-E p. 413 a. D charged with shoplifting. D claims she brought the clothes in with her. b. Officer testifies at trial: i. I watched her closely that day because I learned by watching videotape that Gretta stole other clothing items. ii. Greta had reputation of shoplifting. iii. She's been convicted of shoplifting. c. Prosecution's goal isn't to prove she's a thief, it's to prove that she stole the specific clothing that specific day. d. None of the statements are admissible on case-in-chief. e. Another hypo: She sues for violation of civil rights. They would be admissible to prove that conduct was reasonable, it would be relevant. f. Hypo: She testifies "I've never been in trouble before. i. Cross x: Evidence let in. g. Hypo: She testifies "I didn't steal those clothes." i. Doesn't invoke character. Problem 5-F p. 417 a. An undercover informant tries to get a dealer to sell her some coke. He claims the money is "dusty" (to pick up fingerprints) and won't go through with the transaction. Charged with conspiracy to sell cocaine. b. D testifies that he was going to take the money and run. No intent to sell cocaine. c. Undercover informant's testimony allowed that dealer sold in the past? i. Admissible to show that D lied about his intent. Shows that he is a liar. ii. Isn't admissible to show general propensity to sell cocaine. d. FRE 404(b): Other Crimes, Wrongs, Acts i. Not admissible to prove character ii. Admissible if to prove: motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake/accident iii. Prosecution must give notice. iv. List isn't exclusive. Make as many arguments as possible. e. Entrapment

VIII.

IX.

X.

XI.

Gov. made me do it, I wouldn't have otherwise. This is propensity evidence, 404B. Allowed to cross x on specific instances. Problem 5-G p. 419 a. D is on trial for bank robbery. Prosecution wants to offer evidence that D confessed to crimes committed in a similar manner (same modus operandi). b. Confessions allowed? c. Convictions allowed? d. Eyewitnesses to robberies? i. Takes a long time, confuses the issues. e. Specific propensity: Robs banks in a particular way. Balance this against the danger of inferring the general propensity to rob banks. f. Doctrine of Chances: Allows prosecutor to admit evidence that since D committed similar crimes in the past, it's more probable that he committed this crime. g. One bank robbery? Need very specific similarities. h. 404B deals with specific propensity. We don't allow general propensity to come in, must be specific enough to be admissible. Problem 5-I p. 422 a. Three year old boy dies. Mother is charged with manslaughter for child abuse. Prosecution wants to offer evidence of two hospital visits, one involving broken bones and another with a concussion. Mother claims they were accidents. b. Hypothesis: Normal children don't sustain such serious accidents, mother caused the injuries. c. What to show: Not a fragile child, mother was the main caregiver. d. Inference: Not an accident. e. 404(b): Absence of accident. f. General Propensity: She beat the child in the past, she beat him this time. g. Goal of Evidence: Absence of accident, not general propensity. h. 403 Balancing FRE 412: Sex Offense Cases a. Generally inadmissible. b. Exceptions i. Criminal Case 1. Person other than accused was the source of semen, injury, or other physical evidence 2. Evidence of specific instances of sexual conduct with the accused to prove consent 3. Evidence the exclusion of which would violate the Constitutional Rights of the D ii. Civil Cases: Not important c. Procedure to Determine Admissibility i. Written Notice 14 days beforehand ii. Served: Parties and victim iii. Court must conduct a hearing in camera; victim and parties have a right to be heard. iv. Record of Hearing must be sealed. Problem 5-J: Ordeal of Leslie or Fred a. Leslie claims she was raped by Fred. b. Conceded: There was sex.

i.

XII.

XIII.

XIV.

c. Defense: Consent d. Fred claims they had consensual sex once before. i. 412(b)(1)(a) allows it. ii. Prosecutor would argue that it was so long ago that it is irrelevant. e. Greg testifies that she is a slut (in a slightly nicer way). i. Barred by 412(a)(2). ii. Unfair prejudice. iii. Would argue 412(b)(1)(c). f. Thomas testifies that he had sex with her the same night. i. What is the goal of the evidence? Bruises came from Thomas or Reputation. ii. Irrelevant for consent. Consent can only be inferred from previous sexual conduct with the D Civil Cases 402(b)(2) a. Otherwise inadmissible under rules and b. Evidence excluded unless Probative Value Substantially Outweighs Harm i. Victim ii. Another Party c. Reputation: Only if placed in controversy Problem 5-K a. She claims sexual harassment. They claim she's not offended. b. Goal of the evidence: Comments not offensive to her, attacks attitude/sensitivity c. Analysis i. Step 1: Character evidence rule applies ii. Step 2: Apply exception for civil cases 1. Otherwise admissible under rules a. Relevant b. Not general propensity 2. Probative Value Substantially Outweighs Harm to Victim or Another Party d. Exotic Dancer: Relevant, but might be unfair prejudice. e. Mode of Dress: Not relevant f. Suggestive Remarks: Relevant g. Told sexually-explicit: Relevant Problem 5-L a. She claims rape. He has evidence trying to show consent. Prosecutor wants to rebut. b. Another witness will testify that he tried to rape her too, but she kicked him in the nuts and he ran away. i. Goal of the Evidence: Show similarities of this offense and the other that he did it. ii. Not admissible under 404. iii. FRE 413: Reverses propensity rule for similar sexual assault cases. iv. FRE 403: Balancing Test: 1. Argument against: Too General, Not Specific Enough, Waste of Time 2. Argument for: All evidence is unfair. *It is likely admissible. c. Conviction for sexual assault against 13 year old in another state. i. Sexual Assault, Complies with rule. ii. Goal: He's that kind of person.

XV.

XVI.

XVII.

XVIII.

Conviction shows that it's been proven. FRE 403: Balancing Test: 1. Argument against: Too general, not similar enough 2. Argument for: Rule allows it. Problem 5-O a. D charged with illegal entry after deportation. Prosecution must prove that D had been served a warrant been informed of the penalties of reentry in native thumb. b. The warrant was not signed but has the thumb print of the deportee. c. FRE 406. Habit; Routine Practice i. Habit: Person ii. Routine Practice: Organization 1. Doesn't have to be corroborated 2. Doesn't require an eye witness iii. Relevant iv. Conduct on a Particular Occasion is in Conformity FRE 407: Subsequent Remedial Measures a. After: Injury or Harm i. Measures Taken: made less likely to occur b. Not admissible to prove: Negligence, Culpable Conduct, Product Defect, Design Defect, Need for Warning/Instruction c. Can use for to show: Ownership, Control, Feasibility (If Controverted), Impeachment (non-exclusive list) d. Ex: Crane falls on someone. Warning sign put up before incident. One sign put up after incident. i. Before incident: Yes, admissible. Rule only involves subsequent actions. ii. After incident: Depends on purpose of evidence Tuer a. When a D testifies i. The alternative it chose was the better one ii. The other choice would have been "unsafe" b. Does that mean: i. "Feasibility" is "Controverted" 1. Narrow: Physically, Technologically, Economically Possible 2. Broad: Utilized Successfully ii. Invite Impeachment 1. More than simple contradiction of testimony 2. Said "unsafe" 3. Said "life threatening" c. What D should do. i. Motion in limine: Court says how it will rule depending on if witnesses say what is expected. d. Feasibility: Can be narrow or broad i. Unsafe=Feasible? Court decides unsafe was a value judgment. e. Controverted: Depends on what the witness says. f. Impeachment i. Not generally allowed, too easy to get witness to make a statement impeachable by subsequent remedial measures. Problem 5-P

iii. iv.

a. FRE 408. Compromise and Offers to Compromise i. Furnishing, offering, Promising to furnish, Accepting, Offering, Promising to Accept ii. Valuable Consideration iii. Compromising, Attempting to Compromise iv. Claim Disputed: - Validity (Not admissible to prove validity), Amount b. Prerequisite for Rule i. Claim, Something Disputed ii. Claim didn't come to be until suit filed 1. In the problem, the statements were not part of a dispute. c. We'll take care of it. Admits liability.

Competency
Monday, March 01, 2010 9:58 AM

I. II.

III. IV.

V.

VI.

VII.

Competency: Matter of credibility, goes to the jury. FRE 601: General Rule of Competency a. Every Person is Competent to be a Witness b. Erie: State Competency Laws Rule FRE 602: Lack of Personal Knowledge a. Witness must have personal knowledge FRE 603: Oath of Affirmation a. Declare to testify truthfully i. Oath: Allows liability for perjury. ii. Affirmation Witnesses a. Test Witnesses i. Oath ii. Demeanor iii. Cross-Examination b. Every Person can be a witness if: i. Has personal knowledge to impart ii. Willing to take the Oath c. Except in Extreme Cases i. Lack of Relevancy (401-2) ii. Waste of Time (403) Competency a. Ability to Carry out the task of being a witness i. Ability to Perceive a Fact ii. To Recall that fact at trial iii. Present the Fact in an Understandable Manner b. Oath c. Voir Dire Refusal to Submit to Cross-X

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X.

XI.

XII.

XIII.

XIV.

XV.

a. Gives Judge ability to strike testimony Criminally Insane: Lightly: Criminal Insane still presumed competent. a. Improper to rule on FRE 601 until Judge has a chance to speak with the witness. Failure to take the Oath: Fowler (p. 463): a. D charged with tax evasion and puts on his own defense. He fails to take the oath. Closest he comes is "I am a truthful man," and "I would not tell a lie to stay out of jail." b. "I am a truthful man": Affirmation c. Judge was going to allow "I state that I will tell the truth in my testimony." This is sufficient. Child victims: Ricketts (p. 464): a. Child rape victim, 6 years old, will be a witness. b. Common Law: Not allowed to testify, test was 7 years old. c. H: The six year old rape victim is presumed competent to testify once the trial judge is satisfied by voir dire that the child understood her obligation to tell the truth, and the difference between truth and falsehood. d. D also challenges the child's understanding of the oath (didn't know what hell was). It was sufficient that she testified that "she promised to not tell a lie and to tell the truth about everything that was asked of her in court." e. The real problem occurs when the child testifies. They may need leading questions and it gets to a point where the judge will strike the testimony. f. Practically, try to keep the child from testifying. Per se Rules a. Courts don't like them. b. Allows military to bar polygraphs per se. c. Still a valuable evidentiary tool. Can compel confessions. Hypnotic Testimony: Rock (p. 467): a. F: The wife shoots her husband during a fight. After hypnosis, she remembers that the gun went off when he hit her and she had her finger on the hammer, not the trigger. Defense later tested the gun and found it to be defective. b. Pxl Hx: Court only allowed testimony that could be corroborated by the hypnotist's notes before the session. Arkansas had a per se law prohibiting hypnotically refreshed testimony. c. I: Does the law against hypnotic testimony violate the D's right to testify in her own defense? d. H: Yes. A per se rule is not allowed. We want judges to have discretion. e. What D did right: The sessions were recorded. She was a trained hypnotist. See p. 473 for guidelines for best practice of hypnosis. Accused a. Washington v. Texas: Accomplices can't testify. b. Chambers v. Mississippi: voucher & hearsay rule not constitutional Dead Man's Statutes a. Some state laws prohibited people to testify due to interest in case. When someone dies, no way to rebut evidence. b. There may also be some state child presumptions that exist (less than 7 years old, etc.). Lawyers as witnesses a. Not a competence problem, but an ethical problem.

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XVIII.

XIX.

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XXI.

b. Testify on uncontested matters, formalities, nature/value of services, refusal would work a substantial hardship. c. Lawyers don't want to be witnesses. Jurors as witnesses a. FRE 606: Can't testify in the case at hand. Tanner p. 478 a. Ds convicted of conspiracy to commit mail fraud. D finds out that jurors may have done a bunch of drugs and were not paying attention during trial. D's counsel asks to interview the witnesses. Judge grants motion to call an evidentiary hearing to allow both parties to complain. Judge allows lawyer to testify that he saw a juror not paying attention but didn't allow jurors to testify. b. 606B: Jurors can't be witnesses when there's a question of the validity of a verdict unless it involves outside influence. c. Judge said that anyone else in the courtroom could have testified: attorneys, bailiffs, judge. d. Juror's avidavit is admissible as well. e. While awaiting appeal, another juror comes to the lawyer and tells of more drugs. The lawyer hires a private investigator to get more information. He violated a court order. f. He then challenges the 6th amendment right to a competent & impartial jury. g. Getting drunk is an internal influence, not an outside one. Internal: Sleeping, Intoxication, etc. Outside influence: h. Administrative law: Decisions are only made on evidence of record. Both sides need a chance. i. Usually contact with a juror is a disbarrable offense. Problem 6-B a. After conviction, judge receives a letter from a juror saying that jurors considered D's failure to testify as an admission of guilt. b. Judge notifies both parties and has a hearing. The letter won't be let in. That's internal. c. Juror googles a case. That would be outside influence. d. Discussing the google results with other jurors: Inside influence, but still prejudice. Problem 6-D a. Jurors go to the scene of an accident to investigate. b. We are trying to guard evidence of record. c. "Jury view": Taking the jury to the scene of an accident. Problem 6-E a. Juror in an explosive device case was a former demolitions expert. b. Ask for new trial: prejudicial error. c. Depends on the particulars of a case? Testimony of the strength of the bomb? Was it a bomb? Problem 6-F a. A tax preparer is charged with preparing false income tax returns. An IRS agent audited 160 returns and will testify that they were prepared wrong based on information from the tax payers. b. Objection 1: No personal knowledge c. Objection 2: Hearsay

Hearsay Defined
Friday, March 05, 2010 10:00 AM

I.

II.

III.

IV.

V.

What is hearsay? a. An attempt to get the trier of fact to believe an assertion that was not made in their presence. b. Statements Must be subject to i. Oath b/c misperceived: perception ii. Demeanor b/c forgotten: error of memory iii. Cross-Examination b/c lied: errors of narration c. Jury doesn't have to believe the declarant. Methodology a. Statement: assertive act, wordless statement i. Words, writing, conduct intending to be assertive b. Inference or Goal: Why is it being introduced? c. Legal Context i. Relevant? ii. Hearsay 1. Out of Court Statement 2. Offered to prove the truth of the matter asserted FRE 801. Definitions. a. "Statement" i. Oral or Written Assertion ii. Nonverbal Conduct of a Person if intended as an assertion b. "Declarant" i. A person who makes the statement c. "Hearsay" i. "Statement"-Other than by the "Declarant" while testifying at trial (an out of court "statement") Not Hearsay a. Impeachment b. Verbal Acts c. Proof of Effect on Reader or Listener d. Verbal Objects e. Circumstantial Evidence of State of Mind f. Circumstantial Evidence of Memory or Belief Problem 3-A p. 108 a. Proffered Testimony of Lissner i. Plaintalk said "Higgins is the one who did it." 1. Hearsay: Asserted to prove that Higgins did it. ii. Sirchev said "Higgins left carrying money bags." 1. Hearsay: Infers that guy carrying money bags robbed the bank. iii. Oblique said "they ought to put Higgins in jail for this, and throw away the key." 1. Hearsay.

VI.

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VIII.

b. Personal Knowledge: Lissner doesn't have any. Problem 3-B p. 110 a. Phillip will testify that the truck pulled forward across the pedestrian lane. i. Is this an assertion (statement)? It's an act. ii. Intent to say something (assertion)? Rule says so. iii. Depends on if it meant to communicate. (Communicating something to race car). iv. But you can't use this to support the assertion that he moved because the light was green. v. Most conduct does not intend to communicate. Analysis a. What's the statement? b. What's the Inferences? c. Whose on the stand? d. What's the goal of the evidence? Problem 3-C. a. Witness says on direct that the blue car ran a red light. On Cross X, counsel questions him about telling an insurance adjuster "the blue car had the green light." b. Inferences: truth is the first statement made, truth is the second statement made. c. Goal: Impeach witness. Evidence entered for impeachment is not asserted for the "truth" of the matter.

Evidence Notes 3-8-10 When is a statement non hearsay? -impeachment, verbal acts, proof of effect on reader or listener, verbal objects, circumstantial evidence of state of mind, and circumstantial evidence of memory or belief -if the goal of the evidence is for impeachment, etc., it doesnt come in on the merits and comes in for impeachment purposes only Problem 3D- Any way you like it; non hearsay use of verbal acts -verbal act: soliciting: criminal context -it could be offered for another purposenot the truth -independent legal significance -words constitute a crime- she did an act which was a crime- an act can be words (words can be a crime and more than mere words) -context matters though -verbal acts under the rule can be admitted if they are for a nonhearsay use Problem 3E-Whose corn? Non hearsay use of verbal acts -verbal act: contract performance -offered for another purpose -more than words: fact spoken important -independent legal significance -contract law: delivery: title: possession: performance -context matters

Problem 3G-Eagles Bar and Grill- non hearsay use of verbal objects -offered for another purpose -verbal object/marker -how do you establish this?- connect the server with the restaurant because it was on his person- inference that because it was in his pocket, he was probably in the restaurant- this would be circumstantial evidence -call the owner or the waitress and say that the matchbook came from his bar -inference from the mug would be that you attended that university since your name is on it -testimony from 2 different people about what they saw that corroborates that the two people were at the bar together- but this is subject to cross examination -object v. hearsay= statement v. not -words as assertion v. words as identifying characteristics -often non hearsay circumstantial evidence of identification Problem 3H- Anna Sofers Will -verbal act -more than truthworking words; words with legal significance -behavior: independent of truth -state of mind- here the statements in the will prove her intent and the state of mind about her husband -there is a difference between the truth and truth plus- what is the significance of the legal statement -do not have to believe every word in the letter just to get to the goal of the evidence???? -wills have more legal significance because they are made with the intent of the testator- Eckhardt says that this is words plus plus plus
IX. Problem 3-I: Paper-Mache Man a. Girl claims sexual abuse and describes the specific room. b. Officer testified to child's memory of the room. i. Nonhearsay: To show circumstantial proof of memory. c. A different officer described the room without speaking to the other officer. d. Key: Make sure the officers don't get a chance to talk (contaminate) each other. Problem 3-J: My husband is in Denver. a. Wife gives husband's alibi. She tells the police he's in Denver. b. Another guy says he's at the brother's. Police found him there. c. Relevance: She was hiding him because she thought he was committing a crime. d. Not Hearsay: i. Lies aren't hearsay. Not for the truth but the falsity. ii. Verbal Act: Willfully Testifying a Material Fact (Crime) iii. Shows knowledge of his guilty. Problem 3-K: King Air YC-437-CP a. Drug ring involving flying marijuana.

X.

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b. D claims he made an emergency landing, and the plane mysteriously flown away about a week later. c. Another witness claims he said that he was hiding it. d. Not Hearsay: Only want to prove he said it, not that it is true. Analysis a. Is it hearsay? b. Is there an exception? i. 801(d): "Magic" exceptions. Declarant on stand. Party Opponent. ii. 803: Unrestricted exceptions. iii. 804: Unavailable witnesses. iv. 807: Catchall. Substantial justice. Test - p. 150 a. Non-Hearsay: Circumstantial evidence of state of mind. b. Non-Hearsay: Effect on listener. Reasonableness of conduct. c. Hearsay: Truth of the matter. d. Non-Hearsay: Goes to Falsity, not truth. e. Non-Hearsay: Psychological Response is a non-assertion. Non-voluntary reaction. f. Non-Hearsay: Verbal Marker. Equivalent of her conduct of seeing the time. g. Hearsay: Truth. 801(d) makes it non-hearsay by magic dust. h. Non-Hearsay: Not intended to communicate. Institutional action. Non-Assertion. i. Non-Hearsay: Effect on listener. Inference: Act of joining, joining organization meant something. j. Either way: i. Statement or Act? Statement: Joining shows you believe that. (Hearsay) ii. Non-Hearsay: Circumstantial state of mind. k. Hearsay: Communicative conduct. l. Non-Hearsay: Effect on listener. Circumstantial Evidence of State of Mind. m. Non-Hearsay: Non-Assertion. Physical Act. Change of Position. n. Hearsay: Truth. Jury communicates guilt. 803(22), (23) allows it. o. Hearsay: Truth. Out of Court statement. p. Hearsay: Truth. q. Non-Hearsay: Verbal Act: Action & Words r. Hearsay: Acting out what happened. s. Non-Hearsay: Effect on Listener. Verbal Act. i. Problem 4-D: Agency & Irrelevant. t. Non-Hearsay: Verbal Act. u. Non-Hearsay: Non-assertion. Passive behavior isn't assertive. v. Non-Hearsay: State of Mind: Knowledge/Experience. More than truth. w. Non-Hearsay: Verbal Marker. x. Non-Hearsay: Verbal Act. y. Hearsay: Truth. z. Non-Hearsay: Verbal Marker. In court testimony is cross-examinable. i. Act of pointing: Hearsay aa. Hearsay: Truth. bb. Non-Hearsay: Effect on listener. Circumstantial evidence of state of mind. cc. Non-Hearsay: Non-assertion. dd. Non-Hearsay: Verbal Act. Words & Action, actions predominate. ee. Hearsay: Truth.

Hearsay Exceptions
Friday, March 12, 2010 10:42 AM

I.

801(d) statements which are not hearsay by "hocus pocus" a. Prior Statement by Witness i. Declarant Testifies at Trial ii. Subject to Cross-Examination concerning the statement iii. Entered for substantive purposes, not just impeachment. iv. The statement is 1. Inconsistent 2. Consistent 3. One of Identification b. Inconsistent Statements i. Declarant testifies at trial. ii. Subject to cross-examination iii. In fact inconsistent iv. Under Oath v. Trial-Hearing-Proceeding-Deposition (Removes doubt that statement was made under minimal guarantees of truthfulness. c. State v. Smith p. 157 i. I: Are police station statements proceedings? ii. Usually no, but here yes. d. Problem 4-A "I got amnesia." i. Witness/Co-Defendant invokes 5th amendment. 1. Judge immunized him from future use of his testimony. 2. Testimonial immunity granted. Other type: transactional (immunity against a charge). ii. He then claims he didn't remember the event or making the statement. iii. Is not remembering inconsistent? No. 1. It will be inconsistent if he's feigning memory loss. iv. Is he subject to cross-examination? 1. Approach 1: Facts in the statement. 2. Approach 2: Just the statement: He remembered making the statement. v. Statement comes in. It was made at a grand jury proceeding. e. Consistent Statements i. Declarant testifies at trial ii. Subject to cross-examination iii. In fact consistent iv. Rebut an express or implied charge of recent fabrication, improper influence, motive v. Comes in as substantive evidence. f. Tome v. United States p. 167

II.

Child accuses dad of molesting her. D attorney accuses her of making it up to move in with her mom. Prosecutor puts on witnesses that testify that she told them of abuse before the trial. ii. H: To allow evidence of a prior consistent statement, the statement must be made before the improper influence. iii. Practical problem is the difficulty of ascertaining the timing of the improper influence. iv. Court rejects case-by-case approach to promote predictability. v. Counsel could bring in expert testimony or use 803(24). g. Identification i. Declarant testifies at trial. ii. Subject to Cross-Examination iii. Identification of a person iv. Made after "perceiving" the person v. Comes in as substantive evidence. h. State v. Motta p. 177 i. Teller describes robber to police artist, he makes a sketch. Witness identified D in a photo-lineup and a preliminary hearing. ii. Issue: Does the police sketch come in under 801(d)(1)(C) iii. Approaches to avoiding issue: 1. Calling it non-hearsay (non-assertion). 2. Saying it simply corroborates of witness' in-court identification. iv. Statement becomes the witness' since it was based on her description. FRE 801(d)(2): Admission by a party opponent a. Admission by party-opponent offered against a party i. Own ii. Adopted iii. Authorized iv. Employee-In-Scope v. Co-Conspirator vi. Admission: Statements "against interest" are admissible against a party when "inconsistent" with his position at trial. b. Problem 4-B i. P's truck was accidently caught on fire by mechanic D. P wants to let in what D said to insurance adjuster about the fire. D said something different at trial. ii. Adjuster likely has no firsthand knowledge. c. Criminal: Bruton v. United States p. 187 i. Involves confrontation clause. Point of the case. ii. Crawford v. Washington talks about confrontation clause as well. iii. Jackson: Voluntariness of a confession is determined by the judge. Preponderance test. iv. If joint trial: Problem with confession is that co-conspirator names other coconspirator. 1. Options: Redact parts naming other D or have separate trials. d. Problem 4-D: i. After a wreck, Napton says 1. "brakes on that truck just failed"

i.

e. f.

g.

h.

a. Master's responsibility: Makes it relevant. 2. I was speeding. ii. Employee no longer employed. Claims d2D shouldn't apply. iii. On board: Brakes 1. Legally a. Napton: Not responsible b. Ace: Responsible 2. Relevant a. Napton: Irrelevant b. Ace: Relevant 3. Reliable a. Napton-Irrelevant (Exclude) i. Admissible-801(d)(2)(A) b. Ace - Exclude iv. On Board: Speeding 1. Reliable (Hearsay) a. Napton-Admissible-801(d)(2)(A) b. Ace: Inadmissible-801(d)(2)(D): Not made during the existence of a relationship. v. On board: Statement admissible against servant but not against master. 1. Severence: CP 42, Unlikely 2. FRE 403: "Unfair Prejudice"? Too important to exclude. 3. FRE 105: "Limiting Instructions" a. Yes- Can argue the other way b. Better answer is to rely only on law of evidence, not tort law. Adoptive Admissions: Hoosier i. Statement Implicates a Crime, D heard the statement, not strangers. Doyle v. Ohio i. Drug buy where D changed the amount he wanted to buy. CI threw the money in the car. Police arrest the D, given his Miranda warnings, and he wouldn't respond to the questions. ii. Prosecution tries to say he made up the story about being ripped off and implicate him by not complaining to the cops but being silent. iii. Inferences: Guilty or using Miranda Rights iv. H: Use of silence after Miranda Warnings for impeachment violates Due Process. Mahlandt: p. 203 i. A wolf attacks a child at a Children's Zoo. ii. Poos testimony will come in two ways: against him to make him liable, against the corporation. Problem 4-G: When d2D testimony goes to the ultimate issue. i. Coincidence 1. Preliminary factual issues coincide with ultimate issue. ii. Bootstrapping: Circularity 1. Statement offered to prove the very condition on which its admissibility depends. iii. Try to meet the requirements of 104(a). Also look at 104(b). Must show that he's an agent.

III.

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Co-Conspirator Statements a. 802(d)(2)(E) i. During the Course ii. In Furtherance iii. Of a Conspiracy iv. Of which declarant is a member. b. Bourjaily i. The judge decides whether a statement is within the exception under 104(a). ii. The preponderance standard applies in deciding the predicate facts. iii. The judge may rest her decision in part on what the statement asserts. iv. The preferable sequence is to resolve the predicate facts before admitting the statement. v. The judge decides and her opinion on the predicate facts ought not be communicated to the jury. Present Sense Impression 803(1) a. Considerations i. Time: Contemporaneity (No time to think about it) ii. Perception: Observe as Well as Participate iii. Subject Matter: "Describing or Explaining the Event or Condition" b. Nuttall v. Reading Co. i. P was sick and forced to work anyway. ii. Affidavits: Declarants Unavailable, no hearsay exceptions iii. Wife overheard a phone call where P called his employer, explaining his illness, and the employer makes him go to work anyways. 1. Contemporaneous, Immediate. iv. A fellow employee describes P's ill appearance. Disallowed due to declarant's unavailability. If he was on the stand, he would be allowed to testify as to the appearance. He couldn't testify that the employer made P come into work. It's outside the scope of the rule b/c it's past tense history. Excited Utterance a. 803(2) i. Startling Event or Condition ii. Made by Declarant Under Stress from the Event iii. Spontaneous, Excitedk, Impulsive iv. Not the product of reflection and deliberation v. Watch: Time, Demeanor, Prompting (Responding to questions is reflective) b. U.S. v. Arnold i. Victim makes comments to 911 operator that she'd been threatened with a firearm. She makes the same comments to the responding officers. She then identifies the suspect on the scene as the person who threatened her. ii. Excitement: She said so, cocked and loaded gun. iii. Confrontation Clause Problem. Witness refused to testify. State of Mind: Then existing Mental, Emotional, or Physical Conditions a. On Board i. Then: Existing Physical Condition ii. Then: Existing Mental or Emotional Condition iii. Subsequent Conduct: NOT including Statement of Memory or Belief iv. Exception for Facts Concerning a Will

VII.

b. Problem 4-J i. Extortion Case. Extortion causes fear in the victim. ii. Admissible: State of mind shows fear. It is an element of extortion (relevant). iii. 403 Balancing: It is too probative to be inadmissible. iv. Murder: State of Mind of the victim doesn't matter. It's irrelevant. It might be relevant in self-defense claim. c. Mutual Life Insurance Co. v. Hillmon i. Can what Walter said be taken as proof that Hillmon went with him? ii. Logic: 1. Walters met with Hillmon 2. Hillmon Indicated at this meeting that he would join Walters on the Journey 3. Hillmon harbored this intent. 4. Hillmon acted on his intent. iii. F: Hillmon is alleged to be shot dead by accident. Insurance Co. claims the body was Walters, not Hillmon's. Walters sent letters to family that he was going with Hillmon. iv. Trying to prove not only that Walters went, but that Hillmon went also. v. Hillmon Doctrine: Using another person's intent is okay. d. United States v. Pheaster i. F: Larry disappears after saying he's going to the parking lot to get free pot from Angelo. Hearsay issue. ii. I: Is the statement allowed in as a hearsay exception? iii. H: Yes. The Hillmon doctrine applies. iv. The court holds what Hillmon implied: that statements by one person may be used to prove behavior by another. v. The Hillmon Doctrine requires that the trier of fact may draw the inference that the person carried out his intention and performed the act. vi. Prudential consideration - e.g. Alcalde 1. Declarant should be dead or otherwise unavailable 2. The testimony concerning the statements should be relevant 3. High degree of trustworthiness 4. Other evidence of the Defendant's guilt vii. Goal of the evidence: Angelo intended to be and was in the parking lot. Statements for Purposes of Medical Diagnosis or Treatment 803(4) a. On Board i. Motivation: Diagnosis or Treatment, Treatment v. Testimony ii. Relation to Treatment: "Reasonably Pertinent" Diagnosis or Treatment iii. Describing: Medical History, Past, Present Symptoms, Pain, Sensations; Inception: Cause: Sources iv. Not Reasonably Pertinent: Identity of Perpetrator (child abuse exception) b. Blake v. State i. Blake is charged with sexual assault of his step-daughter. She doesn't testify. ii. Two part test 1. Declarant's motive in making the statement is consistent with the purposes of promoting treatment relied on by a physician in treatment or diagnosis

VIII.

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2. Content of the statement is reasonably relied on by a physician in treatment or diagnosis iii. Examining physician at the hospital lays the proper foundation. She says that the identity of the perpetrator is necessary to determine necessary tests and emotional state. She asked questions relating to treatment. iv. Family situation means they will likely be assaulted again. v. Part 1 met because the doctor explained the questions related to treatment, Part 2 met because info used in treatment. vi. Might argue that someone acting in a doctor's place counts. Past Recollection Recorded a. On Board i. Witness lacks present recollection of the matter ii. Statement Accurately reflects knowledge they once had iii. "Made" or "Adopted" the Statement iv. Did so while the Matter was fresh v. Procedure 1. Read into Evidence 2. May not itself be received unless offered by adverse party b. Ohio v. Scott i. D accused of shooting a guy and at police officers. He goes to the movie theater to meet his girlfriend and he shot a guy. She wrote a statement saying this. ii. At trial, she says she doesn't remember that he shot a guy. She now says that he said simply "a guy was shot." iii. To protect a writing being entered unnecessarily, procedure requires that it be offered by an adverse party. Records of Regularly Conducted Activity: 803(6) a. Regular Business: Regularly kept record i. Each person acted in the course of duties ii. Personal Knowledge of Source iii. Contemporaneity iv. Foundation: Custodian: First hand knowledge of record keeping system b. Petrocelli v. Gallison i. Dr. Schwartz has in his patient notes states that Petrocelli had a severed nerve. ii. Information: Gallison -> Petrocellis -> Dr. Schwartz iii. Not allowed in because no proof that statements were due to Dr.'s observations. iv. 403 Balancing: Probably keeps the evidence out. v. If trying to make Hearsay within hearsay admissible: 805: 803(6) & 803(4) vi. Hearsay1: Gallison to Petrocelli: Patient History vii. Hearsay2: Petrocelli to Schwartz: Patient History viii. Hearsay 3: Schwartz to writing: Business Record ix. If Petrocelli says that he felt fine but said something else on stand: Admission by party opponent. x. Gallision denies cutting the nerve but tells Schwartz otherwise: Admission by party opponent. xi. Against hospital: Admission by party opponent.

X.

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xii. Diagnosis in medical record: Opinion in the record, but that's okay. c. Norcon v. Kotowshi i. F: Three page handwritten Memo ii. Offered to prove the truth of the matters asserted: 1. Bruce Ford-Jim Stampley a. Said Proseho did have a lot of female visitors in his room b. Alcohol c. Springboard to sexual activity 2. Bruce Ford-SGT. Flesching-Larry Coyle a. Posehn would do favors for some of his female crew in exchange for some sort of sexual activity iii. Objection 1. Double or Triple Hearsay 2. No indication that the informants were acting within the scope of their business 3. Coyle and Stampley had business reasons to provide accurate and truthful responses. 4. Non-Hearsay as admission of a party-opponent iv. Norcon shows the liberal view of the records exception. Palmer is the old approach. v. Accident Report: Not in the course of business, business has interest in hiding the truth. Accidents and lawsuits are not in the normal course of business. vi. Exclusion: Accident investigations are not in regular course of business, not truthful. Especially if internal investigation. Hoffman supports this (note case). d. Business records can be excluded by trustworthiness. Look at the process. Factors in handout. Hearsay Within Hearsay 805 a. Hearsay within hearsay is not excluded if b. Each part conforms with an exception Public Records and Reports 803(8) a. Records - Statements; Reports - Data b. Activities of the office or agency c. Matters Observed i. Persuant to duty imposed by law ii. Matters must be within duty 1. Excluding Matters observed by police officer or other "law enforcement personnel" d. Civil Actions and Proceedings Against the Government in Criminal Cases i. Factual Findings ii. Resulting from an Investigation Made Pursuant to Legal Authority iii. Unless Lacks Trustworthiness Baker v. Elcona Homes Corp. a. F: Car wreck. Semi driver says he couldn't see the light because of the sun. b. Trying to get police report in. Officer testifies. c. 803(8)(b) or (c) d. (a) doesn't apply.

XIII.

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e. Description of scene: Admissible 803(8)(b): Duty to investigate accident scenes. f. Conclusion: Admissible 803(8)(c): Factual finding from investigation. g. Out of Court statement by truck driver: Prior consistent statement 802 i. Not factual finding, it's not officer's finding. h. Business Record: Not regular activity. i. Look for signals that indicate lack of trustworthiness. United States v. Oates a. A chemist tests drugs but doesn't testify. They're trying to get the Chemist's test admitted. b. 803(8)(c): Finding of fact. Can't be used because it was the product of a criminal investigation. It isn't trustworthy. c. 803(8)(b): Excludes matters observed by law enforcement personnel. The chemist is considered as law enforcement since he works for them. d. Business Records Foundation: Clear legislative intent proves that Congress didn't want police reports entered. Hearsay Exceptions: Declarant Unavailable 804 a. Two Step Process b. Unavailability i. Physically Unavailable 1. Dead-Sick 2. Beyond Process or "Other Reasonable Means" ii. Testimony Unobtainable 1. Cannot remember 2. Refuses to Testify 3. Invokes a Privilege c. Exceptions i. Former Testimony ii. Statement Under Belief of Impending Death iii. Statement against Interest iv. Statement of Personal or Family History v. Removed vi. Forfeiture by Wrongdoing Problem 4-L a. Prosecutor took a foreign woman's deposition and sent her back home. Now they are trying to use it at trial. b. What efforts were made to bring her back? Australian embassy found her but she refused to come back. We need more than a bare assertion of unavailability. They could have paid for her means to get her. Prosecutor can't require her to come but can demand it. Australian officer could try to pressure her. Barber v. Page a. Availability: Good faith effort to obtain witness. b. Prosecutor thought that being outside of the jurisdiction would be enough. Supreme Court says that's not enough. c. Confrontation Clause and Fundamental Fairness requires it. Jury needs to be able to see demeanor evidence that you can't get from a deposition. Former Testimony 804(b)(1) a. Testimony given as a Witness i. Hearing

XVIII.

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ii. Deposition b. If c. Party against whom it is offered i. In Civil suit - "predecessor in interest" 1. Had a. Opportunity b. Similar Motive 2. To Develop the testimony Travelers Fire Ins. Co. v. Wright: p. 310 note 2 a. Partners lost building to fire and sue Insurance Co. to recover loss b. Brother: J.B. & J.C. Wright c. Trial: Eppler, Brown i. Called to Stand ii. Expected to say they conspired with J.B. Wright to Burn the Building iii. 5th Amendment d. Offered Prior Transcript of J.B.'s Arson Trial Against Both e. J.C. Wright had some Motive and Interest f. Court allowed it come in against both brothers. Lloyd v. American Export Lines p. 304 a. Employee brings suit against employer. Another employee cross-claims. Coast Guard investigated the same employee. b. Unavailable: Couldn't find him to bring him to court. c. Issue: Was the Coast Guard a predecessor of interest of the employee? YES. d. Good enough to be fair. e. Dissent: Would use catchall exception. f. A good lawyer uses multiple exceptions. 804(6): Forfeiture by Wrongdoing a. Statement offered against a party b. Who had engaged in wrongdoing acquiesced c. That was intended to and did d. Procure the unavailability of the declarant as a witness. Problem 4-N. "If You Want to Stay Healthy" a. Forfeiture OK if witness' life threatened. b. Procedure i. Can D be excluded from in camera hearing? YES. ii. Judge's Standard: Preponderance, his discretion Rule 104(A) c. What is waived i. Right to Confrontation ii. Hearsay d. What's coming in i. Guilty Plea ii. Stationhouse statement made under oath People v. Moreno p. 333 a. Man charged with abusing a child. b. Issue: Is abusing a child enough to constitute forfeiture? NO. No proof of intent. c. Intent: Intent to keep someone from testifying. d. No Balancing. Bright line test: some act to subvert. Protects right to cross examine.

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FRE 807. Residual Exception. a. Not covered by 803 or 804. b. "Equivalent Circumstantial Guarantees of Trustworthiness" c. Not Excluded if: i. Material Fact ii. More probative than other evidence that can reasonably be obtained iii. Admitting the evidence serves 1. Purpose of Rules 2. Interest of Justice iv. Notice to Adverse Party in Advance of Trial 1. Fair Opportunity to Prepare 2. Intention to Offer 3. Particulars 4. Name and address State v. Weaver a. Trial over baby beat to death. Mother makes statements to the gals at Hardees. b. New Evidence: Lawyer couldn't have found it through due diligence. c. State only appeals on trustworthiness grounds. d. Need them to come in as witnesses. Can't come in by affidavit. Crawford v. Washington a. Crawford redefined the central focus of the Confrontation Clause i. Shifting away from Reliability (Roberts) 1. Adequate indicia of reliability a. Firmly rooted hearsay exception or b. Particularized guarantees of trustworthiness ii. to Manner or procedure by which the statement was gathered b. The Confrontation Clause bars "testimonial" statements i. "ex parte in-court testimony or its functional equivalent" 1. "affidavits, custodial examination" 2. "prior testimony" that was not cross-examined 3. "similar pretrial statements that declarants would reasonably expect" to be used in prosecuting crime a. Especially statements "taken by police officers in the course of interrogation" ii. We're looking for a statement made to an official. Davis v. Washington a. Domestic abuse call. Victim refused to testify. Might also use forfeiture 804(b)(6)? Prosecution is trying to admit the 911 call. b. Ongoing emergency: frantic tone of phone call, evidence of assault. c. Hammon v. Indiana: Companion case decided with Davis. d. Emergency Exception: Look at witness, mental state, emergency, testifying. e. Thomas Dissent: The emergency standard is unnecessary and impractical.

Impeachment
Wednesday, April 07, 2010 10:33 AM

A. Bias Impeachment rests on two assumptions a. Certain relationships and circumstances impair the impartiality of a witness. b. An impartial witness may shade his/her testimony, intentionally or unintentionally B. Nonspecific Impeachment a. Bias and Motivation b. Sensory and Mental Capacity c. Character for "Truth and Veracity" i. Cross-examine the target witness about non-conviction conduct - FRE 608(b) ii. Cross-examine about prior convictions - FRE 609 iii. Testimony by a character witness that the target witness is untruthful. C. Specific Impeachment a. Showing that the witness has made a prior inconsistent statement b. Contradicting the witness (e.g. with other witnesses) D. United States v. Abel p. 513 a. One of the witnesses (Ehle) is a snitch. Defense has a witness (Mills) that says that the witness would lie to get a lenient sentence. That witness is a member of the Aryan brotherhood and will not admit it at trial. b. Judge says that if Mills takes the stand and denies his membership, then c. Counsel argues 403 balancing: involvement in the Aryan Brotherhood is more prejudicial than probative. In response, they referred to it as "a secret prison gang" and would not discuss the gang's activities (murder, etc.). E. Getting Bias in a. Is it relevant? Yes. b. Courts have done it, but the Rules don't directly address it. F. Impeachment: Most Commonly used Techniques a. A Revelation of Bad Character or Dishonesty i. A criminal conviction ii. A Prior Dishonest Act iii. Bad Character for Truthfulness b. A Showing of Bias i. Hostility ii. Favoritism c. A Demonstration of Self-Contradiction Prior Inconsistent Statements d. Discrediting a Witness by Calling Other Witnesses G. Problem 8A a. First two allowed, next two not sure. b. State pays occurrence witnesses. Expert witnesses can be paid by either party, but not by contingent fees. c. Look at how much time it will take. d. You can just ask an opposing expert how his findings help your theory. H. FRE 608 a. Opinion and Reputation Evidence of Character i. "The Credibility of a Witness may be Attacked or Supported by Evidence in the form of opinion or reputation." 1. May refer only to character for truthfulness or untruthfulness 2. Truthfulness only after attack b. Specific Instances of Conduct

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"Specific instances of conduct of a witness...for the purpose of attacking or supporting the witness' character for truthfulness may not be proved by extrinsic evidence" ii. Bound by Answer iii. Judge's Discretion c. Bias: Always Relevant; Truth/Veracity: Must use 608. Manske a. Narrow, Broad categories of conduct available to put veracity at issue. b. Middle: Behavior that shows a disregard for other's rights c. Gov't argues it doesn't go to truth/veracity but bias, making extrinsic evidence inadmissible. Defendant says it goes to bias, making extrinsic evidence admissible. d. Try to characterize evidence as bias to make it extrinsic evidence admissible. FRE 609 a. Focus is credibility i. Other than the Accused 1. Felony 2. Subject to 403 Balancing: "Substantially outweighs" (Normal test for admissibility) ii. Accused 1. Felony 2. "Probative value outweighs (NOT "substantially outweighs" its prejudicial effect") (Less likely admissible) iii. Any witness (A per se rule) 1. Crime of dishonesty or false statement iv. 10 year limit b. Practically: Look for precedent to see if judge admits that type of felony for impeachment" Lipscomb a. Minimum Requirements: Name of crime and date of conviction b. Cross examination: nature, punishment, where crime occurred, c. Re-direct: Acts done to get better. d. Alford Pleas admissible as convictions. Luce a. D moves in limine to keep his prior convictions out for impeachment purposes. He doesn't testify and the appeals court refuses to review. b. Holding: To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. c. R: The court can't tell if there was prejudicial error without an offer of proof or testimony. Problem 8-E p. 559 a. Before you try to use extrinsic evidence to show an inconsistent statement, you must show that there is an inconsistency in the witness' statement. b. Try to get the witness back, if not, move to have the testimony excluded. Webster a. Prosecutor calls a witness and then impeaches him with an inconsistent statement. The court denied her request for voir dire because she wasn't sure what he was going to say.

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b. The general rule is that a party can't call a witness just to impeach an inconsistent statement to allow the jury to hear the prior statement. Because she acted in good faith, no error. Harris a. Who knows? Silence? Jenkins a. When Ds are on the stand, they are treated like any other witness. Inconsistent Statements a. Must determine that the witness made an inconsistent statement before impeaching. Contradiction a. Counterproof=Extrinsic Evidence i. Undermines credibility ii. Involves a substantial point iii. Bias iv. A telltale point: witness deception b. Must have Dual Relevancy to be admitted i. Tendency to Illuminate a substantive issue: Admit ii. Tendency to illuminate a credibility issue: Admit iii. Just Contradict - And is collateral: Exclude Problem 8-F a. A: Exclude b. Goes to credibility c. Weak contradiction and contradiction irrelevant d. Impeachment i. Find out when he worked, does he know the accused, been in the restaurant Impeachment by Miranda a. Okay if only failure to inform b. Exclude if involuntary (not too much for a negro) Havens a. Drug mule gets caught but cops violated 4th amendment. b. Couldn't use evidence in case-in-chief. c. H: Illegally obtained evidence can be used for impeachment if accused takes the stand. d. Defendant must put impeachment evidence in issue: reasonably suggested by direct. e. Dissent: Don't want prosecutor to prostitute justice. U.S. v. Medical Therapy Sciences: p. 593 a. FRE 608(a) b. Attack: How is Rule Triggered i. Was one made? ii. By Whom? c. Revealing the Witness' Background v. Putting a witness' veracity in issue. d. Must have an attack to call a character witness to bolster witness. e. Step 1: Is there an attack? i. Shows Bias f. To reverse judge i. Error ii. Prejudicial? Problem 8-H

a. 801(d)

Opinion/Expert Testimony
Friday, April 16, 2010 10:02 AM

A. FRE 701. Opinion Testimony by Lay Witnesses a. If Opinion and Inferences (Not Facts) i. Rationally based on perceptions of the witness and ii. Helpful to the fact finders iii. Not based on scientific, technical, or other specialized knowledge within scope of 702 B. Problem 9A a. Separate facts from opinions C. Problem 9B a. Must have factual basis. Ask witness why if it draws an objection. b. "Plows into car.": Conclusion of liability. Ask fact by fact what you saw. What did you see? c. I'm not really sure: Yes or no. d. How fast the car was going: okay, try to get more facts. e. Speeding: Did he see a speed limit sign? f. Smell of marijuana: If you object, you'll draw more attention to it. i. What is pot? ii. How do you know the smell of it? iii. Describe what you smelled. g. Guilty look: Strike the word guilty, it's a conclusion. h. Dislocated Shoulder/Broken Back: Conclusions i. Totaled Car: Just describe damage to the car. j. Perfect Driver: Conclusion k. Important: Pot, Injuries, Car Damage, Perfect Driver D. Problem 9C a. Urologist talked to 11 other urologists and all agree with her conclusion: Inadmissible hearsay b. 704 ultimate issue objection. c. 703 objection d. Goal: Standard of Care was met. e. Balancing Test: Giving jury basis for opinion v. entering otherwise inadmissible evidence E. Testimony by Experts: FRE 702 a. Scientific, Technical, other specialized knowledge b. Will assist the trier of fact: Be helpful

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c. Expert who is qualified by i. Knowledge ii. Skill iii. Experiences iv. Training v. Education d. Testimony in the Form of Opinion or Otherwise if i. Testimony is based on sufficient facts or data: Reliable ii. Product of reliable principles and methods: Reliable iii. Applied principles and methods reliably to facts: Fit e. Can't give conclusion but can explain the facts that support the conclusion FRE 703. Bases of opinion testimony by experts a. Perceived by: made know to b. Facts learned at or before hearing c. May rely on data of a type reasonably relied upon by similar experts; outside data need not be admissible d. If inadmissible shall not be disclosed to jury unless: Probative value in evaluating the expert's opinion substantially outweighs the prejudicial effect. Judge: 104 a. Admissibility b. Experts c. Privileges Scientific Evidence a. Rules: FRE 702 & 703 i. Witness is qualified ii. Can assist the trier of fact iii. Outside date is of the sort "reasonably relied upon" by similar experts if 1. Based on sufficient facts and data 2. Product of reliable principles and methods 3. Applied principles and methods reliably to facts Foundation a. Education b. Experience c. Familiarity with the subject in the suit in question. d. Counsel asks that he be recognized as an expert. Scientific Evidence a. Daubert p. 631: Science must be valid: "Reliable", "Trustworthy" b. Derived by Scientific method: "Tested", "Appropriate Validation" i. Testing ii. Peer review/publication iii. Error Rates iv. Standards v. Acceptability vi. Not exhaustive list: Depends on subject and how that subject's expert evaluate it. c. Frye: "General Acceptance in the particular field to which it belongs." d. Judge's Standard: Abuse of Discretion Kumho Tire p. 642

a. Applies not to just scientific evidence, all 702 expert evidence. b. Analysis i. Did his methodology meet the test? 1. No other expert used his methodology. ii. Did his application of his methodology meet the test? 1. His answers waffle. L. Problem 9D a. O1: Doesn't meet Daubert standard. i. See note 3 after problem. b. O2: Ultimate issue i. FRE 704 allows experts to testify on the ultimate issue. c. O3: Not Helpful/Speculation on what happened to child. i. Expert would be helpful for child abuse cases. ii. Other side will argue that an expert is not necessary to judge credibility. iii. She has enough experience with children that it's not speculation. d. O4:

Last Day
Wednesday, April 21, 2010 11:04 AM

Evidence: Last Day O4: Jury doesn t need help judging credibility. Child fits the pattern exactly. Expert can t go to ultimate issue involving mental state, and y this is pretty close. Children don t usually make up stories like this. This is a factor that the jury can use to y decide credibility. Moore: DNA Theory Technique Application General Techniques y RFPL: restriction fragment length polymorphism y PCR: polymerase chain reaction Specific Methods and Techniques y Cellmark y Lifecodes y FBI Need Statistical Analysis Problems of Protocol y Usually weight and not admissibility Untested Science Technique: Generally accepted, Required: Theory, Methodology, Technique One Hispanic in 170,000 : Have you determined that the defendant can be only that race? y

Privileges FRE 501. General Rule Governed by the principles of the common law as they may be interpreted in light of y reason and experience. y In Civil Action: If in a claim or defense state law applies, questions of privilege shall be determined by state law. Privileges block truth, if you allow them, only do so narrowly. Don t say anything unless the trial judge requires it. Could testify to demeanor evidence, but not verbal evidence. Look for intent to communicate. Meredith: When defense finds evidence, and counsel does anything to disturb it (pick up murder weapon), then you are obligated to give it to the government. If they only state where the gun is at and counsel does not act on it, then the communication is covered by privilege. Upjohn: Corporations aren t people protected by privilege. (I think.) No privileges on exam.

Review
Friday, April 23, 2010 10:02 AM y y

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Relevant, Reliable, Privileged/Affected by policy Analysis 1. Call of the Question 2. Goal of the Evidence/Issue 3. Find the "phrase that pays." 4. Apply the rule, decide if technically admissible. 5. Promote Truth/Fairness: 403 balancing test. Every answer: State the rule and why it does/doesn't apply Constitution trumps Evidence Rules o Confrontation Clause in particular o Hearsay exclusion is not usually constitutional Hearsay o Is it hearsay? Out-of-court statement to promote the truth of the matter. y Truth of the Matter? y Hocus-Pocus Not Hearsay  Prior statements by the witness  Admission by party-opponent/someone who can speak for the party. o Exceptions y 803: Unavailability immaterial y 804: Unavailable y 807: Catchall/Residual Exception  Not to subvert other rules, only applicable if y Essential to Case y Notice Given o Hearsay w/i Hearsay Impeachment

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Bias: Always relevant Character evidence (propensity): Across the board disallowed (404) y Specific propensity (modus operandi can come in, 404(a)(3). y Witnesses: Look at truthfulness  Opinion  Reputation  If you ask about specific instance, your stuck with the answer. y Must lay foundation under 613 for inconsistent statement. Conviction for Crimes 609  Felonies less than 10 years old  Any crime involving dishonesty Presumptions o Persuasion: DOES NOT SHIFT. o Production y Basic Fact: Predicate for presumption y Presumed Fact: Ultimate fact that needs to be found y Counterproof:  Against Basic Fact: Jury must determine if basic facts are met, than judge will instruct that presumed fact exist.  Against Presumed Fact: Bursting Bubble y Remaining inference? y Zones  Zone 1: Doesn't get to jury.  Zone 2: Gets to fact-finder.  Zone 3: Directed Verdict. Privileges o Narrowly Construed: They block truth Authentication o Sufficient evidence to support a finding that the object is what the proponent claims. y What is it? y How is it related to the case? y Same condition/chain of custody intact? Best Evidence Rule o Contents of a writing o Broad exception for duplicates o Lost original w/o fault, no hierarchy
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Practice Test Authentication (901 & 902) 1. A telephone conversation y Incoming  Identification of Caller y Recognize the voice y Substance/Contents of the Call y Circumstantial Evidence i. Phone records ii. Caller ID

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Outgoing 901(b)(6)  Personal y Number dialed y Person answering identified y Circumstantial evidence  Business y Number assigned to business y Answers by identifying business name or type of work A business associate's handwriting. 901(b)(2) y Who's signature is this? y How do you know? A Newsweek magazine. 902(6) y Self-authenticating, no extrinsic evidence required. A Diet Coke label. 902(7) y Self-authenticating, no extrinsic evidence required. A photograph of the defendant. y Can be anyone with general knowledge who can identify the person. y Person who took photograph not required iii. Accurate depiction of subject.
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Best Evidence Rule objection on spark plugs. 1. Best evidence rule applies to contents of a writing, not other physical evidence. Attempt to use co-conspirator's testimony from his sentencing proceeding at trial. 1. Hearsay 2. 804(b)(1): Former Testimony i. It's a hearing. ii. Probably inadmissible because no opportunity to cross-examine. 3. 801(d)(2)(e): wouldn't apply because the conspiracy has ended. Juror as witness 1. FRE 606 applies. 2. Overbearing foreman can't be brought in. 3. The newspaper evidence can come through 606. Burden of Proof: Dead man's presumption 1. Basic Fact: John Brown has been gone seven years. 2. Presumed Fact: He's dead. 3. Counterproof: He's been seen. i. Can it be believed? ii. Goes to basic fact, so it goes to jury. iii. No evidence about death of John Brown (presumed fact), no bursting bubble. In defamation suit, evidence that "loathsome leper." 1. Not Hearsay: Truth of the matter doesn't matter, only that it was said. Privilege

8. Robbery charge a. Prosecution tries to present character evidence. i. Accused can put it's character evidence, not allowed on prosecution's case-in-chief. b. D's witness says D's reputation is "honest & quiet." 404(a)(1) i. Honest 1. Bolsters his testimony, probably allowed. ii. Quiet 1. Probably allowed. c. Same witness asked on cross, "Did you know that last year D swindled the widow Brown?" i. Allowed if good-faith basis. ii. Relevancy: Witness is either lying or doesn't know the subject very well. d. Should state now be allowed to rebut with D's prior arrest for armed robbery? i. Relevancy of accused's prior convictions: impeachment ii. Answer no. If they don't ask the witness, the right is waived. 9. Insurance company claims that damage wasn't caused in the way asserted by P. P tries to rebut with 30 year old newspaper article saying otherwise. a. Hearsay: doesn't fit any of the other rules. b. 807 Residual Rule i. Relevant? ii. Necessary? iii. Trustworthy? iv. Material? v. Not a Business Record? vi. Notice given? c. Don't confuse authentication with hearsay. i. Must do them all: authentication, best evidence, hearsay. 10. Store Manager tells a shoplifter "That's the third time you've done this this month!" Counsel tries to offer this statement through another manager that heard the statement. a. Hearsay i. Excited Utterance b. Whole statement? i. Calling a statement is inadmissible propensity evidence. 11. Judicial notice a. Only adjudicative fact i. Who, what, when, where, why. b. This doesn't count, it's a legislative fact. 12. Police officer claims to have killed in self-defense. He offers the testimony of a witness who knew the deceased from a police-officer hate group. a. Prosecution: helps to prove .... i. If Pros. objects, Defense must show relevancy. b. Defense: helps to prove that the guy was violent toward police. i. Could be relevant to show trait of victim 13. Proving amount owed with a bill.

a. Hearsay i. Business-Record Exception 803(6) 1. Regular Course of Business 2. At or Near the time of the event, 3. Person with Knowledge 4. Duty to create document. 5. Custodian: familiar with how record is kept. ii. It doesn't matter that it was prepared for litigation. 14. Pedestrian v. Construction Company a. Changes safety rule after accident i. Subsequent Remedial Acts prohibits it. 407 b. Safety rule posted before accident i. Subsequent remedial acts doesn't apply, this is a "prior." Exam format: y 25 M/C questions: 1 hour y 9 short essay. If short on time, do IRAC in bullet form. Cases: Crawford, Daubert