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Evidence Attack Sheet- Saltzberg Fall 2010

General Considerations: Whos on the stand? Whats being offered? o Witnesses o Documents Why is it being offered? What are the objections?

What are the formal/ foundational requirements of requirements? Witnesses o Competency. Rule 601. Whether state law might apply. AKA Dead Mans Statutes. Whether the witness took the oath. REMINDER this objection can be waived. o Personal knowledge. Rule 602. o If they are an expert they have to be specifically qualified. Documents o Authentication. Rule 901, 902. Satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Rule 104(b) standard: Could a jury reasonably conclude Ways to authenticate: Witness with knowledge Chain of custody Process Rule 902: Self authentication Some documents you dont need a witness to appear in court for. Examples: o Newspapers and periodicals Public records can be certified by as copy certified as correct in accordance with Rule 902 You can admit to authenticity. o Best Evidence Rule. Rule 1001-1008. Are the contents of a writing, recording, or photograph in issue and are they being offered into office? Is an original being offered? Is a duplicate being offered? It can be offered unless: A genuine question is raised as to the authenticity of the duplicate. Under the circumstances it would be unfair to admit the duplicate in lieu of the original. Exceptions: Original were lost or destroyed. Originals not obtainable.

Original in possession of the opponent. Collateral matters. There may be an opportunity to summarize.

Is the evidence that is being offered relevant? Rule 401, 402. When is evidence relevant? o Evidence is relevant if it has any tendency to make the existence of any fact in issue more or less probable then it would be without the evidence. Is some relevant evidence excluded because of policy concerns? o Remedial measures. Rule 407. Are not admissible to prove negligent culpable conduct, a product defect, or a need for warning or instruction. However, it is admissible for impeachment purposes, when feasibility is in controversy or when you are trying to prove ownership or control. o Insurance. Rule 411. Evidence that the person was or was not insured against liability is not admissible upon whether the person acted negligently or wrongfully. It can be used to show agency, ownership, control, bias, and for impeachment purposes. o Pleas. Rule 410. Only comes into play when they dont result in a plea. Not applicable to confessions. Those come in all of the time. These statements may not be used for impeachment purposes, but the rule may be waived to allow impeachment. o Offer to settle. Rule 408. Only comes into play when a case does not end up settling. We need a disputed claim here. Does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. Not admissible to prove liability for or invalidity of the claim or its amount. This evidence is admissible to show the bias or prejudice of a witness, negating a contention of due delay, breach of settlement agreement, proving an effort to obstruct a criminal investigation or prosecution or any other reason that is not to prove liability or damages. A government regulatory, investigative, or enforcement agencies can use these statements during in a criminal case if they came from a civil dispute. They are not admissible in subsequent criminal litigation when offered to prove liability for, invalidity or, or amount of those claims. o Offer to pay medical costs. Rule 409. Good Samaritan Rule. We do not need a disputed claim here. Opinions or admissions of fault are not protected and are therefore admissible. Statements of regret are not admissions. Special relevance problems.

o Similar happenings. May be used to prove product defect or negligence but they are more likely to be admitted to approve notice. They need to be substantially similar. Absence of an accident may be admissible when the adequate foundation is laid. Evidence of other law suits is not relevant unless the P had made similar claims that were fraudulent. Prior dealings may be relevant. o Habit. Rule 406. Allowed to show that conduct conformed to habit. Regular response to a certain repeated situation. Reflexive and automatic. o Character. Rule 404, 405. General rule is that character evidence cant be used to show propensity to commit a certain act. The use of character evidence to show propensity is not permitted in a civil case. It is permitted in a civil case when character actually is in issue and may be proven by reputation, opinion, and specific instances of conduct. Defamation In a criminal case, the prosecution may not offer character evidence for propensity concerning the D in its case in chief. In a criminal case, character evidence of a pertinent trait of the defendant is admissible if offered by the D after which the state may offer rebuttal evidence. Proof may be made only by reputation and opinion. Good moral character. Law-abiding citizen. Honesty may only apply to specific crimes. o Bribery and receiving stolen goods. In a criminal case, character evidence of a pertinent trait of the victim is admissible if first offered by the D, after which the state may offer rebuttal evidence as the victim as well as on the same trait of the D. Proof may only be made by reputation or opinion. In a homicide case, if the D offers any evidence that the deceased was aggressive, then the prosecution may offer rebuttal evidence of the peacefulness of the victim. Proof may only be made through opinion or reputation. In a criminal case, where character is an essential element of a charge, claim or defense, proof may be made by reputation, opinion, or specific instances of conduct. Entrapment: Predisposition to commit the offense. Any character witness may be cross examined concerning the witness knowledge of specific instances of pertinent bad acts committed by the person whose character that witness has endorsed, the cross examiner must have good faith proof that the acts occurred and the incidents inquired about must be relevant to the character trait in issue. Good faith means the witness should have known (if he is an opinion witness) or that the community should have known about (if he is a reputation witness). Cant ask guilt assuming hypotheticals. Specific instances of conduct are admissible to prove intent, motive, plan, design, or any other purpose other than propensity. See if it would require an inference of propensity. Plan: look at genericness and remoteness. Acts youre acquitted of can still count.

Arrest is not enough by itself- you would need more. Notice is required here. o No time limit. o The notice has to be in writing. o The notice is inapplicable in civil cases. o Only needs to disclose the nature of the bad acts The rules on character and bad act evidence are applied differently in cases involving rape of sexual abuse- evidence of the victims prior sexual activity is more strictly regulated while evidence of the defendants prior bad acts is more permissibly treated. Rule 412, 413, 414, 415. o Impeachment. Rule 607, 608, 609. Is there any other reason the evidence should be excluded? The testimony be offered is based on opinion. o Lay witnesses. Are they just drawing reasonable inferences from their personal perception? Like age? If yes, its allowed. Is it based on scientific, technical, or specialized knowledge? If yes, its not permitted. o Expert witnesses. Its OK if it will help the Trier of Fact understand because it is something that is not common knowledge. It must be based on the type of data a reasonable expert in the field would use. They can rely on inadmissible hearsay. They can base their testimony off of a hypothetical. Experts must get information related to the case through witness testimony or a hypothetical question based on all relevant facts admitted into evidence. Privilege. Rule 501. o Marital. Adverse Testimonial Privilege. Only applies in criminal cases. Prohibits testimony by one spouse against another. Controlled by the witness spouse. Ends when the marriage ends. Exceptions: o Crimes against family o Joint criminal activity o Furtherance of crime/fraud o Extended separation Marital Communications. Applies in both criminal and civil cases. Protects confidential communications from one spouse to the other. Both spouses share the privilege so both have to waive it. Its lasts forever as long as there was a valid marriage when it was made.

Exceptions: o Crimes against family. o Furtherance of crime/ fraud. o Extended separation. o Psychotherapist. No Federal Dr. patient privilege. Patient can claim the privilege. Applies to social workers Exceptions: Proceedings for hospitalization. Examination by order of a judge. Condition an element or claim of patients defense. o Attorney client. Rule 502. Privilege may be claimed by client or lawyer on behalf of the client. Not the same as the work product doctrine. Rules of Professional Responsibility prevent disclosure when privilege does not. Protects communications from client to lawyer that were made on reliance on the privilege. Does not apply to clients name, the amount and the payment of the fee unless doing so would disclose a confidential communications. You can waive it by speaking in front of a third party. Exceptions: Furtherance of crime or fraud. Will contests. Fee recovery. Rebutting medical malpractice claim. Joint clients. Lawyers cant destroy/ hide evidence or threaten witnesss with evidence and are not exempt from criminal liability except in failing to disclose that a crime has been permitted. Hearsay. Rule 801, 802, 803, 804, 807. o Was it made out of court? If no, analysis ends here and the statement is not hearsay. o Was the statement meant to assert something? Here look to conduct- points or nods could be hearsay If no, analysis ends here and the statement is not hearsay. o Is the statement relevant to the partys case regardless of its truth? Look to: If yes, and the analysis ends because it is not hearsay Legally operative words o Contracts o Making a gift in property o Orders

o o o Notice o

Questions Slander, perjury or fraud Threats or words of bribery in a bribery prosecution

The statement must be one that either was or should have been known about by the party whose state of mind was in dispute. o If you are being asked to believe it, then you are being asked to use it for its truth. Circumstantial evidence of the speakers state of mind o Someone told you a stolen credit card was a friends and that you could use it. o Entrapment defense. Laws, regulations and treatises. Police officers testifying about information they heard about the D. o Statements are being used to show their effect on the listener. Impeachment, not for truth, purposes. Rule 607, 608, 609. o Although anyone can impeach a witness, you cant call a witness solely to impeach them with otherwise inadmissible evidence. Capacity. Religious beliefs or opinions. Rule 610. Character for truthfulness. Prior convictions. Rule 609. o Look to analysis pp. 52-53. Prior bad acts. Rule 608(b). o Acts not consequences. o Cant use extrinsic evidence and you have to take the witness word for it. Inconsistencies. Prior statements of a witness. Rule 613. o Unless it is a admission, you need to give the witness a chance to explain, repudiate, or deny the statement at trial before extrinsic evidence can be offered. Contradiction. Accomplished by the introduction of extrinsic contradictory evidence. Bias. Counsel has to ask the witness about the bias before extrinsic evidence is allowed. Impeaching hearsay declarant. Rule 806. You cannot impeach with prior bad acts if the declarant is not there to admit them. o You can rehabilitate your witness. Rule 608(a) Truthfulness of the attack. o Then impeaching party can ask about specific instances of conduct. Prior consistent statements. o

If no, continue with the analysis. o Is the statement covered by (1) an exclusion from the hearsay definition under Rule 801(d), (2) an unavailability required exception under Rule 804, (3) an availability immaterial exception Rule 803, (4) hearsay within hearsay Rule 805 or (5) the residual hearsay exception Rule 807? Rule 801(d). The declarant is testifying at trial and is subject to cross examination. Prior inconsistent statements. Rule 801(d)(1)(A). o The contents of the statement are inconsistent with the testimony given at trial. o The statement was made under oath and subject to the penalty of perjury. o The statement was made at a trial, hearing, or other proceeding, or in a deposition Pre trial interviews are not other proceedings. Statements made to investigative agents do not count. Other proceedings: Routine and formal. Conducted by a legal officer or under their supervision. Of the type that would lead a declarant to believe that the duty to tell the truth was the same or nearly the same as at a trial. Consistent statements. Rule 801(d)(1)(B). o The contents of the statement are consistent with the testimony given at trial. o The statement must have been made before alleged improper motive or influence arose. o The statement is offered to rebut a charge of recent fabrication to improper influence or motive. Look for extensive and intense cross examination. The statement does not need to be offered by the declarant. Prior statements of identification. Rule 801(d)(1)(C). o The statement is one of identification of a person. o The statement was made after the declarant perceived the person. Admissions. Rule 801(d)(2). o Made by the party. Rule 801 (d)(2)(A). A statement is made by a party. Personal knowledge is not required. The statement does not need to be against the partys interest. When a co-defendant admits sole responsibility for a crime, it cannot be admitted in favor of the other D. The statement was offered against the party. Admissions dont apply if the party is dead. o Adopted by the party. Rule 801 (d)(2)(B). A statement has been made. The party has done something to manifest adoption of the statement or to show belief in its truth The statement is offered against the party o By agents, servants and employees. Rule 801(d)(2)(C). The statement concerns a subject. The statement was made by someone whom a party authorized to make a statement concerning the subject The statement was offered against the party.

o Rule 801(d)(2)(D). The declarant is an agent, servant, or employee of the party. Expert witnesses dont count. Attorneys do count. The statement was made during the relationship. The statement concerns a matter within the scope of the agency or employment The statement was offered against the party. o Co-conspirators. Rule 801(d)(2)(E). The declarant and the party against whom the statement is offered were both members of the same conspiracy. You need more than just the hearsay statement. The government doesnt have to charge conspiracy to take advantage of the rule. The declarant doesnt need to be a co-conspirator. The statement was made during the course of the conspiracy. Look to see if the central criminal goal of the conspiracy has been achieved or abandoned. o For monetary crimes, this is when the money is divided up. The statement was made in furtherance of the conspiracy. Not blowing of steam. Rule 804. An Unavailability required exception. Exceptions 804(b)(2), (3), and (4) require an attempt to depose. Rule 804(a). The D has to be unavailable: o Asserting a privilege in open court is not enough because the rule requires a judicial ruling that the witness is exempt from testifying. o Invoking the fifth doesnt work because D is creating his own availability. o A witnesss refusal to testify does not make the witness unavailable unless the court has already offered from them to testify outside of the jurys presence and the judge has ordered them to testify subject to the threat of contempt. o If you remember the general subject matter of the conversation and not the specific details, you are available. Look to see if the persons memory us likely to return. o Witnesses can testify from a hospital. o The declarant is absent and the proponent of the statement cannot bring the declarant in by reasonable means. o The D cannot benefit from making a witness unavailable. Negligence is not a wronging. Intentionally releasing a witness from a subpoena may be a wrongdoing. Exceptions: o Former Testimony: The statement must be in the form of testimony given at a hearing or in a deposition. In a criminal case, the party against whom the statement us being offered must have had an opportunity and similar motive to develop testimony at the prior hearing or deposition by direct, cross, or redirect examination. This does not include grand jury proceedings. In a civil case, either the party against whom the statement is being offered, or a predecessor in interest to that party, must have had an opportunity and a similar motive to develop similar testimony to that of the party against whom the testimony is being offered at the prior hearing or deposition by direct, cross or redirect examination.

Opportunity: Were they a party or a predecessor in interest? o Some legal relationship between the party like company B acquiring company A. Similar motive: Is it the same issue and context? o Dying declarations: Rule 804(b)(2). The statement concerns the cause of circumstances of what the declarant believes is impending death. The statement is made while the declarant believes death to be imminent. The statement if offered in a homicide or a civil case. o Statement against interest: Rule 804(b)(3). The content of the statement, at the time the statement was made was against the pecuniary or propriety interest of the declarant, could subject the declarant to civil or criminal liability, or could render invalid a claim held by the declarant. The statement was against any of the above interest of the declarant to an extent great enough such that a reasonable person, in the declarants position, would not have such a statement unless it was true. If the statement exposes the declarant to criminal liability and is offered to exculpate the accused, evidence of the corroborating circumstances that clearly indicate the trustworthiness of the statement must be offered. o Statements of personal or family history: Rule 804(b)(4). The content must concern the declarants own personal or family history. The statement concerns the personal or family history of one to whom the declarant is related or was intimately associated. o Forfeiture by a wrongdoing: Rule 804(b)(6). The statement must be made by a declarant who was a witness or a potential witness against a party. The statement must be offered against the party. The party must have engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness or potential witness. Rule 803. An availability immaterial exception. Present sense impression. Rule 803(1). o The occurrence of an event or condition. o The content of the statement describes or explains the event or condition. o The declarant made the statement while perceiving the event or condition, or immediately thereafter. Look to see if there was significant time of reflection. Excited Utterances. Rule 803(2). o The occurrence of a startling event of condition. o The contents of the statement relate for a startling event or condition. o The statement was made to the declarant while under stress or excitement. o The stress or excitement was cause by the startling event or condition. Time is not sure much of an issue hear as long as they remained excited. o No corroboration required. State of Mind Declarations. Rule 803(3). o The contents of the statement must express the declarants currently existing state of mind at the time of the statement. It may include things like emotion, sensation, physical condition, intent, plan motive, design, mental feeling, pain and bodily health.

o You cant use a state of mind memory to prove the fact remembered or believed unless it relates to the declarants will. Statements for Medical Diagnosis or Treatment. Rule 803(4). o The statement must describe medical history, past or present symptoms, pain, sensations, or the inception of general cause or external sources of symptoms. Does not need to be the declarants own condition. o A statement about the cause or source must be reasonably pertinent to diagnosis or treatment. o The statement must be made for the purpose of medical diagnosis or treatment. Business Records. Rule 803(6). o The records of any type of business, o The records were made in the regular course of the business o The business regularly keeps this type of record o The record was at or about the time the event was recorded o The contents consist of either information observed by employees of this business or a statement that falls within an independent hearsay exception. Absence. Rule 803(7). o If you can show a business has records and ordinarily records those events, you can offer business records to show something did not happen by showing its not in the record. Public Records. Rule 803(8). Absence of Public records. Rule 803(10). Learned Treatises. Rule 803(18). Hearsay within hearsay. Rule 805. Each part has to conform with a hearsay exception. Residual. Rule 807. This should be reserved for cases of clear necessity. If yes under (2), (3), (4) or (5), do the Crawford analysis. If yes to any of these, no Crawford problem because the right to cross-examine has been satisfied. o Declarant testify at trial? o Declarant testify prior to trial? o Defendant stop the declarant from testifying? o If no, continue. Is the hearsay we are trying to get in testimonial? o Look to: If yes, Crawford kicks it out. Was the evidence grand jury testimony? If yes, it is testimonial. Was the statement made in response to police interrogations where the primary purpose of the police questioning was to establish or prove past events that are potentially relevant to a later criminal prosecution? If yes, it is testimonial. The same applies if it was a police report prepared for prosecutorial purposes. If the primary purpose was to enable police assistance to meet an ongoing emergency need, like a 911 call, it is not testimonial. Was it a business record? If yes, then it is not testimonial. Agency admissions could be testimonial under Rule 801(d)(2)(D).

Was it a co-conspirator statement made during the course and in furtherance of the conspiracy? If yes, then not testimonial. Plea allocutions are testimonial o If no, no Crawford problem exists and the analysis stops. If no it is inadmissible hearsay, unless the statement is what the expert is basing his opinion on and the facts or data are of a type reasonably relied upon by experts in a particular field when forming opinions or inferences on this subject.

What are the substitutes for evidence? Judicial Notice. Rule 201. o Purpose is to prevent unnecessary expense or delay. o In criminal cases, juries dont have to except the fact as true. Presumptions. Rule 301, 302. Stipulations. o Old Chief Usually the court doesnt make the prosecution take a stipulation, but they can when it is used to prove only a single point in dispute in a trial.