Evidence Outline-Professor Avery I. Relevance A.

Most fundamental rule: Only relevant evidence is admissible or evidence that is not relevant is not admissible or B. FRE 401 defines relevant evidence as: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence 1. 2 aspects to definition of relevant evidence a. Evidence must be material: fact that is of consequence to the determination of the action. b. Evidence must be probative: tendency to make the existence of that factmore probable or less probable than it would without the evidence. 2. Brick is not a wall: in order for a piece of evidence to be admissible, it just has to be a brick. a. Common pitfall for studentsmust not show end proposition, but just that individual brick proposition is more probable with evidence than without. 3. Universe test: suppose pathologist testifies that it is probable that stab wound was made by right handed person. Is it relevant that is right handed person? a. Yes. Instinct of wanting to know if is right handed is a good test to figure out if something is relevant. b.This illustrates low bar for relevancy and that each piece of evidence need only form a chain, not prove the whole case 4. Example: Red car speeding 30 miles east of accident and witness observes this. Is this relevant a. First question: was speed a contributing factor to the accident? i. If yes, than it is material and we can go back to question of relevance (probative value) of speeding. b.Frame issue: Does the fact that red car speeding 30 miles prior to the accident location have a tendency to make it more likely that the car was speeding at the accident location that if it was not speeding 30 miles prior or without this evidence? i. Yes evidence is relevant, because people tend to maintain their speed evidence has a tendency to show red car is probably still speeding at accident. 5. Examples of probative aspect of relevance a. Example: Commonwealth v. Zagranski (Show me the body): prosecution wants to introduce wifes exclamation after hearing husband arrested for murder ix. Frame issue as: Does the fact that wife knows or appears to know about the murder make it more likely that her husband is the killer than if she did not have this apparent knowledge? ii. Low bar: It only must have some tendency to show that with this evidence it is more likely that Zagranski is killer than without the evidenceyes, this evidence is relevant b. Example: United States v. Abel: Is evidence that inmates are members of the Aryan brotherhood and that such members promise to lie for each other relevant if prosecution is trying to prove witness has a motive to lie? i. Yes, evidence of membership is relevant because if membership makes it more likely that Mills is lying since tenets of organization are lying and killing for each other. ii. Once we decide relevancequestion of the weight of the evidence is for the jury to decidewhether the jury believes the testimony c. Example: Polygraph test: wants to introduce the polygraph results. Judge excludes the evidence of polygraph results because most courts dont think polygraph evidence is reliable enough. Now wants to make narrower point that he agreed without hesitation to undergo polygraph even after polygraph examiner had a high degree of success. Is this relevant? i. Inferences: (1) if willing to take the test, we can infer he has an innocent state of mind; (2) Innocent state of mind means he is innocent. ii. Evidence is relevant because consent to take the test makes it more probable that he is innocent than if he did not consent (without the evidence). iii. May not be admissible under FRE 403 analysis d. Example: Commonwealth v. Gagnon: spent cartridge case found in Ds bedroom, projectile removed from victim could have been fired from this caliber case. Is it relevant, even though there is no ballistics evidence that can prove that the fatal projectile was fired from this particular case?

casings in their bedroom. 6. Examples of materiality of rule 401 a. Example: Knowledge: charged with violation of statute that it is unlawful for any person convicted of crime punishable for a term exceeding one year to ship or transport in interstate commerce, any firearm. found carrying loaded handgun across border. Prosecutor offered evidence of prior conviction for A& B, which carries a 2 year penalty. testifies she did not know A&B had such a penalty since only served 3 months. i. Defendants knowledge is not material because the statute does not require the to be aware of the length of the imprisonment, only that any court convict her of a crime punishable for the requisite 1 year. ii. So, not relevant because failed materiality aspect of definition: fact that is of consequence to the determination of the action b. Example: Voluntary Intoxication: shot two people while he was severely intoxicated. Montana state law provides that voluntary intoxication may not be taken into consideration in determining existence of mental state which Is an element of a criminal offense. Defense counsel tries to offer evidence of high blood alcohol to prove could not have acted knowingly or purposefully. i. Irrelevant because voluntary intoxication is not material. Statutory preclusion of voluntary intoxication makes this evidence irrelevant for lack of materiality. c. Example: Violin case: Officer shot decedent and claims self-defense. Decedent emerged from a bar with a violin case on his shoulder. Officer claims to have thought there was a sawed off shot gun inside and shot. i. NOT SURE OF ANALYSISKATE CHECK C. Not all Relevant Evidence is admissible 1. FRE 402: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. 2. FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence a. 403 balancing test is used throughout and with other rules of evidence. b. Example: United States v. James: Mother gives daughter a gun and daughter shoots mothers boyfriend. Mom charged with aiding and abetting. Now trying to make self-defense type argument. Trying to introduce evidence that boyfriend told her about his previous assaults and that assaults actually took place with documents. Relevant? i. FRE 401 question: would it be more likely that he said these things to her and that she believed them if they were true than it would be if things never happened at all. 1. Yes, Ct of appeals is correct, but may have a 403 problem-danger of prejudice 2. If answer to 401 question is yes, we turn to 403 question: is there some reason to keep this from the jury even though it is relevant. Is there some use to which the jury can put this evidence that is not admissible? 3. Rule: Just because evidence has emotive force does not mean that it is unduly prejudicial ii. FRE 403 question: Does the probative value of this testimony substantially outweigh the danger of unfair prejudice? 1.Can a jury instruction control the appropriate force of the evidence? d. Example: Commonwealth v. Yesilciman: blood on steering wheel, jacket; other evidence made it clear that perpetrator of crime would have gotten blood on himself or on his clothing. Is blood evidence on defendant relevant, even though expert cannot say it was the victims blood, or even that it was human blood? i. 401 question: Yes, relevant because it makes it more probable that defendant committed the crime than without the evidence.

ii. FRE 401: Yes relevant because it puts in universe of people who have spent cartridge

D.

ii. 403 question: Is the probative value of the evidence substantially outweighed by the risk of unfair prejudice? 1.This will probably not be excluded with rule 403 b/c defense cross will bring out that pros cant prove it is human or victims blood, thereby limiting the probative value. Then jury will be left to weigh the weight of the evidence. e. Example: Commonwealth v. Woods: D charged with driving automobile involved in an accident. Marijuana was found in possession of other person also found in the front seat. Is the marijuana relevant when offered by the D to prove that the other person might have been driving? i. FRE 401 analysis: Mere fact that car was in accident does not make it any more likely that passenger was driving just because he had marijuana in his possession, so not probative. Also, no evidence that accident caused by stoned person, so not material ii. FRE 403: Even if relevant: those in possession of marijuana are negligent, evidence probably not admissible under 403 because the jury may convict for being in possession of marijuana drug dealer. iii. Is the fact that car was owned by Ds parent relevant when offered by the government to prove that D was driving? 1.FRE 401: Fact that Ds parent owned the car makes the proposition that D was driving more probable than if Ds parents did not own the car. So, relevant and satisfies 401 2. FRE 403: The evidence of ownership of the vehicle was not prejudicial even though it was damaging to defendant's case. Conditional Relevancy 1.Doctrine of intellectual interest, but no practical usenot very common. 2. FRE: 104(b): Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. a. In some situations the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. b.Thus when spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. c. See Huddleston standard. 3.Standard of proof for conditional fact: beyond a preponderance standard (USSC in Cox v. State) a. Once objection made, judge does not determine whether X heard the statement. She only decides whether there is enough evidence that a reasonable jury would need to conclude that X heard the statement. b. Thus, judges job is only to assess the sufficiency of the evidence. i. This sufficiency test a lower standard of proof than 104(a), see infra. 4.Examples of conditional relevance: a. HYPO: accident occurs in intersection. 500 ft from point of impact, a tire rim is found in a field. The offers an expert who will testify that in order for this rim to be thrown 500 feet from point of impact, the s vehicle had to be going 70 mph. Is this testimony relevant? i. Only relevant if the tire rim came from one of the vehicles ii. But, suppose only evidence that it came from one of the vehicles is that one of the vehicles is missing a tire rim. Is that sufficient? ii. Judge would ask: Whether a reasonable jury could conclude by a preponderance of the evidence that the tire rim came from one of the vehicles and that this rim came from that vehicle. b. Fitzhugh case: Fs wife murdered and prosecution trying to prove he did itmotive because son is not really his and wife was going to tell son after graduation. F slipped up in interview saying her older son. Should evidence of Brown being the father and wife telling son about it after graduation be allowed? Is it relevant? i. Evidence of motive is never collateral, but here it can be admitted if it satisfies conditional relevancy.

1. It puts in universe of people that had blood on them, which included the killer.

ii. Relevance of the husbands motive to kill his wife for planning to sell son about true father is conditioned on the presumption that husband knew wife intended to tell son after college graduation. iii. Test judge must use: are there enough facts from which a reasonable jury could conclude that husband had knowledge that this was not his son and that wife was going to tell son this? 1. Yesfact that husband refers to her older son, but maybe he knew all along, but not that she was going to tell son. iv. Judge was correct to allow it both because of the inference made by prosecution: wife would tell husband before son and because of husbands interview slip-up II. Probativeness v. Risk of Unfair PrejudiceFRE 403 in depth A. FRE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence 1. Although Relevant a. 403 permits exclusion of otherwise relevant evidence 2. evidence may be excluded. a. Decisions whether to exclude evidence are the trial judges discretion and are reviewable on appeal only for abuse of discretion 3. if probative value is substantially outweighed by a. 403 is a liberal rule, it is friendly toward the admission of evidence. b. If evils of a piece of evidence exactly offset the probative value of the evidence, rule grants judge no discretion to exclude. This is true even if the evils actually outweigh probative value, though only slightly c. Only evils that substantially outweigh the probative value may be excluded by trial judge pursuant to rule 403. 4. danger of unfair prejudice a. Relevant evidence is inherently prejudicial, but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under rule 403. 5. danger of confusion of the issues, or misleading the jury a. cant distract the jury from case at hand, or else that evidence is excluded under 403 6. or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. B. Must articulate the probative nature of the evidence before you can balance prejudice. Also must describe the prejudicial nature 1.Clip from movie Philadelphia: On cross-examination, Tom Hanks takes his shirt off to show his lesions. Is this more unfairly prejudicial to the law firm? a. Prejudicial value: fumbling with buttons, disrobe in courtroomelement of prejudice because of mechanism of how this is accomplished. Element of the prejudice is pathos-sick person disrobing, i. Prejudicial to the other sidethe law firm ii. Not unfairly prejudicial because he is claiming these lesions are why he was fired b.Probative value: Fact that lesions are horrifying show that partners had an emotional reaction to the lesionsthis is a legitimate use of the evidence and goes towards its probative value i. Merely horrifying does not mean that evidence is unfairly prejudicial c. Defense opens the door to this with the mirror. 99% of judges are not going to stop plaintiff from replying in kind. d.What if defense objected to disrobing because of the fumbling, but no objection to showing a photograph? i. Defense has to show that the prejudice outweighs the probative value 2.RULE: if emotion is relevant, the fact that evidence may produce an emotive response does not necessarily render it unfairly prejudicial 3.RULE: but, Evidence that unfairly triggers emotional sympathy for a party may be unfairly prejudicial C. When we decide how much probative and prejudicial value an item of evidence has, we do not look at it in a vacuum, but in the whole scope of trial. 1. So, appropriate for court to assess the other options to still get fair probative value without unfair prejudice.

a. In Philadelphia example: disrobe without jury watching fumbling with buttons D. Confusion of jury 1. Denzel in Philadelphia could have objected to use of mirror under FRE 403 because of the mirror, she is actually showing him image from 6 feet. So, under 403 what she is doing is confusing the jury that it is 6 feet, not 3 feet 2. Conditions of the courtroom must be substantially the same in re-enactment. Here, he even says that at the time he had 4 lesions and they were larger. Must be substantially similar,or else fundamentally misleading under 403. E. Photographs and other inflammatory evidence 1. 99.9% of cases that get to appellate courts, the appellate court says it was proper for trial judge to allow the photographs. So trial judges very seldom reverse. Why? a. Such photos frequently valuable no matter how disturbing b.Trial judges allow prosecutors to admit photos in homicide cases to get a conviction 2. Rule: if a photo is of a nature to incite passion or inflame the injury, the court must determine whether the danger of unfair prejudice substantially outweighs the exhibits probative value. 3. Relevant photographs may be received in evidence even though they also have a tendency to prejudice the jury against the person who committed the offense. 4. This does not mean that every relevant photo should be admitted-- If a does not contest the fact that is of consequence (rule 401), then a relevant exhibits probative value may be minimal. 5. Example: Photo of Guns: Photograph of s gun along with others in a small photograph. Question was whether the fun could rapid fire because accused of altering semi-automatic into automatic, but only showed outside of gun. Is the photo relevant? a. FRE 401: Photograph not relevant to the cleanliness of the internal parts. However, inference could be made that the clean exterior meant there was also a clean interior. i. Even if photo passes 401, it will likely be inadmissible because with nine other guns, some assault rifles also in the photo, it is highly prejudicial to the defendant. b. FRE 403 analysis: i. Probative value: Does the photo show that the gun has been transformed into fully automatic? No because it does not show inside of gun ii. Prejudicial value: No reason to show the other 9 guns except to suggest to the jury that this guy is armed to the teeth iii. Because its probativeness as to the cleanliness of the internal parts is limited, the prejudice of showing the other guns outweighs the relevance-probative value. Also, Jury may be confused by the presence of other guns and be misled to believe the defendant owns them all. F. Judges have tools to limit evidence so that probative evidence gets in without being unfairly prejudicial 1. FRE 105: Limited admissibility. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly 2. The question is always whether the judge can cure that prejudicial effect. 3. Example: Mark Fuhrman tapes in OJ trial: 44 incidences of racial epithets on tape a. Judge takes practical approach on prejudice v. probative value: i. Important for jury to know about racial epithets (prejudicial value), but not necessary to hear all 44 occasions (limited probativeness). ii. Ito strikes a compromise: tells jury about the 44 incidents and lets them hear two. iii. This is not only about unfair prejudice, but about the undue delay and waste of time judges control to manage the case. 4. Critique of limiting instructions: once jury has heard the information, how can we be sure that jury will not use the evidence for improper purposeor stick to limiting instruction? a. Cant spy on Jurors (Tanner case), we just take it on faith that jury will follow the courts instructions. b. Impossible to have a perfectly sanitized trial, so it is a practice of necessity to trust the jury in this way.

5. Sometimes, but rarely, judge will rule that some evidence is so hot that limiting instruction is not effectiveso forego the evidence all together. 6. Difficult to draft effective and understandable limiting instruction, even harder to do so on feet at trial G. Evidence of Flight 1. Rule: Analytically, flight is evidence by conduct, but why is evidence of flight relevant to suspects guilt? a. McCormicks 4 inferences: RULE: Its probative value as circumstantial evidence of guilt depends on the degree of confidence with which four inferences can be drawn i. From s behavior to flight 1. Hypo: Bank robbery in Boston on Friday at 2:30 in afternoon. Person arresting in a car going south on Rt 3 toward the cape. Is evidence of person in car evidence of flight from the bank robbery? No, cant infer someone going south on rt 3 on a summer afternoon is fleeing from policeso first inference fails ii. From flight to consciousness of guilt 1. If we conclude someone is actually fleeing (first inference worksbehavior to flight)then we can move onto to second inference and ask: can we conclude flight is because of consciousness of guilt of some other reason for flight. 2. Flight problem: fleeing for fear of being picked up for prior convictions for being an ex-con, so inference does not workfleeing for a reason other than consciousness of guilt iii. From consciousness of guilt to consciousness of guilt concerning the crime charged 1. United States v. Myers: bank robbery in FL with 2 eye witnesses and still photos. Myers arrested in CA. 2 incidents of fleeing: FL and CA. Myers claims he was not the FL robber. 2. Myers theory makes this inference fail: engaged allegedly in 2 robberies, so inference that Myers was running from FL robbery does not work if he was feeling guilty about PA robbery. Court agreesexistence of PA robbery makes inference inappropriate and unwarranted. Excludes evidence leading to 2 inferences 3. HYPO: suppose Myers starting using False ID and wearing disguise after the FL robbery: does that make flight evidence relevant? 4. In other words: Where item of circumstantial evidence leads to two hypotheses, should the prosecution have to prove to which one the evidence leads or should the jury be able to sort that out? a. Courts are split on whether or not you can send a circumstantial piece of evidence to jury when it permits 2 inferences when one of inferences is not ruled out iv. From consciousness of guilt concerning the crime charges to actual guilt of the crime charged. 1. Probative value criticized b/c evidence of flight or related conduct is only marginally probative s to the ultimate issue of guilt or innocence. What is the prejudice of admitting evidence of flight? a. Would require to introduce bad character evidence to defend against these inferences. In Myers evidence of PA robbery. b. Problem 1.9: Flight: Cutchall charged with murder. Prosecutor admitted flight evidence-- had fled the scene. testified that he fled because he was scared of being arrested for prior convictions, which included 1977 unarmed robbery. i. Cutchall admitting to prejudicial evidence, but here probative value is not outweighed by the prejudice. 2. Yes jury hearing about previous conviction, but the previous conviction is about an unarmed crimenot much of a risk of prejudice b/c no inference between unarmed crime and murder. Also 16 years laternot like the guy was on a crime spree. 3. Here prejudice not that great, so thus not so prejudicial to admit prior evidence and also not strong that his flight was because of prior conviction, so relevant b/c probative.

Point: when weighing prejudice against probative value: THINK CAREFULLY ABOUT THE PREJUDICE 3 Rule (Flight instruction): because of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences. 4 Rule (remoteness of flight from offense): the more remote in time the alleged flight is from the commission of accusation of an offense, the greater the likelihood that it resulted from something other than feelings of guilt concerning that offense. 5 What is relevance of evidence of non-flight or staying put? a. Example (Problem 1.10): local businessman charged with murder of young woman. Man linked to woman through rumors and gossip of a romantic affair. Man not arrested or charged until body was found 7 weeks later. At trial seeks to offer evidence that he made no attempt to flee despite ample time and opportunity. Is this evidence relevant? i. Relevant, but weak because series of inferences is not as strong as it would be for affirmative behavior ii.If it has some probative value, should it be admissible? Yes, no way to argue that this is prejudicial to the argument. iii. To extent inference is weak, jury can sort it out and conclude that it is weak H. Probability Evidence 1. People v. Collins: mugging of old woman by young woman with pony tail, dark blond who allegedly fled in yellow car driven by black man with beard. To bolster identifications of defendants at trial prosecutor called a math professor who testified about the product rule: probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur. a. Problems with use of math to show how random it would be for this couple not to be the perpetrators? i. If we are introducing probabilistic evidence, probability should have some evidentiary standing in the casehere lawyer just asked people in his office to get the approximations and made it up. ii. Even if we accept these figures, chances of these two being the defendants are only 60%, so chances are 40% that it is not them 1. Suppose characteristic found in 1/1000 people, but we know perp of crime had it and we know defendant has it. Is it reasonable to argue that odds are 999/1 that defendant is guilty? 2. No not reasonable b/c if city of 1 million, there would be 1000 people with the characteristic, so 1/1000 that is perp. iii. Traits not mutually exclusive as required by product rule. 1. Ex. flipping a coin. Ex. DNA uses this rule: configuration of DNA at 4 different spots on DNA molecule can narrow suspects down. Nothing wrong with this in DNA b/c adequate data and different locations on molecule are independent of each other so product rule works. iv. No basis for knowing accuracy of report of blond hair girl. Statistics assume the veracity of the witnesses, who may be mistaken on facts. Suggests level of certainty that we dont have b. Case does not stand for proposition that you cant use statistical evidence I. RULE: Very little evidence is excluded for prejudice, so BE CAUTIOUS ABOUT USING IT 1. Clip from Presumed Innocent: Suppose little nerd DA testifies that he said, you killed her, I know you killed her and Ford replied Youre right, youre always right. a. FRE 401: Is this evidence relevant? Yes, obviously when asked about crime, he said yes. b. FRE 403: Is it more probative than prejudicial? i. Probative: allows jury to make inference ii.Prejudicial: not unfairly under rule 403. This is not the kind of evidence that would be ruled prejudicialPrejudice means that evidence has some aspect that jury will not be able to sort outin this clip jury can likely sort out the statements and give it little weight because Ford obviously joking. J. Effect of Stipulations on Probative v. Prejudice analysis 1. Another discretionary tool of judge

ii.

2. Stipulating to prior arrest or prior offense allows fact to come into evidence, but limits the prejudicial effect of describing the prior offense on cross-examination a. United States v. Jackson: Bank robbery, flight situation, unrelated arrest situations. Judge Weinstein strikes a compromise/brokers a deal using carrots and sticks (uncommon for judge to do this). i. Evidence about subsequent arrest in GA after NY robbery would be prejudicial to , although probative to corroborate prosecutions case. ii. Ct held: evidence relating to GA arrest inadmissible provided enter into a stipulation to the effect that (1) he was in GA shortly after the robbery and (2) while there he used a false name 1. Conditional ruling justified under FRE 102: contemplates a flexible scheme of discretionary judgments by trial courts designed to minimize evidentiary costs of protecting parties from unfair prejudice 2. Removes risk of jury inferring on a national crime spree, but will allow jury to infer that fled NY to escape capture for the bank robbery 3. Risk of stipulations to avoid prejudice: Misleading presentation to jury and jury may pick up on it and make its own conclusion. Or, a forbidden fact may slip out because parties know about it. 4. Rule (proving case in Technicolor): Prosecution is entitled to prove case in Technicolor so long as the probative value of evidence, taken in light of the whole context of the case, is not substantially outweighed by the prejudicial effects a. Old Chief v. United States: charged with being in possession of a weapon: to prove guilt: prove knowing possession of firearm and prior conviction of a felony. Current conviction: gun shot, past conviction: assault causing serious injury. Old Chief wants to stipulate to prior felony and exclude name of felony b/c prejudicial. Here previous conviction very much related to current charge i. Govt argues it should be able to prove case in Technicolor and give jury what it expects to hear, preserve narrative integrity of case ii.J. Souter: in ordinary case this rule governs, but in this case prejudice outweighs probative because prior felony is not part of the story of this trial, just an antecedent fact that has to be proved. 1. Hypo: if A charged with shooting someone at close range and if A will stipulate that indeed shot at close range would J. Souter allow the photo to be shown? Yes because photo is part of crimecertainly would not reverse a trial judge iii. DISSENT: rule is nebulous and now open question about what felonies may be named. Jury will wonder what the crime was and why this possession of a fire arm is illegal. Like it or not, Congress made prior felony one of the two elements to be proved in this case and Government ought not to be forced to accept s admission instead of proving their case. iv. General rule is that prosecutors choice survives under a FRE 403 analysis and we let prosecutor prove case in Technicolor. K. Summary of FRE 403 points 1. 403 excludes only evidence that is unfairly prejudicial 2. Potential prejudice must be weighed against probative value 3. If emotion is relevant to an issue in the case, the fact that the evidence may produce an emotional response does not necessarily render it unfairly prejudicial a. Hypo: girl hit by police carsvictim called to testify and COB objects-prejudicial to see her walk up to the stand and testify (problems speaking). Overruled because part of story, measurement of damages 4. Evidence that unfairly triggers an emotional sympathy for a party may be unfairly prejudicial 5. Under Old Chief the prejudicial impact of evidence must be determined in context, thus possible alternatives are relevant (I dont get thisstipulation or limiting instruction???) 6. Courtroom demonstrations are admissible only when conditions are substantially similar to the facts to be demonstrated. III. Specialized Relevance Rulesstill within probative v. prejudicial value topic. These rules of admissibility simply judges life by not requiring 403 analysis for each bit of evidence. A. FRE 407-410 admit evidence for certain purposes and exclude it for other purposes.

1. Other purposes listed is not exhaustive listso long as evidence not admitted for prohibited purpose, there may be additional other purposes. 2. Rules do more than deal with 403 issuesthey have purposes in outside world like promoting settlement or encouraging remedial measures. B. FRE 407. Subsequent Remedial measures: BARS Evidence of subsequent measures TO PROVE negligence, culpable conduct, a defect in a product, a defect in a products design, or a need for a warning or instruction. BUT NOT TO PROVE other things/another purpose, such as ownership, control, feasibility of precautionary measures, if controverted, or to impeach 1.See Route of Admissibility chart for diagram of following analysis: a. 1st ask whether evidence is relevant under FRE 410 b. 2nd If so, than admissible unless otherwise barred FRE 401 c. 3rd If evidence is of subsequent remedy and: i. Is offered to prove N, culpable conduct, product defect or need for warning, than evidence is Inadmissible ii. Is offered to prove another purpose like feasibility, which has been controverted, and 1. survives FRE 403 balancing analysis and other pertinent FREs---than evidence is Admissible 2. May be excluded if fails FRE 403 or other pertinent FREs. 2.Rationales for rule a. Limited probative valueevidence of remedy is often weak evidence of negligence because we cant say that because the world gets wiser as it gets older, therefore it was foolish before b. Risk of unfair prejudiceDespite limited value, inference of negligence is possible. c. Public policywe want to encourage remedies i. No empirical basis for this theorywouldnt potential defendants make remedies anyway? 3.Example: Wolf Attack3 year old attacked by wolf on a 6 foot long fence. Wolf chained because attacked a dog the day before. If dog owner sues, can it offer evidence of the remedial measure? a. No, 407 explicitly bars subsequent remedy evidence to prove negligence because it invites jury to draw inference that animal is dangerous and fact of subsequent chaining is admission of dangerous animal, owner, by keeping a dangerous animal where it could attack another animal is direct evidence of negligence b.What about in suit where 3 year-olds parents sue? Is evidence admissible? i. Yes. Here, the measure is not subsequent because wolf was chained up before the attack. Person in custody of wolf knew it was dangerous, so question is whether he took adequate precautionsevidence is admissible. 4.Feasibility of subsequent remedial measure, if controverted is another purpose for which the remedial measure may be used as evidence. a. Tuer v. McDonald: med mal case. Pt had been on heparin before surgery, but it was discontinued to ensure that if corroded artery perforated, pt could bleed to death. MD had said not safe to re-start heparin, but changed protocol after death of this pt. Issue: Whether evidence offered for feasibility: was feasible to re-start heparin administration during time delay or for prohibited purpose? Holding: prohibited purposeevidence excluded. i. Excluded for policy reason: if law allows admission of subsequent remedial measures, people wont make subsequent remedial measures. b. Economic feasibility-- Worker injured on machine in factory. Worker injures arm on conveyor belt while stamping and putting item into machine. Worker files suit against maker of machine: 3rd party case. Claims that machine should have had a guard on it. i. One defenseguard no economically feasibly because worker productivity would drop ii. If guard subsequently put onworker can offer evidence of subsequent remedy to prove that such a guard was economically feasible 1. It would be grossly unfair to allow manufacturer to defend on economic infeasibility when that is precisely what the manufacturer did. 5.Impeachmentuse of subsequent remedial remedies to impeach evidence is permissible

a. HYPO: wood chipper: plaintiffs husband killed in wood chipper. She cant use subsequent remedy to prove negligence of machines maker. But, at trial, defense counsel and witness misrepresent the wood chippers as being the same as before when in fact they were altered after the accident. i. Now plaintiff can use evidence of subsequent remedial measures to impeach the testimony its still there indicates same machine when in fact modified machine is now there. C. FRE 408. Compromise and Offers to Compromise. BARS offer to compromise/attempt to compromise a disputed claim and statements/conduct in negotns TO PROVE liability/invalidity of claim. BUT NOT TO PROVE: other things/another purpose such as witness bias, lack of undue delay, or obstruction of criminal investigation. 1. Rationales for rule: a. Little probative value: May be motivated by a desire for peace, rather than a concession of weaknessto settle b. Risk of unfair prejudicebut statements made during negotiations may mean more c. Public policyto encourage compromiseto do this, must encourage full and frank discussion without risk of discussion being offered at trial. 2. Example: MVA and mediation with parties. says willing to pay $50,000 to settle, wants $500,000. Rule says that at a later trial of action, cant use s offer as admission of liability. a.Also conversation going on, not just offers. So there may be conversations where parties acknowledging certain weaknesses in case. 3. Bankcard America v. Universal Bankcard Systems: Breach of K action. Universal wants to use negotiation discussion to prove it thought it could roll over accounts without breaching K. No offered for proving liability, being offered to explain the effect settlement negotiations had on the conduct of the party. Court says evidence should have been allowed because this is an admissible other purpose 4. Evidence otherwise discoverable is not excluded by FRE 408 a. Example: hotel inspection: Contract dispute. During course of settlement negotiations Goldsmith commissioned by Hotel to make a report in order to determine merits of the claims for settlement purposes. Should that report have been admissible at trial? i. Yes, this is an example of statements during negotiations being otherwise discoverable and thus, not excluded by FRE 408. ii.But, if report made solely for settlement negotiations, than strong argument for exclusion. D. FRE 409. Payment of Medical expenses and Similar Expenses. BARS offer or payment of medical costs TO PROVE liability E. FRE 410: Inadmissibility of Pleas. BARS (1) guilty plea later withdrawn; (2) nolo contendere plea (3) statements in plea proceedings; (4) statements in plea talks with prosecutor. BUT ADMISSIBLE (a) to complete partial account of plea discussions (where another statement has been introduced already); (b) in perjury prosecution if statement under oath, on record and in counsels presence. 1.Rationales for rule: a. Limited probative valuea , althouth not guilty, might offer a plea to avoid risk of loss after trial and an even greater penalty b.Risk of unfair prejudiceconcession of guilt c. Public policyexclusion will promote plea bargainingso even if no plea is reached, prosecution cannot use statement made during bargaining. 2. RULE (prosecutors offer): If prosecutor offers immunity in exchange for testimony, not barred from offering that to prove weakness in prosecutors case or consciousness of innocence under FRE 410 a. BUT, must still pass FRE 403 balancing as to unfair prejudice to prosecutors case 3. Rule (declining immunity): Where turned down an immunity offer, he should be allowed to offer that under FRE 410. US. v. Biaggi 4. Rule (Proffer letters): can waive 410 rights b/c he doesnt have to agree to waiver if he doesnt want to. a. Mezzanato, before proffer conference, prosecutor drew up a proffer letter, which sets out terms/conditions of the discussion. Letter said if said something to me during discussion and later says something different at trial, I can introduce it later at trial. objected saying that 410 does not admit this evidence and said that this cannot be waived.

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b.Every proffer letter now contains a waiver BUT, seem to be contracts of adhesion huge difference in bargaining power i. Other standard provision of proffer letter prosecutor can use any other evidence that the defendants statements lead them to. c. Department of Justice single-handedly has amended R. 410 uses statements made during proffer conferences to impeach its witnesses. F. FRE 411: Liability insurance. BARS: evidence of liability insurance or lack of TO PROVE negligence/wrongful action. BUT NOT TO PROVE other things such as: agency, ownership, control, or witness bias 1.Rationales for rule: a. Limited probative valueunlikely that the insured are more careless or that the uninsured are more careful b. Risk of Unfair prejudicejury might otherwise seek deep (insured) pockets or reduce recoveries to insured plaintiffs c. Public policy: exclusion avoids a windfall for the opponent of an insured party 2.Analysis a. 1st ask: whether or not the insurance evidence is relevant (FRE 401, FRE 403)? b. 2nd: whether insurance evidence being offered to prove person was acting negligently or for the Such as part of the rule. c. 3rd: Then we get to the R. 403 test and ask whether probative value of evidence is substantially outweighed by prejudicial value? 3. Example: Malpractice insurer: learns and expert witness are insured by same insurance company (a mutual insurance carrier, which means that if is convicted, experts own premium will go up). Should court permit evidence that they are both insured by the same company? a. Probative Value? Yes experts premiums will go up if is convicted i. Hard to imagine that the witness premiums will be affected by a single conviction against this particular defendant. At most, it would have a slight effect on witness premiums. ii. Evidence has probative value but very little probative value b.R. 408 it is being used to show bias, so it could be admissible i. Although it makes sense, courts really havent gone that way c. But now we have to look to balance test of FRE 403 probative value must be substantially outweighed by the danger of unfair prejudice i. Very weak probative value and high risk of deep pocket prejudice against MD, despite the fact that most people know MD has insurance IV. Character evidence A. FRE: 404(a) Character-propensity rule: Character Evidence Generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except 1. Exception FRE 404(a)(1): Character of the accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of this alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution a. Criminal can choose to offer evidence of his own good character to suggest the inference that he is not the type of person to do such a crime as accused b. But, must open the door to the character issue i. SO, Prosecution can only introduce character evidence after and to rebut the character evidence had already introduced 2. Exception FRE 404(a)(2): Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor. a. On occasion criminal can offer evidence of character of alleged victim. Usually it comes up when trying to show he acted in self defense b. Can bring in evidence that victim was a quarrelsome person and started the fightThis opens the door to prosecution

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rebut with EITHER character evidence of victims character for peacefulness or character evidence about to rebut s claim of self defense. c. Prosecution can only give character evidence of victim without opening door in homicide b/c victim not there to testify 3. Exception FRE 404(a)(3): Character of witness: Evidence of the character of a witness, as provided in rules 607, 608, and 609. 4.IN SHORT: 404(a) forbids the propensity inference, but gives situations where use of character evidence is admissible 5. FRE 404(b): Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice a. IN SHORT: cannot use evidence of other acts to prove a character trait to suggest person acted in conformity therewith. 6.Problems with admitting character evidenceevidence is relevant, but causes unfair prejudice in 2 forms a. jury will put to much weight on the evidence of vicious crime record and allow it to bear too strongly on the present charge. b. Punish for some other reason than crime charged a. Jury will use character evidence to justify a condemnation irrespective of guilt on present charge, but will punish for being a bad guy. b. Punish Zackowitz for having a small arsenal on theory that that offense deserves punishment even if not guilty of crime charged. c. Character evidence could confuse the jury because acts to prove character are not normally the focus of the present case d. Mini-trial around admitting and rebutting the questionable evidence could consume/waste time. 7.Rule 404 reflects judgment of Congress that probative value of propensity evidence is, as a matter of law, substantially outweighed by the risk of unfair prejudice, juror confusion, and waste of time. B. Examples of character propensity analysis: 1. People v. Zackowitz: Z shoots Copolla at point blank range for insulting his wife. Prosecution entered evidence of all of his guns at home and used them as exhibits to prove that Z was a man of murderous disposition. Issue was whether murder was premeditated a. Relevance of finding several weapons at s house? Choosing 1 or four does not really show premeditation unless chose the perfect gun w/ a silencer b. Must turn to characterrelevancy as to s character= Man of vicious and dangerous propensities would be more likely to kill with deliberate and premeditated design that a man of irreproachable life and amiable manners a. gun nut more likely to form premeditation than road rage shooter b. Theoryman is murderously inclined c. Evidence inadmissible b/c relevant to character propensity question, which is forbidden under FRE404(a) d. Evidence of other guns might have been admissible under FRE 404(b) if: i. weapons bought in expectation or to prepare for the crime ii. If gun left at scene, could be used to identify the perpetrator iii. If Z took all 4 guns with himwas armed head to footthis evidence could be used to prove premeditation 2.Hypo: 60 year-old man on trial for sexual assault on 14 year old girl. Is evidence that he was once married to a significantly younger woman and that he has had consensual sexual relations with women much younger than himself admissible? a. Relevance? May not be relevant to anything, but tends to show this man is interested in significantly younger women (this is character evidence) b. Leads to impermissible inference that takes us through propensity boxliking young women makes it more likeley he assaulted this 14 year-oldinadmissible

i. SO, after exercises his option to introduce character evidence of victim, Prosecution can

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c. Also inadmissible under FRE 413: Evidence of similar crimes in sexual assault cases because 413 is
limited to criminal behavior. 3.Hypo: Treasurer of charity accused of embezzlement. Large sums under her control have disappeared and she has an expensive lifestyle. May prosecution introduce evidence that she lied to a university in applying to grad school and has been convicted of bigamy? a. Relevance? Lying or being deceitful relevant because embezzlement and bigamy center on lying, lied before, more likely to continue to lie. b. But this is classic propensity evidence-- shes dishonest, deceitful in pastlied to University, spouses, so probably is a liardeceitful person. 4. Hypo: on trial for murder, accused of shooting with rifle. Can prosecution use evidence of poisoning one year before to prove identity of shooter? How does this evidence tend to prove his identity? a. This evidence is relevant to s character for having a murderous intent. b. Inadmissible because leads jury on chain of inference through boxbecause he poisoned someone, is murderous, because he is murderous, he probably shot the rifle. c. Identity is one of the ways around the boxhowever, need something closer to the mark of zoro or matching shell casings of a gun to prove identity 5. Hypo: on trial for shopliftingmagazine. Claims owner offered magazine on way out after buying other items. wants to admit evidence of owner offered free boxes of candy in past a. Relevance? Relevant to victims generositybecause he was generous in past with candy, more likely he would also be generous with magazines b. But, this is propensity evidence of victims character trait of generosity and would be excluded under 404a c. Another purpose? 404b: What if offered to prove victims business practice or marketing strategy? a. Now this evidence is admissible because it goes around the propensity box/inference based on victims character for generosity 6.Hypo: Passenger gets out of street car, but is hit because driver does not wait for her to get all the way off. Can passenger testify that driver did the same to previous passengers exiting and her boarding? a. Relevance? Yes, shows lack of care by driver, which allows inference that driver is careless, so because he was careless, he started too early when she got off. b. Relevance only as to character of driver (careless), so inadmissible as propensity evidence c. Another purpose? 404b: Offer evidence that conductor was in a hurry or running late that daynot his general character, so we can infer he was careless based on this evidence and it does not go through the propensity box. C. FRE 405 Methods of Proving Characterwhat form character evidence must take to be admissible 1. 405 (a): In case in which character evidence is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross examination, inquiry is allowable into relevant specific instances of conduct. a. Reputationtestimony as to reputation in community a. witness must establish familiarity with in community b. Opinionwitness testimony as to his opinion of s character i. witness has to know well enough to have a foundation for an opinion c. Last sentence reflects the Michelson rule: If character witness for , the character witness can be cross-examined about specific acts that the has committed in past i. Michelson v. United States: Question prosecution wanted to ask: did you hear that on Oct 11, 1920, was arrested for receiving stolen goods? 2 legitimate purposes for asking: (1) To see if character witness actually knows the defendant well enough to give testimony to reputation (if response is negative) (2) Prosecution wants to cast doubt on the judgment of the witnessskewed judge of good character (if positive response) Also wants to sling some mudlet jury hear the question. This is allowed because (a) price pays for proving good name and (b) prosecution has right to cross-examine. Judge gave limiting instructionuse of evidence only to test witness knowledge of reputation of ..

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3.

405(b) is an exception: Specific instances of conduct. In cases in which character or a trait of a person is an essential element of a charge, claim or defense, proof may also be made of specific instances of that persons conduct a. DO NOT USE ON EXAMalmost no cases fall within this rule. Only 3: i. Entrapment in a criminal caselaw enforcement entraps to commit crime, must prove no prior disposition to commit the crime. Character of being predisposed to criminal activity is an element to the defense of entrapment ii. Defamation: News paper article that Prof at law school is dishonest. For claim, accusation must be false. Truth is absolute defense. So character for dishonesty is essential element iii. Child custody: child goes to better parent and elements of character are relevant to whether one is a good parent. Problems on FRE 405: proof of s and victims character a. charged with killing victim in drive-by shooting. Defense: pressured to do it by someone else in car. On direct testifies that she wouldnt shoot anyone. On cross, pros asked about shooting people in the past. i. Defense argues this is impermissible form of character evidenceviolation of 405a ii. Pros argues opened door by testifying about her own character, so pros can rebut that on cross-examination by asking about prior shootings iii. Alternative pros argument is that acting as her own character witness and so on cross examination under pros can inquire about specific instances of conductSee Michelson rule. b. K on trial for shooting and paralyzing R. K claiming self defense. During break in trial R encounters Ks brother and threatens him. Ks lawyer now wants to admit this incident as evidence of Rs violent nature. If pros objects, how should court rule? i. While 404(a) allows to present evidence of victims character in self-defense claim, here the evidence is not in the proper form under 405(a) because it is an incident, not testimony as to reputation or opinion. ii. Essential elements of self defense are reasonable fear of imminent attack, so 405(b) would not applyDO NOT USE. iii. c. Facts of US v. JamesJames killed Ogden and pleading self-defense. Claim based and James testifies to Ogden boasting about how he had stabbed a man with a pen, beat another with a carmirror, and threatened another while holding him at knifepoint. Prosecutor objects this evidence as improper character evidence. How should court rule? i. Defense argues character evidence is used for another, permissible purpose ii. Not offered to show O acted in conformity of last acts (impermissible purpose), but to show James reasonably believed his reputation iii. Because it is testimony as to reputation, it is okay under 405(a). d. appeals on basis that toxicologist testimony improperly excluded below. Testimony would show large amounts of drugs in victims system and opinion that use of substances increases likelihood that victim was aggressor. In a self-defense claim, was court right to exclude expert testimony as improper evidence of victims character? i. Defense argues nothis is expert testimony, not character evidence. Expert can express opinion about the effect of drugs on human body and human behavior. ii. Prosecution argues under FRE 403-- drug uses prejudicial value outweighs probative value: jury could conclude this guy was a bad guypotential for prejudice iii. Defense probably wins because prejudicial value must outweigh the legitimate argument of defense. 4. Proof of s and Victims character in civil Cases a. RULE: character evidence is not admissible in civil cases i. FRE 404 only applies to criminal cases b. Minority rule: Where civil defendants face similar stigma to criminal defendants, they are entitled to use character evidence (Perrin v. Anderson rule

2.

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Character evidence admitted in 1983 civil rights case against two police officers charged with using excessive force. Court held: B/c police officers faced a stigma similar to criminal defendant faces, they were entitled to use character evidence. (minority rule) (1) Only a few cases decided this way and it was probably wrongly decided. (2) Only applies to quasi criminal behavior c. SEC v. Financial reaffirmed majority rule: Even if Perrin is right, court not willing to extend the minority rule. D. Limiting Instructions 1.Michelson court allowed pros to ask about prior arrest, but gave limiting instruction to jury that evidence only to be used to test character witness testimony 2.Jury indirectly judges defendants character by deciding how much weight to give the testimony of the good character witness. a. Most jurors find it odd that they can only use this indirectly b. Jurors are not supposed to use evidence of prior arrest to infer is a bad person 3. Jury can use question to determine if committed the crime, but cannot reasonfact of possible arrestbad personthus committed crime i. Jury advised that good character alone may be sufficient to raise a reasonable doubt about the s guilt 4. The jury may consider the witnesses answers that they did not hear of an arrest of in assessing how familiar they are with the s reputation a. But, illogical if there is not evidence on whether was in fact arrested E. Routes Around the Box404(b) in depth 1.Analysis a. Is evidence capable of a propensity inference? If so, impermissible b. Is there another purpose evidence could be offered for the avoid the propensity inference? i. Any DA worth her salt should be able, in most cases, for coming up for some justification for introducing prior crimes or bad acts besides for propensity inference (step bin analysis). c. Does the risk of prejudice substantially outweigh the probative value of the evidence for this other purpose? i. Battleground is step c in analysis d. Can a limiting instruction cure the prejudicial effect? 2.Proof of knowledge a. Using character evidence to prove knowledge is a permissible use and a route around the propensity box under 404(b) b. EXAMPLE Hacker problem17 year old high school student arrested for hacking. Arrested in Las Vegas in March after ordering 14 laptops to be delivered to nonexistent accounting officeable to do this through penetrating companys encryption system. Similar incident occurred in February, but computers sent to a fake San Francisco high school. Hacker charged with both incidents, pled guilty to March incident, but insists not guilty of February incident. Pros intends to use March incident as evidence in February incident trial. i. Capable of propensity inference? Yes, evidence of LV incident suggests character of a thief and thus, probably committed the present time ii. Offered for another purpose? Yes, used to show he is capable of doing this, had knowledge-know how. (1) Relevant? Some probative valueputs 17 year-old into universe of people who can do this. But probative value depends on how large the universe is. More probable if universe is smaller iii. Is probative value substantially outweighed by the prejudicial effect? Probably. (1) Jury may give knowledge more weight and characterize person as a hacker (2) Convict because of March incident. iv. Will a limiting instruction cure the prejudicial effect problem? No. c. EXAMPLE Drug seller-- charged with drug distribution, but had no drugs on him at time of arrest, although officer observed in transaction from lookout point. At trial pros seeks to offer proof that

i.

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was previously convicted of distributing drugs on basis that past conviction is evidence of s knowledge of the drug trade and therefore of his identity as the seller in transaction i. Propensity evidence? Yes-invites jury to conclude bad character from being drug dealer ii. Another purpose? Argue knowledgeunderstood logistics of drug trade iii. Probative outweighed? Yesprior conviction of drug dealer-should be punishedhigh prejudice. Low probative value: large universe of people who know how. iv. Evidence inadmissible because unfairly prejudicialDrug exception d. EXAMPLE: ship from Bogota, Columbia to New England. Coast Guard boards ship and finds sealed and large quantities of marijuana in the hold. Charge everyone on ship with conspiracy to import marijuana. One of s says he did not know about the drugs because he is just the cook. Would evidence that he was the cook on another marijuana boat and had previously convicted of smuggling marijuana be admissible in this case? i. Is there a certain geshalt/know how of marijuana smugglers that would satisfy proof of knowledge? First Circuit admitted this on theory: atmosphere on marijuana boat, likely to know this time that he is on such a boat. ii. Avery not sure this does not fall into drug case exceptionoverly prejudicial. 3.Proof of Motive a. Using character evidence to prove motive is a permissible use under 404(b) b. EXAMPLE: Charged with shooting and killing FBI agents. Govt wants to introduce evidence that 2 years before he failed to appear on attempted murder charge and has been a fugitive since then. Admissible? i. Propensity evidence? Yes, charged with attempted murdermurderous person and probably committed these murders ii. Another purpose? Motive: does not want to get caught. This is contingent on him knowing they were FBI agents (1) 2 years? Still concerned about an outstanding attempted murder charge. c. EXAMPLE: Presumed Innocent clipHarrison Ford on trial for murder of ADA. Prosecutor wants to bring up that he was having an affair with her. Is this admissible? i. Propensity? Adulterer/philandererbad guy. ii.Another purpose: motive to kill her, access to bedroom iii. Probative v. Prejudice: Probative high because he is in close circle of people who knew the deceased, but not that prejudicial because not all affairs end in murdercharacterizes him as philanderer 4.Proof of Identity a. Another permissible use of character evidence and a way of getting around propensity box. b. EXAMPLE: Govt wants to show evidence found in s car and trailer. s stopped by FBI Agents and fatally shot agents in gun fight. What is admissible out of the loot found in the car: Agents revolver in paper bag with s fingerprint, shell casings fired from Agents revolver, 14 firearms, numerous boxes of shells, took boxes containing wiring, pocket watches with wires leading out of them, tools pliers, empty shell casings, pieces of paper with codes and words written and 9 hand grenades. Agent shot with high velocity, small caliber weapon and s AR-15found with firearms is such a weapon i. Propensityadmitting everything would suggest murderous intent ii. But, some of it can be used to prove identity of shooter (Another purpose) (1) victims gun in bag shows handled gun. This is clearly relevant because handling the victims gun makes it more likely than without this evidence that he is the shooter. Also, prejudice does not outweigh highly probative value (2) s gunshows he had the means at his disposal and he could be the shooter (identity). This is also relevant because it puts in universe of owners of weapons that could have killed the agent. Highly probative. (3) The rest does not prove identity and invites jury to make the impermissible character inferencemurderous intent/gun nut. c. EXAMPLE: Lottery list problem: police search s apartment and find cocaine in kitchen, little baggies and paper with lottery numbers and lists of bets written on it. At trial it was disputed whether

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 was occupant of apartment. Pros introduced lottery lists as well as 1987 conviction for commercial gambling on theory that if was previously convicted of gambling, more likely he was involved in gambling now and therefore, more likely occupied apartment. i. Capable of propensity inference? Propensity to engage in commercial gambling=bad person, addictive character trait, likely to have the drugs. ii. Another purpose? Yes, to show identity that this is his apartment iii. Prej v. Prob? Probative value not very strong and prejudice not very strong. All that can be said is that it puts them in the universe of people who might be interested in this apartment because there were lottery tickets. iv. This is a multiple propensity box problem and does not really go around the boxso inadmissible. (1) Impermissible propensity Inference: because gambled in past, he is gambler (2) Identity inference: because he is a gambler (see above) these are probably his tickets v. If lottery slips were legal state lottery numbers? No longer prejudicial, but still fails because brings jury through propensity box vi. If lists were handwrittencourt use handwriting analysis to identifythis gets around the box. And proves identity. d. PROBLEM with identity as route around boxsome times leads jury through smaller characterpropensity box, running afoul of 404b and not really going around box. (Check with group about this) e. Reasoning may require more than one box, maybe 5 or 6 i. Multiple propensity boxes and impermissible character evidence in lottery list example: because gambled in past, he is a gambler and because he is a gambler maybe he is the one who left the tickets in the house f. EXAMPLE: Cycling brochures found instead of lottery slipsis this admissible or it is an element of character that leads to a propensity inference? i. Is this evidence capable of a propensity inference? Arguably no if I argue this is not a character trait. Fisher book argues character has expansive definition, so strong interest in bicycling is a character trait, others would exclude it. (1) EXAM TIP: to have evidence excludedargue it is a character trait, to have evidence includedargue it is just a hobby, not a character trait. ii. Another purposeidentity iii. Prej v. probboth very low. Avery thinks most judges would conflate step 2 and 3 and think no harm because no prejudice. g. RULE: 404(b) prohibits all propensity evidence, not just bad or prejudicial evidence. 5.Proof of Modus Operandi (M.O.) a. A way of proving guilt when identity is in disputeshowing that the crime matches the s M.O. b. Permitted inference: This could not be anyone elses crime. c. To get around propensity box with MO, 2 crimes must be so distinctive and match in idiosyncratic ways that the inference that nobody else could have committed this crime overcomes the jurys temptation to engage in propensity reasoning. d. United States v. TrenklerMajority uses MO to include evidence of building Quincy bomb during trial of Roslindale bomb i. Propensity? Yes, propensity inference is that he is a bomber. ii. Another purpose? Identity in signature crime sense (Modus Operendi) (1) Majority says there was an M.O., but dissent points out many differences between the bombs iii. Prej. v. Probassuming M.O. purpose passes 401 relevance muster, is it probative enough to outweigh the prejudicial effect of the evidence? (1) Not many people in universe (2) Unlike Zackowitz where there were lots of guns, here court draws similarities between the bombsnot unfairly prejudicial

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Reverse 404(b) to exonerate because misidentificationUnited States v. Stevens: Defendant trying to use 404(b) in reverse: crime part of series of crime and he can show that he did not do those other crimes, so did not do this one. i. Issue: What standard should court use in determining reverse 404(b) evidence? ii. Court concludes that the standard is lower for reverse. To use 404(b) defensivelystandard is simple relevance to guilt or innocence. (1) Avery does not think this is doctrinally correct because court merging question 2 and 3lower standard but no prejudice, so standard lower 6.Narrative Integrity (Res Gestae) a. Impermissible character evidence sometimes required in order to tell an accurate story, with clarity preserve narrative integrity of the story. i. Limiting instructions leave holes in the story, disrupting clarity. ii. Ambiguity and holes invite the jury to come to its own conclusion or to fill in the missing holes b. EXAMPLE: evidence of victims library card in abandoned cars trunk. Witness can link to the abandoned car, but must reveal that she met with to buy drugs and after paying , went to get the drugs from the trunk, where she saw the card. Pros wants to use this testimony to prove this was s car and he used it for the murder. i. Defense argues propensity evidence: (1) propensity that he is a drug dealer, so bad person, so likely murderer. Relevant to his character ii. Pros argues this evidence is required to maintain narrative integrity of story. Yes, propensity evidence, but witness testimony cannot be sanitized without compromising the integrity of the story. (1) Tough to explain $10,000 in exchange for something from the car without jury drawing its own conclusion about drugs iii. No acceptable answer to this problem 7.Absence of Accident a. Another way around boxif something bad happens accidentally, would be more careful and not allow it to happen again, thus second claim of accident is not believable (NOT sure how to articulate this) b. EXAMPLE: charges with shooting his wife. Testifies that he was cleaning his gun when it accidentally discharged. Pros sought to admit evidence that 3 years earlier shot and killed first wife with same accident claim i. Propensity evidence? Yes, using prior act to show acted in conformity therewith impermissible propensity inference. ii. Another purpose: Absence of accident: If the gun went off accidentally once, that is believable, but prosecution will argue that accidents like this do not happen more than once iii. Prej/prob? V. Probative because prior accident claim makes this accident much more likely to be untrue than without prior accident claim. Certainly prejudicial because it reveals killing first wife, but not unfairly because of the probative weight iv. Evidence admissible under absence of accidentgoes around the box c. EXAMPLE: 3 year old brought to hospital unconscious. Mother says result of falling down stairs. Same child in hospital twice before in same year: concussion and broken bones from accident each time. In child abuse or neglect prosecution for 3rd set of injures, are the previous hospitalization and mothers explanations admissible? i. NEED Avery analysis ii. Propensityyes mother is child abuser b/c of past injury evidence. iii. Other purpose: absence of accidentfirst time accident, but would have been more careful iv. Prej/prob. Not too probative because kids get hurt a lot, not such a clear case of abuse. Very prejudicial towards mother. v. Inadmissible? Judgment call re: doctrine of chances, not as clear as brides in bath 8.Doctrine of Changes a. Another way around box in some jurisdictions b. RULE: Where accident happened to a number of times, benefiting him each time, jury can draw inference that the occurrence of so many accidents benefiting could only happen by design.

e.

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Rex v. Smith: famous evidence case: wife drowns in bath leaving everything to husband by will. Husband claims accident. 2 previous wives met same death and also left him everything by will ii. Sheer improbability that Smiths three wives could all die in their tubs without foul play is known as the doctrine of changes F. Huddleston Standard404(b) evidence not subject to judges preliminary finding [104(a)], but given to jury [104(b)]as another fact in the case so long as there is sufficient evidence from which a reasonable jury could conclude by a preponderance of the evidence that the fact is trueor event happened 1. Huddleston v. United States: charged with stolen video tapes. To be convicted for selling stolen property, must know property was stolen. Prosecution theory is that he was selling other stolen stuff (TVs), so ought to know they were stolen and thus, knew tapes were stolen. Holding: judge makes no preliminary rulinggoes to jury as all other facts despite being character evidence under 104(b) 2.WHERE does this fit into analysis???? 3. EXAMPLE: Past acquittal of Henry robberyjury found insufficient evidence under reasonable doubt standard. Now govt wants to bring evidence of Henry robbery in bank robbery case. says this looks like double jeopardy. a. USSC says no, evidence is admissible because the standard of proof is now different (preponderance of the evidence instead of reasonable doubt from first trial). b. Because perfectly consistent that did commit Henry robbery, but not convicted b/c of differing standards of proof, evidence admissible in bank robbery case c. Jury does not hear that acquitted of Henry matter because it is not relevant (fact that evidence was insufficient there) Also because it is hearsay d. Under Huddlesonirrelevant that there was a previous trial e. Judge could still exclude under 403 G. Propensity Evidence in Sexual Assault cases 1.Under FRE 413, 414, and 415 in sex crimes trials ban on propensity is lifted. Theory: this evidence is relevant and for some reason, we need it in this category of cases a. These rules are true exceptions to propensity evidence ban 2.Rule 413: Evidence of Similar crimes in sexual assault cases a. Evidence of s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant b. RULE: 403 balancing test applied to FRE 413-415 i. United States v. Guardia: OB/GYN MD charged with two counts of sexual abuse. Plaintiff wants to admit evidence of 4 prior incidents. Holding: Court must perform the same 403 analysis that it does in any other context, but with careful attention to both the significant probative value and the strong prejudicial qualities inherent in all evidence submitted under 413 ii. Evidence in Gaurdia excluded under 403 NOT because of risk of inferring propensity (413 allows propensity evidenceso use of it is NOT prejudicial), but for other prejudicial reasons: (1) Strongest argument for jury confusion: fact that there will have to be expert testimony for each procedure re: medical procedure. (2) Needless testimony, lengthening trial (3) Convicting him of other, prior acts even though not on trialpunish him for being a bad guy even though proper for use to draw propensity inference. c. 3 step analysis under 413 i. is accused of sexual assault ii. is evidence offered to show another offense of sexual assault iii. is the evidence relevant d. Rapist can have prior act used against him, but shooter cannotresult is a illogical i. Hypo: attempts to rob a day care center. During robbery fires a shot at the manager, but it hits a child. On trial for shooting child. Prosecution has evidence of prior act: he fired shot at ex-girlfriend and hit her child. Is that evidence admissible for trial of day care center? (1) Propensity? Yesthis guy is violent (2) Another purpose? Weak 404(b) arguments (3) Unfairly prejudicialinadmisisble

i.

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ii. Hypo: same guy goes to rob the center, but in course of day care center he rapes the manager. Evidence that one year before he broke up with a woman and raped her. Is that evidence admissible? (1) Yes under 413 because sexual offense, can make propensity inference that he has a propensity to commit this type of offense 3.Rule 414: Evidence of similar crimes in child molestation cases a. Same language as FRE 413, but concerning children 4.Rule 415: Evidence of similar acts in civil cases concerning sexual assault of child molestation a. evidence of commission of another offense of sexual assault or child molestation is admissible and may be considered as provided in rule 413 and 414 where in a civil case the claim for relief is predicated on alleged commission of sexual assault or child molestation., 5. Sex crimes under 404(b)Common scheme/Plan exception a. Rules are most significant as model rules of evidencenot used very much because federal rules b. Lannan v. State: Court abandons the depraved sexual instinct exception in favor of 404(b), but still affirms the conviction. Used Robins case: Judge accused of child sexual abusewould that evidence be admissible under 404(b)? It depends on ones view towards common scheme or plan exception. i. True planintegrated with segments ii. Broad plansimilar incident c. State v. Kirsch: Split plan views. Prosecution tried to use prior bad acts of church-group leader to show motive, intent, common plan or scheme. Ct rejects because Pros cannot articulate how proof of motive is different than propensity use of character evidence i. Dissent view: there is a common scheme or plan because put him self in this positionchose this job where he would have access to particularly vulnerable potential victims d. Common scheme/Plan in domestic abuseProfessor Raeders Control Theory i. Husbands overall plan or scheme was to control his wife. The prior batteries are integral to his grand design to dominate and control his wife. His act of murder is the final act of control ii. Defense: clearly evidence is propensity evidenceproblem in theorycant control if dead. iii. OJ case: should 911 tape be admissibleprior batteriesunder control theory? previous abuse with common scheme seems to be a propensitybattery tends to show he killed her. H. Evidence of Habit: FRE 406: 1.FRE: 406: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 2.Because proof of habit does not (at least in theory) involve drawing inferences from general traits or character, it falls outside rule 404(a)s bar on propensity evidence. 3.Cautiontends to swallow character rule. Think about habit cautiously and use it sparingly. 4.True instances of habit: look for these signals a. Non volitional behavior, unconscious or semi-conscious behavior. i. leaving particular driveway and inching around corner everytimealmost nonvolitional or unconscious ii. Above is different from saying someone is a careful driver wherever they go. What we are saying is that his character for carefulness causes him to follow safety precautions---CANNOT have testimony that he is in the habit of driving safely. b. Look for what someone does in a specific situation c. Regular response to a repeated behavior d. Evidence of habit usually does not have moral overtones, whereas character evidence usually does e. Must think about number of instances upon which argument of habit is based. So must ask how many time person has been observed in this behavior

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5.Proof of habit is not limited to reputation or opinionso can use prior acts b/c habit evidence is not character evidence 6.No bright linehabit overlaps with character evidence. 7. Halloran v. Virginia chemicals: Auto Mechanic injured when freon can exploded as he was heating it in water. Can supposed to withstand 130 degrees and water was 90-100. Defense tried to introduce Hallorans use of immersion coil for heating Freon a. Is this habit? i. Repeated response to same specific situationjob to change the Freon. ii. Highly predictive that he would do it in this instance. iii. Depends how many times iv. Avery says probably is habit 8. Lack of volition is one sign that behavior qualifies as habit, but touchstone of habitual behavior is regularity and hence predictability 9.Habit evidence is more predictive than other propensity evidence and harder for jury to over weigh I. Steps of the character analysissee Route of admissibility chart(Check with Group) 1.Is the proponent offering character evidencerelevant only to character trait? 2.Is this an occasion where character evidence can be offered? a. FRE 404(a)(1), (2) & (3) b. If so, is it offered in proper format (FRE 405see IV C) 3.Is the evidence capable of a propensity inference a. Is evidence something from which jury can draw conclusions about s character b. If so, 404a problem if evidence and 404b problem if prior act, crime or wrong 4.Is there another purpose for which evidence may or could be offered (404b) a. Is this purpose relevant under FRE 401 and 402? b. If so, evidence may be admissible 5.Does the prejudicial risk of evidence for admissible other purpose substantially outweigh the probative value of evidence for admissible purpose? a. Prejudice can be negative inference as to character. b. Will a limiting instruction cure the prejudicial effect of the evidence? V. Character for Truthfulness A. Proving/admitting character of a witness: FRE 404(a)(3) and FRE 608 and FRE 609 (govern impeachment of witnesss credibility) 1.FRE 608: Evidence of Character and Conduct of Witness i. 608(a): i. Evidence has to be opinion of reputation ii. Witness can only talk about character for truthfulness iii. Cant shore up truthfulness unless it has been attacked. ii. 608(b): i. Specific instances of conduct of a witness to show character for truthfulness, may not be proved by extrinsic evidence. ii. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witnessif (1) they concern witness character for truthfulness or untruthfulness or (2) they concern truthfulness or untruthfulness of another witness as to whose character the witness being cross-examined has testified. iii. 608(b) bars extrinsic evidence as to collateral matters, only applies to evidence offered to show witness general character for truthfulness (1) No restriction on using extrinsic evidence to prove W lying in this case would not be collateral (a) intersection collision case and essential to know color of light. W1 says green, otherside W says redextrinsic ok b/c matter is not collateral (2) Subject to 403 balancing testjudges discretion iii. RULE: credibility of a witness can be attacked, but the attack is limited to character for truthfulness and ONLY after such truthfulness has been attacked by opinion or reputation testimony.

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i. Evidence of bias and inconsistent statements DO NOT OPEN door to truthfulness character for truthfulness not being attackedcharacter not being attacked at all b/c bias goes around box ii. Extrinsic evidence of bias is okay, where as extrinsic evidence of character for truthfulness not iii. Can attack character for truthfulness wheneverbut can only shore it up if attacked iv. On cross, may use specific acts so long as they go to truthfulness to attack credibility iv. Just because witness takes stand to testify does not mean witness has to answer questions about crimes committed in pastthey do not waive 5th Amendment privilege. v. EX: Bar fight, L sues P for injuries P inflicted. Rice is Ls witness. Is following testimony admissible? i. Another witness for L on direct: Rices reputation in the neighborhood for peaceableness is good (1) no, b/c question is not about Rs truthfulnessthe only permissible character inquiry as to witness (2) Also, this is directcannot tout good character for peaceableness on anything unless it is attacked ii. W: Rs reputation in neighborhood for truthfulness and veracity is good (1) No, b/c while this is the right question---credibility for truthfulness has not yet been attacked by contrary evidence iii. P W: When R sold me her old car, she told me she had just replaced the break pads, but she was lying (1) No because specific instances of conduct may not be proved with extrinsic evidence unless on cross-examination AND in courts discretion if probative of witness truthfulness iv. P W: My opinion, based on all my dealings with R, is that she is a liar (1) Admissible because testimony is an opinion preceded by evidence of untruthfulness (dealings). Given long-time acquaintance, competent to offer opinion v. On cross, W testifies as above, can L ask: Isnt it true that you were expelled from college for trashing form room in drunken rage? (1) No, objection sustained b/c it does not go to truthfulness vi. On cross: Didnt you lie on your med school app about disciplinary offenses during college (1) This is okay b/c extrinsic evidence of prior act on cross AND probative of truthfulness. (2) If W answers No to this questionCANNOT ADMIT EXTRINSIC EVIDENCE vi. Ex: clip from Philadelphia asking Hanks about going to porno movie theater i. Hanks testifying, so he is the witness ii. Question has NOTHING to do with credibility of witness/witness character for truthfulness, so not within 608 (a) iii. Question re: prior acton cross, but is not probative of veracity of truthfulness iv. This piece of evidence not relevant to issues of case, so tries to make it relevant as to credibility of Hanks as a witness v. Even if prior act falls within 608 for impeaching truthfulnessmay still fail 403 balancing test. vii. Methods of challenging witness credibility on cross examination: i. Non-specific impeachment--witness in general may not be telling the truth (1) Show bias, animus, motivation or corruption (a) EXAMPLE: someone on trial for burglary and his alibi is that he was at home sleeping. Lawyer calls members of his family to testify he was sleepingbias is pretty clear. Mother bias in his favor, but may or may not be telling truthjury entitled to know of potential bias.

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EXAMPLE: witness is homosexual lover of in case. Is the other lawyer entitled to cross: arent you the s lover? Question pits interest of jury and knowing about bias against rule 403 prejudicial balancejudge has to balance. (c) In general, allowed to ask about relationships that might have a tendency to make witness shade testimony (2) Sensory or motor capacity: wears glasses or something (3) Witness is by disposition is untruthful: this is rule 608 and 609 (a) Cross on non-conviction misconduct if relevant to veracity (limited to crossno extrinsic evidencewould make trials go on forever) (b) Can use proof of other criminal act if they fall under 609 (limited by 609 rules) ii. Specific Impeachment-- witness lying about the specific fact to which witness testified. 2 types: (1) Impeach by witnesss own prior inconsistent statements: witness said one thing on stand, but something else beforedepo video or transcript, statement in writing (a) This is a hearsay exceptionFRE 801(d)(1) (b) My brothers keeperimpeachment techniqueprior inconsistent statements in depo contradict testimony (c) Must ask whether there is a true inconsistency (2) Contradiction: this witness says light was green, but I have 8 other that said it was redcan call the others to contradict. May or may not mean witness is not telling the truth. Can use facts to contradict as well viii. Extrinsic evidenceadmissible as to bias, but NOT as to specific act of lying in past under 608(b) you can only ASK witness about prior acts on CROSS . i. What is it? (1) Arent you the s loverthis is not extrinsic (2) Next door neighbor testifying as to lovers is extrinsic ii. Ex: P says beaten in jail by cop with other cops watching. Cops deny, can P cross officers on Police code of silence? (1) yes, can askunder CL can ask about bias, but they can deny (2) What if former cop willing to testify and all 3 still deny, can former testify? (a) yes because you CAN offer extrinsic evidence to show bias b/c bias not collateral; always admissible (b) Judge can cut it short under 403 if he thinks it is a waste of time iii. Ex (classic 608b): P sues officer for excessive force. Officer defends that he uses reasonable force. P knows prior discipline, can P ask about officer filing false reports on cross? (1) yes, can askclassic 608b b/c false reports=lying, on cross (2) But, if officer denies, personnel files may not be admittedb/c they are extrinsic evidence. iv. RULE: with regard to bias, you can use extrinsic evidence (1) Aryan brotherhood case: when witness on stand said not, court allowed prosecutor to testify as to existence of org and that other witnesses were members. This is legitimate because it is part of CL tradition. (2) Bias is never collateral 2.FRE 609: Impeachment by Evidence of Conviction or Crime a. General rule. For purposes of attacking the credibility of a witness: i. evidence that a W other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if crime punishable by death or 1 year + under law which W convicted, and (1) actual sentence does not matterjust whether conviction amounts to a felony (carries 1 year or more) or has potential to be punished that much ii. evidence that accused has been convicted of such a crime admitted if court determines probative value outweighs the prejudice

(b)

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iii. evidence of conviction for crime involving dishonesty or false statements admissible
regardless of punishment (1) so perjury can be admitted b/c goes to dishonestySTILL subject to time (2) Not subject to 403 balancing and no minimum punishment/felony status required. iv. Time limit: not admissible after 10 years from EITHER date of conviction OR date of release from confinement imposed for convictionWhichever is LATER (1) if more than 10 years probative value must substantially out weigh prejudice and written notice of intent to use required (a) factors include: nature of conviction, age of conviction, similarity to charged offense, nature of s criminal record, importance of credibility issue is case, importents of s testimony at all v. Effect of pardon, annulment or cert of rehabnot admissible. vi. Juvenile adjudications? Requires special courts special determination, can never be used against accused. Never used in civil (1) Only ok in crim and only for Ws not the and not unless judge finds it necessary b. FRE 609 summary i. Permits opposing counsel to impeach witnesses with evidence of their past crimes ii. BUT, past convictions only admitted to show penchant to lie or to attach credibilityNOT to show propensity to do past crime again. iii. Judge gives jury instruction to use evidence ONLY for credibility of W iv. Past convictions subject to 403 balancing. 5 factors considered for 609(a)(1) (US v. Brewer) (1) Nature of crimeviolent crime little or no direct bearing on honesty (2) Time of conviction and Ws subsequent historyis conduct less that what would be expected of rehabilitated individual? (3) Similarity between past and current crimecareful of leading jury through propensity inference, may require limiting instruction (4) Importance of s testimonycounterbalances credibility issue (a) occurs when is only one who can testify as to what happenedhigh interest in taking stand (5) Centrality of the credibility issuefactor favoring admission. (a) in some cases credibility of and victim are the only relevant issues rape cases where consent is the defense. (b) If credibility is crucial, it is more important for jury to know about s credibility c. Dishonesty interpreted narrowly so as only to include crimes either factually or by definition entail some element of misrepresentation or deceit i. United States v. Bracken: Bank robbery not a per se crime of dishonesty to fit into 609(a)(2) and thus whether W can be impeached by such a prior conviction. d. larceny under $100 is not clearly a crime involving dishonestyneed facts i. Hypo: convicted for shoplifting Rolaids in Costco-theft. Later, witness in case. Can W be impeached by Rolaids conviction? Misdemeanor, so does 609(a)(2) apply? (1) probably not under Bracken b/c no dishonest, just theft ii. Hypo: another say in Costco, fill cart with 31 cans of soup. Tell clerk you have 30. Busted for steeling the 31st can. Convicted again. Later as witness, can the misdemeanor now be used to impeach under 609(a)(2) (1) probably yes b/c stole specifically by making a misrepresentation e. Most commentators agree that convictions are not very telling indicator of whether a person will tell the truth. f. Historical reason: someone who has committed a felony demonstrates he is willing to flout law and such a person is more likely to lie g. Example: Grand theft on cross asked whether he shot a man in arm during drunken barroom brawl i. inadmissible under 609 b/c no mention of convictionso must analyze under 608b

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ii. this is on cross, but not so probative of truthfulness that it falls within 608b h. Pros calls W to testify that he saw shoot a man in arm during same 1996 brawl i. Inadmissibleno mention of conviction, so must be analyzed under FRE 608 and if question posed on direct, pros limited to reputation or opinion testimony and this is specific acts ii. Also limited to asking about W/ s character for truthfulnessnot whether witness saw the brawl. i. Pros offered evidence that convicted of A&B with dangerous weapon and sentenced to 5 years in prison for 1996 shooting i. Maybe admissible under 609(a)(1) Likely a felony. Crime not very recent8 years, but within time limit. Shooting prejudicial, but moderated by dissimilarity between conviction and present charge (theft) (1) Suppose on trial for GT auto and previously convicted for same crime. gives alibi defense and pros wants to convict. 2 instances not common enough for scheme/plan under 404b. Is prior conviction admissible under 609? (a) NO b/c not very probative of s credibilitynot how likely he is to have committed the crimehighly prejudicial and improper inference (propensity). (b) In analysis, must ask: How much does this evidence tell me about Ws likelihood of telling the truth j. Pros asks on cross whether he was convicted of turnstile jumping and sentenced to 3 months i. Inadmissible under 609(a)(1) b/c not punishable for year + ii. But, admissible under 609(a)(2) b/c involves evading a feecheating the system. So, punishment must not meet felony requirement k. Pros asks if convicted of lying to federal investigator and sentenced to 2 years in 1988 i. under 609(a)(2) meets requirement of crime involving dishonesty, but exceeds time limit of 609(b) ii. Only comes in if judge determines probative value substantially outweighs prejudicial effect and pros has given advance written notice of intent to use such evidence iii. Seems rather probative as to truthfulness and prejudice is moderated by dissimilarity between crimes. l. Hypo: Bank robbery, D on trial. E is pros star witness, F is s witness. DEF all have prior bank robbery conviction (prior felony) i. Elmo goes first as W for pros. Can defense impeach under 609(a)(1) for prior robbery conviction? (1) Prej to govt? risk jury will hold it against govt for using criminalnot likely because govt does it all the time (2) Prob value? Minimal b/c what does bank robbery tell us about E telling truth historical explanation ii. testifies next, can pros cross on prior conviction? (1) Prob? Same as E, not much (2) Prej? much greater b/c he is on trial from bank robberyhigh risk jury will make propensity inference if this evidence is used iii. F testifies for . Can he be impeached with prior conviction? (1) Prej: jury will find out hangs out with a bank robbery, but one step removed from , so may not outweigh probative value (2) Prob? Same as E, not so high iv. Pointmust apply test to each witness for both sidesnot same answer even if same prior crime m. 404(b) analysis and weighing is irrelevant to 609 analysis and the two must be treated independently i. Evidence offered under 404(b) is substantive evidence against the accused, i.e., part of Govts case to prove guilt beyond reasonable doubt ii. Evidence offered under 609 on the other hand has to do with accuseds ability to tell truth when testifying on his/her own behalfaccuseds credibility

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iii. Both rules speak of probative value and prejudice, but critical to note that evidence under each rule is probative as to DIFFERENT matters (1) probative character of evidence under 609 goes to credibility of witness (2) probative character of 404(b) evidence goes to question of whether or not accused has committed the crime (3) Any overlap in stds of admissibility under the two rules is irrelevant. n. Whether to put on stand when 609 applies is a matter of strategy i. if judge allows conviction, and if this is best appellate issue in case, must put client on stand and let him take hit from prior conviction, in order to appeal ii. USSC rationalizes saying that it is speculative about what would say, how destructive, etc, so cant appeal (Luce v. United States) iii. In Ohler v. United States: defense lawyer tried to pre-empt prior convictiontake the sting out of cross-examination by asking about it on direct. At least client does not look defensive, or trying to hide fact. (1) USSC: cant appeal because defense brought it out. USSC says maybe prosecutor would not have brought it out, you brought it out, so cant complain. o. Rehabilitating the witnessshoring up credibility i. To rehabilitate, must have general character for truthfulness attacked ii. Attack on witness for bias does not open the door for rehabilitation of witness iii. Usually contradiction of a specific fact does not open door for rehabilitation VI. Rape-shield law A. FRE 412: Sex offense cases, Relevance of alleged Vics past sexual behavior alleged sexual predisposition 1. (a) Evidence is generally inadmissible. Following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct expect as provided in (b) and (c). a. (1)Evidence offered to prove any alleged vic engages in other sexual behavioe b. (2) Evidence offered to prove any alleged vics sexual predisposition 2. (b) Exceptions a. (1)(A)Evidence of specific instances of sexual behavior by alleged vic offered to prove person other than accused was source of semen, injury or other physical evidence b. (1)(B) Evidence of specific instances of sexual behavior by alleged vic with respect to person accused offered by accused to prove consent or by the prosecution c. (1)(C) evidence the exclusion of which would violate the constitutional right sot the d. (2) in civil case, evidence offered to prove sexual behavior or predisposition or vic is admissible if it is otherwise admissible under these rules and if prob value substantially outweighs prejud to any party. 3. Rationales for FRE 412 a. avoid humiliating and embarassing victim b. to encourage report of assaults c. learned through experience that we cant trust judges to allow and exclude appropriately 4. HYPO: The defendant is charged with rape. The alleged victim is a nun in her late twenties. Defense counsel's investigator has learned that there are three men who will testify that the nun had consensual sexual relations with them during the past year. Defendant was not aware of these men at the time of the alleged offense. If the defense in the present case is consent, should this evidence be admissible? a. No. This falls within rule 412 and since previous consensual sex was not with himself, it does not fall within 412 consent exception b. may have constitutional fight to confront accuser (CC) under 412(b)(1)(C) must ask: with witness being nun, is he foreclosed from presenting evidence of his theory of the case if he cannot present this evidence i. Fingerprints hypo: charged with rape. Pros offers evidence of s fingerprints in vics bedroom. Vic says never in apartment before rape. claims he was not there on night of attack, but and vic had consensual sex 1 month before and fingerprints still there (1) Evidence suggests prior sexual acts, BUT also is s primary defense and excluding it would violate his constitutional rights

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c. 25 year old: presumed to have had sexnormative behavior, but prior acts do not tell us whether there was consent d. BUT, if nun walked in habitjury would understand normative behavior of a nun is not to have sex (impermissible inference?). cannot possibly have a fair shake unless he can bring out that this nun is willing to behave like other women her age. i. Judge could stipulate no habit or mention of religion 5. 412 does not just bar explicit references, also bars indirect route to establish vic is that kind of person a. Hypo: charged with rape and wants to use consent defense. Does not ask about prior experience or call witnesses to testify about it. Instead introduces evidence of clothing vic was wearing, partying. Admissible? No. indirect reference to predisposition 6. HYPO: Defendant is charged with rape. Alleged victim says she met defendant in a bar and agreed to go to his hotel room to talk because she thought he was interesting and the bar was closing. She says when she declined to have sex with him he raped her. He says that she is a prostitute and offered in the bar to have sex him for $200 and they went to his hotel room to complete the transaction. He says that after they had sex, she demanded $500 and threatened to claim that it was rape if he did not pay that amount. He says that he stuffed $200 in her purse and told her to get lost. May the defendant offer testimony at trial from a police officer that the alleged victim is a prostitute and that she has been arrested 6 times within the past year for solicitation? a. Barred under sexual predisposition412(a)(2) b. 412(b)(1)(C): constitutional argument: foreclosed from establishing my theory of case and this evidence is crucial to theory to case. ii.Strongest argument: this is a business transaction that went bad and I should be entitled to prove that the other party is in that business. 7. RULE (relevance): fact of consensual sex in past is not relevant to consent this time for ordinary complainant (see nun hypo). a. Does the fact that woman is in fact a prostitute make if more likely she consented and engaged in prostitution this time? Is piece of evidence sufficiently probative for to outweigh the substantial prejudice to introducing? b. Rule: If not even relevantno constitutional argument can be made 8. 412 and 404b: ASK GROUP: can other purpose under 404(b) get around 412 as well? a. 412 is a stricter exclusionary rule than 404(b) admission for other purposes 9. 412 has some slippery slope tendenciesprotects evidence that maybe should be heard, but not enough to set 412 asside a. Boyfriend case: theory: vic had consensual sex w/me, but now claims rape to explain it to her boyfriend. 412 excluded previous encounters, but without evidence, no explanation consistent w/ s theory b. Incest case: must bring out incestuous relations to give theory any meaning? (ASK GROUPdoes not make sense to me) 10. 403 balancing applies to 412 exceptions, so exception could still be excluded 11. RULE: prior false allegations of sexual behavior are not past sexual behavior, so FRE 412 is inapplicable and evidence of prior false allegations is not barred. (State v. Smith) a. Smith on remand: prior false allegations are unquestionably character evidence lied in past, so lying now. So, evidence would be barred under FRE 404b. VII. Hearsay A. Defined in FRE 801(c): a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted 1.Classic, obvious hearsay: W testifies not to what he heard, but what someone else told him and to prove the truth of what that person told him 2.Principal problem with hearsaywhy it is excluded a. Lack of opportunity for contemporaneous cross-examination 4 testimonial risks associated with cross-examination

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i. Perception: how accurate Ws perception is of what he is testifying todistance away from

perception, lighting, does W wear glasses

ii. Memory: does W still recall accurately what he saw 3-5 years agocross allows to test this iii. Sincerity: Is person telling truth or lying/shading testimony iv. Ambiguity: what do the Ws words really mean? How large was gun, was gun as revolver
or a pistol? b. Statement of W standing alone leaves a lot of questions unansweredpurpose of hearsay rule is to exclude b/c all of these questions cannot be asked. 3.Costs of hearsay rule a. If declarant dies before trial, we lose the value his statement had on its face b. Costs of rule are why there are so many exceptionswe dont trust jurors to appropriately discount hearsay 4.Non-hearsay uses of out of court statementsnot to prove truth of assertion a. Speech evidencing condition of speaker i. MVA: wife survives and husband dies. Wife brings wrongful death claim and it has a conscious pain and suffering component as a part of the survival actionhe was in pain before death. At trial wife wants to offer evidence that after car in ditch, she went over to edge of ditch and asked husband how he is. He says, I am alive. She offered this to prove he was alive and thus conscious pain and suffering. Is this hearsay? (1) This is where hearsay is tricky: assertion in statement happens to be what you are trying to prove, but not offering for that purpose (2) Offered just to prove this guy is capable of speech and thus must have been conscious (3) Will have to prove suffering and this statement wont do that, just proves he was alive b. Proof of notice, knowledge, motive (effect on the listener) i. Someone falls in supermarket on salad oil broken on floor. Store only liable for accident if store is negligent. If fell instant she got there and no one had time to clean it up. She must prove (1) oil on floor and (2) sore negligent. Could do this by showing store had notice and failed to clean it up. wants to offer evidence from someone who heard another customer tell the store manager about the oil 15 minutes before the fell. Is this testimony hearsay? (1) Depends on the purpose for which it is offered. (2) Statement and made out of court, but purpose not to prove assertion of oil being on floor, but to prove supermarket put on notice of the oil for 15 minutes. ii. Ineffective counsel claimCo- s lawyer told s lawyer that he could place out of the room where assault took place. Not hearsay b/c lawyer on notice that there was a witness that could exculpate client. c. nature of a place or thing d. verbal actsoperative words i. M suing for defamation: testifies that said he was a cheat in a public meeting. Hearsay? (1) Statement not offered to prove truth that Masterson is a cheat, just what the guy said (2) Uttering the words is tortious, libelous and all that must be proven for defamation so verbal act/operative wordsnot hearsay ii. Woman on trial for soliciting an act of prostitution. Evidence is under cover cop was driving down street, saw her and pulled car over and she came up to window and said: I will have sex with you for $100 and prosecutor intends to offer officers statement about what she said. Is this hearsay? (1) Not offered for truthwe dont care if she really would have done it (2) Guilty of solicitation just for uttering words iii. Lets say breach of promise case: testifies he asked girl to marry him and she said yes. Is reply hearsay? (1) No because words are operative in forming K. Saying yes was acceptance, so operative words with independent legal significance

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5.

(2) Offer and acceptance are legal moments iv. Betting parlorsearching apartment looking for book making stuff. Phone ringssomeone wants to place a bet. (1) offer to place a bet is an operative wordso not hearsay (2) Hearsay analysis does not depend on number of callseither hearsay or not notwithstanding how many. (3) Does not necessarily prove this is a betting parlorcircumstantial evidence that it is. v. Another category of operative words RULE: When words are necessary to explain the nature of the transaction and they take place at time of the transaction, we say they are part of the transaction and are operative words. (1) Suppose Avery gives Sandra $20 and says he is paying her back for loan. Later there is a trial and issue: why did Avery give Sandra $20. Witness says Avery said paying back. Is this hearsay? (a) No. The $20 explains the nature of the transaction taking place (b) if Sandra does not contradict Avery when he says $20 to repay loan, more weight to fact that he actually was repaying the loan. (2) One step removed makes it hearsayso Avery cannot tell Ed about it later. (a) Just a historical description of something he did beforenot operative act, just chit chat to Ed. (b) Offered to prove truth of assertion to Ed that it is to pay back the loan. vi. Elements of crime do not have independent legal significance. (1) Premeditation in 1st degree murder are not operative words e. state of mind (non-hearsay type) i. Video clip: woman on trial for shooting husbandpervasive fear of violence from husband. Is her testimony hearsay? (1) Not offered to prove truth of the relationship as abusive, but to prove her state of mindthis is the way he talked to her, which was abusive, included threat of violence. (2) Therefore, abuse may have affected her perception on the occasion when she killed him. ii. United States v. James: pled self defense after killing Ogden, who boasted about how he tortured people (1) Not hearsay because statement not offered to prove a fact, but rather to prove that defendant had reason to fear Ogden. (2) Testimony to show the effect of his words on her and on her state of mind. iii. Statement re horses: PP said he purchased them and needed her held selling. PP on trial for horse theft. Is PPs statement admissible? (1) 2 possible uses: (1) that he bought horses (2) she had basis for believing horses not stolen (2) defense should argue did not know and had basis for believing PP was owner this is not a hearsay use, so admissible (3) Prosecutor may ask for limiting instructionconfine use of evidence to its effect on her. iv. Proving someone is insane. Testimony that he walked into the room and introduced himself as Napoleon Bonaparte. Is this hearsay? (1) Other purposereflects on his state of mind. (2) From fact that he said it, we infer something about his state of mind and that makes it not hearsay. Federal rules: nonverbal conduct when no intention of actor to make assertion is not hearsay a. Is fainting hearsay? Victim is sexually assaulted in park and after assault police officer interviews victim. As interview is occurring, a man walks out of woods. Upon seeing man, victim faints. Prosecutor wants to offer evidence of her reaction to see the man. i. No b/c nonverbal conduct had no intent to make an assertion. (1) Because person who faints had no intention to make an assertion, federal rules say no hearsay because no assertion.

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b. Suppose MVA and later a trial about whether or not it was raining at time of accident. Suppose Aaron called as witness and he said because the blind was down, I could not tell it was raining, but I saw someone on street with umbrella up. Is that hearsay? i. No, person with umbrella not making an assertionjust put up umbrella not to get wet, not to assert it is raining. c. Ship sunk and everyone died. Suit for negligence of shipping company. Shipping Co offers evidence that captain examined ship, summoned family aboard and set sail. Is that hearsay? i. Is the captains conduct an assertion? If so, docworkers testimony is hearsay ii. Captain did not intend to assert anything because no audiencecould not have lied because people do not lie to themselves. iii. Ship captain just taking family to go on the voyagenot trying to make photo op. d. COMPARE: Unlike the captain, Schlesinger bought family to nuclear plant after declaring that the plant was safe to an audience. His sincerity is weaker than the captains w/o an audience and he could be lying. Thus, this is likely an assertion and thus hearsay. e. Wright v. Tatham: dispute over will. Issue was competency of the testator. Benies wanted to prove testator was competent with letters sent to people from testator during time period of executing will. English court said letters were hearsay because testamentary risk systemmight want to cross-examine people sending letters to see why they thought competent. i. BUT, under federal rules, these letters are not hearsay because when they sent letters, they were not doing so to assert he was competent, but sending them in ordinary course of business. 6.RULE: Silence is hearsay only if silence is making an assertion a. A sues restaurant for food poisoning. At the trial, manager of restaurant wants to testify that he received no other complaints about the food that evening? Is this silence hearsay? i. Not b/c manager talking about world of others who ate there. Judge can reasonably assume that non-callers did not intend to assert anything in not calling. b. Example of silence as an assertion: Avery says he is not taking break, if anyone has a problem say something and class remains silent. ii. If she saidthats the guythis is classic example of hearsay if offered to prove that that is the guy. 7.Practical example from Avery: Dink on shot glass in MEis this same Dink on drug smuggling boat claiming it was going to Canada? Whether the word Dink is hearsay a. person who wrote name on glass is declarant, but what is assertion? b. Ct said just a word, not assertionno hearsay 8. Analysis of an out of court statement brought into trial: Is this hearsay? a. whether or not the words constituted a statement i. FRE 801(a): a statement is (1) an ordal or written assertion or (2) nonverbal conduct of a person, if it is intended by the personas an assertion ii. Definition of assertion: words or conduct intended to convey some meaningneed not be true, need not be written or saidcan be conduct b. For what purpose is the party offering this evidence? i. Not all out of court statements are hearsaymust be offered for the truth of the matter asserted. FRE 801(c) B. Points from hearsay Quiz 1.Does not matter is declarant is on standANY out of court statement, if offered to prove truth of statement is hearsay, but there may be an exception 2.Pointing is nonverbal conduct intended by actor to be an assertion 3.Running after someone is not intended by actor as an assertionreaction to being robbed and no one watching, so no assertion 4. Distinctive markings vs. Hearsay (very far from policy reasons for hearsay) a. License plate from Wyoming: Infer that car is registered in a certain place, but not that driver is from there. No assertion b/c fact that Wyoming being license plate is not declarants intentional act. License place treated as a distinctive marking b. Monograms: Can be treated either way: i. Argument for hearsayout of court statement that shirt belongs to MA, but awkward to treat items as hearsay

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ii. Courts prefer to deal with monograms as distinctive markings c. Book of matches from Eagles Nest Bar. If found in pocket, can we prove that person had been to bar? Is matchbook hearsay? i. Assertion: these matches are from this bar ii. Treat as a trademark (this is how most would treat this) 5.Security video is not hearsay b/c no intention to assert anythingjust historical record of what happened a. If someone popped head in and said, were being robbed and that guy is doing it = hearsay b. If robbery said: this is a robbery = operative words, so not hearsay c. Reenactment is hearsay b/c intended to tell story of robbery 6.Assertions can be implied a. Police officer testifies that sore owner told her after robbery that she never rang up a single sale all time i. this is hearsay b/c pros trying to prove no customers: no sales all night, so no customers (implied assertion) 7. Assertion must be voluntary to be an intentional assertion a. Suspect stuttering when approached by police is not hearsay b/c non verbal conduct was not an assertion b/c it was involuntary and there was no intention to assert anything. 8.Proving a lie is not hearsay, but does prove consciousness of guilt a. Testimony of police officer that lied about name when arrested: Small, when in fact name was Martinson to prove consciousness of guilt i. Not hearsay because really proving the lie, so not offering evidence to prove truth of assertion 9. I am Jesse James or Napoleon is NOT hearsay in Averys class b/c not offered to prove truth of whether he really is Napolean, but to s state of mind 10. Advice/letters to are not hearsay, but allow inference that is sane a. Fed rules say in writing a letter or asking advice, writer is not asserting anything, so not hearsay b. Hearsay under CL 11. Overhearing transaction is not hearsaydescribes the transaction category of operative words 12. Category or idiosyncratic knowledge of a place is not hearsay a. Trying to prove that the place left a tracing on persons mind about how a doll looked or beer was stocked b. Argument for not hearsay: not offering to prove the content of the assertion, but for the awareness of the place. 13. Effect on listener example a. Arresting officer testifies that owner told her that as was leaving he said: Ill kill anyone who tries to stop meif offered by officers lawyer to prove officer reasonably believed she was in danger of physical violence when arresting defendant. i. Not hearsay because statement not proven for truth, but to show how it effected officers, officers reaction to statement VIII. Hearsay Exceptions A. Five Broad Categories of exceptions 1.Rule 801(d)(1): Prior Statements by Witnesses a. Prior inconsistent statements b. Prior consistent statements c. Statement of identification 2.Rule 801(d)(2): Admissions by Party-Opponents a. The partys own statement offered against him b. Adoptive Statements c. Statements by Spokespersons d. Statements by Agents e. Coconspirators Statements 3.Rule 803: Exceptions in which the availability of the declarant is immaterial a. (1) Present Sense Impressions b. (2) Excited utterances c. (3) Then-existing mental, emotional, or physical condition

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d. (4) Statements for medical diagnosis e. (5) Recorded recollections f. (6& 7): Business Records g. (8 & 10): Public Records and Reports 4.Rule 804: Exceptions Applicable only when the Declarant is unavailable a. (b)(1): Former Testimony b. (b)(2): Dying Declarations c. (b)(3): Statements against interest d. (b)(6): Forfeiture by wrongdoing 5.Rule 807: Residual Exception B. Other rules to keep in mind with Hearsay exceptions 1. For hearsay to be admissible, declarant must have personal knowledge a. FRE 602: Lack of Personal Knowledge: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence of personal knowledge need not consist of witness own testimony b. Exception to this rule: i. Statements by party-opponent are admissible whether or not the witness had personal knowledge of what they are talking about ii. Statements by experts 2. Hearsay included within hearsay is not excluded if each part of the combined statements conforms with an exception to the hearsay rule (or is not hearsay)(FRE 805) a. Multiple hearsay: Declarant told witness that Bill said John shot the victim. 2 declarants not in court. This is a multiple hearsay problem b. Multiple hearsay: Witness testifies that Declarant 1 told me that he read a note and note said that John shot the Victim. Doc is Declarant #2 c. Multiple hearsay: Doc that says Bill said John shot victim. Doc itself is hearsay. Declarant #1 is author of doc. In text, Bill is declarant #2. d. Almost any document entered into evidence contains some multiple hearsay i. Ex. ER report- hearsay doc b/c prepared outside of court. Doc itself, if introduced in order to prove the truth of the assertions in the document, is hearsay. In report, it says: pt states hit by car. Nurse incorporates pts out of court statement, so multiple hearsay. 3.You can impeached a hearsay declarant just as you can impeach a witness on the stand a. FRE: 806: Attacking and Supporting Credibility of Declarant: b. Suppose declarant claims to have seen auto accident: drinking at bar and as leaving, saw Blue car go through the red light. Lawyer can cross-examine and impeach witness c. Suppose declarant does not testify, but officer testifying about interview with above declarant. Lawyer can impeach the same way, but through extrinsic evidence, show he had been drinking before observing the action. Can show declarant was drunk, or can show declarant is brotherin-law of driver. 4.There may be more than one exceptionON EXAM mention them all, but only need one to get the evidence in C. Statements by a Party-Opponent [FRE 801(d)(2)] 1.Statement must be offered by opposing party and is a. Partys own statement i. All B must show to get As statements in against A is that A made the statements and that statements are relevant. (1) Overwhelming simplicity of admitting partys own statements ii. No personal knowledge requiredyou speak at your own peril iii. RULE: cannot admit your own out-of-court statements, must be offered by opposing party iv. RULE: statement need not be against interest of party, enough that party made statement for opposing party to offer it. (1) Rough airplane landing and lawyer alleges injuries prevented her from working to full capacity. Signed records showing 104 hours per week billing. wants to introduce bills against lawyer; (a) admissible under statements by party opponents

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v. RULE: No FRE 701 analysis needed if statement offered if against a party opponent Admission by the party i. conduct or silence can demonstrate a party is adopting the truth of a statement ii. Requirements for adoption by silence (1) Person heard the statement and understood the statement (2) Person was at liberty to respond (3) Under the circumstances, it would be reasonable to expect someone to dispute statement if untrue. (4) Party failed to respond th th iii. 5 and 6 Amendment problems with silence as adoption (1) Suppose daughter visits father in jail before testifying against him in murder trial. By not denying accusation is he adopting daughters testimonythat he is a murderer? (a) Pros: a reasonable and innocent person would denysilence is admission (b) Defense: father being monitored, silence is not dispositive. Court be (1) exercising 5th Amendment rights not to incriminate self or (2) 6th Amendment right not to be interrogated by agent of state (daughter) after indictment without 6th Amendment right to counsel (c) Good argument for exclusion on constitutional grounds iv. Suppose two people, not in custody. Unbeknownst to them, they are being observed by a third person and talking about Charlie. One turns to the other and says, you have to deal with the fact that you are the one who shot him and second guy does not say anything. (1) Second guy charged with murder and prosecutor wants this statement and then silence in arguing by saying nothing, his silence manifests truth of statement being made. (2) Here, these are circumstances where a reasonable person would deny if not true, so silence serves as an adoption of the statement. (3) No constitutional problem b/c not in custody or indicted c. Statement by a person authorized by party to make statement i. Bushs Press secretary (authorized to make statements on behalf of administration) d. Statement by agent or servant concerning a matter within scope of agency or employment i. Colin Powell ii. Requirements for admission (1) statement must concern scope of employment (a) declarant need not be acting within scope when he makes the statement. Subject matter of statement just needs to be within scope (b) This is different from Tort standard for respondeat superior (2) Statement made during existence of relationship e. Statement by coconspirator i. conspiracy need not be charged and is available civil and criminal case ii. joint ventures triggers doctrine iii. Where declarant has been acquitted of conspiracy, doctrine may still be employed if conspiracy can be established by preponderance of evidence. iv. Statements must be made during pendency of conspiracy (1) A, B, C involved in another conspiracy and bustedtaken to jail and put in different cells. DEA offers A a deal to testify against B and C. A agrees and spills beans. Can As statement be introduced against B and C as co-conspirator hearsay? (a) No because conspiracy is over at this point, so not during conspiracy and not in furtherance of conspiracy because actively undermining conspiracynot admissible against other two (b) But, disinformation to cover tracks might be co-conspirator hearsay because even though arrested, if trying to cover tracks statement could still be in furtherance of conspiracy. v. Statements of co-conspirators made after D withdrew from conspiracy are not admissible vi. Statement must be in furtherance of conspiracy b.

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vii. Judge decides predicate facts under 104(a) [Bourjaily v. United States] viii. Proponent of evidence must prove predicate facts by a preponderance of the evidence ix. Statement itself may be considered as part of proof of conspiracy, need something morenot clear how much more [Bourjaily] x. Applicable against all members of conspiracy at time statement was made D. Prior Statements by witness [FRE 801(d)(1)] 1. Rule: A statement is not hearsay if: (1) prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and a. (A) is inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or b. (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motice or c. (C): one of identification of a person made after perceiving the person 2.Prior inconsistent statements used for impeachment a. If prior statement not made under oath, it can only be used for impeachment purposes and not to prove truth of statement i. Suppose trial with Pedro as witness and he testifies, The Yankees suck. We know he previously has said, The Yankees are my Daddy. Can this prior statement be introduced in any way when he says Yankees suck? (1) only for impeachment b/c first not under oath b. FRE 613: Prior statements of Witnessesto Impeach i. (a) Examining witness concerning prior statement ii. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistence statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of party-opponent as defined in rule 801(d)(2) (1) United States v. Barrett: Prior inconsistent statements may be used to impeach a witness trial testimonycasts doubt on weight of the evidence (2) Impeachment instruction given to juryonly used for impeachment, not for truth of statement. iii. If prior statement inconsistent and witness had opportunity on the stand to explain/deny it under 613, evidence is admissible for impeachment only (1) eye witness with compromised credibility effectively erases witness c. RULE: trial judge should rarely, if ever, permit Govt to impeach its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession to the crime for which the defendant is being tried. i. United States v. Ince: Pros called witness that would not help case (b/c she did not remember anything) for sole purpose to impeach her with otherwise inadmissible hearsay containing a confession from . Pros plan was to let jury hear it for prejudicial impact even through jury instructed only allowed to use it for impeachmentnot for truth. (1) Court said this was manipulative, overly prejudicial (403) and instruction may not be effective d. Silence as inconsistent statement2 types of questions i. Logical: whether a reasonable person would have been silent regardless of truth ii. Constitutional: Whether rights violated by silence being used against iii. Using silence to impeach [prior inconsistent] (1) Post-Miranda silence is not inconsistent with testimony at trial b/c exercising 5th Amendment right to remain silent, so silence is not inconsistent and may not be used to impeach (2) Pre-arrest silence can be used to impeach (3) Post-arrest, pre-Miranda silence may be used to impeach iv. Using silence for substantive purposes: [adoptive admission] (1) Post Mirandano (2) Post arrest, pre-Mirandayes, but Second Circuit says no

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(3) Pre-arrestyes 3.Inconsistent Statements Offered Substantively [FRE 801(d)(1)(A) a. Past inconsistent statements under 801 are substantive evidence b. Requirements for 801(d)(1) i. Declarant must be present at the trial or hearing and must testify ii. Declarant must be subject to cross examination iii. With regard to prior inconsistent statementsmust be inconsistent and must have been given at a prior proceeding under oath. c. Not remembering is not inconsistent, but lying about not remembering is i. Hypo: domestic abuse, after testifying in front of grand jury about spousal abuse, woman claims to have forgotten how she cut her jaw ii. If actually suffering a memory loss, then arguably, her previous testimony is not inconsistent with previous lack of memory iii. But, testifying in front of GJ, abuse is something she would remember, so most judges would agree that she is just saying that she does not remember, but in fact she does remember, so will allow inconsistent previous story. iv. We dont want people to be able to defeat the rule simply by faking a loss of memory v. Ordinarily, prosecutor is at a dead end when witness claims not to remember, but here where there is a previously recorded testimony, prosecutor can try to get the evidence in. 4.Past consistent statements offered substantively FRE 801(d)(1)(B) a. Prior statement by witness. The declarant testifies at trial or hearing and is subject to crossexamination concerning the statement, and the statements is (B) consistent with the declarants testimony and is offered to rebut an express or implied charges against the defendant of recent fabrication or improper influence or motive. b. if consistent with testimony and opposite party wants to open door for its admission in evidence, no sound reason is apparent why it should not be received c. To prove the truth of the prior statement, it must be prior to the motive to fabricate or falsify arose. If statement is after motive, than it is no different that trial testimony (Tome v. United States) i. Tome accused of sexual abuse of daughter. Defense claimed story concocted for mother to win custody from father. Prosecution successfully admitted childs out-of-court statements to babysitter, mother and doctors under 801(d)(1)(B) arguing that statements rebutted the implicit charge that claim was motivated by desire to live with mother. Tome convicted, conviction affirmed by App Ct and now reversed. ii. Rule is about rebutting an alleged motivenot bolstering testimony, so prior statement must be pre-motive 5.Statements of Identification offered substantivelyFRE 801(d)(1)(C) a. Prior statement by witness. The declarant testifies at trial or hearing and is subject to crossexamination concerning the statement, and the statements is (C) one of identification of a person made after perceiving the person. b. Courtroom identifications are unsatisfactory and inconclusive i. So, while out of court identification is hearsayexception of prior consistent statements is allowed if identifier is testifying and available for cross-examination. c. Rule: if person is on stand and you can address any inquiries to him, than person is subject to cross examination. i. subject to cross-examination language of 801(d)(1)(C) means being on stand, under oath and responding willingly to question. Meaningful cross is not destroyed by lack of memoryin fact that is often the goal of cross to destroy the force of the prior statements. (United States v. Owens) ii. Under Owens: prior out of court statement of ID admissible even if on stand, witness does not remember d. RULE: Statement of prior ID is not hearsay if made by a witness who testifies at trial and is subject to cross-examination.

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RULE: Statements that form basis for composite drawing are admissible as statements of out-of-court identification if witness testifies at trial and is available for cross-examination. Commonwealth v. Weichell E. Hearsay exceptions when declarant unavailable to testify at trialFRE 804 1.To fall within this rule, declarants testimony must be unavailable. (a) section of rule defines unavailability a. Privilege5th Amend, spousal b. Refusal to testify c. Lack of memory (Owens: witness deemed unavailable b/c lack of memory, but USSC still said available) d. Death, illness, infirmity e. Unavoidable absencenot subject to subpoena, cannot be found. i. Parties have obligation to try to find the witness f. Procurement or wrongdoing i. Witness threatened or kidnapped. If is responsible for procuring unavailability, cannot use hearsay exception to your benefit 2.If deemed unavailable, there are 5 hearsay exceptions 3. Former testimony 804(b)(1) a. includes depositions, prior trial, administrative proceedings b. Party against whom the testimony is offered must be a predecessor in interest, had opportunity and similar motive to develop testimony by direct, cross, or redirect examination c. Hypo: battered wife testifies at grand jury where only prosecutor, jurors and Fletcher were present. 6 months later at civil trial, Fletcher refused to testify even when threatened with contempt. Pros offered transcript from GJ i. Hearsay b/c transcript is out of court and offered to prove truth of it ii. Declarant is unavailable b/c she is refusing to testify iii. Does Former testimony exception to hearsay apply? NO b/c defense not entitled to be at GR to develop testimony for its own interests and now she is not talkingso never get to crossexamine her. d. Must show that party had an opportunity and similar motive to develop testimony i. Fact specific inquiry as to whether motives of cross-examiner were similar enough between criminal and civil case for prior testimony to be considered exception under former testimony ii. Test for similar motive requirement in 804(b)(1) is whether the questioner is on the same side of the same issue at both proceedings in addition to whether the questioner had a substantially similar interest in asserting that side of the issue. (1) United States v. DiNapoli: Pros not trying to prove falsity of GJ testimony b/c already had probable cause to indict and knew of Clubs existence. Also did not confront witnesses with all of the evidence. Burden of proof different at GJ and trial, (2) Motive of cross-examination at preliminary hearings for defense lawyers are differentdefense lawyers try to use DiNapoli opinion to support this argument. (3) Notwithstanding this, USSC has repeatedly heldopportunity to cross at preliminary is sufficient to render admissible at trail of preliminary hearing testimony e. Must also be predecessor in interest i. Example of predecessor in interest: Plaintiff brings suit and then dies, suit continued on behalf of estate; ii. Lloyd v. American Export Lines, Inc.: Lloyd sues Export on theory of them maintaining an unseaworthy vessel because thug (Alvarez) could attack him. Export brings in Alvarez as 3rd party defendant. Alvarez cross-complains alleging injuries at fault of Export and Lloyd. At trial, only Alvarez claim survives. Export wants to use prior testimony of LloydAlvarez objects (1) Coast guard is clearly not a predecessor in interest in the above senses. But Court does find same predecessor in interest. Why? Same nucleus of operative factscondemned same behavior (2) Court wrong on two grounds

e.

36

Wrong about legislative historyignored import of House report not fair to admit prior testimony on theory of similar motive unless other party was predecessor in interest. Senatedid not think predecessor in interest made much difference. (b) No similar motive: Coast guard interrogator did not care about Alvarezonly whether Lloyd could be prosecuted under coast guard rules. So, not the same motive iii. Hypo: Criminal testifies at motion to suppress hearing that officers beat him until he falsely stated he committed murder. D is acquitted on motion to suppressconstitutional rights violated false confession thrown out. Later files lawsuit against officers, but he dies before trial, so wife continues case in survival action. In later civil rights suit, is the testimony of deceased from motion to suppress hearing admissible? (1) This is hearsay: out of court and introduced to prove truth of assertion (2) Exception? unavailable under 804(a)(4)--does 804(b)(1) former testimony exception apply? (a) the Officers must have had a predecessor in interest at the suppression hearing. (3) ISSUE: Can this testimony from suppression hearing be introduced against the cops in the civil case? (a) Pross job is to see justice is donepublic interestnot to destroy on stand if he knows confession was coerced (b) In civil caselawyers job is to protect the cops, his clients (c) So, not admissible because prosecutor has a different motive than officers lawyer. Also not admissible because the dead prisoner was not crossexamined by a predecessor in interest. iv. Must have (1) motive and (2) predecessor in interest under rule. On exam must analyze both! Former testimony under 804 compared with prior testimony under 801 804(b)(1) 801(d)(1) Unavailability required Witness must testify in present proceeding Former testimony in proceeding where present Must be subject to cross concerning statement party had opportunity and similar motive to at present proceeding examine and predecessor in interest. All previous testimony-no limits on what Limited to inconsistent under oath in testimony proceedings, consistent and identification 4. Statements against interest- 804(b)(3) a. Statements against both penal and pecuniary interests are admissible if declarant is unavailable b. Must ask whether precise statement in question was against the interest i. Rule: neutral, self-serving statements within narrative are not admissible just because other statements against interest around these statements are admissible (Williamson v. United States) (OConnor, J. requires fact sensitive analysis) ii. Another categorydeclarant acknowledging fault, but shifting blame to another. (1) OConnor says these are not against interest and might even be selfserving. So, minimizing portions are not admissible. c. Ask magnolia, it was her idea. i. Clearly admissible against Bobby as party opponent ii. Is it admissible against Magnolia if Bobby is unavailable? (1) Governments best argument: yes this is hearsay, but here declarant is unavailable b/c of 5th Amendment privilege (804(a)(1)) and his statement is against his intereststatement allows inference that he was involved, even though it was her idea. (2) Defense best argument: Declarant may just be giving up Magnolia to protect his own interest and so not really against interest

(a)

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d. Hypo: What if Bobby said, Yes mom, I did it, but it was Magnolias idea. Not clearly inculpatorybut rest is no longer inculpatory and really trying to dig himself out of trouble by blaming her i. Magnolias lawyer has good argument that second half of sentence is inadmissible because not against Bobbys interest. e. Problem-- cannot break apart the inference of the statement. Against interest, but maybe thrust is to shift the blame to Magnolia. i. What should judge do with the incriminating statement, but also shifting blame to another at the same time? Difficult problem and Avery expects judges would divide on this. ii. On examany argument that applies should be used. iii. Type of problem would not be in MC, but if in essay portion, we would have to discuss arguments in favor of admissibility or not f. Part of evidence may be against interest as admissible under exception and part may be blame shifting or self-serving g. Must examine declarations against interest from vantage point of the declarant h. Statement exposing declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. [804(b)(3)] i. Co-conspirator, Tilley testify that Buckey was not involved, it was Buzzy. Hearsay testimony implicates Tilley because it concerned he and Buzzy and tends to expose Tilley to criminal liability. The part about Bucky not being involved does not implicate Tilley, but exculpates Bucky. (1) The question is whether the statement was sufficiently against Declarants penal interest that a reasonable person in the declarants position would not have made the statement unless believing it was true (2) Arguably yes, but for it to really exculpate, under rule, Bucky needs some corroboration for him to be exculpated by Tilley (3) Govt will argue that the statement was not sufficiently against Tilleys penal interest because of the shared blame and that his truthfulness is ambiguous (no corroboration). i. Summary of statement against interest slide on TWEN 5.Dying DeclarationsFRE 804(b)(2) [Statement under belief of impending death] a. Statement made by a declarant while believe that his death was imminent, concerning the cause or circumstances of what declarant believed to be impending death b. Person does not really have to die, but statement must be made in the hush of impending death c. Hypo: C, bank robber shot as he leaves the bank. Near death, officers unable to stop flow of blood, he whispers that he knows he is done for. C tells police that A is serving time for murder he did not commit, that C witnessed it and that B was the killer. Admissible? i. This is hearsayout of court to prove truth of assertion ii. Does not come within dying declaration rule because it does not concern Cs death iii. What about statement against penal interest? Says he witnessed, maybe involved? (1) He has no penal interest because he is dying. (2) Someone who is dying can say what ever he wants w/o penalty d. Rule: Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. i. There must be s settled hopeless expectation that death is near at hand, and what is said must have been spoke in the truth of its impending presence. ii. Shepard v. United States: Husband convicted of murdering wife by poison. Govt wants statement by wife that she was poisoned by husband to stand on appeal as dying declaration. (1) USSC rejects it because statement made 2 weeks before death and she had hope for recovery 6.Forfeiture by wrongdoing804(b)(6) a. RULE cant kill a witness and then claim that he is unavailable. (United States v. Houlihan)

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F. Hearsay Exceptions under FRE 803 Availability of Declarant Immaterial 1.Exceptions apply whether or not declarant is available a. 2 exceptions: (1) past recollection recordedrequires presence of declarant in court and (2) treatisesrequires presence of expert 2. FRE 803 (1) & (2): The following are not excluded by the hearsay rule, even though the declarant is available as a witness: a. (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. i. Rule means concurrently or immediately after-- must describe event ii. Bartender heard shot, then scream, calls for ambulance, runs outside and asks who shot. After a little delay, someone else yells out Joe Puleio. (1) This hearsay, not 803(1) because too much time, could be excited utterance. (2) Objectionno personal knowledge of EatonFRE 602. How do we know whether she saw the shooting or whether she was the shooter? b. (2) Exited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition i. Excited utterances are usually made close in time, although not required to be immediate. (1) Sometimes hours or a day passes and still admittedthis happens where there is a vulnerable victim still in presence of assailant during time between event and statement. (2) Court reasons that declarant remains under the stress/spell of the event (3) Hard to justify length of time without such a situation. ii. Extent to which excited utterances are employed has risen substantively in past few years. iii. Classic example: spousal abuse, when police arrived at residence (immediately after battery occurred) Lori crying and upset. Told officers that Impson had knocked her down and pushed her head into a wall. (1) Statement is hearsay because out of court and used to prove assertion. (2) Exception: 803(2) excited utterance exception may also apply because Lori was under stress of the battery, shown by her being upset and crying when police arrived. (3) BUT, in time to call police, husband leftmaybe not still under stress of event. (4) Also, in time, she had opportunity to formulate ulterior motive (5) Also her statement is in response to a questioncourts say this is a factor taken into account in assessing the spontaneity of statementundercuts spontaneity. (6) BUT, 90% of judges would admit this statement (a) Judges allow it, but dont like itconcerned about large number of cases made on excited utterance basis. (b) If admitted at trial level, decision almost certainly would not be overruled at appellate level iv. Dog Mauling: Whipple called partner after attack and told her what happenedvery upset. Filled in details later that night at home (1) The testimony on the phone at lunch was properly admitted as an exited utterance because Whipple made the statement under the stress of having just been bitten by the dog and the warning was a scolding, not a friendly warning. (a) BUT, to call partner first is unlikelymight have called police or ambulance first. Some investigation is important if attacking admissibility of this evidence. (2) The details Whipple provided when she got home may not be admissible because depending how long after the incident she got home, her statements are no longer within 803(2) because presumably she was no longer under spell of exciting event.t 3.Statements of Then-Existing Condition (state of mind)FRE 803(3).

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a. Must be about then-existing conditioncannot be about something in past, description of historical event unless it relates to a will. b. Not state of mind with regard to memory or belief c. Used to prove: i. Then existing physical condition (1) Ex. I have sharp pains in my back this morningmaybe in nurses notes. (2) Witness does not have to be a medical person ii. Mental or emotion condition (1) Im angry, upset, depressed, sadpeople with whom discussed these contemporaneous mental condition (2) Pledging love iii. Subsequent conduct iv. Facts concerning will d. What it proves i. Offered to prove why declarant acting in a certain way ii. Cannot look backwards e. Proseuctor has evidence that NEf shaking down Quade. NEf is a tough guy and Prosecutor thinks he was collecting protection $ from Quade, who balked and was killed. Pros calls Sarnakfriend of Quade to testify that Quade told him: Neff is after me, he will kill me and family if I dont pay protection. Ive already paid $5K and I am trying to steer clear and I need help, but dont know what to do. i. Definitely hearsay ii. If pros is charging extortion, is this testimony admissible in extortion trial. (1) Essential elements of crime? Fear-- Victim has been placed in fear, threats have been made iii. So, first part: He says hell kill meI need help, but I just dont know what to dohe is in fear (1) Arguable this is admissible in extortion case without the I already paid (a) past event-historical statement, although some judges would admit as part of fear. iv. What about murder case? admissible under state of mind exception to hearsay rule in so far as it reflects to Quades state of mind. (1) Hearsay within hearsaymultiple hearsay problem: delcarant NefI will kill you and declarant Quades statement to Sarnak. (2) Neff statement comes in under party-opponent, but only admissible if Quades statement is admissible. (a) Fear is not an element of murder as in extortion casewe have a relevance problem here (b) Inadmissible because Quades state of mind is irrelevant except as it reflects on event that happened in past. (c) Also, the threat is a historical statement of something that happened in the past. f. HYPO: V is killed, in prior conversation, V said to neighbor (W), My husband is trying to kill me. Is Ws testimony admissible at s murder trial? i. Clearly hearsay, does it come within state of mind exception of hearsay rule? ii. No, inadmissible. Even if she says she is afraidstill not admissible, because no independent relevance to murder trial iii. Only relevant in so far as it reflects past threatthose cant come in under then existing state of mind. g. Circumstances under which state of mind of victim becomes relevant: i. Suppose Neff and Quade hypo and Neffs defense is self-defenseQuade came after me and I needed to defend myself, so I killed him. (1) Admissible as self-defense because Quades state of mind is now relevant (2) Relevant becausenegates the proposition that Quade was the first aggressorQuade trying to steer clear of Neff.

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Rule: Statements of dead victims that he was being threatened are inadmissible unless does something to make victims state of mind relevant i. Victims fear of Defendant i. Statements of victim indicating prior assaults of threats by are not relevant or admissible to prove motive, even if known to defendant ii. But, can open the door to victims extrajudicial statements, if he raises an issue to which the evidence would constitute logical rebuttal. j. Rule: statement of intention to do something in future is admissible under thenexisting state of mind i. Mutual Life Insurance Co v. Hillmon: Hillmons wife sued 3 insurance companies for refusal to pay husbands life insurance policies. s allege it was a scam and that husband not really dead, but Walters was the dead body found by the creek. Waters wrote letters to sister and finance about his plans to travel with Hillmon to Wichita (1) Court says admissible to show then-existing state of mindintent to go on trip, relevant to show he did go on trip. (2) Looks forward, not backward. k. RULE: For it to be admissible, state of mind of declarant has to be relevant. Must be logically relevant and material to the action. i. If. State of mind only significant to event from pastimpermissible use of SOM evidence. WATCH FOR THISSOM MUST BE RELEVANT. l. Dr. Shepard has poisoned menot a dying declaration. Now Govt arguing for admissibility on state of mindby complaining of poisoningevidence of will to live. this is rebuttal evidence for defense theory of suicide i. This evidence becomes relevant because defense opens the door to her state of mind. ii. Nonetheless, error to admit it because her state of mind could not be used to prove memory or belief about an act that occurred in the past (1) if jury considered her testimony for this will to live theory, it would be overly prejudicial because might use it to decide about the poisoning iii. No limiting instruction. Cardozo says reverberating clang of accusatory words, Dr. Shepard poisoned me would drown out all other sounds. iv. So SOM evidence, BUT INADMISSIBLE. 4.Statements for Medical DiagnosisFRE 803(4) a. Hypo: MVA. Pt loses consciousness at scene, comes to hospital with head wounds. Tells Dr. struck head on corner of door when her car was hit by a blue Toyota at high speed, when Camry crossed the center line and struck her head on. What can MD testify to? i. Can testify to what ever is pertinent to the diagnosishit head, high speed, head on collision ii. But, car make, model, that the car crossed overinadmissible b. General rule: Can give medical info, but not information that goes to fault. c. lawyer cannot make diagnosisonly MD or medical person d. Requirements i. Statements must be made for purposes of medical dx or tx and describing medical hx, or past or present symptoms, pain, sensations ii. the causereasonably pertinent to diagnosis or treatment (1) If asked specifically about the cause of the fall, would be admissible because it is reasonably pertinent to diagnosisif pushed, then not dizzy e. If looking for admissibility, describe treatment in such a way to include evidencehere took holistic approach (elder abusecare taker is part of overall health case) i. Hypo: Child abused by care takerfact that arm is twisted relevant to tx, but fact that father did it is pertinent to dx and tx only if accept argument that dx and tx included doing something about the abuseintervening to stop abuse of caretaker. (1) Best arguments for reversal: testimony gives person who assaulted child not just what happened. Who did it is not sufficiently related to the diagnosis (2) Courts split on issue of whether to include who in caretaker abuse case. f. Rule: Statements concerning what happened are typically more pertinent to diagnosis, than who assaulted her, which is seldom sufficiently related for 803(4) to apply

h.

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i. United States v. Iron Shell: 9 year old attacked and nearly raped. Made statements to doctor
during examination in response to Mds questions. Defense argues MD made investigation and exam exactly the same as without the statements, so not reasonably pertinent to the treatment as required in 803(4). (1) Court said 3 types of 803(4) evidence: (1) medical history (2) past or present sensations and (3) inception or general cause of the disease. (2) Statements at issue fell into (3). (3) Theory, pts will be honest because they want appropriate tx. g. Truth telling has nothing to do with the diagnosis or treatment and so failure to discuss it also should not be admissible under 803(4). h. Can have multiple hearsay where both are 803(4): wife can make vicarious statement for husband seeking tx or dx for husband. i. Hypo: cop brings in vic and says vic had no pulse as scene. i. First reactiondoes cop have personal knowledge? (1) If Cop did not take pulse himself, who did take it and can I come up with some other hearsay exception to get that part in? ii. What if Cop heard it from EMT? hearsay within hearsay problem (1) Could get EMT piece in under present sense impression and then Cop under statement for medical dx or tx. j. 803(4) statements must be made TO the medical provider for purpose of dx, tx, etc i. Statements made by providers themselves do not fall within exceptionwe would want to crossexamine that MD ii. What if MD talking to another MD? (1) These would be statements made for purposes of dx or txtriage situationone MD trying to get tx for the pt. 5.Refreshing Memory and Recorded RecollectionsFRE 803(5) and FRE 612 a. 803(5) Recorded Recollection: A Memo or record concerning matter about which witness once had knowledge but now has insufficient recollection to enable full and accurate testimony, shown to have been made or adopted by the witness when the matter was fresh in the ws memory and to reflect that knowledge correctly. If admitted, the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. b. 612: Writing used to Refresh Memory: Except as otherwise provided in criminal proceedings, if witness uses a writing to refresh memory for the purposes of either i. while testifying, or ii. before testifying, if the courts in its discretion determines it is necessary in the interests of justice, iii. an adverse party is entitled to have the writing produces at the hearing, to inspect it, to crossexamine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. iv. Court will excise unrelated portions of the writing in camera. Any portions excised will be preserved and aviable to appellate court. c. Legitimate refreshing recollection: witness is on stand and forgets something, but it is possible to bring memory back in witness mind so that witness now has a live and real memory of an event. i. Example: trying to call friend in PA, go to call and forget number, look at address book and say, oh yeah thats it and can dial without lookingthis is reviving an old memory for present recollection. ii. Example: witness who has witnessed license plate on car. Ask witness license number and witness cannot remember, so show witness something with number on it and ask does that reflect you recollectionif it works like phone number example above, than that is refreshing recollection. d. Can use anything to refresh a witnesss recollection i. Practically, this means it does not have to be witness own writingcan show witness B, witness As report or police report to refresh ii. Refresher need not be admissible into evidence. Live testimony is being entered into evidence, not the refresher.

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803(5) comes in when memory is not refreshed as above i. If witness has previously written something down at or near event and takes pains to make accurate memorandum, then we can use that if present memory is insufficient ii. Memo can be read to the jury if: (1) memo, (2) witness cannot remember (3) made or adopted when matter was fresh in witness memory iii. Not admitted into evidencejury cannot bring it into jury room. iv. Only adverse party may enter recorded recollection into evidence f. Example: 2 women in car, witness accident. A sees license plate number and recites it to B, who records it on candy wrapper. If neither women remember the #, how can we get it read into evidence under 803(5)? i. Multiple hearsay problem ii. A saw plate and recited it while she looked at it, so present sense impression iii. Ask schrivner is she accurately recorded it at the time when her memory of recording it was fresh (recorded recollection exception) g. More than one person can use recorded recollection in one hearsay problem i. What if same example, but writing was too far from event, so not within present sense impression or exited utterance (1) A says she saw car speeding away, but does not know license number at trial, but at the time said the number out loud to B, who wrote it on paper. Did not see what B wrote (a) now we know the paper reflects what witness saw at the timelive testimony of his impression (2) Ask schrivner if he saw licenseno, but heard A saying number and wrote it down, took care to copy it accurately (3) So, neither remembers, but both meet all requirements of 803(5) h. Must have some testimony that note was accurate at time it was made (Johnson case) i. person can say: (1) I remember recording accurately (2) I remember looking at it afterwards (3) I have habit of double-checking (4) wouldnt have signed it if it was not accurate 6.Business Records a. 2 underlying rationales: (1) pain to bring in all the records, (2) regular course, so probably accurate b. Requirements: i. Regularly conducted business activity-can be anything so long as business (1) cant be personal ii. Must be regular practice of business to keep this type of record (1) this reassures accuracy (2) Palmer v. Hoffman: Train hit car and Hoffman sued RR company. RR company wants to get their report after the accident in as evidence under business record exception (a) USSC affirmedstatement not made within regular course of business (b) RR argues: we have a risk management programtrying to reduce accidents in the future and that is part of our businessordinary part of any business in modern world. (c) Counter-argument: it falls within the rule, but the circumstances and manner of its preparation suggest that it might not be trustworthy iii. Source has personal knowledge (1) source cant be stranger to the business iv. Source is acting in the regular course of business

e.

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United States v. Vigneau: Money laundering through Western Union. Govt wants to admit sender forms, but they are hearsay and do not fit into business exception because: (a) Not in regular course of business for WU clerks to ask for ID (b) Insufficient proof of party for party-opponent exception v. Record is kept contemporaneously vi. Foundation can be established by custodian of record or by cert under R 902 (1) Person must establish they fall within business exceptionverify this is an actual recordnot made by lawyer. vii. Records not admissible if the source of info or method or circumstances of prep indicate lack of trustworthiness c. Multiple hearsay problems are common with business records d. Manufacturer of lawn mower seeks to offer own return form against her that says grass shoot often clogs up. Admissible? i. Record is kept in ordinary course of business, so admissible because maker acting in regular course, personal knowledge of what client said. So return slip w/o the reason comes in here ii. Record reflects what client said and client is party opponent, so admissible against her. e. ER report record example: JJ shows up in ER, DOB on there, BP elevated, Resp. normal, Temp a little high, Eyes: Pupils equal and react to light, Exam, Hx. If pt is suing driver how much of this is admissible? A few double hearsay problems i. Name, DOBinfo from ptsubmitted to receive tx or diagnosisalthough hearsay, admissible under medical diagnosis exception ii. BP, RESP, Eyes: taken by med student, nursemade in ord. course of business, so business record exception iii. Exam: written by MDacting in ord course, so business record iv. Drawing: hearsay, but within business records exception v. History: coming from the ptstatements for purposes of medical diagnosis (1) pt hit by carcomes in and (2) no LOC comes in, both important to diagnosis. 7.Public Records and ReportsFRE 803(8) a. Also business records for most part, but treated differently. b. Records within exception are those generated by public agencies and documented by public officials: 3 types i. Activities of the office of agencyinternal workings of an agency, stamp of approval, hiring, internal workings. ii. Matters observed by public officials pursuant to duty imposed by lawPerson at Logan who measures rain fall everyday and writes it down. iii. Factual findings after an investigation. c. Rationales for exception: assumption public official will perform duty properly and unlikely he will remember details independently of the record. d. RULE: As long as the conclusion is based on a factual investigation and satisfies the Rules trustworthiness requirement, it should be admissible along with other portions of the report. i. Beech Aircraft Copr v. Rainey: This is leading federal case on scope of pub records exception in federal rules. Navy plane crashwas it pilot error or something else? JAG report: studied accident and made conclusionsthese are sought to be introduced into evidence. USSC said no clear line between facts and opinionsUSSC refused to make the distinction under (c) and held any conclusion agency comes to are admissible. ii. Very powerful evidence b/c what you get in end is bottom line evidence. iii. On the other handreports can be rejected if they are not trustworthyjust as with business records (1) Suppose complaint of police misconduct and that is investigated by internal affairs of department. Conclusionit never happened. Person files civil rights action, can police introduce its own report that officer did nothing wrong? (a) It fits within 803(8)(c), but powerful argument that there is reason to suspect the trustworthiness of report.

(1)

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Public recordsdistinction from business records. i. Source of info may be outside witness ii. Statement of investigators themselves are not admissible unless they are not hearsay or come within another exception (might have to redact these statements themselves, but can leave in conclusions) iii. But, public official acting as fact finders may make credibility determinations iv. Reports may be excluded if not trustworthy. f. Trustworthiness factors courts take into account i. How timely was investigation ii. Special skill or expertise of the investigating official iii. Was there a hearing conducted and what was the level of the hearingsuggests two sides, some sort of process iv. Any motivation or bias on official g. RULE: Police observations/ law enforcement reports cannot be used against criminal defendants i. United States v. Oates: 803(8)(B) and (c) excludes police observations because Congress wanted to preserve accuseds right to confront his accuser. Congressional intent to make law enforcement reports absolutely inadmissible against s in criminal cases. (1) In Oatestried to introduce lab report under business record Court had to address question of whether lab tech is a law enforcement agent. Court said yes because it was DEA or Customs. Holding: even though 803(6) on its face does not mirror 803(8), we will interpret 803(6) the same way so you cant get in the back door what you cant in the front door. h. Oates rule does not apply to 803(7): Absence of business and 803(10): absence of public record i. Proving absencesend subpoena to KOR and get back cert for due and diligent search ii. So, absence of records is admissible against criminal s. 8.Ancient Documents 803(16) a. Statement in a document in existence 20 years or more the authenticity of which is established b. 20 because far enough not to anticipate litigation G. Residual ExceptionFRE 807 1.Almost never come into play: NEVER CORRECT ANSWER ON AVERY EXAM a. Why? Because must justify it, just as trustworthy as another exception and cant make arguments on MC exam b. Very rarely are things admitted under this exception. 2. Dallas County v. Commercial Union Assurance CO: Landmark case for using residual exception: Whether courthouse tower was hit by lightening or collapsed because of deterioration due to a fire long ago. County would have insurance coverage if lightening, but not if fire. Newspaper article from 1901, unsigned, reported a fire in courthouse while it was in construction. Issue was whether this is admissibledid not fit into hearsay exception. Court heldyes a. No new exceptionevidence admissible because it is necessary and trustworthy, relevant and material, and its admission is within the trial judges discretion. i. necessary (not impossible, but practically inconvenient) ii. trustworthy (inconceivable that story would run if did not really happen) 3.If going to use residual exception, must give pre-trial notice to other side 4.Controversy in area: illustrated by Laster case: what happens if you have something really close to getting in under ordinary hearsay exception, but does not quite make ita little technicality. Conceptual question does this argue for admissibility or inadmissibility a. Near misses admissible: rule says if it possesses equivalent guarantees of trustworthiness, than admissible b. Other side: if not covered by other rules, might be in residualnear-misses are covered under an exception, but miss. IX. Confrontation Clause A. Right of criminal defendant under 6th Amendment to confront his accuserNOTHING to do with a civil trial

e.

45

1.Confrontation clause not coterminate with rules against hearsayso some testimony admissible under hearsay rules, but in criminal case not admissible against crim defendant if violative of confrontation clause a. Reverse is true: OK under confrontation, but not under hearsay rules 2.Does not apply to evidence against govtonly individual criminal defendant a. right to be present when W testifies b. right to be in view of W c. right to cross-examine the W 3.Must make 2 analyses on exam for evidence against criminal defendants a. confrontation clause b. admissible against hearsay exception 4.Bulk of cases come from right to cross-examine a. RULE: If you have had an opportunity to cross witnesses, then even if their hearsay testimony is later introduced and they are unavailableno violation of confrontation clause violation [Maddox v. United States] i. RULE: must have counsel at the first trial for testimony to be admissible at second, if not, admission violates CC [Pointer v. Texas] b. RULE: Govt may not use former testimony based on Ws unavailability unless really unavailable govt must take reasonable steps to procure W, otherwise NOT unavailable i.Barber v. Page: Co- testified against at preliminary hearing. had counsel at prelim. At trial, co- in prison out of state and govt did not try to procure him. Thus, testimony inadmissible as former testimony b/c co- NOT unavailable c. Where W crossed at prelim, there is no confrontation clause claim if he is unavailable at trialprior cross is adequate i.If W changes story at trial, his prior inconsistent statements under 801(d)(1) can be introduced substantively ii.If W only testifying at trial and made prior out of court statements under 613 can be used to impeach credibility iii.Crim s argued unfair to admit prelim testimony based on prior opp to cross b/c tactics at prelim are different-- s not trying to win case at prelim. Prelim hearing just probable cause level of determination. So, used for discovery and defense lawyers do not go after the witness very hard. So, not really cross in sense of cross at trial (1) In Roberts v. Ohio, USSC rejects this argumentopp for cross is all you are constitutionally guaranteed. Tactics is a choice to use opp differently d. Government must not demonstrate unavailability to use co-conspirator statements i. US v. Inadi: W subpoenaed to trial, did not show upcar trouble. Pros did not do anything to get him there. argues could have got W here, so not unavailable and co-con statements should not be admitted. USSC says no, unavailability not required for con-conspirator hearsay e. Only portions of statement directly against co- s penal interest are admissible, but not those that implicate b/c they are inherently unreliable. i. Lilly v. Virginia: non testifying co- s statement introduced against the defendant. They had stolen liquor and guns. Introduced based on declaration against non-testifying co-defendants penal interest. USSC said declaration against penal interest are not firmly rooted exception because fairly recent acknowledgement. Court explored other circumstantial guarantees of trustworthiness. USSC: statements inadmissible b/c inherently unreliable. ii. Case important because statements of other participants of crim activity during interrogation are clearly statements to which Crawford case applied B. Crawford v. Washington (2004) controls CC analysis 1. Rejected Ohio v. Roberts 2-step reliability test: (1) hearsay must be necessarydeclarant unavailable and (2) hearsay must be reliableproven either (a) firmly rooted in hearsay exception or (b) if not firmly rooted, there must be particularized guarantees of trustworthiness 2. Crawford asks whether the statement is testimonial b/c are the evil at which 6th Amendment is aimed a. What constitutes a testimonial statements? 3 definitions given in Crawfordwhere law is grey

46

i. (SubjectivePetitioners definition): Ex-parte in-court testimony or its functional equivalent

materials such as affidavits, custodial examinations, prior testimony that the was unable to cross-examine, similar pretrial statements that declarants would reasonably expect to be used prosecutorily. ii. (Thomas/Scalia definition) Extrajudicial statementscontained in formalized testimonial materials such as affidavits, depositions, prior testimony or confessions iii. (ObjectiveNACDL): Statements that were made under circumstances which would lead an objective witness reasonably to believe that statement would be available for use at a later trial b. If deemed testimonialthen probably inadmissible unless some opp for cross-examination even with unavailability. i. Clearly included as testimonial and thus within CC: affidavit, police interr, prior testimony ii. When can we use out of court testimonial statements against a C clause objection (3 ways) (1) demonstrate unavailability and provide opp for cross-examination (2) if statement not offered for its truthjust a fact that statement made, operative words, circumstantially (3) if has forfeited his C rights by procuring the unavailability of witness c. If not testimonialstatements probably admissible if they satisfy hearsay rulesdo not have to satisfy C clause. i. Clearly excluded: business recs, public recs, co-conspirator statements d. Note: Ct in Crawford does not explicitly hold that C clause is limited to testimonial statements. 3. Bank robbery, escape car abandoned and note left in that car that says light green ZPJ-254. They changed cars; this is the other car. Presumably someone left a note in 1st car providing license plate number of switch car. Police find out that plate belongs to women and wife of suspect (fingerprints found in first getaway car). Is this note from first car admissible? Is this relevant? Yes b. The note is hearsay under 801(c) because it is an out of court statement, containing as assertion and offered to prove the truth of the assertionthat the s changed cars to the light green one with a specific license plate c. Possible exceptions: i.Present sense impression if in fact note was made by bystander at time of event (803(1)).. BUT we dont really know when the note was writtenno evidence for this40 min window between robbery and when note found. ii.Cannot be record recollection b/c we dont have the declarant. iii.Co-conspirator? Hardly in furtherance of conspiracy b/c getting robbers in trouble. iv.Excited utterance? Fact that it is written down and left so nicely in car cuts against exciting eventhow exciting is switching cars. v.Residual exceptionnecessity b/c Declarant is anonymous, so practically unavailable this provides link that no other evidence provides. (1) But, is this evidence trustworthy? (2) Does it bear circumstances of trustworthiness similar to other exceptions? (3) If we can establish trustworthiness under 807 using corroborative evidencewe have enough corroborative evidence in this caseso might establish trustworthiness. d.Confrontation clauseadmissible as against s C clause objection? i. Testimonial? Depends on which category court uses to define testimonialon essay make argument for use of one definition over another ii. Expansive v. non-expansive theory of what C clause is designed to do: (1) Non-expansive: C clause not intended to protect against this sort of evidence framers intentprinciple evil is version of Spanish Inquisitionunfair to accused (2) Expansive-reliability of the evidence-cannot cross examine declarant, so violates C clause. should not be convinced without opportunity to test evidence against him. (3) CC violation depends how broad the definition 4. ON EXAM: must discuss all possibilitiesall hearsay exceptions even if maybe would not be admissible under C clause.

a.

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X.

Bruton doctrine: in context of a joint trial wherein a co implicates his accomplice, a limiting instruction is not an adequate substitute for constitutional right of cross-examination. a. Bruton Doctrine: concerns the problem of an out-of-court admission made by a codefendant, tried jointly with his accomplice. Co s words admissible against him as statement of a party-opponent, but if offered against his co , they most likely will fail CC scrutiny b. Bruton is a common and recurring problem c. After Lilly, Inadi and RobertsAny out-of-court confession that qualifies as a coconspirators statement under FRE 801(d)(2)(E) is likely to survive CC scrutiny d. BUT, an accomplice confession is almost never a co-conspirator statement b/c rarely in course of conspiracy and not in furtherance of conspiracy. e. Could solve CC problem if co testifies, or if sever trials f. Bruton v. United States: Facts: one accomplice confessed, implicating both himself and confederate. The co s are tried jointly before a single jury and confessing co does not testify. Confession fails CC scrutiny as to non confessing co . ISSUE: May the trial court permit jury to hear the out-of-court confession so long as court carefully instructs jury to consider the statement only against its maker? i.HOLDING: No. There is substantial risk that jury, despite instruction to the contrary, looked to the incriminating extrajudicial statements in determining petitioners guilt. Admission of co s confession violated petitioners right of cross-examination secured by CC of 6th Amendment. ii.Violation of Bs confrontation rights when E not testifying at trial and cannot be crossed. iii.USSC holds that Govt must make a choiceeither sever the trials, or if tried together, then it cannot used Es statement even against E b/c introducing as to him and pretending jury will not use it against B is not practicalequivocal to CC violation with regard to B. iv.Practicallyimportant for criminal defense attorney to find out if any co s made statements and then filed motion to suppress or to sever. g. Indirect implication from accomplice statement: It is still a violation of s rights to introduce statement, but some authority that admission of statement is harmless error and limiting instruction is enough i. Gray v. Maryland: Govt deleted s name wherever it appeared in co s statement and gave to jury. USSC said that is not adequate b/c obvious that it is . 6. Another aspect of CC is where W comes to courtroom, but for some reason the govt does not want the W to have to actually physically confront the a. Coy v. Iowa: put a screen up in court room between child in abuse case and . USSC said violation of CC rights b/c has right to look someone in the eye when they are testifying against you b. Maryland v. Craig: child abuse casechild testifying from another room from closed circuit television. Unlike Coy, Pros made specific and detailed record of harm that child would suffer from making accusation directly. In this case USSC retreated a little from Coy. c. Now the rule iscannot take witness out of sight of unless you make a solid record of what it would do to witness d. Devastating impact on criminal s chances of getting not guilty verdictinfers is so dangerous child cannot even be in courtroom Opinions and Expert Testimony A. FRE 701: Opinion Testimony by Lay Witnesses. If the W is not testifying as an expert, the Ws testimony in the form of an opinion or inference is limited to those opinions or inferences which are: (a) rationally based on the perception of the W and (b) helpful to a clear understanding of the Ws testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge within scope of FRE 702. 1.At CL, principle distinctions between lay and expert was that experts could give opinions and lay witnesses could notcould only place observations before the jury without drawing any inferencesthat is jurys job 2.701 recognizes middle groundwhere inferences of lay witnesses are helpful (something jury could not do alone) and rationally based on perception

5.

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3.Ex. He sounded depressed a. Pros will argue lay b/c common emotion, also how else would W be able to testify b. Defense will argue expertmedical diagnosis c. Pros will prevail 4.Age observations are the kind of opinions we rely on all the time, so admissible in court as lay testimony 5.Identifying drugs is not necessarily expert testimony b/c based on lay persons personal knowledge of drugs (advisory notes) a. W testified that while living w/ she found a plastic bag inside one of s shoes containing a white powder. Also testified that she had used cocaine before and had developed a cocaine problem she tasted substance in bag and it tasted like cocaine b. Testimony is not specialized knowledge to this W, but personal knowledge. If W was not a former user, it is probably not admissible as personal knowledge B. FRE 702: Testimony by Experts. If scientific, tech, or other specialized knowledge will assist trier of fact to understand the evidence or to determine a fact in issue, a W qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in form of opinion or otherwise if: (1) the test is based on sufficient facts or data (may not speculate) (2) the test is product of reliable principles and methods and (Daubert) (3) W has applied principles and methods reliably to facts of the case (reliability Yellowspecifies kind of knowledge Greenmust be helpfulthis requirement is not that simple Blue: W must be personally qualified 1. Govt may try to pass off expert testimony as lay testimony to avoid discovery requirements: listing all experts before trial a. US v. Figueroa-Lopez: enforcement officers gave opinion testimony that was a drug trafficker, but were not qualified as experts. Based on officers training as a DEA agent, not within realm of common knowledge and similar to expert testimony from other drug cases. b. Testimony was about experienced drug dealerwhy not barred by 404b? i. defense was entrapment, so falls within 405(b) ii. With entrapment as a defense, has made his character an issue in the casecharacter is essential element of crime of entrapment, so the specific instances can be used against him under 405(b). c. Giles v. Rhodes: civil rights case involving guard brutality at Sing Sing prison. s wanted to call deputy superintendent of security to testify as to policy and procedures in prison. Wanted to characterize W as lay witness b/c had not complied with discovery obligations with respect to expert testimony. i. Ct rejected argumentspecialized knowledge and expertise required to testify of policies and procedures of using force in prison context, so inadmissible as lay testimony. 2. Expert Witness qualification a. W need not be specialist in her profession i. EX. internist can testify about a lot of medical issues b. Judge makes determination about training/educationJudge must know a little about science i. Ruling is preliminary question of fact ii. Judges dont like to do it in presence of jurystamp of approvalsome will just say ask questions and deal with objections as they come c. What if expert in one fieldcan he testify in another? i. Fact-specific, judge decides 3. The law places five demands on expert testimony: a. Proper qualifications: W must be qualified as an expert by knowledge, skill, experience, training, or education (FRE 702) b. Proper topic: In general, test must concern topic beyond the ken of the jurors. It may not simply tell jurors what result to reach and may not intrude on judges role as legal expert. Must assist the jurors by supplying information or insights they otherwise lack. (702, 704)

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7. 8.

9.

10.

c. Sufficient basis: expert must have an adequate factual basis for opinions (702, 703) d. Relevant and reliable methods: testimony must be product of reliable principles and methodsreliably applied to facts of case e. Rule 403 challenge: evidence, if challenged, must survive a 403 weighing test. 4. FRE 704: Opinion on Ultimate Issue a. Except as provided in (b), testimony in form of opinion or inference otherwise admissible is not objectionably b/c it embraces an ultimate issue to be decided by jury b. No expert W testifying w/ respect to mental state or condition of in criminal case may state an opinion or inference as to whether the did or did not have the mental state or condition constituting an element of the crime charged or of defense thereto. Such ultimate issues are matters for jury/trier of fact alone c. Limitation on Ultimate Issule i. Witness may not express opinions on whether another witness is telling the truth other than as allowed under FRE 608(a) ii. Witness not allowed to express an opinion on whether criminal defendant is guilty or innocent iii.Witness usually not allowed to express opinion that contains a legal conclusion 5. Expert not allowed to express opinions as to credibility of Ws, guilt/innocence of or legal conclusions (substitutes for judge) 6. Another problem: improper used of syndrome testimony a. Defense lawyers want to argue that the existence of these behaviors are inconsistent with guiltif this really happened, wouldnt victim have reported, why withdrawnnotion of other behavior may be counterintuitive. b. Syndrome experts counter defense lawyers argument. This undermines argument that victims behavior was inconsistent with what really happened. i. This responsive use is a legitimate use of testimonybut it is DIFFERENT from a diagnostic toolcannot diagnose what happened based on this behavior. ii. Cannot say, we know she was battered because she has battered women syndrome (improper argument) c. Several varieties of syndrome testimonychild abuse, battered women, rape trauma Another problem with syndrome testimony is when expert vouches for the victim a. If expert is testifying is also the person who examined the childgreater risk that expert is vouching for child than if expert never saw the child. Experts not allowed to express opinion as to guilt or innocence a. Figora-Lopez: Expert will testify that this methodology is employed by experienced drug traffickers. Cannot go further and say that he thinks this was a drug transaction b. Some pros asks question: what did you see. In your opinion, is that consistent with a drug transaction some courts say this locution makes it okayappellate opinion says same as asking about guilt or innocence. Subject matter of expert testimonyeyewitness Identification a. Most courts do not like expert testimony about eye witness IDS b/c not helpful to jurors b/c eye witness experts are not saying anything jurors do not already know b. this is hard to justify given the enormous amount of research on the eye witness theory. c. So, solid argument for using eye witness experts, but courts are v. resistant to that and are coming to it very slowly. Area is changing and in great flux depending how evidence is presented to court FRE 703: Basis of Opinion Testimony by Experts a. Facts upon which expert basis opinion or inference may be those perceived by pr made known to expert at or before hearing. If facts are of a type that experts in field reasonably rely on in forming opinions of inferences on subject, the facts need not be admissible in order for opinion of inference to be admitted. Fact/data otherwise inadmissible shall not be disclosed to jury by proponent of opinion unless court determines their probative value in assisting jury to evaluate experts testimony substantially outweighs their prejudicial effect b. Three possible sources for facts/data upon which expert testimony is based

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i. firsthand observation of the W-opinions based thereon traditionally allowed ii. evidence already in the record or which the parties represent will be presented during the course of proceedings, which facts may be presumed true in questions put to witnesses. iii. Facts or data not in evidence, including hearsay, if facts/data are the type reasonably relied upon by experts in the particular filed in forming opinions or inferences. c. Facts of data disclosure sentenceMD gives opinion based on certain facts or data she would normally rely on, but which are not admissible in evidence. i. We will give MDs bottom line opinionthat treating physician should have conducted previous tests, etc ii. Rule says, judge has to make a balancing determinationproponent cannot get in the underlying basis unless the probative value (to determine weight of the evidence) of the evidence substantially outweighs prejudicial effect of allowing juror to hear prejudicial effect iii. Opponent of expert is free to bring it upfree to attack the opinion 11. Reliability requirements of FRE 702 and Daubert a. Rationale for reliability requirements (power point) i. black box scientific principlesat the end of day jurors probably not smart enough to come to correct conclusion on own ii. validity of expert premises cannot be demonstrated in court room iii. Difficult for jurors to assess significance of expert testimonyhair comparison testimony for exampleall witness can say is that suspect MAY have been the donor, trace evidence specialist cannot say how large universe is b/c no database that supplies information. iv. experts reliance on vicarious experienceevidence rules (hearsay)discourage divulging vicarious experience v. fear jurors will be overwhelmed with expertise of witnessno one knows if this is really true. b.Court divined the Daubert test from FRE 702, then later amended rule 702 to reflect Daubert test. Set out guidelines for admissibility of expert testimony. i. Has the technique or theory been tested? ii. Has it been subject to peer review and publication iv. Is it generally accepted? General acceptance is not required, but is permitted in reliability assessment. v. Known or potential rate of error vi. Existence and maintenance of standards controlling techniques operation vii. Mere assertion that methodology is reliable is insufficient absent other evidence XI. Authentication/Identification and Best Evidence Rule A. Best evidence almost never litigated, authentication almost never litigated. 1. FRE 901: Requirement of authentication of identification a. General Provision. The requirement of authentication of identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims b. Illustrations. Examples of authentication of identification conforming with rile (1)-(10) c. Requirement falls in category of relevancy dependent upon fulfillment of a condition of fact and is governed by procedure set forth in Rule 104(b). d. Compliance with requirements of authentication and identification by no means assures admission of an item into evidences, as other bars, may remain. 2. FRE 902: Self-authentication a. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following i. domestic public docs under seal ii. domestic public docs not under seal iii. foreign public docs iv. certified copies of public records v. official publications vi. newspapers and periodicals

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trade inscriptions and the like acknowledged documents commercial paper and related docs Presumptions under Acts of Congress Certified domestic records of regularly conducted activity Certified foreign records of regularly conducted activity 3. Example: Western Union case: if still had form, how to identify signature? (3 ways) a. Get some known exemplars of Vigneaus signatures and get expert to testify that signature on form was his b. Or someone familiar enough to recognize the signature could look at the forms and testify that it was his c. Can show jury exemplars and form and jury draws conclusion about distinctive characteristics 4. Controversy about whether handwriting experts are any better at comparing exemplars to originals than lay jurors. a. So, now questions as to whether a handwriting expert should be allowed to testifydoes the methodology of handwriting textbook survive a Daubert challenge? 5. Authentication is a common sense thing a. All you need is evidence sufficient to convince a rational trier of fact by the preponderance of the evidencecan be anything. b. This is exactly like 104(b) conditional relevance b/c judge does not make final determination that this is what they say it is. Judge instead determines whether evidence is sufficient that a rational jury could find that item is what proponent claims it is c. Jury is supposed to do preponderance of evidence std in crim and civil matters (comes from Huddleston case) 6. How to authenticate anonymous note in car w/ license plate number of new car a. Rule says you have to prove that thing is what proponent claims it is b. All proponent claims is that it is a note found in back seat of carnot claiming it was written by someone (if it waswould have to authenticate it as having been written by that person) c. So, all we have to do is authenticate that this was the notecan do this through chain of custody, officer might put initials on back d. Pointin authenticating exhibits, you only have to authenticate them for what proponent claims they arehere, just note found in back of car. 7. Telephone calls: easiest to authenticate if calling out a. Star 69 feature call back last numberreturned call i. how do we prove that *69 works? (1) Get something from phone company to testify as to how *69 worksthis is 901(b)(9) process or system. (2) After awhile, judge would take judicial notice of it ii. How do we prove it was suspect who made it? (1) Voice ID: can testify as to familiarity of voice: (a) either already familiar and so recognize it when he calls. (b) Also could go to arraignment and become familiar with voice then. (c) Weight of evidence is arguable. iii. Proving using circumstantial evidence (1) robber and person who made call is same (2) identify phone used by robber under *69 feature (3) person is , in part on circumstantial evidence found in car b. Easier to identify through outgoing telephone call person than incoming calls unless *69. i. Easier b/c you are in control of number you dial, person says namerules suggests that is enough to authenticate. ii. If you call Pizza hut and person asks what kind of pizza-good circumstantial evidence that you actually called Pizza.

vii. viii. ix. x. xi. xii.

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iii. But, if someone calls and says a name, does not authenticate call unless you have caller ID feature, no idea where call is coming fromthis is problem in Lynes 8. Photographs a. Photographer need not lay the foundation himself. b. A witness can lay the foundation because essential test is whether the photograph accurately represents the facts portrayed in the photo. c. Getting photo in is one of simpliest things: show witness photo, do you recognize it? Is this a fair and accurate representation of how the intersection appeared to you the day of the accident? Bingo, photo authenticated d. Photo is almost never taken at the instant at which accident occurredprobably later, after cops or press got there e. So, for ordinary photographs: need witness to testify that this is scene as it appeared at time, maybe with some slight difference f. Cannot get this testimony for all photographsx-ray for example would not work b/c surgeon did not actually see the fractured bone. How can we get x-ray into evidence? i. Bring in x-ray technician to testify that this is a process that provides accurate resultsprocess 901(b)(9), but do not have to do this anymore b/c judicial notice of x-rays. 9. Surveillance video a. bring in guy from store to say video was regularly calibrated with date and time of videostamped on film everyday. This would authenticate surveillance. B. Best Evidence Rule 1. FREs: 1001-1004: Must have original document if trying to prove the content 2. When would we try to prove content? a. Where writing is itself an issue in the case Will contesttrying to prove content of will, Contract disputesubject of K is issue of casei. Seiler v. Lucasfilm: Seiler accusing Lucas of stealing his drawings of imperial forces. Court treats drawings as equivalent to doc, writing or recording, so best evidence rule applies to case. Copyright infringementdrawing at issue in case b. Writing reflects a happening of some kind and thus content has some probative effect i. this is where trick ismust be proving writing itself, not happening ii. RULE: Where pros trying to prove what was said, can use testimonydo not need transcript (1) Perjury: W present at earlier proceeding and will testify as to what said on that occasion. objects arguing best evidence rule saying transcript is best evidence, not this Ws memoryimperfect. Is this a valid objection? (a) W recollection is legitimate way of doing that b/c eye witness, heard what was said and can testify. We are not obliged to offer the transcript (b) Practically, transcript is more persuasive, but no rule requiring most persuasive evidence unless trying to prove content. (2) Arson investigation of restaurant. Alice writes license on back of business card: 9ppf994 and gives to investigator. At trial Alice can recite license of car. Objection, Best evidence, card is best evidence. Sustained or overruled? (a) Overrulednot trying to prove what she wrote down, but what she saw she saw it and does remember, so her testimony is fine. (b) Can use card to refresh her memory if she did not remember 613 or prior recollection recorded 803Use of these methods do not mean that we are trying to prove the contents of the card. 3. Once best evidence applies, there are many ways of proving it: a. originalcan have multiple originals (1001, 1002) b. If no original, then BER says you can use a copy (1003) i. Can offer duplicates even if you cant justify secondary evidence to same extent as original so long as no shenanigans (1003) c. Secondary evidence allowed if original lost or destroyed (so long as not destroyed in bad faith by proponent) not obtainable, in possession of opponent or collateral matter (1004)

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c.

7. a. a. 2. a. b. 2.

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