You are on page 1of 86

RELAX...

its only evidence


Professor Bascuas Fall 2010
painstakingly compiled by justin wales

2012

Basic Relevance and Unfair Prejudice Rule 401 Relevance Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. -Is evidence of flight relevant?: -Evidence of efforts to avoid capture is generally admissible in criminal trials. So evidence that someone was hiding in a closet when he had an outstanding warrant against him would be admissible. -It does not, however, create a presumption of guilt. Courts often will admit evidence if the defendant had to know he was wanted and he disappeared shortly after issuance of arrested warrant. -Similar kinds of proof include evidence that the accused employed false ID, destroyed or concealed evidence, faked evidence, killed threatened, or impeded witnesses, sought to escape detention, attempted suicide, tried to bribe an officer. Rule 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except where otherwise provided by the Constitution, Congress, by these rules, or by other rules prescribed by the Court. -Example: Privileged evidence, Character evidence, hearsay statements, testimonial statements under Crawford. Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Evidence may be excluded if it probative value is substantially outweighed by the dangers 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. -Advisory Committee Notes: -Surprise is not a reason to exclude evidence under 403 -In reaching a decision whether to exclude on grounds of unfair prejudice, consideration to the effectiveness of limiting instructions (Rule105), as well as the availability of other means of proof. Probative Value Substantial Risk of Unfair Prejudice JUSTIN WALES - EVIDENCE 1

EVIDENCE

Old Chief v. United States 1997, SCOTUS (403 Analysis/General Rule for Proof of convict status) Facts: was charged with being a felon in possession of a firearm. He wanted to stipulate to his felony charge, which was for aggravated assault, but the prosecution refused. Issue: Is the prior conviction relevant? Holding: Yes. It is because being a convict is an element of the crime. Issue: Is the use of the name of the prior conviction unfairly prejudicial under 403? Holding: Where the prior conviction is an element of the crime charged, evidence of a defendant's prior conviction may not be admitted if the defendant is willing to concede to the fact of the conviction. -We want to avoid the risk that a jury will convict a person on past acts. -Same motivation as 404(b) -An assessment of prejudice must be decided with reference to all other evidence. -While a prosecutor should be able to present his case however he likes, allowing to stipulate past conviction would not disrupt the narrative and could only be used to show Old Chief was a drunk and bad man.

Notes: -Old Chief does NOT mean that a can just offer to stipulate anything and have no evidence presented.

JUSTIN WALES - EVIDENCE 2

LIMITED ADMISSIBILITY -Sometimes evidence can be used to prove one point, but is inadmissible to prove another point. Rule 403 allows a judge to exclude evidence if it is too prejudicial. Rule 105 authorizes a different approach: Allow evidence to come in but tell jury what it can and cannot be used for. Rule 105 Limited Admissiblity - When evidence is admissible for one purpose but not for another the court UPON REQUEST may restrict evidence to its proper scope and instruct the jury accordingly. -Bruton v. US Said that even clear limiting instructions were not good enough when co-s were tried together and a statement was only admissible against one person, but not the other. COMPLETENESS

Rule 106 Remainder of or Related Writing or Related Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. -Wants to make sure statements are not taken out of context. -Does not apply to conversations, only to writings and recorded statements. -Doesnt mean you have to show the whole video, you just cant show an excerpt that would be misleading. -Only applies when a party is being misleading. US v. Garcia 5th Cir, 2008 (Rule 106 applies to written or recorded statements or testimony that is tantamount to the introduction of written or recorded statements) Facts: was caught smuggling drugs and was questioned by government officials. The interrogation was taped. At trial the government official testified from memory about what the said during the interrogation. s attorney tried to JUSTIN WALES - EVIDENCE 3

introduce transcript of other portions of the interrogation into evidence. Holding: The government official was testifying from memory as to a conversation and not reading direct quotations allegedly out of context. Testimony was not tantamount to the introduction of written or recorded statement. US v. Boylan 1st Cir, 1990 (Completeness only includes relevant materials) Facts: Boston Police were indicted for accepting gifts from business owners for protection. Issue: Prosecution wanted to introduce certain documents from the officers files. The officers then wanted to have the rest of the files admitted, including accommodations. Holding: FRE 106 doesnt say exactly what entirety is, and the court must define it practically and with common sense on a case-by-case basis. HERE, The documents were complete and not misleading, in that they were the only documents relevant to the RICO charges. The documents that the police wanted to introduce were irrelevant. -Before 106 is triggered the judge has to do a fairness assessment and look at how these documents relate to the merits, and whether they might MISLEAD. RELEVANCY OF CHARACTER EVIDENCE Michelson v. US 1948 (If brings up character, can cross examine about specific incidents) Facts: Michelsons bribery trial turned on the issue of whether the jury should believe the agent or the accused. D sought to introduce character evidence, witness testimony that he had a good reputation. The prosecutor asked on cross-examination, Did you ever hear that on October 11th, 1920, the D, was arrested for receiving stolen goods? All witnesses said no. The judge supplied limiting instructions three times for the jury not to assume what the circumstances/consequences of the arrest were. Holding: When the accused calls a character witness to testify to his good character, the prosecutor may cross-examine about incidents from Ds past that could not be proved otherwise.

JUSTIN WALES - EVIDENCE 4

Rationalee: The assumes the risk of bringing up character evidence. We want to let s do this as a last resort, but needs to be able to inquire about specific acts in order to verify the character. - needs a good faith belief that specific act occurred. Rule 404(a) Character Evidence (a) 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. Character of Accused A criminal defendant may introduce evidence of good character related to the type of offense for which the is being tried. If the takes advantage of this opportunity, the prosecution is entitled to introduce opposing character evidence. 2. Character of the Alleged Victim To establish the defense of self-defense in a criminal case involving an attack by the on another person, the is entitled to introduce evidence that the victim had a violent character. can introduce evidence of peacefulness in a homicide case to show that was not first aggressor. 3. Character of Witness Character evidence that would otherwise be prohibited due to the general bar against propensity evidence is admissible for impeachment purposes under Rule 607, 608, and 609. RULE 404(a)(1) & (2) are ONLY for criminal cases!!! Notes on 404(a)(1) - can only introduce character evidence on his own behalf through testimony of witnesses who state an OPINION about the s general character or report on what REPUTATION the has in some community. -Can only introduce RELEVANT character traits. Cant introduce reputation for nonviolence at a trial for embezzlement. -The prosecution is entitled to cross-examine these character witnesses by asking whether they have heard or know about SPECIFIC PAST ACTIONS by the . -When a chooses to introduce testimony about his or her character, the prosecution may respond with its own witnesses about the s character. Notes on 404(a)(2) - can introduce character evidence about the victim in a criminal case. -Prosecution can then introduce contrary character evidence about the alleged victim to refute s showing.

JUSTIN WALES - EVIDENCE 5

-In homicide cases the prosecution can sometimes introduce opinion or reputation testimony about a victims character even if the did not open the door to character, but has introduced evidence stating that the victim was the aggressor. -The prosecution can then introduce relevant character evidence of the that shows that he was first aggressor. Rule 405 Methods of Proving Character (a) Reputation or Opinion In every situation where character information is admissible, it may be shown with opinion or reputation testimony. Information about specific past acts relevant to establishing a persons character may be asked about on cross-examination. (b) Specific Instances of Conduct In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. Three Ways to Prove Ones Character 1. Specific Acts to show an existence of a trait 2. Witnesses Opinion that X has a trait 3. Describe Xs Reputation a. Must prove that the witness came from the same community (town, work, school, etc.) b. Must show that the witness is familiar with the reputation. -404(a) allows Both Opinion and Reputation -405 allows Specific Acts where character is in issue. OTHER ACTS EVIDENCE Rule 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. -Even if a has been acquitted of past charged crime, evidence of a possible connection with those crimes can be used against him. -403 analysis very important. In evaluating the probative value of the evidence, the court will strongly consider the proponents need for the evidence. Rule 104 Preliminary Questions (c) Hearing of Jury Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interest of justice require, or when an accused is a witness and so requests.

JUSTIN WALES - EVIDENCE 6

(d) Testimony by Accused The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. US v. Huddleston 1988 (To admit evidence of past acts under 404(b) judge makes determination of whether jury COULD believe that past acts occurred) Facts: D convicted of selling goods in interstate commerce and possessing stolen property in interstate commerce. The tapes were definitely stolen. The only material fact was whether D knew they were stolen. Govt trying to get in prior instances where D had possessed stolen goods under Rule 404(b), arguing that the evidence had clear relevance as to Ds knowledge. Issue: What standard of proof is necessary before rule 404(b) lets evidence in? Holding: Before admitting 404(b) evidence the court must decide whether a rationale jury could rationalely believe that the committed the similar act. Rationalee: Judge makes preliminary decision of whether a jury COULD believe that prior acts occurred. Here, it is likely that the guys prior dealing with stolen goods is probative of the fact that he knew current goods were stolen. Character Evidence use for PROPER PURPOSE: General Considerations Four part test: 1. Judge decides whether the evidence is offered for a proper purpose (Rule 404) 2. Judge decides whether it is relevant for that purpose 3. Judge decides whether its probative worth is outweighed by the risk of unfair prejudice (Rule 403) 4. Gives limiting instruction on request. (Rule 105) Intent: -If offers to stipulate, should that block use of prior crimes? -Old Chiefs holding did not apply to prior crimes under 404(b). -Entrapment Can show past acts to show that has committed previous similar crimes without governments inducing him. -Common in drug cases Modus Operandi/Identity -Can use past acts if it shows a signature or distinctive MO suggesting that the accused committed the act. -Prior act must bear singular strong resemblance to the charged offense, and similarities must be sufficiently idiosyncratic to permit inference of pattern. JUSTIN WALES - EVIDENCE 7

-Reverse 404(b): Ds can argue crimes of others strikingly resemble the charged crime and so the proof suggests that the other must be guilty of the offense charged to the D too. Proving Past Crimes -Its easy when a person was convicted, it gets in under 803(22) -Hudleston is informative: -The Rules do NOT require a preliminary finding by the court that the government proved a prior act. The judge must make a threshold decision whether the evidence is probative of a material issue other than character. -Proof of a prior act is relevant if the jury CAN REASONABLY CONCLUDE by preponderance that the act occurred and that the defendant was the actor. Dowling v. United States 1990 (404(b) evidence can include acquittals) Facts: 2 guys robbed a bank. One can be identified, but not the other. Prosecution wants to introduce the testimony of a witness that these two guys robber her house in order to link the unidentified man to the identified man. In the home invasion charge the was acquitted. Holding: Acquitted conduct can be 404(b) evidence. Rationalee: Double Jeopardy and Due Process do not bar testimony that a committed a crime for which he was acquitted. Prosecutions evidence is relevant because it establishes a connection. The prior acquittal is irrelevant because it didnt determine an ultimate issue in this case. The acquittal said that didnt commit crime beyond a reasonable doubt, which is a higher standard that that which is needed to get something admissible into evidence. Hudleston says that 404(b) evidence can get in if a jury could REASONABLY CONCLUDE that committed past act. US v. Varoudakis 1st Cir., 2000 (Rule 404(b) evidence must go through 403 analysis) Facts: Arsonist accused of hiring someone to burn down his failing restaurant seeking to keep out GFs testimony that he previously set his car on fire. Holding: To admit evidence of prior bad acts, must (1) have special relevance to an issue in the case such as intent or knowledge, and must not include bad character or propensity as a necessary link in the inferential chain

JUSTIN WALES - EVIDENCE 8

and (2) must pass muster under Rule 403 (probative value must outweigh danger of unfair prejudice). Two factors to determine probative value are remoteness in time of the other act, and degree of reasonableness to the crime charged. Rationalee: The only proper purpose for linking the earlier fire was to show the nature of the relationship between dude and his girl friend. However, there are so many other ways of doing this that it violates Rule 403. Its obvious they were trying to make a propensity argument. REVERSE 404(b) EVIDENCE Generally, when the wants to admit past acts by other people to show that it was someone else who committed the crime. US v. Lucas 6th Cir., 2003 (Reverse 404(b) evidence must still demonstrate something more than propensity) Facts: Lucas was caught with cocaine in her car and charged with intent to distribute. She contended that it was not her cocaine and wanted evidence to be admitted that her friend had prior cocaine convictions. She also wanted to show evidence that she had been raped in prison and got a settlement to explain why she had so much money on her and why she was nervous around police. Holding: Reverse 404(b) evidence is subject to the SAME standard analysis of 404(b) Rationalee: 404(b) is not really applicable. Friends knowledge of what cocaine is is not at issue, and his past sales do not indicate that he sold this time. If other factors such as method the friend transported cocaine were the same in both cases, this might change the analysis. Rule 403 doesnt allow this to come in because it would have made it easier to blame the friend. The court should have admitted rape testimony, but it was harmless error. US v. Williams 3rd Cir., 2006 (No propensity argument for reverse 404(b)) Facts: Williams convicted of possession of a firearm by a felon after police discovered a semiautomatic handgun in the bedroom where he was apprehended. D was trying to introduce evidence that another individual with whom he was arrested had previously been convicted of possessing a firearm. Holding: Reverse 404(b) evidence may not be offered as propensity evidence. Rationale: Rule 404(b)s proscription against propensity evidence applies regardless of by whom, and against whom it is offered. A may introduce reverse 404(b) evidence so long as its probative value under Rule 401 is not substantially outweighed by Rule 403s consideration. JUSTIN WALES - EVIDENCE 9

Policy Debate: Should there be a different standard for 404(b) and reverse 404(b) evidence? -Concurrence in Lucas says to look at the purpose of the rule, which is to protect the the consequences of bringing in propensity evidence when bringing it to show something about is a serious risk that he will be sent to jail for character. There is no such risk in reverse 404(b) cases. -Majority in Lucas makes a plain language argument. -In Williams there is no relationship, in Lucas there was a relationship. US v. Montelongo 10th Cir., 2005 (404(b) as a right to cross examine/showing of common plan or scheme) Facts: Two men were hired to drive a truck. They were pulled over and arrested after officers found marijuana in the sleeping compartment. They wanted to cross examine their boss about an incident a few months p rior when marijuana was found in sleeping compartment of another truck. Want to show that the boss was the mastermind. Holding: Evidence allowed! Defendants have a constitutional right to a complete defense, based on logic that would create a reasonable doubt. Rationalee: Evidence is used to show a common plan/scheme. 6th Amendment guarantees the right to cross-examine a witness. is limited to presenting only relevant evidence, and the evidence in this case is relevant. -Reverse 404(b) evidence applies to witness other wrongs, acts or crimes. Evidence is admissible for defensive purposes if it tends, alone or with other evidence, to negate the s guilt of the crime charged against him. -403 Analysis: Not outweighed. only sought to cross-examine 1 witness on this discrete issue. Would not distract jurors. -Class Notes: Different from Lucas where it could have been 1 of 2 people. Here the s are saying it is this one guy. Inextricably Intertwined Evidence US v. Bowie D.C. Cir. 2000 (Inextricably intertwined Complete the story) Facts: Bowie was convicted of possession of counterfeit currency. A prior specific incident, for which Bowie was not charged, was admitted in court by prosecution against s objection. The incident took place 1 month before this one and dealt with a car crash where counterfeit money was found and then linked to a receipt at a lady foot locker. Holding: Evidence of other crimes or acts is admissible to corroborate evidence that itself has a legitimate non-propensity purpose. Rationale: 404(b) only applies to OTHER acts. If it is inextricably intertwined it is admissible because it is just evidence of the current crime. JUSTIN WALES - EVIDENCE 10

-REJECTS Complete the story rule as an exception to 404(b). The only exception, the court says, is if it the same crime, which in this case it is not. -There is a legitimate reason for allowing the evidence under 404(b)it establishes Bowies intent to defraud and his knowledge of the bills being fake. It also corroborates his confession to the FBI. -403 Analysis: s willingness to stipulate does not tip the balance in every case. The evidence is probative and not substantially prejudicial US v. Senffner 7th Cir., 2002 (Inextricably intertwined = Complete the story) Facts: SEC brought civil suit against brother man and had his assets frozen. Dude then used his funds for some investment scam and was charged with contempt of court, obstruction of justice, and other things. Government wanted to offer evidence of s conduct (why evidence was frozen in the first place). Holding: 404(b) doesnt apply to evidence that is inextricably intertwined to the current case. HERE, the acts in question were a prelude to the current charge. Rationale: The past acts were really part of a prolonged, but singular, investment fraud scheme. Acts satisfy inextricably intertwined doctrine if they: -Complete the story of the crime on trial -Their absence would create a chronological/conceptual void in the story of the crime -They are so blended/connected that they incidentally involve/explain the circumstances surrounding, or tend to prove any element of the charge crime. Wrapping it up: The inextricably intertwined doctrine basically says that if one crime is so related to the current crime the per son is on trial for then we do not have to go through a 404(b) analysis because 404(b) only deals with OTHER acts. The court in Bowie takes a restrictive look at the doctrine. Under Bowie it is damn near impossible to connect a past act to a current crime. It is either a part of the current JUSTIN WALES - EVIDENCE 11

crime, and gets in as evidence, or it is not and you need a legitimate 404(b) reason for getting it in. Under Senffner, you can consider a past act that helps tell a complete story as part of the current crime, and therefore get the evidence in without a 404(b) reason. Character in Sex Offense Cases Rule 412 Sex Offense Cases In criminal or civil trials, evidence is inadmissible if offered to prove a victim engaged in other sexual behavior or had a sexual predisposition. -Criminal Exceptions: (b)(1) - (A) Evidence of specific instances of sex by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. -(B) Evidence of specific sexual behavior between victim and accused offered to prove consent -(C) Excluding it would violate the constitutional right of the . -Civil Exceptions: (b)(2) In civil cases, prohibition does not apply if evidence of victims sexual behavior or sexual traits passes a balancing test. Where risk of unfair prejudice and probative value is close then evidence will be excluded. Rule 413 Evidence of Similar Crimes in Sexual Assault Cases -(a) In a criminal case in which the is accused of an offense of sexual assault, evidence of the 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.

Rule 414 Evidence of Similar Crimes in Child Molestation - (a) Evidence of a s past sexual offense is admissible to support an inference that his commission of such an act in the past increases the likelihood that he or she committed the charged offense. Rule 415 Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation

JUSTIN WALES - EVIDENCE 12

-(a) Only provision in the FRE that allows character evidence to be I ntroduced in a civil case as relevant to the issue of someones out of court conduct. It allows introduction of evidence of a partys past sexual offense or child molestation to support an inference that his commission of such an act in the past increases the likelihood that he or she committed the conduct charged in the civil suit. State v. Cox Iowa, 2010 (FRE 412 and 413 MAY be unconstitutional) Facts: Cox convicted of sex abuse for sexually abusing his younger cousin. The state presented evidence of Coxs prior sexual abuse of two other cousins. Holding: Admission of prior bad acts soley to show a general propensity instead of a legitimate issue violates the DPC of Iowas Constitution. Rule: An evidentiary rule violates DP if it "violates those fundamental conceptions of justice which lie at the base of our civil and political institutional, which define the communitys sense of fair play and decency." Rationalee: FRE 412 and 413 may violate DPC, Supreme Court should look into it. -Some courts say its not unconstitutional because Rule 403 will get rid of evidence that violated DPC HABIT Rule 406 Habit; Routine Practice 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. -Free from individual thought or judgment about how to do it. -Example: Always parking in the same spot. -Requires the task to be performed OFTEN. Can argue about how many times. -Ones regular response to a repeated situation -TWO REQUIREMENTS FOR HABIT: 1. Must be semi-automatic/2nd nature 2. Must be a response to a very specific situation -Same standard as Hudleston A reasonable juror COULD believe that you have done this enough times in the same way that it becomes 2nd nature.

JUSTIN WALES - EVIDENCE 13

EVIDENCE EXCLUDED FOR POLICY REASONS

SUBSEQUENT REMEDIAL MEASURES: Rule 407 - When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a products design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. -Social policy of encouraging people to take steps in furtherance of added safety. -Still subject to Rule 403 -Exceptions: Can come in to show ownership, control, feasibility -Feasibility: Courts are split on whether feasibility must be technically possible (narrow, Tuer) or cant be done after weighing overall benefits -Does subsequent remedial measures apply to products liability cases? -According to FRE 407 the exclusionary rule DOES apply. Tuer v. McDonald (Md. Ct. App., 1997) Facts: Guy had heart attack and went to hospital. Was put on medication, and then taken off of medication before surgery. Due to an emergency with another patient, guys surgery was postponed and he was not put back on medication (due to hospital policy). Dude died and hospital then changed its protocol. -At trial, got doctor to say restarting

JUSTIN WALES - EVIDENCE 14

the medication would have been unsafe. Plaintiff argues that SRM is admissible to show feasibility and impeach doctors testimony that restarting meds would be unsafe. Holding: Evidence NOT admissible because doctor did not controvert her claim that it was feasible to administer the medication. -Feasibility Rule Evidence admissible if contends that the measures were not PHYSICALLY, TECHNOLOGICALLY, or ECONOMICALLY possible under the circumstances. Rationale: The doctor did not make a blanket assertion that resuming the drug would be unsafe, rather he said that it would not be advisable. Doctor made judgment callimpeachment cannot work because he is not lying. -Change in protocol did not suggest doctors believed judgment call not appropriate at the time. NARROW FEASIBILITY (Tuer) - Disallow evidence unless contends measures NOT possible. -Feasibility is not controverted when: - contends that the practice was chosen because of its advantages over the alternative, or merely asserts that the practice is acceptable, or claims the alternative wouldnt have prevented the accident. Ault v. International Harvester Cal., 1974 (Different than FRE SRM doesnt apply to product liability cases) Facts: Vehicle plunged 500 feet to the bottom of a canyon. claimed it was because of a metal gearbox. Holding: SHOULD be permitted to prove that afterwards the manufacturer changed the metal in gearboxes from aluminum to malleable iron because only acts as a shield against potential liability. Rule: Feasibility is ALWAYS an issue in products liability cases Rationale: Policy purpose of 407 doesnt apply to strict liability cases. Companies want to make money, so they will therefore always want to avoid liability. An individual might not take action if it will be used against them. Notes: GM makes a car at T1, they improve the car at T2, and someone dies at T3 in a car produced during T1. Under FRE you can bring in evidence of the change because the remedial measure is only barred if it is SUBSEQUENT TO THE ACCIDENT. Civil Settlements: Rule 408 Compromise and Offers to Compromise (a) Prohibited Uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amt of a claim that was disputed as to validity or amt, or to impeach through a prior inconsistent statement or contradiction: JUSTIN WALES - EVIDENCE 15

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim. (2)conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. (b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. Notes: -Reason we exclude is because offer to pay a small amount is not necessarily a concession of liability. -Promotes policy of compromise -Hypothetical: Car accident involving 3 people. Driver pays off one of them. Can introduce evidence that Driver paid off X to show his liability? If you call X as a witness, can cross-examine X on the settlement? -Yes, can use the settlement as proving bias of X. -A party cannot immunize factual information by talking about it in negotiations. If the opposing party can get proof of the fact through another way it is admissible. -Civil settlements later used in criminal trials: -FRE 408 was amended in 2006 to apply when statements in civil settlement negotiations are later offered in criminal cases. -Exclusionary rule doesnt apply when someone is trying to obstruct justice PLEA NEGOTIATIONS: Rule 410 Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the D who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later w/drawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Crim. Pro. or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an atty for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later w/drawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously JUSTIN WALES - EVIDENCE 16

w/ it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made any the defendant under oath, on the record and in the presence of counsel. Notes: -Must be made to a prosecutornot to detectives -You need an objectively good reason to believe this is a plea bargain -Test: 1. exhibited an actual subjective expectation to negotiate a plea 2. The expectation was reasonable given the circumstances -Exception: -Perjury and false statement prosecutions -Rule of completeness -Practical Manners Many times a prosecutor will not bargain unless the waives his right to have the statements confidential. SCOTUS said these waivers are okay. US v. Sylvester 5th Cir., 2009 ( can waive right to prevent plea from evidence) Facts: D on trial for murder. Pros. promised him not to seek death penalty for the murder if D gave a full confession that could be used against him in trial. Atty Gen would ask for life imprisonment instead. After consulting w/ atty, D waived objection to the admission of incriminating statements and gave confession. Later changed his mind and asked for new atty and went to trial. Pros. made the promised recommendation to the Atty Gen. Holding: Waived statements may be used in the governments case in chief Rationale: knowingly and voluntarily waived his right to object to statements made during failed plea negotiations under FRE 410. Payment of Medical Expenses: Rule 409 - Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. -Such payment or offer is usually made from humane impulses and is not an admission of liability. To hold otherwise discourages assistance. -This rule does NOT extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. Particularly useful for insurance companies. -Statements accompanying an offer to pay medical expenses might not be excludable under 409, but such statements could be excludable if suggests that the parties were trying to settle under 408. -Responsible behavior does not necessarily prove legal fault. Liability Insurance:

JUSTIN WALES - EVIDENCE 17

Rule 411 - Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. -This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. -Prevents the conflicting inferences that may be drawnthat more or less care was used b/c insured. -Prevents jury from deciding cases based on a belief that the insurer will pay the judgment. HEARSAY an out-of-court statement offered to prove the truth of the matter asserted. Rule 801 Definitions The following definitions apply under this article: (a) Statement. A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A declarant is a person who makes a statement. (c) Hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted . . . ASSERTIVE AND NON-ASSERTIVE CONDUCT Under the FRE, assertions have to be intended. Wright v. Doe d. Tatham - 1837 (No longer the law) Facts: Will dispute. Wright offers evidence of 4 letters written to Marsden from others (now dead) to show that Marsden was competent under the theory that someone wouldnt write a letter to a retarded person. Holding: The letters are hearsay because they imply a statement that the dead guy is sound. Notes: -Wright is too broad. Under it anything imbedded in a statement, whether deliberately or not, is hearsay. Stoddard v. Maryland Md., 2005 (NOT FRE - Intention of declarent doesnt matter) Facts: Erics murder trial. Mother wants to testify that her child experienced behavior changes and said is Eric going to get me?

JUSTIN WALES - EVIDENCE 18

Issue: Is statement hearsay or just used to show effect on the child? Rule: A statement is hearsay when offered to prove the truth of the implication of an assertion. -A question may be a statement because it may communicate a factual proposition. Holding: Declarants question is Erik going to get me? is hearsay b/c impliedly communicating that she had witnessed D assaulting the victim and was offered to prove the truth that the declarant had in fact witnessed the D assaulting the victim. The intention of the declarant is irrelevant. Rationale: The words are only relevant if stemming from a belief that she saw the D commit the murder. Since the truth of the matter asserted must be assumed in order for the nonasserted inference to be drawn, the statement is hearsay. Since the matter asserted in the statement must be true, a reduction in the risk of sincerity is not present despite the ACN. Under FRE 801 Stoddard is at odds with FRE. Under FRE a statement is only a statement if the declarent intended to communicate the factual proposition which the words are offered to prove. If declarent didnt intend to communicate that proposition, the words are not hearsay. -An assertion cannot be an assertion unless intended to be one -Other Examples: v I didnt tell them anything about you hearsay when offered to prove truth of implication that defendant was co-defendant in check fraud v statement nice to meet you hearsay when offered to prove truth of implication that declarant was meeting the listener for the first time and thus not a member of the drug conspiracy v letters detailing request for recipient to give false alibi testimony hearsay when offered to prove truth of implication that declarant and co-conspirator defendant were guilty v note found in garage by co-defendant that he was nervous was hearsay when offered to prove truth of implication that declarant had knowledge and possession of drug lab materials v question does Peggy know Im here? hearsay when offered to prove truth of implication that declarant personally knew Peggy. WHEN IS A STATEMENT NOT HEARSAY? -A statement is not hearsay when it is not used to prove the truth of the matter asserted. 1. Impeachment Prior inconsistent statements are not hearsay when offered to impeach. 2. Verbal Acts Words have independent legal significance, regardless of assertive aspect. 3. Effect on listener or reader What the effect declarants words had on the listener, regardless of the truth. Must offer sufficient evidence to establish X heard the statement.

JUSTIN WALES - EVIDENCE 19

4. Verbal Objects Logos, tags, pointing and identifying someone. They are elements of a physical description. 5. Circumstantial evidence of state of mind FRE 803(3) creates a hearsay exception for a statement describing a state of mindsuch a statement can be admitted even if its hearsay. -Improper to show that the speaker actually believed it 6. Circumstantial evidence of memory or belief Child says father killed her brother indicates belief. HEARSAY AND THE CONFRONTATION CLAUSE

-Confrontation Clause ONLY applies in CRIMINAL CASES. Guarantees the right to cross-examine witnesses testifying against him. Crawford v. Washington 2004 (Complete bar to testimonial evidence, not subject to prior cross, by an unavailable witness) Facts: Crawford stabbed a man he claimed tried to rape his wife. At trial, the wife didnt testify because of state marital privilege. Prosecution played a tape of wifes statement to police describing the stabbing, in which she contradicted Crawfords argument that he stabbed the man in self-defense. Crawford claimed this violated his 6th Amendment right to cross-examine. Holding: The Confrontation Clause does NOT allow testimonial statements of an unavailable witness, UNLESS had a prior opportunity for cross-examination. -No problem if declarant is available to testify and can explain statements. -What is testimonial Statements given to government with a reasonable expectation that they would be used in trial. Rationale: The Roberts doctrine was confusing. Constitutional guarantees shouldnt be left to the rules of evidence. Footnotes/Unanswered Questions: -Dying Declarations Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the 6th Amendment incorporates an exception for testimonial dying declarations.

JUSTIN WALES - EVIDENCE 20

-Testimonial At least actual testimony given at trial or before a grand jury, or any pretrial motion or proceeding. Also embraces statements to a police officer, where the statement describes criminal acts and everyone knows they will be used in investigation or prosecution. -NOT statements to friends -Whos intention matters? -Probably the speaker, not the police. Also, probably a reasonable person in the speakers position. -Out of court statements can still come in without cross-testimony when 1) the statements were in furtherance of a conspiracy; 2) the testimonial statements are not being used to prove the matter asserted; and 3) dying declarations (although court didnt officially rule on this. Davis v. Washington 2006 (Ongoing emergency doctrine) Davis: 911 call at crime scene re: domestic disturbance. Suspect had just fled. Police arrived w/i four minutes and observed victim in shaken state, w/ fresh injuries. Victim would not testify, and police couldnt testify as to the source of her injuries Hammon: Domestic disturbance. Wife was found alone on front porch appearing somewhat frightened, but told police nothing was wrong. The husband told police they were in an argument. The two were separated. Asked wife again what happened and she told them that the husband hit her and signed a battery affidavit Holding: Under Crawford, the CC allows statements made to police during investigation of a crime, though not made with the intent to preserve evidence, to be admitted without allowing to cross-examine the person who made the original statement. -On going emergency Statements made during an ongoing emergency are not testimonial. Statements COULD, however, start off as non-testimonial and then turn into testimonial. -Testimonial Statements - when circumstances indicate no such ongoing emergency, and primary purpose of interrogation is to establish or prove paste events for a criminal prosecution. -Primary Purpose Test Not testimonial if primary purpose is to resolve an ongoing emergency. If circumstances OBJECTIVELY indicate that there is no ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events, then it is testimonial evidence. -Testimonial Statements Calm and akin to giving testimony on witness stand. The Cross-Examination Factor Both a deferred opportunity and a prior opportunity (when witness is unavailable) to cross-examine suffice. Crawford, Davis. JUSTIN WALES - EVIDENCE 21

Giles v. California 2008 (Forfeiture by wrongdoing/Must show that prevented witness from testifying with the INTENT to prevent testimony) Facts: When Giles was tried in court for murdering his ex-gf, he claimed self defense. The ex-gf had previously given testimonial evidence to cops saying that Giles threatened to kill her. Can evidence be admitted even if she is not available? Holding: EVIDENCE NOT ADMITTED. Forfeiture by wrongdoing only applicable when made declarant unavailable for the purpose of preventing testimony. Rationale: FRE 804(b)(6) codifies forfeiture by wrongdoing. Giles is innocent until proven guilty, it would be circular to rule that he killed her in order to prove that he killed her. -Judge must decide by a preponderance that killed witness with intent to stop witness from testifying. Souter, in his concurrence, calls this circular. -Judges decide in a pretrial conference, and are not bound to the rule of evidence. -A history of domestic violence can be used to show intent US v. Summers 2005 (Statements to police, even if not mirandized, could be testimonial/Intent of assertion based on declarants intent) Facts: 2 guys robbed a bank. They got into a moving car afterwards, implying that there was a 3rd accomplice. They went to an apartment of a 4th person. All 4 men left the apartment. They were pulled over and one of the guys said How did you guys find us so fast? Issue: Whether the question How did you guys find us so fast violates the CC because the man who said it was unavailable to be cross-examined.

Deferred Cross: o Some exceptions require the declarant to be cross examined at trial about something he said earlier. ***Rules 801(d)(1) and 803(5) - exceptions to hearsay which only operate when there is a deferred opportunity to cross. o California v. Green (1970): Statement - that D had called him (porter) to sell drugs and deliver them to him. Declarant - Porter. Court - declarant now telling a different story in court. Can now admit inconsistent statements (deferred cross). Opportunity for cross must still be full and effective.

JUSTIN WALES - EVIDENCE 22

Holding: EVIDENCE NOT ADMISSIBLE. Crawford says the admission of testimonial hearsay by an unavailable declarant with no prior opportunity to cross, violates CC. Rationale: -Hearsay? Government says no, but court says it was because the declarant was clearly intending to assert guilt. He wasnt asking an ambiguous question for the purpose of eliciting a response. -An assertion is based on a declarants intent. -Testimonial? A statement is testimonial if a REASONABLE PERSON in the position of the declarant would objectively foresee that his statement might be used in investigation or prosecution of a crime. -Dude was in police custody and the statement was so close to a confession that a reasonable person would foresee the statement used against him. HEARSAY UNDER RULE 801 Betts v. Betts Washington Ct. App., 1970 Facts: Dad sues to get custody of daughter who is in foster care after her little brother dies of injuries. Stepfather charged but acquitted of the murder. Foster mom testifies that daughter tell people re: stepfather He killed my brother and hell kill my mommy too. Holding: The statement is not hearsay b/c it is admitted to indirectly and inferentially show the mental state of the child at the time of the custody proceedings. Rationale: Not offered for truth of the statement. Shows that child w/ mother and stepfather would create a strained relationship. -Shows mental state (she hates the stepfather) regardless of the truth of the statement. -If admitted as a hearsay exception, must meet the reliability requirement (but doesnt here b/c its NOT hearsay). -Childs state of mind is important in determining what is best of the childs welfare (which is what a custody proceeding does). Rule 801(d) Statements which are not hearsay (1) Prior statement by a witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding, or in a deposition, or (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 motive, or (C) one of identification of a person made after perceiving the person . . . Requirements for Prior INCONSISTENT statement: 1) Witness must be cross-examinable concerning the statement

JUSTIN WALES - EVIDENCE 23

ACN Notes: -Prior inconsistent statements have traditionally been accepted as admissible for impeachment. FRE 801(d)(1) allows them to come in as substantive evidence. -Risk of unreliability not there because declarant is available to explain and the past statements were made under oath. US v. Cisneros-Guiterrez 5th Cir., 2008 (Prior inconsistent statements) Facts: Three people arrested for meth. One of them plead guilty and signed a factual resume that he had possessed the drugs and the other dude drove him to get drugs. During his plea hearing, the brother admitted the facts of the resume were true. At s trial, dude was called to stand but said he couldnt remember. Prosecution wanted to bring in contents of factual resume under FRE 801(d)(1)(A). Holding: FACTUAL RESUME ADMITTED. The judge decides whether feighned memory loss can be considered inconsistent under Rule 801(d)(1). -A statement is NOT hearsay if the declarant testifies at trial or hearing and is subject to cross concerning the statement, and the statement is inconsistent with the declarants testimony, and was given under oath. Rationale: A witness memory loss can be considered inconsistent under FRE 801(d)(1)(A). Judge decides based on a variety of factors if memory loss is real or notrelationship between parties, time frame, amount you forget, does it make sense. -Inconsistent does NOT mean diametrically opposed Requirements for Prior CONSISTENT Statements: 1) Witness must be cross-examinable 2) The statement bust be consistent with present testimony -Prior consistent statements do NOT have to be under oath 3) Must be offered to rebut a charge of recent fabrication or improper influence or motive. -Incentive to fabricate must have occurred AFTER statements were made (Tome) -This is a way of getting consistent statements in as substantive evidence. JUSTIN WALES - EVIDENCE 24

2) The prior statement has to be inconsistent with present testimony 3) The prior statement has to be made under oath in prior proceeding/depo

Tome v. US 1995 (Time requirement for prior consistent statements) Facts: is charged with sexually abusing his daughter. countered that the allegations were concocted so daughter wouldnt be returned to him (for custody). In order to rebut charge that testimony was fabricated so she could live with mom, prosecution presented witnesses who recounted out-of-court statements that daughter made. Holding: NOT ADMISSIBLE Statements offered to rebut under Rule 801(d)(1)(B) must be made before the charged recent improper influence or motive. Rationale: Here, statements were made after improper influence had arisen. US v. Prieto 11th Cir., 2000 (Just talking to police doesnt mean you are motivated to get a better dealmust be more for improper motive) Facts: Guys tried to rob UPS truck with a Corolla. Court admitted prior consistent statements of a witness to a police officer following the witness arrest. tried, and failed, to argue that a person under arrest is always improperly motivated to talk to police. Holding: Just talking to police, without talk about plea agreement, does not constitute a motivation to fabricate. Rationale: Witness was read his Miranda rights and cooperated with the police without any discussion of how he would benefit. Requirements for Statements of Identification: 1) Declarant testified at trial 2) The statement is one of identification of a person made after perceiving him Hawaii v. Motta (Hi. 1983) (Statements of Identification) Facts: Woman was robbed and gave description to sketch artist. Sketch was submitted as evidence. Holding: The sketch is a statement, but under 801(d)(1)(C) it gets in. Rationale: A sketch has the same effect as if the victim made a verbal description of the suspects physical characteristics. We admit this type of evidence because it is more reliable then description made months after event. ADMISSIONS BY A PARTY OPPONENT Rule 801(d)(2) Admission by party-opponent - A statement is not hearsay if-- The statement is offered against a party and is (A) the partys own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a JUSTIN WALES - EVIDENCE 25

person authorized by the party to make a statement concerning the subject, or (D) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Individual Admissions 801(d)(2)(A) -Any statement that is relevant and offered by opposing party. Includes guilty pleas, deposition testimony, or casual statements. -Declarant actually had to have wanted to make the statementsleep talking wouldnt count. -Doesnt matter if declarant had knowledge of what he is talking about. Bruton v. US 1968 (Confession by one co- cannot be used to implicate other ) Facts: Bruton and Evans were arrested for armed postal robbery. A postal inspector testified that Evans made an oral confession while being interrogated in jail, saying Bruton and I committed the robbery. Lower Court admitted the evidence and gave limiting instructions saying confession only applied Evans. Bruton was convicted. Holding: Admission of co-s confession that implicated at joint trial constituted prejudicial error even though lower court gave limiting instructions. Rationale: The statement was testimonial and Evans was unavailable to testify because he was a party to the crime. CC says you cant offer testimonial evidence against someone without declarant being able to cross-examine. -Limiting Instructions do not protect enough. -Not a co-conspirator statement because crime is over by the time Evans confessed. Problems: -Bruton suggests that the statements should be redacted. What if it is still possible to figure out who the person is within the redaction? Most courts say that this still is a violation and the confession has to be rewritten. JUSTIN WALES - EVIDENCE 26

Vazquez v. Wilson 3rd Cir., 2009 (Bruton violation occurs when jury can figure out who redacted confession refers to when viewed with other trial evidence) Facts: Guy is murdered and shot at while in cab. Three men in the car following this cab: Santiago, Vazquez, and Rivera. Santiago is caught and says V is shooter. S wants to use un-redacted version of his statement because it shows him helping police and putting V as shooter. Jury instruction was given not to consider Ss statement against V. Holding: Use of generic name in place of actual name is not sufficient to satisfy Bruton Rationale: In Bruton, we held that D is deprived of his rights under CC when non testifying co-D statement naming him a participant in the crime is introduced in their joint trial, even if the trial court instructs the jury to consider the statement only against the nontestifying co-D. Use of generic name in place of actual name is not sufficient to satisfy Bruton. Prosecutor had made it clear to jury that S had IDd V as shooter and so no different if redacted or not. - This case stands for the idea that redacting has to be totally sanitized. Its so bad that you can only use it if you change words around, then its not clean redactions and you have to sever the trials. B/c redaction didnt pick out exactly who it was, the fact that there were 3 guys and could still be the 3rd guy and not necessarily the other guy on trial, still not good enough and must sever trials. Jury will know it was either guy A or B. ADOPTIVE ADMISSIONS 801(d)(2)(B) If X manifests his adoption or belief in the truth of a statement/writing of another, he becomes the declarant and the statement is his own. Adoption by Silence: 1. The party heard the statement 2. The matter asserted was within his knowledge 3. He was able to reply 4. The nature and occasion of the statement was such that he would likely have replied if he did not mean to accept what was said

JUSTIN WALES - EVIDENCE 27

-Evidence excluded if: -The party did not understand the statement or its significance -Some physical or psychological factor explains lack of reply -The speaker was someone the party was likely to ignore -The silence came in response to questions from the police US v. Hoosier 6th Cir., 1976 (Silent adoptions) Facts: was convicted of armed robbery. 4 witnesses ID him. At trial, a 5th witness testified that before the robbery told him his plan and that he saw 3 weeks later with money and diamonds. Will testify that s gf said that aint nothing, you should see the sacks of money in our hotel room. appeals based on the claim that this was inadmissible hearsay. Holding: Evidence OK. Statement was made in presence of another witness and appellant did not object when girlfriend made statement. Rationale: Proper human behaior indicates that he wouldve and shouldve denied his GFs statements ASAP. had shown that he wasnt afraid to confide in the guy in the past, and is more than willing to talk about his crimes. There was nobody else present. Doyle v. Ohio 1976 (Silence after being given Miranda warning does not constitute an adoptive admission) Facts: s were arrested and given Miranda warnings. s were convicted in separate trials. At trial, s took the stand and gave a story he never told police. Holding: Silence in wake of Miranda warnings could be you just exercising your right. The use for impeachment purposes of petitioners silence at the time of arrest and after receiving Miranda warning violates DPC of the 14th Amendment. -This does not apply to pre arrest silence though and court later upheld use of pre-arrest silence where police neither question the D nor deliver Miranda warnings (concluded that commentating on failure of D to take witnesses and violated his 5th). This case: sometimes silence cant be used against you (Miranda). -Miranda Warnings is was protects you from silent adoptions. If not Mirandized then silent adoption exception doesnt kick in. ADMISSIONS BY AUTHORIZED SPEAKERS OR REPRESENTATIVES 801(d)(2)(C) 1. Governs ONLY statements by agents who have speaking authority, viewed as admission by another 2. Statements made by persons authorized by party to make statements ARE admissible as substantive evidence if offered against that party. JUSTIN WALES - EVIDENCE 28

Statements must be within the SCOPE of agents speaking authority.

ADMISSIONS BY EMPLOYEES OR AGENTS 801(d)(2)(D) 1. Must be made within scope of agency/employment No personal knowledge requirement 2. Must be made DURING existence of employment Once employment ends you cant bind employer Does not apply to government workers Mahlandt v. Wild Candid Survival (8th Cir., 1978) (Admission of employees can be used against employers if employee made admission during employment period and within scope of employment) Facts: Wolf chained to fence and bites boy. The president of the Wild Candid Survival was not in so Mr. Poos left message that says Sophie bit a child that came in our yard. Later experts see that bites on child are not actually a wolf. Then meeting of directors where someone said Sophie bit a child. Are these statements admissible against the Wild Candid Survival Center since Mr. Poo was an agent of them? In this case there is both the corporation D and the individual D. Holding: Mr. Poo was agent and this happened during scope of employment. Even though agent lacked personal knowledge, the co. adopted a belief in truth of his statements, so it is admissible against the corporation. -If this were an email/text, it would count as an admission. There the wolf stuff was clearly within the scope of his employment. 403 will still apply, but not to Poos statement. -The board minutes will be out against Poos. He can speak for them, but they cannot speak for him. -You dont need to have personal knowledge of facts under declarants statement. Declarant does not need personal knowledge of what he is saying (Mr. Poo-Sophie bit). CO-CONSPIRATOR STATEMENTS 801(d)(2)(E) Statements admissible if: 1. Declarant and conspired 2. Statements were made during the course of the conspiracy 3. The statements were made in furtherance of the conspiracy Available in both civil and criminal cases regardless of if there is a conspiracy charge. Does not matter if conspirator is available or not Conpiracy period ends before the concealment phase.

JUSTIN WALES - EVIDENCE 29

Bootstrapping: Using a piece of evidence for its own pre-condition of admissibility. Bourjaily says that a judge, in considering whether a conspiracy occurred for evidentiary purposes, can look at the statements sought to be admitted. -The judge must find that a conspiracy existed by a preponderance of the evidence. Bourjally v. US 1987 (Judge must decides by preponderance of the evidence whether the co-conspirator exception applies) Facts: Declarant, Lonardo, who stated over the phone w/ an informant that he had a gentleman friend who wanted to buy drugs. The statements indicated that the friend had agreed w/ Lonardo to buy coke and distribute it. Also revealed that the friend would be at the hotel parking lot, in his car, and would accept the cocaine. D was arrested after Lonardo placed a kg of coke into his car and the agents fond over $20,000 in cash in Ds car. Holding: A court, in making preliminary factual determinations, may examine the hearsay statements sought to be admitted to meet the preponderance standard. CANNOT USE STATEMENT ALONE. MUST have other evidence. Rational: Judge decides under Rule 104(a) whether coconspirator requirements are satisfied by a preponderance standard. Here, the statements, which can be considered, were supported by other facts ( showing up at prearranged spot, cocaine was picked up, had money in the car). This establishes existence of conspiracy. UNRESTRICTED HEARSAY EXCEPTIONS PRESENT SENSE IMPRESSIONS

JUSTIN WALES - EVIDENCE 30

Rule 803 Hearsay Exceptions; Availability of Declarant Immaterial. (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. REQUIREMENTS: 1. About the Event 2. While, or almost while, perceiving it Why is it reliable? Because you dont have time to make up a story or lie if you are just saying what you are seeing. There is also no problems of memory US v. Fischer Tex, 2008 (Police video does not equal present sense impression) Facts: was pulled over for not wearing seatbelt. Officer made a speaking report into the microphone of his dashboard camera. Would walk back and forth, observing the person off camera and then saying what he saw. Holding: NOT a present sense impression. An officers factual observations recorded on video at a DUI stop are not admissible under the present sense impression exception. An officer can testify in Court as to what he saw, but cannot substitute it with an out of court oral narrative. Rational: The present sense impression doctrine is meant to allow in unreflexive utterances. Here, the officer calculated what he was going to say. Would be different if officer was involved in a car chase and was just speaking. Here he was too calm. -Court thinks cop is just trying to get around the rule barring police reports. EXCITED UTTERANCES

JUSTIN WALES - EVIDENCE 31

Rule 803(2) Excited Utterances A statement relating to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition. Requirements: 1. Startling Event 2. Statement influenced by startling event 3. Statement relating to the event Why is it reliable? Excitement stills the capacity for reflection, producing statements free from conscious fabrication. Time: The duration of the state of excitement is determined by the character of the event. Consider: Lapse of time between event and statement Apparent state of mind of declarant Nature of the startling event Life threatening situation? Declarants age Whether declarant had a motive to fabricate Boyd v. City of Oakland Cal, 2006 (Excited utterance must not be reflective) Facts: was black double amputee, pulled over by police and claimed he was abused. He died before trial. At trial his estate wanted to introduce narrative by his mom from a phone call she got about 30 minutes after her sons confrontation with police. Holding: Not an excited utterance. Statement wasnt a spontaneous outburst. Rational: The victims statement is a long narrative, not a quick statement. A statement is not admissible as an excited utterance if the declarant is not under the stress of the event such that his reflective capacity is stilled. -He might have been upset, but thats not enough. There was at least 20 minutes between event and phone call, which was more than enough time to reflect. US v. Jahagirdar 1st. Cir., 2006 (The time for an excited utterance is usually minutes, but could last hours )

JUSTIN WALES - EVIDENCE 32

Facts: Woman was fondled while sleeping on a plane. She woke up, told the flight attendant, and the man was arrested upon landing. The girl was then questioned by police. At trial she said he penetrated her vagina, but tried to impeach by showing she denied that to doctor. He also said she was making up the story cause he was rich. Government offered evidence of the trooper who interviewed her at the scene that she said she was penetrated. Holding: Statements come in as prior consistent statements or excited utterances, although the excited utterance claim is weaker. Rational: -Excited Utterance The girl remained upset following the flight. Although interview happened 90 minutes after event, this does not automatically take it out of the realm of excited utterances. Time increases the more horrific the event is. -Prior Consistent Statements It is okay here because there is no indication that the woman knew the guy who raped her was rich, and therefore would be motivated for a civil suit. STATE OF MIND

Rule 803(3) - Then existing mental, emotional, or physical condition. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will. 803(3) allows for the declarants out-of-court statements to be used under 4 exceptions: Does NOT include statements of belief or memory o I believe he is going to kill me does not get in o I loved him when I was younger does not get in

JUSTIN WALES - EVIDENCE 33

Then Existing Physical Condition Statements describing aches and pains. Doesnt have to be close to the time of injury, just describing how he feels as he talks. Described as a natural reflex of what may be impossible to show otherwise. Doesnt need to be said to a doctor. Then Existing Mental or Emotional Condition Must be CURRENT mental state. Cannot be a statement of memory. o What declarant said on Wed. of his mental state on Mon. does not get in. Courts more often refuse to draw inferences about mental state into the past. 403 Balancing test Shepard v. United States (1933): a statement by a dying wife ("Dr. Shepard has poisoned me") accusing her husband of poisoning (and killing) her was not a dying declaration and not admissible as state of mind evidence. The statement spoke to a past act and to an act by someone other than the speaker. If she said "I was poisoned" Gets in b/c she feels like shes been poisoned. Only possible relevance is: "Dr. Shepard handed me a drink and it was poison, so he poisoned me." MEMORY. Not admissible. Not dying declaration because not IMPENDING death. Subsequent Conduct The exception permits use of words to prove intent; intent to do something bears on whether she did something. Difficulties: o Intent is complicated. Beliefs/assumptions about conditions in the world and expected behavior of other people. Implies many other things when considered w/ other facts. People often describe intent in statements that make factual assertions Mutual Life Ins. V. Hillmon 1892 (A persons intention to do something can be used as trial) Facts: Wife trying to recovery insurance policies when husband died. Dispute over whether the husband really died. Insurers say body was of another man, named Walters, who was killed by the H. Insurers trying to admit letters from Walters: 1) letter to sister that he intended to leave Wichita with a Mr. H for Colorado; 2) letter to fiance indicating his intent to leave Wichita with a man named H to start a sheep ranch.

JUSTIN WALES - EVIDENCE 34

Holding: Evidence Admitted! Whenever a persons intention is of itself a fistinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party. Rationale: Letters from Walters to his sister and fianc were natural, possibly only attainable, evidence of his intent to leave with Hilmon. -Letters CANNOT be used as proof that HIlmon actually left, that would be hearsay. -When a persons intent is a material fact to be proved, evidence that he expressed that intent is as directed as it gets when the person is dead. People v. Alcalde (Cal. 1944) (2nd Party Hillmon) Facts: Bernices statement: "Im going out with Frank." The purpose is to show she was with Frank the night she died. Holding: The court lets this statement in because there is corroborating evidence. Traynors Dissent (NOW THE LAW): A declaration as to what one person intended to do cannot safely be accepted as evidence of what another probably did. Hearsay exception rationale (trustworthiness) cannot apply to prove what another person does. It is not harmless error that this statement came in. CANNOT USE ONE PERSONS INTENTION AS PROOF OF ANOTHERS INTENTION US v. Pheaster 9th Cir., 1976 (NO LONGER LAW) Facts: Prosecution trying to get in statement from the victim, Larry, that he was going to the parking lot to meet Angelo. Its offered to prove they were together so that "I am going to the parking lot" AND "Angelo is going to the parking lot." The case was tried right before the FRE were enacted. Holding: When hearsay evidence concerns declarants statement of his intention to do something with another person, Hilmon doctrine requires trier of fact infer from state of mind from state of mind of declarant, the probability of a particular act not only by declarant but also by other person. NO 2nd PARTY HILLMON IN FEDERAL RULES!!!!: Hilmon says that you can use a persons intention to prove future conduct. The FREs notes explicitly say that a persons intention can ONLY be used to show THEIR future conduct. This means that you cant use a letter by A saying he plans on going to the movies with B to prove that B went to the movies. STATEMENTS FOR MEDICAL TREATMENT

JUSTIN WALES - EVIDENCE 35

Rule 803(4) Statements for the purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Why its reliable: Because life/health may hang in the balance. There is good reason to believe you will not lie when you are sick and want treatment. o Does not count if you are going to see a doctor to get an insurance policy Reaches doctors, nurses, intake clerks, etc. Reaches both PRESENT and PAST symptoms. Broader than 803(3) Only reaches statements that are reasonably pertinent to the treatment of a medical problem. o If a person says I hit my head while diving into an empy swimming pool that statement comes in o If it says I hit my head in an empty swimming pool that didnt have any warning signs then the warning signs bit probably wouldnt get in. Does not have to be made by the person who seeks treatment. Could be made by spouse or whoever takes person to doctor. US v. Kappell 6th Cir., 2005 (Covers anyone who is being seen for medical treatment) Facts: Kids see therapist and social worker after experiences sexual abuse. She interviewed the children and got information. Diagnosed with PTSD and anxiety. Holding: FRE 803(4) covers statements made to a psychotherapist for PURPOSES OF MEDICAL DIAGNOSIS OR TEATMENT, even though they arent doctor or nurse. Rationale: Statements do not need to be made to physician. Covers anyone seen for the PRIMARY PURPOSE of treating or diagnosing patient. US v. Becier 8th Cir., 2007 (803(4) statements only get in for medical purposes) Facts: Adult rape case. Three statements trying to get in. 1. Call to BF right after incident while victim was still crying.

JUSTIN WALES - EVIDENCE 36

2. Statements to nurse at ER that she had been assaulted. 3. Doctor: Long interview concerning details of the night. Holding: Statements of an assailants identity may be admissible only if the govt can demonstrate that (i) the physician made clear to the victim that inquiry into the abusers identity was essential to diagnosis and treatment, and (ii) the victim manifested understanding. Rationale: 1. BFs statements get in as an excited utterance under 803(2) 2. Nurses statements get in as seeking medical treatment 803(4) 3. Statement to DR is INADMISSIBLE! Doctor was basically gathering evidence. His notes were not related to treating victims assault. Doctors Intent: is that supposed to be the rule? NO - rule says to look at the intent of the declarant. BUT - have to look at all circumstances of interview to figure out whats going on in the declarants head. It really matters what the person getting treatment thinks (if they think that it will affect their treatment think about lying to doctor about whether you smoke or drink). PAST RECOLLECTION RECORDED

Rule 803(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witnesss memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. Requirements: 1. Must show the witness lacks present recollection of the matter 2. Must show that the statement reflects knowledge he once had 3. Must show that he made or adopted the statement JUSTIN WALES - EVIDENCE 37

4. Must show he did so while the matter was fresh in his mind and that its accurate Procedure: You usually would prefer live testimony, so you should try to get witness to remember before you try to bring up this rule. This can be done through Rule 612 When requirements are met, the memoranda can be read outloud to the jury, but not introduced. o The opposing side can decide to introduce it if they want. DECLARANT MUST TESTIFY. ACN admits this is in the wrong section. Why its reliable: The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Ohio v. Scott 1972 (How much memory loss should allow PRS in?) Facts: Scott killed someone, ran into theater, and told Carol. Carol then gives handwritten recollection to police. Carol says at trial she cant remember details and then the prosecutor submits letter under 803(5) Holding: Admissible! (Although Bascuas says they got it wrong) Rationale: Court said she lacked sufficient memory, so its OK. Dissent (Bascuas): Witness did not unambiguously say she had no present memory of the events, and the prosecution made no effort to refresh her memory. Note: There would be no Crawford violation because, even though statements were testimonial she is subject to cross. TWN v. Michel 2006 (What is fresh?) Facts: Dispute over a deed. Party wrote affidavit 14 years after conflict. Holding: Not admissibletoo much time had past for this to be fresh. Rationale: The lawyers really wrote this. Freshness is a case- by case analysis. Factors include: Time, whether the memo came before litigation started (incentive to lie), and the impact of the event. BUSINESS RECORDS

JUSTIN WALES - EVIDENCE 38

Rule 803(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(22), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. REQUIREMENTS: 1. Must be made within the REGULAR COURSE of business and it must be a REGULAR PRACTICE to make that record Each person involved in its preparation must have been acting in regular course of business activity. Could be a 1 person business Reaches records of illegal enterprise (drug dealers) 2. Personal Knowledge of Source Person doesnt have to be the one who made the record, but they need personal knowledge of the source. 3. Records must have been made close to the time of the event recorded 4. Foundation Testimony Must be shown by testimony of the custodian or other qualified witness or a certification by such person The person doesnt have to have made the records or observed its preparationmust have 1st hand knowledge of the system and can describe usual means of preparation 5. Not untrustworthy Why is it Reliable? People have an incentive to keep good records because they could get fired if they dont. They need to rely on those records. If it seems untrustworthy through circumstantial evidence then it does not get in. Foundation Requirement Must be someone with first hand knowledge of the system and how records are kept. Exception: Does not count if the document was prepared for litigation Note: Does not have to be a for-profit business. Will reach churches, hospitals, unions, and schools. Petrocelli v. Gallison 1st Cir., 1982 (Business records must be made from 1st hand knowledge) Facts: Guy got hernia operation from doctor but pain didnt go away. Went to a second doctor who discovered severed nerve. wanted to introduce statements from 2nd Doctors reports that talked about the severed nerve.

JUSTIN WALES - EVIDENCE 39

Holding: NOT ADMISSIBLE. No indication that alleged nerve documentation was based on 1st hand medical knowledge of the doctor. Rationale: It seems like the reports were relaying what or his wife told the reporting physicians when providing a medical history, records are not representative of the physician. There is no mention of symptoms leading to a conclusion that the nerve was cut. The statements arent opinions based on observation. could have gotten the statements in under Rule 803(4), then used Rule 803(6), but the s opinion is irrelevant under Rule 104(a) Norcon v. Kotowski Alaska, 1999 (Hearsay within Hearsay) Facts: Sexual harassment claim on Exxon barge. Company sent to investigate and took statements from 2 workers. Lady worker wanted to get those statements from report in. Holding: Admissible. Hearsay within hearsay. Employees were acting as agents speaking at the time they were employed (admissible as not hearsay under 801(d)(2)(D)) and memo was made per standard investigatory procedure. ABSENCE OF BUSINESS RECORDS Rule 803(7) - Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6) to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. - Says that failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. PUBLIC RECORDS

Rule 803(8) - Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by

JUSTIN WALES - EVIDENCE 40

police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. Why is it Reliable? Exception rests on presumption that public servants go about their tasks with care, w/o bias or corruption, and that the scrutiny and exposure, transparency, surrounding govt functions add assurance that public records are trustworthy; also unlikely that he will remember details independently of the record. Like Business Records, must be trustworthy. Comes in unless other side can show a reason why its not trustworthy. Factors in admissibility of evaluative reports: (1) timeliness of the investigations (2) special skill or experience of the official (3) whether a hearing was held and the level at which conducted (4) possible motivation problems. ***The rule presumes admissibility w/ ample provision for escape if sufficient negative factors are present. Civil vs. Criminal: Comes in freely for civil cases, comes in for criminal cases only when wants to admit it against government. Covers foreign governments, subject to trustworthiness requirement Authentication Must be authenticated by a custodian or qualified witness. 803(8)(A) Activities of the office or agency Ex: Court transcripts to prove testimony given, an order committing a criminal , an anti-dumping proceeding notice by the Commissioner of Customs, A progress sheet by Treasury describing the processing and mailing of government checks. Mundane Documents Own activities of the office/agency 803(8)(B) Matters Observed by public officials, subject to certain restrictions Ex: IRS assessment liens indicating unpaid taxes, Reports by building inspectors indicating code violations, Legislative preamble from a state law indicating a river is navigable. Requirements: Report must be based upon information obtained first hand by government. The agent must have had an official duty to observe and report the event Agency must have an official duty or purpose to report

JUSTIN WALES - EVIDENCE 41

803(8)(B) CANNOT be used by prosecutor to show matters observed by LAW ENFORCEMENT OFFICERS! 803(8)(C) Factual Findings from official investigations (civil only) Ex: Findings of employment discrimination based on race/gender by EEOC, Studies on TSS by the CDC, Reports on power tool accidents by Consumer Products Commission, Findings by Coast Guard as to which 2 crew members started a fight. 803(8)(C) CANNOT be used by prosecutor Includes conclusions, not just facts Types of Report Civil Civil Criminal Prosecutor Criminal 803(8)(A) YES YES YES YES Activities of public office Matters observed and YES YES YES YES reported pursuant to legal duty by public employees except law enforcement personnel Findings from official YES YES NO YES investigations Matters observed and YES YES NO NO reported pursuant to legal duty by law enforcement personnel Beech Aircraft Corp. V. Rainey 1988 (Finding of fact = fact based opinions) Facts: Navy Plane crashed. Report done by JAG said it was engine malfunction. Persons family then brings civil claim against plane manufacturer. Wants to use opinions from JAG report under 803(8)(C) Holding: Factual based conclusions and opinions are within the scope of 803(3)(C). Rationale: The rule doesnt distinguish between finding of fact or opinion. Lower court determined the report was trustworthy Bridgeway Corp. v. Citibank 2nd Cir., 2000 (Burden shifting for trustworthiness) Facts: Liberian money vs. US money or something. Report by state department trying to get in. Holding: State Department Reports are admissible under 803(8)(C). Minimum requirements for admission under 803(8)(C): 1) document contains factual findings and JUSTIN WALES - EVIDENCE 42

2) made pursuant to legal authority. Once this is shown, burden shifts to adverse party to show lack of trustworthiness (see factors below). Rationale: Factors for reliability: 1. Timeliness 2. Special Skills/Experience of the official 3. Whether a hearing was held 4. Possible motivation problems Blake v. Pellegrino 1st Cir., 2003 (Trustworthy does not mean accurate. Means that the document was prepared in a trustworthy way by trustworthy people) Facts: Woman died with a piece of meat in her throat (lol). Trial judge didnt believe cause of death on death certificate so had it stricken. Holding: A judge may not rule on the admissibility of evidence based upon his view of the persuasiveness of that evidence. Rationale: Trial judge based exclusion partly on 104(a). Rule lets judge decide whether foundation is laid for admission, including matters such as genuineness of document, the makers personal knowledge, etc. Those facts (the authenticity of death certificate and authority of medical examiner to sign it) were not disputed o Rule 803(8) - Trial judge used 803(8) for redaction on perceived lack of credibility. But the rule deals w/ trustworthiness, which refers to matters like whether the evidence is self-authenticating or contemporaneously compiled by people of adequate skill/experience. The court didnt base its ruling on the manner in which the cert. was completed, the sources of info. utilized, the credentials of the person completing it, or how the record was maintained. Really premised its ruling on the substance of what the death cert. contained and this is impermissible. Melendez-Diaz v. Mass. 2009 (Chemical analysts give testimony for CC analysis ) Facts: Jury found guilty for distributing cocaine and trafficking. Govt submitted three certifications of analysis showing results of forensic analysis performed, reporting weight of seized bags and that the bags were examined and contained cocaine. Certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Dept of Public Health. Holding: The certifications are testimonial statements, and the analysts were witnesses for purposes of the 6th Am. Rationale:Testimonial analysis under Crawford: The documents are really affidavits: declarations of facts written down and sworn to by the declarant before an officer authorized to administer oaths; a solemn declaration or affirmation for the purpose of establishing or proving some facts. The certificates are functionally identical to live in-court testimony, doing precisely what a witness does on direct

JUSTIN WALES - EVIDENCE 43

examination; t/f must be entitled to confront analysts at trial, or, if not, had a prior opportunity to cross-examine o Rejects all govts arguments . . . CC doesnt apply b/c not accusatory. No third category of witnesses - either those against the D or those in his favor in light of CC. Just b/c not accusatory doesnt make immune from CC. CC doesnt apply b/c witness not conventional. Doesnt matter whether contemporaneous. See Davis, where events reported were not admitted w/o confrontation. That analysts didnt observe the crime is not a limitation (other witnesses under this description are also subject to confrontation). Voluntary vs. by police request or interrogation is not a limitation b/c doesnt make a difference if testimonial witness against D. CC doesnt apply b/c neutral, scientific testing is reliable. CCs guarantee is procedural, not substantive. Analysts subject to confrontation if always consistent and honest w/ perfect methodology. Admissible b/c business/official records (803(6) & (8)). Not admissible if the regularly conducted business activity is the production of evidence for use at trial. See Palmer where accident reports deemed calculated for use in court, not in business. Business records exception usually admissible b/c not testimonial. No violation b/c D could have subpoenaed the analysts. Constitutional right that burden on prosecution to present witnesses, not on the D to get adverse witnesses into court. Relax requirements of CC b/c of necessities of trial. Constitution is binding, cannot disregard at convenience. Ds will often stipulate to the nature of the substance for a variety of strategic reasons. Concurrence (Thomas): Thinks CC only applies to extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions. Dissent (Kennedy, Roberts, Breyer, Alito): Would limit Crawford and Davis to ordinary witnesseswitnesses who had seen the crime in question. Cases are limited to the proposition that formal statements made by a conventional witnessone who has personal knowledge of some aspect of the Ds guiltmay not be admitted w/o the witness appearing at trial to meet the accused face to face. Wrapping Up Melendez-Diaz If you have something (like a drug test) prepared for litigation then you need the person preparing the analysis to testify at trial. If the person died then evidence cant get in. RECORDS OF VITAL STATISTICS

JUSTIN WALES - EVIDENCE 44

Rule 803(9) Records of vital statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. ABSENCE OF PUBLIC RECORDS

Rule 803(10) Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Includes situations in which absence of a record may itself be the ultimate inquiry. E.g., whether necessary papers were filed w/ the Secretary of State. RECORDS OF RELIGIOUS ORGANIZATIONS

Rule 803(11) Records of religious organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

JUSTIN WALES - EVIDENCE 45

The person furnishing the info. must be one in the business or activity; just like business records exception. Unlikely that false info. would be furnished on occasions of this kind, no requirement that the informant be in the course of the activity. Like public records, can use to show you were in a city that day. CEREMONIAL CERTIFICATES

Rule 803(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or w/i a rsbl time thereafter.

Like public documents but more broad, extending to religious people and baptisms, confirmations, etc. FAMILY RECORDS

Rule 803(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

Usually as proof of age in the absence of public or church records. Gets in a lot (e.g., wall where you keep kids height marked). PROPERTY RECORDS

JUSTIN WALES - EVIDENCE 46

Rule 803(14) Statements of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

Statutory development to record title would be reduced to a nullity if couldnt be received in evidence. Problem when offered for purpose of proving execution and delivery: Local laws would qualify for recording only docs shown by a specified procedure (acknowledgement/form of probate) to have been executed and delivered. STATEMENTS OF INTEREST IN PROPERTY

Rule 803(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings w/ the property since the document was made have been inconsistent w/ the truth of the statement or the purport of the document.

Merely recitals of fact that are germane to the purpose of the document. Trustworthy in view of nonapplicability of the rule if dealings w/ the property have been inconsistent w/ the document. Age of document doesnt matter. Must be received and delivered/executed properly.

ANCIENT DOCUMENTS

JUSTIN WALES - EVIDENCE 47

Rule 803(16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

Applies to letters, records, contracts, maps, certificates, title documents, etc. Danger of mistake minimized by authentication requirements; age affords assurance that the writing predates the present controversy; better evidence hard to come by; unlikely to be pivotal in litigation. Special authentication provision (901(b)(8)) authorizing courts to accept such documents as genuine on the basis of how they look and where they came from (relaxed foundation requirements). Must establish authenticity. If not true, opponent will have ammunition to dispute. Usually the best evidence, practically speaking. MARKET REPORTS

Rule 803(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons is particular occupations.

Lists prepared for use of a trade or profession & other kinds of publications (newspaper market reports, telephone and city directories). Trustworthy by general reliance by the public and the motivation of the compiler to foster reliance through accuracy. Must be relied on by the public (or persons of a particular occupation) like a phone book. Question re: Internet - companies w/ websites. Can get info. from a lot of different places. The question is whether the public relies upon the website to ensure accuracy. There must be a tremendous incentive to get it right. Foundation is usually stipulated but may need custodian from company to testify that their company is relied upon.

LEARNED TREATIES

JUSTIN WALES - EVIDENCE 48

Rule 803(18) Learned treatises. To the extent called to the attention of an expert witness upon cross- examination or relied upon by the expert witness on direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. Not admissible as substantive evide nce but usable in the cross-examination of experts. Trustworthy b/c written primarily and impartially for professionals, subject to scrutiny and exposure for inaccuracy, w/ the reputation of the writer at stake. BUT problem that it will be misunderstood or misapplied w/o expert assistance/supervision; too easily wrenched out of context leading to unfair tactics; inferior to live testimony b/c live experts can shed more light on technical problems than authors; technical knowledge evolves so quickly that treatises often become obsolete. Avoids this danger as only being admissible when an expert is on the stand & cannot be received as exhibit. Status of authority should be established (by any means). Reilly v. Pinkus (1949). Besides technical books, what does the exception embrace? Safety codes, crashworthiness reports prepared by private lab for Dept of Transportation).

REPUTATION CONCERNING FAMILY HISTORY

Rule 803(19) Reputation concerning personal or family history. Reputation among members of a persons family by blood, adoption, or marriage, or among a persons associates, or in the community, concerning a persons birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

Blackburn v. UPS 3rd Cir. 1999 (Need to be familiar with community) JUSTIN WALES - EVIDENCE 49

Facts: UPS said it fired because he was related to another employee. He claims it was because he blew the whistle on some serious shit. says UPS doesnt enforce nepotism policy. Holding: A witness who wishes to testify about someones reputation w/i a community must demonstrate that he or she knows of the person and is truly familiar w/ the community in which the reputation has been formed, and that the basis of the reputation is on that is likely to be reliable. Rationale: o Rule 801(d)(2)(A) - Admissions by a Party-Opponent (HR supervisor): Admissions by a party-opponent need not be based on knowledge to be admitted. BUT only one statement P is trying to use is arguably relevant to the pretext issue, but it doesnt appear to come w/i the prohibitions of the anti-nepotism policy. o Rule 801(d)(2)(D) - Admissions by Party-Opponents Agent (stmts by employees): Statements must concern a matter w/i the scope of the agency or employment. Also only admissible if the declarant is unavailable as a witness. Would still need more details re: the alleged relationships and UPSs failure to act on them to see if they are even relevant. o Rule 803(19) - Reputation Concerning Personal or Family History: What is the relevant community? Associates in the community encompasses ones reputation at work. Needs interaction. Cant be too big. Court picks the branch the guy worked at. Trustworthiness. Proponent of evidence must establish that the reputation testimony arises from sufficient inquiry, discussion, interactions, or familiarity among persons w/ personal knowledge of the/ matter. Rumors/speculation insufficient for a trustworthy consensus. Must be a member of that community. Michelson: Witness must qualify to give an opinion by showing such acquaintance w/ the D, the community where he has lived and social circles, to speak w/ authority. o Application: P does not appear to be familiar w/ persons named, fails to identify the community involved, and doesnt establish any basis, let alone a reliable one, for the info. that he is offering. Even assuming stmt from Zileski was a proffer testimony, still no evidence UPS knew of the relationship or that the company knew and did nothing about it. REPUTATION CONCERNING BOUNDARIES
Rule 803(20) Reputation concerning boundaries or general history. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

REPUTATION CONCERNING CHARACTER JUSTIN WALES - EVIDENCE 50

Rule 803(21) Reputation as to character. Reputation of a persons character among associates or in the community.

Character of a person is admitted to prove his out of court behavior Allows proof of reputation within community Aggregates what people in community say as proof JUDGMENT ON PREVIOUS CONVICTION

Rule 803(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Govt in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

Felony convictions may be used to prove facts essential to sustain the judgment. Lloyd case - the judge erred in excluding a Jap judgment convicting A of injuring L, a crime punishable in Japan by imprisonment of more than a year. The court found that Jap law recognized self-defense, while permitting the accused to be held criminally liable for excessive force. In criminal cases, the prosecutor cannot introduce prior convictions of third persons for purposes other than impeachment. FRE 609(a)(2) allows use of both felony and misemeanor convictions to impeach government and defense witnesses. Exception bars use of felony conviction based on nolo please JUDGMENT REGARDING FAMILY HISTORY OR LAND BOUNDARIES

Rule 803(23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.

Reputation evidence is one for judgment as proof of matters of personal, family, or general history, or boundaries, where the finding is essential to the judgment.

JUSTIN WALES - EVIDENCE 51

HEARSAY EXCEPTIONS, DECLARANT UNAVAILABLE AS WITNESS Doesnt require declarant be physically unobtainable, just that the testimony be unobtainable. o Judge determines if testimony is unavailable IF FRE 804(a)(1): Exempted from testifying by court on grounds of privilege, including 5th Amendment privilege. FRE 804(a)(2): Refusal to testify FRE 804(a)(3): Lack of memory FRE 804(a)(4) Death, illness, infirmity FRE 804(a)(5) Unavoidable absence Barber v. Page 1968 (Must make reasonable efforts to obtain witness) Facts: B and W tried for armed robbery in state court. At preliminary hearing, P represented both Ds. There, W waived his privilege against self-incrimination, and P w/drew as his atty but continued representing B. In his testimony at the preliminary hearing, W incriminated B, and P didnt cross, although a lawyer for another D did. When B was tried seven months later, W was in fedl prison in another state. [A state cannot order the fedl govt to produce a witness. Why we have a Uniform Act written by the ALI. Each of the fifty states will do versions so they can cooperate and do business with each other.] o B objected to govt use of a transcript of the testimony by W at the preliminary hearing and was convicted. Govt made no effort to get W at trial (other than figure out he was in fedl prison). Holding: The government must take all reasonable available means to get witnesses to testify For prisoners, it is the policy of the United States government to permit federal prisoners to testify in state court criminal proceedings with a writ of habeas corpus ad testificandum issued out of state courts. o For non-prisoners, Uniform Act provides a means where one state can obtain an order from a court in the state where the witness is found directing the witness to appear in court in the first state to testify (must pay a travel allowance and compensation). Rationale: didnt even try to get the testimony. The right of the confrontation is not dispensed unless made a good faith effort to obtain his presence at trial. US v. Tirado-Tirado 5th Cir., 2009 Facts: Gs videotaped depo was taken by gov and s counsel. G gave contact infor and was informed he would be asked to be a witness. G went to mexico. Gov attempted to contact G by mail and telephoned him 8 days before trial, but number didnt work. Gov contacted Gs brother, no avail. Holding: Gov minimal efforts to contact witness was not reasonable or in good faith. JUSTIN WALES - EVIDENCE 52

FORMER TESTIMONY EXCEPTION


Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance w/ law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

o Must have had a chance to cross examine. Grand jury testimony DOESNT count. o Depositions, prior trials, preliminary hearings, administrative proceedings count. o Difference between this exception and the one for prior inconsistent statements - both require a chance for cross, but the former testimony exception in Rule 804(b)(1) requires a prior chance to cross-examine the declarant; the exception for prior inconsistent statements in Rule 801(d)(1)(A) requires a present chance to cross-examine. o Predecessor in interest - in vertical privity with the defendant in the current proceedings. Doesnt apply in the criminal context. No one wants you out of jail as bad as you do! US v. McKeeve 1st Cir., 1997 (Unavailability) Facts: Foreign import criminal trial thing. Witness wouldnt come to US and testify and the governments of various countries either refused or lacked power to get witness over here. The government deposed him under FRCP 15(a) in a foreign country. Holding: made reasonable efforts to secure s attendance. The deposition was properly within former hearsay exception. o Former Testimony Exception: Unless the manner of examination required by the law of the host nation is so incompatible with our fundamental principles of fairness or so prone to inaccuracy or bias as to render the testimony inherently unreliable, a deposition taken in accordance w/ the law of the host nation is taken in compliance with law for purposes of 804(b)(1). JUSTIN WALES - EVIDENCE 53

DYING DECLARATIONS

(et tu brute?)

Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. Why is it Reliable? People love god. God hates lies. Dont want to piss off god before you die. Duh. Whether declarant had a settled expectancy of imminent death: nature of wounds, doctors advice that there is no chance of survival, circumstances of how victim is found (e.g., seriousness of wounds, labored breathing, and fact of death within hours). o Declarant doesnt actually have to die. They just must think they are about to. How imminent must the prospect of death be?: Remember Dr. Shepard has poisoned me case? o Cardozo says declarant must be shown to have spoken without hope of recovery and in the shadow of impending death. All hope must be lost! Must speak with the consciousness of a swift and certain doom. Not enough to just be afraid of dying. SCOPE: ONLY for homicide cases and civil cases.

US v. Two Shields 2007 (Expectation of death can be inferred) Facts: Two Shields was really drunk in his Indian reservation trailer park. Altercation broke out, his uncle Buffalo Boy, and drunk-ass BB had a broken jaw and later died. BBs sister-in-law said she asked BB if he knew who hurt him and he nodded yes, and asked if it was 2S and he said no. Holding: Declarants serious injuries can support an inference that he believed death was imminent, but the nature and extent of the injuries must be SO severe that obviously the declarnt must know he could not survive. Here, the dyinc declaration exception does NOT apply because BBs medical condition doesnt support the inference that death was imminent. Everyone expected him to survive, BB never indicated he would thought he wouldnt survive, injuries were to face. Rationale: o NO Statement Against Interest under 804(b)(3): Medical evidence showed that the victim was highly intoxicated and unable to recall simple facts like his age, such that he couldnt have been able to appreciate that the statement was against his interest. JUSTIN WALES - EVIDENCE 54

STATEMENT AGAINST INTEREST

Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the stmt.

If it doesnt cost you money or freedom, its not a statement against interest. Declarant must believe the statement to be true. Use in Civil Litigation: 1. Declarant either had first hand knowledge, or at least believed what he said was true. 2. Declarant must be unavailable. 3. Rule only covers pecuniary, propriety, litigational, and penal interests. 4. Only needs to TEND to be against declarants interest. Use by Defendant in Criminal Cases When a defendant seeks to use a declarants statement against penal interest as evidence of his OWN innocence 1. Declarant must have first hand knowledge or believe what he said was true. 2. Declarant must be unavailable 3. Tends to be against Penal interest 4. Corroborating circumstances Use by Prosecutor in Criminal Cases When a prosecutor seeks to use a declarants self-incriminating statements against the defendant in a criminal trial. 1. Declarant must have first hand knowledge or believe what he said was true. 2. Declarant must be unavailable 3. Tends to be against Penal interest 4. (Must corroborate under proposed change)

JUSTIN WALES - EVIDENCE 55

Proposed Changes to Rule 804(b)(3): Pending for December 2010, is a proposed amendment to FRE 804(b)(3) which would apply the corroborating circumstances requirement to all declarations against penal interest offered in criminal cases. This requirement presently applies to statement introduced under the rule by the defendant. The amendment extends the requirement to the admission of a declaration against interest statement introduced by the government. **Will be on the exam** Current Rule Proposed Rule
Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ***** (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the stmt. Rule 804. Hearsay Exceptions; Declarant Unavailable (b) Hearsay exceptions. - The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: ***** (3) Statement against interest. A statement that: (A) a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

US v. Saget 2d Cir., 2004 (Statements to CI not testimonial) Facts: Saget and his co-conspirator, B, schemed to buy illegal guns or something. B spoke with confidential informant and gave up a bunch of information. Conversation was recorded and B was unavailable at Sagets trial. Gov wants to introduce the tapes under FRE 804(b)(3) as against dudes penal interests. Holding: Evidence admissible. A declarants statements to a CI, whose status is unknown to declarant, DOES NOT CONSTITUTE TESTIMONY UNDER CRAWFORD. Rationale: Testimonial depends on whether declarant was aware or expected statements to be sued. o FRE 804(b)(3) allows statements against penal interest ONLY if the lower court finds that a reasonable person in the declarnts shoes would perceive the statement as detrimental to his own penal interest. Here, the bulk of Bs statements were self-inculpatory. Therefore, the statements saying dude committed crimes alone were also because in context of his knowledge he exposed himself. JUSTIN WALES - EVIDENCE 56

US v. Garcia 7th Cir., 1993 (Factors for corroboratingcircumstantial) Facts: Two truck drivers pulled over, found shit-ton of weed. Torres, the other truck driver says its all his and Garcia had nothing to do with it. Garcia nevertheless convicted. Holding: Other drivers statements should have gotten in as statements against his penal interest. Rationale: Three Part Test: 1. Torres must be unavailable to testify (Yes, he plead the 5th) 2. Torres statements exculpating Garcia must be against Torres penal interest (Yes he said it was all his) 3. There must be corroborating circumstances which clearly show the trustworthiness of Torres statements (Yes, the two men hardly knew eachother, the confession was voluntary and made after his Miranda warnings, no evidence that statements were made to curry favor with authorities, Torres repeated statements a bunch of times) Doesnt require statements themselves to be corroborated. Just that under the circumstances it seems trustworthy. There is no evidence here that Torres was fabricating shit. STATEMENTS OF PERSONAL OR FAMILY HISTORY

Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (4) Statement of personal or family history. (A) A statement concerning the declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated w/ the others family as to be likely to have accurate info. concerning the matter declared.

JUSTIN WALES - EVIDENCE 57

STATEMENTS OF DECLARANTS UNAVAILBE DUE TO MISCONDUCT

Rule 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Not limited to criminal trials, although mostly used by prosecutors. Giles mandated that the must intend to make witness unavailable.

People v. Moreno Co., 2007 (Must intend for victim to not testify inorder for statements to come in) Facts: Sexual abuse child victim unable to testify because the chi ld would be so retraumatized that they are officially medically unavailable. Under a state statute, the absent child-victims video-taped interview is admitted into evidence. The statute says a childs statement describing any act of sexual contact performed in the presence of the speaker is admissible in any trial for child abuse if the child testifies or is unavailable and there is corroborative evidence of the act described in the statement. Holding: The government must show calculated intent by the defendant to subvert the criminal justice process in order to show forfeiture by wrongdoing. The statute is therefore invalid. Rationale: To the extent that the statute allows for the admission of out-of-court testimonial statements without the defendant being afforded an opportunity to cross-examine, it is violative of the CC. See Crawford. Must, then, turn to forfeiture exception. o To hold there is a class of prosecutions (child sex abuse) where no CC right, would violate Crawford, and would run against the clear consensus in non-murder cases that there must be a showing of an intent to prevent the declarant from testifying at trial o No clear evidence of wrongdoing by defendant to cause the victims absence, e.g., the manner in which he chose his victim, the nature of the criminal acts against her, subsequent threats made to her. NOTE: The Giles case says that there is no confrontation clause problem when intended for witness not to testify. This case and the rule says you also cant use a hearsay objection. Remember, CC only deals with testimonial statements. JUSTIN WALES - EVIDENCE 58

SHOTGUN RULE CATCH-ALL HEARSAY EXCEPTION

Rule 807 - Residual Exception - A statement not specifically covered by Rule 803 or 804 (hearsay exceptions) but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponents intention to offer the statement and the particulars of it, including the name and address of the declarant. Requirements: 1. Material Fact 2. More probative on the point than any other available evidence. a. Courts prefer live testimony. If a person is available to speak instead of admitting hearsay, then let the person speak. b. Does not excuse laziness. Have to make reasonable effort to get other evidence. 3. Interest of justice 4. Notification to the adversary Notes: o Courts sometimes apply catchall to cases where a person confesses to a crime to exculpate , but statement against interest doesnt apply because person is available to testify. o The catchall and child abuse prosecutions - list of factors bearing on the determination of trustworthiness applying the catchall to statements by abused children: precocious knowledge and age-appropriate language; behavioral changes; general demeanor and affect incl. particular indications of pain or emotional upset; spontaneity; presence or absence of bias; signs of tension or disagreement b/t the child and person accused of abuse; training and techniques of people talking to the child; number and consistency of repetitions of the basic story; character of the child. Rifle-shot child abuse exceptions generally must apply these trustworthiness criteria.

JUSTIN WALES - EVIDENCE 59

Still must consider whether statements offered are testimonial under Crawford. State v. Weaver Iowa 1996 (Factors of trustworthiness under catchall rule) Facts: Weaver was a babysitter and accused of 1st degree murder. Weaver wanted to introduce evidence of 3 women from a diner who heard the babys mother say that Weaver didnt hurt the baby, but rather that the baby hit her head on the coffee table. It didnt fall into any of the hearsay exceptions. Holding: Evidence admissible. The statements were consistent with medical evidence, no reason for witnesses to lie, they werent friends with her they were just customers. All three testimonies are more or less the same. Rationale: Factors to consider in making a trustworthiness determination: o Declarants propensity to tell the truth o Whether the declarants statements were made under oath o Assurance of the declarants person knowledge o Time lapse between event and statement by declarant o Motivation of the declarant to make the alleged statements o Corroboration o Reaffirming the statement by declarant o Credibility of the witness reporting the statement o Availability of the declarant for cross. US v. Ramirez-Lopez 9th Cir., 2003 (DISSENT is important) Facts: was arrested with 14 others who cross border illegally. After being taken into custody, was transferred to a hospital for frostbite and was interviewed there by border patrol. denied being leader of the group. Border patrol interviewed other aliens and 2 said he was leader and rest said he wasnt. All but 5 witnesses were sent back (2 who said he was guilty, 3 who said he was innocent). Holding (Not Important): failed to show that evidence wasnt cumulative. Dissent! (Important): Hearsay problem! The government removed the witnesses from the courts jurisdiction so they couldnt testify. Should be 804(b)(6) forfeiture by wrongdoing. o Notes analogous to recorded recollections, only difference are that witnesses didnt lose memories, they are unavailable, but that doesnt affect reliability. Secondly, must be shown to have been made or adopted by the witness and to reflect that knowledge correctly had more to do w/ accurate reflection of declarants memory. We still have good reason to believe the stmts are accurate b/c conducted by individuals trained to be accurate, undermined the governments case. Witnesses had no reason to lie. Actual guide was the one w/ motive to lie which may explain why only one guy pointed the finger. JUSTIN WALES - EVIDENCE 60

Also, 6th Amendment issue that D be able to present evidence on his behalf. IMPEACHMENT

Rule 611 Mode and Order of Interrogation and Presentation


(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

Five Ways to Impeach a Witness o Definite & Nonspecific: Bringing out reasons to doubt his word in general (w/o pinpointing a particular error or lie in his testimony) 1) showing bias, animus, motivation, or corruption that might lead him to fabricate/shade testimony to help or hurt a party 2) showing defect in sensory/mental capacity (perception or memory) undercutting testimony (old lady in My Cousin Vinny) 3) showing he is by disposition untruthful cross-examining target witness about nonconviction misconduct casting doubt on honesty (608(b)) cross-examining re certain kinds of convictions (609) testimony by character witness that the target witness is untruthful (608(a)) o Specific but Indefinite: Target particular misstatements or lies, but w/o suggesting reasons 4) showing prior inconsistent statement FRE 613 requires that witness be allowed to explain prior statements 5) contradicting the witness Show he is just plain wrong on 1 + point in his testimony. o Either mounted on cross or using extrinsic evidence w/o restriction on timing.

JUSTIN WALES - EVIDENCE 61

Repairing credibility: subject to judges discretion, the supporting (calling) party may examine the witness in an effort to refute points or explain away any aspersions. BIAS AND MOTIVATION IMPEACHMENT

The range of points an attacking party can raise in attempt to impeach for bias is large. Few rules, the extent of permissible cross for bias is at the discretion of the judge. Trial judge must permit to uncover basic identifying facts about s witness Court may impose reasonable limits on efforts to show bias and cut off questioning when the point has been made. has a constitutional right to develop bias. Common source of bias involve family ties, financial ties, and membership to organizations. Also if they are paid or received a reduced sentence for their testimony. US v. Abel 1984 (Impeachment of witness for bias is proper even though NO RULE Impeachment for bias evidence relevant, admissible subject to Rule 403) Facts: Witness testified that his own impeachment witness and the D were involved in Aryan Brotherhood. Wanted to call witness to show he and D were members of secretive prison gang. Holding: It is permissible to impeach a witness by showing his bias through common membership of D and witness in group pledged to lie. Rationale: Membership of Mills in the prison gang was sufficiently probative of Mills possible bias towards Abel to warrant its admission. The trial court took sufficient steps to limit its prejudicial value under 403 (didnt let them use name of gang). Government can only call witness testifying about bias if Mills denies being part of organization and claims he is not lying (impeachment). If Mills admits he is in gang, his credibility cannot be impeached. Relevant under FRE 402 analysis. Proof of membership makes existence of bias more probable. OK to admit cross of Mills about gang to show that membership in the gang as past conduct has bearing on his veracity. 608(b) allows cross-examiner to impeach a witness by asking him about specific instances of past conduct. o Court does not answer whether just being a member of such a gang, without affirmatively subscribing to tenants, would be enough under 608(b).

JUSTIN WALES - EVIDENCE 62

US v. Dickens 9th Cir., 1985 (Cant discredit through MERE ASSOCIATION) Facts: and another were arrested with a bunch of drugs. At trial, Government cross about his relationship with a guy named Mitchell, and Mitchells business, known as the mob, which sold drugs. denied being tied to Mitchell and the mob. s were convicted. They claimed the LC erred by allowing the governments cross that discredited s by associating them with organized crime. Holding: s guilt may not be proved by associating him with unsavory characters. Its error for to draw a connection to a group engaged in criminal activity which serves no purpose. s association with a group engaged in criminal activity is not a crime, and is not admissible for credibility impeachment under FRE 609. Rationale: No direct evidence was offered which connected s with the mob and such evidence doesnt have any probative value in proving the crime charged. FRE 608(b) controls the extent of cross allows examination into specific instances of a witness conduct if probative of the witness truthfulness. o Evidence of association with others, even though others may have engaged in criminal activity, does not bear on s truthfulness. DIFFERENT FROM ABEL In Abel, s relationship to a prison gang required its members to do ANYTHING to protect the others showed a powerful motive to slant testimony. HERE, it was , not a witness, who was testifying and s association with mob does not show any motive for lying. Osborne v. City of Long Beach 9th Cir., 1988 (Can use evidence of code of silence to show bias against police) Facts: Osborne was arrested for being under the influence of PCP. The cops claimed that while in their custody Osborne faked a fainting spell and fell and hit his nose and started to bleed. Osborne claimed cops hit him. Osborne claimed that cops hit him because they had animosity towards him because his family had previously filed a Civil Rights suit against the police. wants to introduce evidence by a former police officer that cops wont turn on other cops. The court doesnt let it in. Holding: ADMISSIBLE! Evidence of a secrecy policy must come in especially since a jury would assume that cops wouldnt lie and that P would. Why similar to Abel: Similar to Abel because the cops had a code preventing them from testifying. Relevant to show bias. Why different from Dickens: Evidence in this case DOES show a motive for bias in this trial. Rights of the criminally accused are not implicatedDickens rationale that s guilt may not be proved by associating him with unsavory characters carries LESS WEIGHT IN A CIVIL SUIT.

For impeachment, there is no requirement to show that the witness has subscribed to the tenants of an organization. Mere membership is enough.

JUSTIN WALES - EVIDENCE 63

A witness status as a party is a factor for determining the probative value of bias evidence. Unlike Dickens, the code of silence doesnt carry prejudicial complications associated with criminal gangs. McDonald v. US D.C., 2006 (Exclusion of evidence affected ability to put on a complete defense) Facts: was arrested for assaulting his wife on a sidewalk, but they claimed it was just verbal and a cop rode up on a bike and beat them up. An officer across the street testified that was violent with his wife and that the officer on the bike put on the ground to arrest him. When began to explain how he was hurt at trial, the LC judge cut him off because she didnt see how the testimony was relevant because the case was about assaulting the wife, not police brutality. Holding: Evidence should be allowed so could present a complete defense. Where a criminal defendant is saying that he was injured during his arrest to support his theory that the police fabricated the charge against him, the defendant cannot be denied the chance to testify about his injuries. Rationale: Exclusion of evidence violated s constitutional right to defend himself because it would show the officer lied about the assault to cover up that the other cop arrested and inured for no reason. SENSORY AND MENTAL CAPACITY

Shows defects in memory or perception to undercut testimony. Tries to show witness only had brief chance to see/hear what she describes, or that she had bad eyes and wasnt wearing glasses, etc. Attacking party can show that the witness was under the influence or mentally ill Extrinsic evidence is okay Impeachment is general. Their general capacity to understand or see an event.

JUSTIN WALES - EVIDENCE 64

CHARACTER FOR TRUTH AND VERACITY

In general, rule 404 bars character evidence to prove conduct outside of court, but showing a persons untruthfulness is allowed by rule 404(a)(3) and is covered by 608 and 609. Ex: If in a murder trial testifies, FRE 608 and 609 allows to show is dishonest, but 404 still bars evidence that he is by disposition violent. Rule 608(b) Evidence of Character and Conduct of Witness. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. May ask questions on cross about specific instances of conduct of a witness to prove truthfulness or untrutfulness, but cant introduce extrinsic evidence. Must focus on traits relating to veracity. Can also ask questions on cross to character witnesses about their knowledge of specific instances of conduct concerning the truthfulness of the person theyre testifying about. You can only ask these questions if you have a basis to believe theyre true (all w/i judges discretion). No pre-trial notice requirement. FROM E&E: Past Bad Acts that Did Not Lead to Criminal Convictions A witness may be questioned about past acts that did not lead to a conviction if they are relevant to the witness character for truthfulness, but proof other than this testimony is prohibits.

JUSTIN WALES - EVIDENCE 65

Three Controls on the use of information about a witness past acts that did not lead to a criminal conviction. 1. Questioner must have good faith belief that the event actually occurred. 2. The questions must be asked during cross examination, not during direct examination. 3. May not introduce other proof about the alleged past act by testimony from other witnesses or by any other method. This means that they can ask, but if they deny it then the questioner must move on. Specific instances of conduct are admissible ONLY if conduct reflects untruthful character. (Embezzlement yes, robbery no) US v. Manske 7th Cir., 1999 (Three views of 608(b), threatening witness is same as perjury) Facts: was on trial for conspiracy to distribute coke and sought to cross co-offender who fingered as a drug source. wanted to show he made repeated threats to witnesses testifying in a related case. Judge blocked from crossing about the threats and was convicted. Holding: Asking a witness about his previous conduct concerning forcing witnesses to commit perjury is allowed for impeachment purposes. It shows that he doesnt care about perjury and that if hed make other people do it, hed do it himselfprobative of his truthfulness. Rationale: Three views of FRE 608(b): Broad - All conduct indicating bad character indicates untruthfulness, including robbery and assault. o Rejected. Too broad. Narrow A crime only bears on veracity if it involves falsehood or deception. Middle Behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity. o AGREE! LC erred by perceiving the threats as probative only of violence because the witness threats also implicated his truthfulness. Threatening the witness is the same as committing perjury. Note: FRE 609 is more common because info is public. 608(b) is usually used when parties know each other. Bias can be shown through extrinsic evidence, conduct displaying untruthfulness cannot. PROVING PRIOR CONVICTIONS

Rule 609 Impeachment by evidence of Conviction of Crime JUSTIN WALES - EVIDENCE 66

(a) General rule.--For the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and If a witness other than a criminal defendant has been convicted of a felony, evidence of the conviction shall be admitted unless its probative value on the topic of the witness credibility is SUBSTANTIALLY OUTWEIGHED by the risk of prejudicial effect on the DEFENDANT. If a witness is a criminal defendant, such evidence shall be admitted unless its probative value is outweighed in ANY DEGREE by the risk of prejudice. (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. If ANY WITNESS has been convicted of a crime involving dishonesty or false statements, such as PERJURY, EMBEZZLEMENT, FRAUD, evidence of the conviction shall be admitted with no balancing of probative and prejudicial impact. Is not limited to felonies (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. If a conviction or a release (whichever is later) took place 10 years or more before the trial, evidence of the conviction is admissible only if its probative value SUBSTANTIALLY OUTWEIGHS its prejudicial effect. Advance notice is required. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

JUSTIN WALES - EVIDENCE 67

(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

609(c): If the crime was pardoned or excused, then it cant come in. 609(d): Juvenile convictions dont get in unless its for a non-accused witness (according to the discretion of the court). 609(e): You can show that a conviction is being appealed, but that does not mean the evidence of the conviction doesnt come in.

Is Evidence of a Witness Past Conviction Admissible? Type of Conviction; Type of Witness Substantially More Probative More Substantially More than Prejudicial Prejudicial than more Probative Probative Prejudicial than than Probative Prejudicial YES YES YES YES

Crime Involved truth-telling; ANY WITNESS Crime did not involve truth telling: Any witness EXCEPT criminal Crime did not involve truth telling: Criminal Witness

YES

YES

YES

NO

YES

YES

NO

NO

Any Crime more YES than 10 years old; Any Witness

NO

NO

NO

Christopher Walken building a Robot

JUSTIN WALES - EVIDENCE 68

This Picture will not be on Exam 609(a)(1) notes: Felony convictions. All witnesses have a prior conviction for robbery in the past 5 years. Admission under 609(a)(1)? Subject to Rule 403 balancing, probative value must be Defense witness substantially outweighed by danger of unfair prejudice, & Prosecution confusion of issues, misleading the jury, or undue delay, waste witness of time, cumulative. Defendant The probative value must outweigh its prejudicial effect. o Factors of probativeness under 609(a)(1) against the accused: nature of the conviction, recency or remoteness, whether it is similar to the charged offense, whether Ds record is otherwise clean as opposed to a continuing pattern of offenses, the importance of credibility issues, and the importance of getting the Ds own testimony. 609(a)(2) notes: o Misdemeanor convictions, w/o balancing language. T/f most courts say that trial judges lack discretion to exclude for crimes involving dishonesty and false statement" and that FRE 403 does not operate here. o Basic concept = some crimes, whether serious enough to be felonies or not, are nevertheless so probative on credibility that they should be automatically and always proper subjects for cross. o Requires proof of element of the crime that can readily be determined shows intent to not look into the underlying facts.

JUSTIN WALES - EVIDENCE 69

Luce v. US 1984 (To raise and preserve for reviw the claim of improper impeachment with prior conviction must testify.) Facts: During trial, moved to preclude Gov from using a conviction to impeach him if he testified. LC denied the motion, didnt testify, jury found him guilty. Issue is whether , who didnt testify at trial, entitled to review LCs ruling denying his motion to forbit the use of a prior conviction to impeach his credibility. Holding: In limine evidentiary ruling in federal court are not reviewable when the does not testify. Rationale: To properly perform balancing test, the court must know the factual context. Here, precise nature of s testimony and whether the government would have even sought to impeach the is unknown. CHARACTER WITNESS

Crimes of falsehood must be admitted. E.g., making a false claim whether the formal charges rest on a statute that expressly references deceit. Coordinating 608 with 609: Questioning about specific acts of conduct w/o mentioning conviction. Sometimes courts allow inquiry into the underlying acts
o

Rule 608(a) - Evidence of Character and Conduct of Witness. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Credibility of witness may be attacked or supported by evidence in form of opinion or reputation. Usually character witness is from same community and knows witness personally. Introduce testimony by a character witness that the witness in question is untruthful. Limits: 1. Evidence may refer ONLY to character for truthfulness 2. Evidence of truthful character admissible ONLY after character of witness for truthfulness has been attacked by opinion or reputation evidence. NO BOLSTERING. 3. No Specific Acts. Character witness can testify to opinion or reputation, but must lay foundation. o Reputation Must demonstrate knows person and truly familiar with community. o Opinion Same, need period of personal acquaintance. After a witness character for truthfulness has been attacked with evidence in the form of reputation or opinion evidence, it can be rehabilitated. Other witnesses may testify about the testifying witness positive character. JUSTIN WALES - EVIDENCE 70

Joan Jett dont give a damn about her bad reputation. So she would probably not call a rehabilitating witness after one of the other Runaways told the court about said bad reputation. (oh no, no no no no no no, not me, me me, me me me me) SPECIFIC IMPEACHMENT

Rule 607 - Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness. Rule 613 - Prior Statements of Witnesses (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. o On cross, the lawyer can ask the witness directly about a prior statement they made, but they have to show the opposing counsel the prior statement if they request it in order to repair the damage done by the attacker if he distorted the statement or wrenched it out of context. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). b) If you prove a prior inconsistent statement with extrinsic evidence, then the witness has to be given the chance to explain it (doesnt have to be done in any particular order and doesnt have to be done if justice requires otherwise). JUSTIN WALES - EVIDENCE 71

Adverse party (usually who called the witness) must have a chance to interrogate her. Concern that prior inconsistent statements will be taken as substantive proof may persuade a court to exclude. Also excludable under FRE 410 or FRE 408. NOTES: o Prior inconsistent statements are admitted for the impeaching (nonhearsay) purpose of proving vacillation, but the hearsay doctrine prohibits their substantive use to prove what they asserted. o Calling witness just to impeach with prior statement: In criminal cases, cant call witness it knows wont give useful evidence just to impeach with PIS (Webster). The prosecutor can call an adverse witness who is crucial to case. (DeLillio) Cannot call witness for purpose of impeaching (Morlang). o Aside from a claim that the evidence of prior inconsistencies is being used for substantive purposes, such statements will be excluded, EVEN when offered to impeach: When FRE 410 Statements made during plea bargaining. can waive the right to exclude plea bargaining statements when offered for this purpose. FRE 408 Statements made during settlement negotiations. US v. Webster 7th Cir., 1984 (Cant call a witness just to impeach him and get hearsay evidence in) Facts: Webster, , was convicted of aiding and abetting a bank robbery committed by King. Gov called King to the stand as a witness against . Kings te stimony, if believed, would have cleared , so Gov introduced PIS that King made to the FBI that inculpated . Webster claims that government only brought King on to impeach him. Holding: It is an abuse of rule 607 to call a witness you know wont give useful evidence just to get around hearsay bar in the hope that the jury will miss the distinction b/t impeachment and substantive evidence. Rationale: Here, government called King in good faith. If they hadnt it would have been a violation. o The prior inconsistent statement exception allows you to bring in evidence thats otherwise hearsay. Its not allowed to bring a witness you know wont give valuable evidence just so you can bring in an impeachment witness to bypass hearsay problems. o Here, the court looks to the subjective intent of the prosecutor and decides that he brought the first witness for a good faith reason (he thought he would implicate D as evidenced by asking judge to allow her to examine the witness outside the presence of the jury b/c didnt know what he would say). D can still argue that the impeachment statement is excluded under 403 because the jury wouldnt be able to only view it for impeachment purposes. Notes: o Morlang: A party cant call a witness where his testimony is known to be adverse for the purpose of impeaching him to get before the jury evidence JUSTIN WALES - EVIDENCE 72

not otherwise admissible. Qualifies in the sense that impeachment is necessary to alleviate the harshness of subjecting a party to the mercy of a witness who is recalcitrant or may have been tampered w/. Some prior inconsistencies are admissible as substantive evidence those that fit FRE 801(d)1(A) b/c they were given in proceedings under oath and the declarant is now cross-examinable regarding them.

Harris v. NY 1971 (Cant use Miranda violation to lie on stand) Facts: Guy arrested for selling drugs and before hes Mirandized he says hes sold drugs before. Prosecution conceded the statements were inadmissible under the exclusionary rule. D claimed he had never sold drugs before and said on cross that he could not remember (inconsistent) about what he said in the stationhouse. Holding: Prior inconsistent statements made after arrest but before Miranda are admissible only for impeachment purposesnot for direct purposes. Rationale: Even though there was a technical Miranda violation and the statements were suppressed earlier, the govt can use the statements to impeach. This is a valuable aid to the jury in assessing the Ds credibility Dissent: Worries this will undermine Miranda and deter police from giving warning. Jenkins v. Anderson 1980 (Pre-Arrest silence constitutionally OK because NOT induced by any government action) Facts: D stabbed and killed a man who robbed him the night before claiming self defense. He didnt tell anyone about it for two weeks. D testified at the trial and the prosecution brought out his pre-arrest silence on cross to impeach his story of self-defense, contending that the D had committed the murder in retaliation for the robbery. D objected the use of silence to impeach. Holding: The use of pre-arrest silence of a criminal defendant is allowed for impeachment purposes under the 5th Amendment. Rationale: Fifth Amendment - Right to remain silent: D wasnt arrested yet, Miranda and right to remain silent hadnt attached. But even still, the D waives his right to silence by testifying. The D is subject to cross impeaching his credibility just like any other witness by getting on the stand. Uses Harris to show that the privilege is not a right to commit perjury. o Fourteenth Amendment - fundamental unfairness: CL traditionally allows witnesses to be impeached by their previous failure to state something which naturally would have been asserted. No governmental action induced the D to remain silent before arrest b/c occurred before taken into custody and given Miranda warnings. No fundamental unfairness. o You cant claim a right to not incriminate yourself if you maintain that there hasnt been a crime. Weir case: Questioning about post-arrest but pre-warning silence does not violate the 5th Amendment. Doyle distinguished b/c affirmative assurances do not induce the silence. No DP violation to permit cross for post-arrest silence after the D takes the stand for purposes of impeachments. States can limit this w/ evidentiary rules. JUSTIN WALES - EVIDENCE 73

BASCUAS: If you inadvertently kill someone in self-defense you are going to call the police. The fact that you didnt is essentially the same as you saying I killed the guy and then getting on the stand and saying you didnt

CONTRADICTION Impeaching a witness by contraction entails a showing that something he said in his testimony is not so. Is done by cross or extrinsic evidence. Sometimes limited by court, so you arent contradicting trivial points. 3 Types of Admissible Conterproof: 1. Counterproof that CONTRADICTS and tends to prove a substantive point Usually gets in, not only because it contradicts, but because speaks to the merits of the case. 2. Counterproof that CONTRADICTS and tends to prove some other impeaching point Usually gets in, not only because it contradicts, but also would show bias 3. Counterpoof that ONLY contradicts Usually excluded b/c lacks relevance. FRE 403 and 611 are read to limit this form of impeachment. US v. Havens 1980 (Constitutionally excluded evidence can be used to impeach) Facts: After and McLeroth arrived at MIA from Peru, custom officer searched McLeroth and found cocaine sewed into false pocket in a t-shirt he was wearing. When McLeroth implicated , was arrested and his luggage was searched without a warrant. A t-shirt from which pieces had been cut that matched the pieces sewn to McLeroths shirt was found in s luggage and seized. The seized shirt was suppressed prior to trial. At the trial, McLeroth, who plead guilty, testified against , asserting that supplied him with shirt and sewed the fake paockets. , taking the stand in his own defense, acknowledged, in direct testimony, McLeroths prior testimony that the cocke was taped around his body, but denied that he had ever engaged in that kind of activity with McLeroth. On cross, gov called attention to these answeres and then asked whether had anything to do with sewing makeshift pockets on the shirt. said he did not. Gov asked whether he had a T-shirt with pieces missing in his luggage, said not to his knowledge. After rebuttal testimony for the government, the seized t- shirt was admitted into evidence with limiting instructions only to consider it for impeachment. Holding: A s statements made in response to proper cross reasonably suggested by s direct examination are subject to otherwise proper impeachment by the government, albeit by evidence that has been illegally obtained and is inadmissible as substantive evidence of guilty. Rationale: s testimony on direct could easily be understood as a denial of any connection to McLeroths shirt and as a contradiction of McLeroths testimony. The gov on cross reasonably called attention to s answers on direct and then asked whether he had anything to do with the shirts. This cross grew out of s direct JUSTIN WALES - EVIDENCE 74

testimony therefore, the ensuing impeachment didnt violate his constitutional rights. o When D testifies, he must testify truthfully or SUFFER THE CONSEQUENCES! This is for arriving at truth and proper questioning is for the proper functioning of the adversary system. o There is no difference of constitutional magnitude b/t Ds statements on direct and his answers to questions put to him on cross that are plainly w/i the scope of the Ds direct examination. Thus, Harris and Hass reasoning applies. Dissent: This interferes w/ unfettered right to testify on own behalf. The govt cant use power of cross to predicate the admission of illegal evidence. The admission of suppressed evidence must be warranted by something the D said (something perjurious). o Cant turn the case upon a link b/t direct and proper questioning in cross. Agnellos testimony was rsbly linked to direct, but still couldnt use the tainted evidence to impeach. court requires cross be proper, but evidence allows parties wide latitude in crossing witnesses --- thus, Ds will be compelled to forego testifying. REHABILITATION

Rebuttal 608(a) When a witness has been impeached, the rules allow for the other party to attempt to repair the damage so long as 2 conditions are met: 1. Cant attempt to repair character for truthfulness BEFORE attack You can ONLY do this if a witness has already been impeached. Rehabilitation evidence must directly rebut impeachment. A party anticipating an attack should out the impeaching fact first. Will prevent looking like you are hiding something from jury. 2. The repair should be made at the point of attack. What constitutes an attack on credibility that paves the way for repair? o Obviously credibility is attacked if the adverse party does 1 or more of the 3 attacks on character:

JUSTIN WALES - EVIDENCE 75

1. Crossing the target witness on non-conviction misconduct under 608(b) 2. Adducing testimony by a character witness that the target witness has bad character for truth and veracity (provable by opinion/reputation under 608(a)) 3. Proving that the target witness has prior convictions under 609 Evidence of Good Character 608(a)(2) Authorizes court to admit opinion or reputation testimony supporting credibility AFTER character for truthfulness has been attacked. Specific instances of behavior may be used to cross-examine reputation/opinion witnesses called to repair evidence of good character to test the knowledge and judgment of the good character witness under Rule 405 if has a reasonable basis for the questions. US v. Medical Therapy Sciences 2nd Cir., 1978 (A party can try to diffuse anticipated cross attack by bringing up other acts) Facts: Trial for false Medicare payment and related charges. Gov called Russel, an unindicted co-conspirator and trusted employee of . She testified that asked her to file false claims. On direct, in anticipation of s impeachment, Gov brought out that Russell had 2 priors and had accused her of embezzlement. used infor and claimed establishing Bias, Russel embezzled from s company to start her own and she alone committed fraud. claimed in scope of direct and aimed at bias, therefore did NOT impeach Russell, and thus prosecution should NOT have been able to call rehabilitating witness. Holding: REHAB OK! Under 608(a), you can ONLY rehabilitate if there is an attack on character for truthfulness, not just bias, which is outside the relevance of character evidence. Rationale: 608(a) should make supporting character evidence available to a party who elicits impeachment material on direct for impeachment purposes. You can only call character witnesses as characters for truthfulness if impeachment was an attack on character for truthfulness. 608 has no limits that stops a party from offering character evidence under circumstances where it anticipates impeachment. The government was eliciting prior conviction as background information, not for impeachment. s cross could be attack on veracity because of allegations of embezzlement/fraud implicate lack of truthfulness. PRIOR CONSISTENT STATEMENTS

JUSTIN WALES - EVIDENCE 76

Prior consistent statements admissible to rehabilitate a witness, as long as the attacking party suggested that the testimony was tainted by recent fabrication or undue influence or motive. Rehab use of PCS post-attack is BROADER than 801(d)(1)(B) PCS hearsay exemption. Best example of rehabilitating effect: If the witness made her PCS before the alleged motive of influence came into playEvidence that she previously said the same thing that she says at trial suggests that her testimony shouldnt be rejected as a fabrication or discounted on account of supposed improper motive. FORBIDDEN IMPEACHMENT Rule 610 Religious beliefs cant be used to bolster or impair credibility. US v. Kalaydjian 2nd Cir., 1986 Facts: Muslim dude affirmed on Koran instead of bible. tried to ask why Holding: Cant do that under 610, too prejudicial. AUTHENTICATION

Authentication is offering evidentiary stuff to support a finding that the matter in question is what its proponent claims. Rule 901 Requirement of Authentication or Identification (a) General Provision When a party seeks to introduce a document or any object or thing, the party must also provide a basis for finding that the document or object really is what the proponent claims it is. This requirement also applies to testimony about conversations. It is important to remember that authentication is only one requirement that must be satisfied for admission of an item of evidence. For example, an authenticated document may still need to satisfy the rules concerning hearsay and original writing. (b) Illustrations It is extremely easy to satisfy the authentication requirement. The examples provided in this part of the rule are typical methods litigants use, but any proof that could support the required finding is allowed.

JUSTIN WALES - EVIDENCE 77

1. Testimony of witness with knowledge Testimony that a matter is what it is claimed to be. 2. Nonexpert opinion on handwriting Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation. 3. Comparison by trier or expert witness Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated 4. Distintive Characteristics and the like Appearance, contents, substance, internal paterns, or other distinctive characteristics taken in conjunction with circumstances. A common authentication technique recognized by this example is the REPLY DOCTRINE. If there is testimony about a phone call or other communication to a particular person or business, a call or communication that seems to be a reply will be treated as authenticated as actually having been made by the person or business that was the recipient of the original call or communication. 5. Voice Identification ID of a voice, whether heard firsthand or through electronic recording, by opinion based upon hearing the voice at any time under circumstances connected with the alleged speaker. 6. Telephone Conversation Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the phone. 7. Public Records or Reports Evidence that a writing authorized by law to be recorded or filled and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept. 8. Ancient Document or data compilation Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered. 9. Process or System Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result 10. Methods provided by statute or rule Any method of authentication or identification provided by Congress or Rules. FRE 104(b) Makes trial judge a filter, but gives ultimate decision of authenticity to the jurywe should be able to trust a jury to decide whether an object is the real thing. As long as the proponent offers enough proof of authenticity it will be up to the jury. JUSTIN WALES - EVIDENCE 78

US v. Johnson 1980 (The requirement of authenticity as a condition precedent to admissibility is satisfied by evidence to support a finding that the matter is what its proponent claimsdoesnt have to guarantee it is such) Facts: Johnson was convicted of assault for an attack with an ax on a victim named Papse. At trial, the gov called Papse as a witness and offered an ax that was seized from s home during the execution of a search warrant. claimed that the ax was admitted without being authenticated because Papses testimony is inadequate. He failed to distinguish why this was the ax that hit him and not just any ax. Holding: Authenticated, the witness only need to ID something sufficiently, after that point the jury will decide whether it is the right ax. Rationale: The dude was being hit with an ax, what do you expect? The rule is satisfied and the evidence should be admitted once a prima facie case has been made, and at that point, the matter is then given to the jury to decide if it is the right one or not. Bascuas: This case was wrongly decided. Too prejudicial What do you need to authenticate a baggie of coke? 1. The seizing officer 2. The person the bag was delivered to at the crime lab. 3. The chemist who runs the test at the lab to determine it was coke Different than the ax in Johnson because you cant really tamper with an ax, so there all you need is the arresting/seizing officer. US v. Howard-Arias 1982 (Its sometimes okay to miss a link in the chain of custody and the evidence will still be authenticated) Facts: was a crew member on a fishing boat, who was rescued when the boat was having boat problems. Officials recovered a bunch of weed before it sank. Some officers who seized, tested, and transferred weed testified, but there were others that didnt. claims government failed to establish a continuous chain of custody for the weed. Holding: Showing the chain of custody is not an iron clad requirement, and the fact that there is a missing link doesnt prevent the admission of real evidence, so long as theres sufficient proof that the evidence is what it purports to be. Rationale: The person who seized the stuff HAS to testify. Chain of custody is more strictly enforced in criminal than in civil cases. JUSTIN WALES - EVIDENCE 79

US v. Bagaric 1983 (REPLY DOCTRINE, circumstantial authentication) Facts: s were convicted of RICO violations. MB was an unindicted co-racketeer who participated in the enterprises affair between 77-78. challenges the admission of additional evidence linking him to MB (a letter found during a search of s home after his arrest) because it wasnt properly authenticated. Holding: Authenticated! There was ample demonstration that the letter was what the government claimed it to be. Rationale: FRE 901(b)(4) allows authentication by circumstantial evidence, including appearance, contents, substance, and other distinctive characteristics of the writing. The circumstantial evidence here is the contents of the letterit contained evidence that only knew. Its also possible that very few other people knew the info, but thats okay because you dont have to PROVE the evidence is authentic, just need to make a prima facie case. Here, the letter was addressed to , postmarked where MB lived. It began Dear and was signed Yours, MBs alias. Contained several personal references. Notes on Authenticating Writings: Stylistic patterns can be used to authenticate documents. Unlikelihood of fraud in a situation where a letter is written on s letterhead and appears to be signed by him. Notes on Authenticating Emails Method for authentication in ACT to FRE 901(b)(4) is the reply doctrine: A letter may be authenticated as coming from a person by showing that it replies to an earlier communication to that person, provide that the earlier communication has been authenticated. Response has to speak back to the original You cant use the reply doctrine to authenticate the 1st email in a series. To authenticate an original email you could go to someones house with a search warrant and seize the computer. If you cant do that then you need to get into IP addresses and shit like that. Tape Recordings The party introducing a sound recording bears the burden of showing its an accurate reproduction of the relevant sounds Must show that the person operating the machine was competent and the set up was proper and functioning well. Also have to show that the voices are actually the persons voices. Can be done by someone who heard the guys voice only once or twice. Photographs All you need is to show that it is an actual representation of what the intersection looked like at the time of accident. ANYONE there could authenticate it. Doesnt matter if picture was taken later. FRE 407 problem if subsequent acts are evident from photo. X-Ray More like recording than photographs. Need technician to say they are accurate and were taken under good conditions. JUSTIN WALES - EVIDENCE 80

US v. Pool 1981 (Authenticating phone calls) Facts: 8 s were convicted of drug charges. One count was using phone to facilitate illegal importation. DEA agent got a call from Chip (s nickname) saying that X wanted the DEA agent to get a different boat. Based on this convo, the agent IDed . The convo was not recorded and agent never met --only way agent made ID was through self-authentication. Holding: A phone call out of the blue from one who IDs himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X. Rationale: The standard of admissibility of voice ID testimony is prima facie, circumstantial evidence may be used to meet this standard. Here, there is NOT sufficient evidence to prove that the agent actually heard s voice because he never met , no voice comparisons were made, and the use of a nickname doesnt support it because tons of people know his nickname. Could be possible it was all made up. SELF-AUTHENTICATION Rule 902 Self-Authentication The items described in this rules examples are considered SO LIKELY to be what they seem to be that further proof is not required. (1) Domestic Public Documents under Seal A document bearing a seal purporting to be that of the US, or of any state, district, commonwealth, territory, or insular possession thereof, or Panama Canal Zone, pacific islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation of execution. (2) Domestic Public Documents not under Seal A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. (3) Foreign Public Documents (4) Certified Copies of Public Records (5) Official Publications Books, pamphlets, or other publications purporting to be issued by public authority (6) Newspapers and periodicals Printed materials purporting to be newspapers or periodicals (7) Trade inscriptions and the like Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin (8) Acknowledged documents Documents accompanied by a certificate of acknowledgment executed in the manner provided by law or by a NOTARY PUBLIC or other officer authorized by law to take acknowledgment. JUSTIN WALES - EVIDENCE 81

(9) Commercial paper and related documents Commercial papers, signatures thereon, and documents relating thereto to the extent provided by general commercial law (10) Presumptions under Acts of Congress Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic (11) Certified domestic records of regularly conducted activity The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record (A) was made at or near the time of the occurrence of the matters set ofrth by, or from information transmitted by, a person with knowledge of the matter; (B) was kept in the course of regularly conducted activity; and (C) was made by the regularly conducted activity as a regular practice. (12) Certified Foreign Records of Regularly Conducted Activity Civil Cases Notes on Self-Authentication Burden on the opponent to prove the lack of authenticity. Cant just say thats not authentic, needs actual evidence. 902(10) Makes certain documents presumptively or prima facie genuine or authentic. Ex Transcript of a court proceeding is prima facie correct as a statement of testimony taken and proceedings had but is not considered official. Websters dictionary is not self-authenticating BEST EVIDENCE RULE Best Evidence Rule rests on 5 considerations 1. The written word has special sanctity in legal affairs justifying more stringent proof requirements 2. Any method of proving the content of a writing other than the writing itself, is distinctly inferior Language is complex, and the slighted variation of wording or punctuation can make a big difference Unless a writing is very short, human memory cannot summarize it with the precision often needed Burden of requiring original writing is small compared to the increased accuracy that an original makes possible. 3. Modern photocopying hasnt always been available, and copies of writing have been viewed with suspicion.

JUSTIN WALES - EVIDENCE 82

Requiring proponents to produce the original safeguards against forgeries 4. Production of the original assures completeness and prevents segments from being removed from their contexts 5. Examining the writing may help resolve disputes over authenticity. FRE 1001(a) Defines writing as letters, numbers, or words that are set down by handwriting or in other ways. FRE 1002 Codifies Best Evidence Doctrine and extends it to recordings and photos FRE 1003 Allows duplicates to be admitted the same as original, as long as a genuine question is raised to the authenticity of the original OR under the circumstances it would be unfair to admit the duplicate instead of the original. FRE 1004(4) - Provides an escape clause to FRE 1002 by dispensing with the requirement of producing the original when the writing, recording, or photograph is not closely related to a controlling issue FRE 1005 Prevents disruption of public recoding systems by making it unnecessary for litigants to produce the original of a public record. FRE 1006 Creates an exception for large volumes do documents. US v. Duffy 1972 (Sometimes a writing isnt a writing. Depends on how complicatedBER doesnt apply to simple markings on chattel) Facts: Duffy was convicted of transporting a stolen car. At trial, local cop and FBI testified that the trunk of the stolen car had 2 suitcases and a shirt with the inscription DUF. objected to the admission of the testimony about the shirt and asked government to produce it. Holding: REJECT BEST EVIDENCE CLAIM. The Best Evidence Rule, by its terms or because of its policy reason, is not applicable in this case because the marking wouldnt under ordinary understanding be considered a writing. Rationale: The Best Evidence Rule is for writings that are sufficiently complex. Doesnt apply to simple inscriptions on chattels. There was no chance that the reader would mistranslate 3 letters. Meyers v. US 1948 (Statements that are alleged to be perjurious may be proved by any person who heard them) Facts: The defendant was convicted of suborning perjury when he testified before a Senate subcommittee investigating fraud and war profiteering. A key question in the defendants conviction was what exactly he and his co- defendant testified to during the subcommittee hearings. The defendant, through counsel, argued JUSTIN WALES - EVIDENCE 83

that the best evidence rule required that only the transcript of the subcommittee hearing be used to determine what was said during the hearing. Because the trial court used witness testimony and shorthand notes from a witness present at the hearing, the defendant argued his conviction should be overturned. Holding: In federal courts, the best evidence rule is limited to cases where the contents of a writing are to be proved. Perjurous statements may be proved by others who heard them, or by notes recorded in shorthand, or by other means and not exclusively by an official transcript. Rationale: Best evidence rule is limited to cases where the contents of a writing are to be proved, and in this case, there was not an attempt to prove the writings. No one in this case thinks the Chief Counsel, who was present, shouldnt testify because he was testifying about what he heard. Best Evidence Rule only bars his testimony if he wasnt present and was testifying about the transcript. Sylvania Elec Prod v. Flanagan 1965 (Need to do a reasonable search for original writing) Facts: is a trucker and hauler of sand and gravel. hired a general contractor to construct a parking lot. There was a hill on the site which had to be removed. It was the contractors duty to level it but he wasnt required by K to remove the excess sand. claims made an oral K whereby would haul the material away. did the work and refused to pay so sued for breach of K. Plaintiff offered evidence to prove his claim which was based on daily truck hour slips on tally sheets made at the job site. Defendant objected to the other evidence and claimed the actual tally sheets should have been required. Holding: In proving the terms of a writing, which terms are material to the issue, the original must be produced unless its unavailable for some reason other than serious fault of the proponent. Here, there is not sufficient proof that the original tally sheets were unavailable or that a reasonable search had been made to find them. Rationale: Upon a proper showing of unavailability of the original, secondary evidence of its contents may be received, but secondary evidence isnt admissible unless the proponent of the testimony shows that a personable and diligent search has been made without success. Under BER, in order to permit proof of secondary evidence, the trial judge must make a preliminary finding that the original was unavailable, and the record in this case doesnt show the LC made this necessary finding. JUSTIN WALES - EVIDENCE 84

OPINION TESTIMONY

Rule 701 Lay Opinion Testimony If the witness is not testifying as an expert, then the testimony is limited to opinions and inferences that are rationally based on perception, helpful to determining a fact at issue, and are not based on special knowledge. Rule 702 Expert Testimony If scientific, technical, or other specialized knowledge will help the jury understand then a qualified witness may testify. Daubert v. Merrel Dow Judges are the gatekeeper of expert testimony. They can exclude their testimony if not based on actual science. Kumho v. Carmichael Dow applies to all experts, not just scientists

JUSTIN WALES - EVIDENCE 85