Determining Admissibility (4 Steps)

1. 2.

Relevance Definition & General Rule

Is the evidence relevant? Is there a proper foundation? a. Ex: Competent witness? b. Ex: Authenticity of evidence? 3. Is the evidence the proper form? 4. Is the evidence beyond the application of, or within an exception to, one of the following exclusionary rules? a. Ex: Discretionary exclusion for prejudice? Policy-based exclusions? Hearsay, privilege, or parol evidence rule? Definition of Relevance Evidence is relevant if it has any tendency to make a material fact more probable or less probable than it would be without the evidence

Discretionary Exception to Rule That Relevant Evidence is Admissible

General Rule Relevant evidence is admissible. All relevant evidence is admissible unless the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations. Six Types of Pragmatic Considerations 1. Danger of unfair prejudice (Unfair) 2. Confusion of the Issues (Confusion) 3. Misleading the Jury (Confusion) 4. Undue Delay (Waste of time) 5. Undue Delay (Waste of Time) 6. Unduly Cumulative (Waste of Time) Must relate to time, event, or person in present controversy. Generally, the evidence must relate to the time, event, or person involved in the present litigation, otherwise the evidence is not relevant. Certain Similar Occurrences Are Relevant 1. Causation: Complicated issues of causation may be established by evidence concerning other times, events, or persons. a. Ex: Damage to nearby home to show blasting caused damage to P s home. 2. Prior False Claims or Same Bodily Injury: Evidence that someone has previously filed similar claims is admissible to show that this claim is false. 3. Similar Accidences Caused by Same Event or Condition: Evidence of prior accidents or injuries caused by same event or condition is admissible to prove the existence of the condition, that D knew about it, and that it caused the injury. Absence is generally not admissible though. 4. Previous Similar Acts to Prove Motive or Intent: Similar conduct may be introduced to prove party s present motive or intent when such elements are relevant. a. Ex: History of school segregation to show motive to discriminate against minorities. 5. Sales of Similar Property: Used to prove value. 6. Habit: Habit is a regular response to a specific set of circumstances. Habit is relevant to prove that the conduct of the person on a particular occasion was in conformity with that habit. a. Tip: Words like instinctively and automatically indicate habit. 7. Industrial or Business Routine: Evidence that a particular business had an established business routine is relevant as tending to show that particular event occurred. 8. Industry Custom as Standard for Evidence of Care: Industry custom may be offered to show adherent to or deviance from an industry wide standard of care.

What is Relevant?

Exceptions to the rule that relevant evidence must relate to present controversy. (8)

Habit Evidence v. Character Evidence

Character Sally is always in a hurry. Bart is a drunk.

Jeff is a careless driver.

Habit Sally always takes two stairs at a time. Bart stops at Charlie s Tavern every night after work and has 4 beers exactly. Jeff never slows down for the YIELD sign on his street. Laura checks the breaks on her car every Sunday before church.

Discretionary Exclusion of Relevant Evidence Exclusion of Relevant Evidence for Public Policy Reasons 5 Public Policy Exclusions of Relevant Evidence

Lara is very conscientious about the maintenance of her car. A trial judge has broad discretion to exclude relevant evidence if its probative value substantially outweighs the danger of unfair prejudice, confusion of issues, misleading the jury. General Rule Certain evidence of questionable relevance is excluded because public policy favors the behaviors involved. 1. Liability insurance 2. Subsequent Remedial Measures 3. Withdrawn Guilty Pleas or Offers to Plead Guilty 4. Settlement Offers or Negotiations 5. Offers to Pay or payment of Medical Expenses INADMISSIBLE Not relevant for the purpose of negligence or ability to pay a judgment. ADMISSIBLE Permissible to show ownership or control, impeach, or as part of an admission. y Ex: Evidence of liability policy if D claims he didn t own the land that P slipped and injured himself on. INADMISSIBLE Evidence of repairs or other precautionary measures following an injury is not admissible to prove liability of a claim. ADMISSIBLE To prove ownership, control, or to rebut a claim that precautions were unfeasible, or to prove destruction of evidence. NY DISTINCTION: In general, the rule for NY is the same except: SRMs are admissible in a products liability suit based upon strict liability for a manufacturing defect. INADMISSIBLE To prove liability for or invalidity of a claim that is disputed ad to the validity and the amount. Not even direct admissions of liability during compromise negotiations are admissible. (Cf. offers to pay medical expenses which does not need a disputed claim but allows statement of fact). ADMISSIBLE For all other purposes. Ex: P and a third party hit by D s truck. D settles with third party but doesn t settle with P. Cannot introduce evidence of settlements because all settlement negotiations are covered by the rule!! INADMISSIBLE For nearly all purposes. ADMISSIBLE Not admissible INADMISSIBLE To prove culpable conduct. But, other statements of fact made during the offer to pay medical expenses are admissible. ADMISSIBLE For all other purposes (Cf. settlement offers which requires a disputed claim but excludes statements of facts).

Liability Insurance Exclusion

Subsequent Remedial Measure Exclusion (Plus NY Distinction)

Settlement Offers or Negotiations Exclusion

Withdrawn Guilty Pleas and Offers to Plead Guilty Exclusion Offers to Pay and Payment of Medical Expenses

Character Evidence

Character evidence may be offered as substantive evidence to 1. Prove character when it is the ultimate issue of the case, or 2. Circumstantial evidence of how a person probably acted.

Form of Character Evidence

The purpose of the offer, and the nature of the case, or or all of the following methods of proving character may be available: 1. Evidence of specific acts. 2. Opinion testimony of a witness who knows the person 3. Testimony as to the person s reputation the community. General Rule Character evidence is not admissible in civil cases, regardless of whether it is offered by P or D. Ex: A P in a suit involving a car accident may not introduce evidence that the D usually is a reckless driver to prove that she was negligent at the time in question, nor may D offer evidence that she is a good driver. Ex: Once a thief always a thief. Inadmissible character evidence.

Rule for Character Evidence in Civil Cases

Rule for Character Evidence in Criminal Cases How Criminal Defendant Can Prove Character

Exceptions: Character is directly in issue (defamation; negligent hiring). General Rule Generally only accused can initiate. The accused can introduce evidence of her good character to show her innocence of the alleged crime. 1. Witness Under the federal rules, a witness for the D may testify as to the defendant s good reputation in the community or his personal opinion concerning that trait. 2. D Testifies Directly D does not put his character in issue merely by testifying. He puts his credibility in issue. In these cases, the prosecution is limited to impeachment evidence rather than substantive character evidence. Prerequisite D must open the door by introducing character evidence first. 1. Cross-Examining Character Witness Cross examine the character witness as per the basis of his testimony, including whether or not he knows or has heard of specific instances of the defendant s misconduct. a. Use of Specific Acts Any misconduct, including prior arrests, may be inquired about while cross-examining D s character witness. i. Limit Limited to inquiry of the witness, she may not introduce extrinsic evidence of misconduct. Be careful to distinguish asking a character witness whether he is aware of prior arrests, and impeaching a witness with their arrests, which is improper. 2. Introducing Own Witness P may introduce a qualified witness to testify to the D s bad reputation or give their reputations of the D s character. The D may introduce reputation or opinion evidence of a bad character trait of the alleged victim when it is relevant to throw the D s innocence. Once the D has introduced evidence of the victim s bad character the prosecution may rebut with evidence of the (i) the victim s good character, or (ii) the defendant s bad character for the same trait. Exception Rape shield rule (see next slide). Rule In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible. y Subject to exceptions (see next slide) 1. Source of Physical Evidence: In a criminal case, a victim s sexual behavior is admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. 2. Previous Contact Between P and D: Also, specific instances of sexual behavior between the victim and the accused are admissible for any reason by the prosecution and to prove consent for the defendant.

How Prosecution May Rebut Criminal Defendant s Character Evidence

Evidence of Victim s Character in Criminal Cases

Rape Exception to Introducing Character Evidence of Victims Exceptions to Rape Shield Rule in Criminal Cases

Exceptions to Rape Shield Rule in Civil Cases

Evidence of the victim s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Admissibility of Prior Acts of Misconduct Bad Acts When Admissible (2)

General Rule Evidence of a person s prior acts of misconduct is inadmissible ifthe purpose is to prove solely to establish a criminaldisposition or badcharacter. 1. (Non-Propensity) When Relevant to Some Issue Other than the D s Character or Disposition MIMIC M: Motive I: Intent M: Mistake or Accident I: Identification (m.o) C: Common plan or scheme Prerequisites: a. In a criminal case, the prosecution must, provide reasonable notice prior to trial of the general nature of any of this type of evidence it intends to introduce. b. There must be sufficient evidence to support a jury finding that D committed the prior act, c. Its probative value must not be substantially outweighed by Post-Requisites a. Must still do 403 balancing test (must still weigh probative value vs. potential prejudice. b. Court must give a limiting instruction. c. Must give pretrial notice of intent to produce MIMC evidence. 2. (Propensity) Prior Acts of Sexual Assault or Child Molestation: Evidence of a D s prior acts of sexual assault or child molestation is admissible in a case where the D is accused of committing an act of sexual assault or child molestation. The party intending to offer this evidence must disclose it to the D 15 days before trial (or later with good cause). 3. (Propensity) Prior Acts As Essential Element of Claim: y Ex: Prosecution wants to introduce evidence at D s murder trial that the victim was the detective who testified against him at his trial (conviction) for armed robbery 4 years prior. Admissible because this establishes D s motive for killing victim, not his past acts as propensity. y Ex: D is accused of killing her mother with an ax and the Defense argues that it was an accident. P introduces evidence that D threw a knife at her mother a week prior during an argument. Admissible to show lack of mistake but not admissible to show propensity for violence. y Ex: D is charged with armed robbery of a Wal-Mart in Syracuse earlier in the afternoon of July 1. Defense: Alibi that he was in Chicago. P wants to introduce evidence that around noon on July 1 D robbed a target and Sears in Syracuse in the same vicinity as Wal-Mart. Admissible for identification purposes, contradicts his alibi by placing him in the vicinity at the time of the crime. Actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, original, or prepared (demonbstrative).

Examples of Non-Propensity Uses of Character Evidence

Real/Demonstrative Evidence

Judicial Notice y When/How y What y Civil v. Criminal Distinction

Real Evidence Prerequisites for Admissibility of Real Evidence

Admissibility of Various types of Real Evidence

Documentary Evidence Evidence of Documentary Authenticity

When/How: o The court may do it suasponte o A party may formally request it at any time, even on appeal. y What o Indisputable Facts o Common Knowledge (notorious facts) o Easily Verifiable by Unquestionable Sources (Science Facts or almanac facts) y Civil v. Criminal Distinction: Civil cases judicial notice is conclusive but in criminal cases the jury is instructed that they can but don t have to find it correct. Actual or physical evidence addressed directly to the trier of fact. May be direct, circumstantial, original or prepared (demonstrative). 1. Authentication a. Testimony of a witness that she recognizes the object as what the proponent claims it is. b. Substantially Unbroken Chain of Custody: Evidence that the object has been held in a unbroken chain of possession. 2. Same Condition: If the condition of the object is significant, it must be shown to be in substantially the same condition at trial that it was at the event at issue. 3. Legal Relevance: Some policy or principal may outweigh the need to admit the real evidence, like physical inconvenience for bringing it into the court, indecency, or undue prejudice. 1. Reproductions & Explanatory Real Evidence: a. Admissible: Photographs, diagrams, maps, or other reproductions are admissible if their value is not outweighed by the danger of unfair prejudice. b. Permitted but not Admissible: Items used entirely for explanatory purposes are permitted at trial, but are usually not admitted into evidence. 2. Maps Charts, Models, Etc.: Admissible but must be authenticated. 3. Exhibition of Child in Paternity Suits: Exhibition of children is almost always allowed to show that it is the same race as the father. Courts are divided on whether or not physical resemblance is permissible. 4. Exhibition of Injuries: Exhibition of injuries in a personal injury or criminal case is generally permitted, but the court has discretion to exclude this if unfair prejudice would result. 5. Jury View of the Scene: Permitted. 6. Demonstrations: Permitted. Documentary evidence must be relevant in order to be admissible. Authenticity of writings is an element of its relevancy. 1. Pleadings/Stipulation: A writing may be authenticated by pleadings or stipulation. 2. Admission/Acted: Evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic. 3. Eyewitness Testimony: Testimony of a witness who saw it executed or hears it acknowledged. 4. Handwriting Verifications: Three methods: a. Non-expert with personal knowledge of the alleged writer s handwriting. b. Opinion of an expert who has compared the writing to samples of the maker s handwriting. c. Trier of fact may make a determination by comparison with a writingsample. 5. Ancient Documents: Evidence that it is: a. 20 years old b. Condition indicates it s free of suspicion c. Place where such writing would be kept. 6. Reply Letter Doctrine: Evidence that it was written in response to a communication sent to the author. y

Self Authenticating Documents

Authentication of Oral Statements

Authentication of Photographs

1. Certified copies of public records 2. Officialpublications 3. Newspapers and periodicals 4. Trade inscriptions 5. Acknowledged documents 6. Commercial paper and related documents 7. Certified business records When a statement is admissible only when said by a particular person, then authentication requires the identity of the person. 1. Voice Identification A voice may be identified by the opinion of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying. 2. Telephone Conversations Authentication if one of the parties to the conversation testifies: a. Recognized the other party s voice b. The speaker had knowledge of certain facts that only a particular person would have c. He called a particular person s number and a voice answered as that person or that person s residence, OR d. He called a business and talked with the person answering the phone about matters relevant to the business. Admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts. y Generally, it is not necessary to have the photographer verify he was taking a picture of the actual spot. Unattended Camera: If a photo was taken when no person could authenticate the scene is present, the photograph may be admitted upon a showing that the camera was properly operating at the time and that the photograph was developed from film obtained from that camera. Need more than someone saying that it is a fair and accurate representation. Need: 1. Process used is accurate 2. Machine was in working order 3. Operator was qualified to use it 4. Chain of Custody Rule: To prove the terms of a writing (including a recording, photograph, or x-ray) the original writing must be produced if the terms of the writing are material. Rule Applies When: The rule applies to two situations: 1. Legally Operative Instruments: When the writing is legally operative or dispositive instrument;or 2. Witness Only Knows From the Document: The knowledge of a witness concerning a fact results from having read it in the document.

Authentication of X-Rays

Best Evidence Rule (i.e. Original Document Rule)

When Best Evidence Rule Does Not Apply

Examples of When best Evidence Rule Applies vs. When it Doesn t

Fact to Be Proved Exists Independently of the Writing: The rule does not apply where the fact to be proved has an existence independent of any writing. a. Many writings record details of essentially non-written transactions. Oral testimony of these facts may be given without the original writings recording the event. 2. Writing is Collateral to Litigated Issue: The rule does not apply where the writing is of minor importance (i.e. collateral) to the matter in controversy. 3. Summaries of Voluminous Records: The rule does not apply to summaries of voluminous records. It would be inconvenient to examine a voluminous collection of writings in court, so the proponent may present their contents in the form of a chart or summary. 4. Public Records: The rule doesn t apply to copies of public records that are certified as correct or testified to as correct. Best Evidence Rule Applies Best Evidence Rule Doesn t Apply Nurse seeks to testify regarding the Nurse who took vital signs may testify to them without producing the medical record. content of the medical record that she read. Witness may testify directly that he is 30 years old and married, without producing the respective Party seeks to prove the contents of a certificates. contract through witness testimony. 1. Original, Defined: The writing itself or any counterpart intended to have the same effect. Ex: Film negatives/prints. Duplicate, Defined: Any counterpart produced by any mechanical means that accurately reproduced the original. Ex: Photocopy, carbon copy, computer printouts. Rule: A duplicate is admissible to the same extent as the original, unless: 1. There is a genuine question about the authenticity of the original, or 2. It would be unfair to admit the duplicate. NY Narrowing for Duplicates: Photocopies and other duplicates are acceptable substitutes for the original only if they were made in the regular course of business. Handwritten copies are not duplicates or originals. A party does not need to produce the original (or an acceptable duplicate) if the original is: 1. Lost or cannot be found with due diligence 2. Destroyed without bad faith 3. Cannot be obtained with legal process. Court makes determinations of fact regarding the admissibility of duplicates, other copies, and oral testimony as to the contents of an original. However, the FRE reserve the following questions for the jury: 1. Whether the original ever existed. 2. Whether a writing, recording or photograph produced at trial is the original 3. Whether the evidence offered correctly reflects the contents of the original. Rule: If an agreement is reduced to a writing, that writing is the agreement and hence constitutes the only admissible evidence of it. y Extrinsic evidence of the negotiations areinadmissible. y Prior or contemporaneous negotiations are merged into the written agreement, and are thus inadmissible to vary the terms of the writing.

What qualified as an original writing?

When will non-production of the original be excused?

Who Makes Determinations of Admissibility of Duplicates, Copies, or oral Testimony

Parol Evidence Rule

Parol Evidence Rule Does Not Apply When . . .

Basic Rules for Competency

Modern Limitations on Competency

Dead Man s Statute y Interested Parties y Federal Application

Doesn t apply to exclude evidence of prior or contemporaneous agreements in the following circumstances: 1. Incomplete or Ambiguous Agreement: Admissible to complete an incomplete contract or explain an ambiguity. 2. Reformation of Contract: Doesn t apply when the party alleges facts (like mistake) entitling him to reformation. 3. Challenge to Validity of Contract: Show that a contract is void or voidable, or was made subject to a valid condition precedent that has not been satisfied. 4. Subsequent Negotiations: The rule only applies to negotiations prior to, or at the time of the execution of the contract. Parol evidence is admissible to show subsequence modification or discharge of the written contract. In order to be competent the witness must: 1. Have personal knowledge of the matter. 2. Declare he will testify truthfully. 1. Infancy Infants are competent if the trial judge determines so according to his capacity and intelligence. 2. Insanity May testify, provided he understands the obligation to be truthful and has the capacity. 3. Judges/Jurors Presiding judge and witness are incompetent to testify before the jury in which they are sitting. Rule In a civil action, an interested party may not testify against a dead party, or about communications or transactions with a dead party. Interested Party: Only if the outcome will have a legally binding effect on the person s rights or obligations. Federal Application: Although the FRE doesn t have a Dead Man s statute, the MBE may still test on it by telling you in the question that the case arises in a state with one. The dead persons rights may be waived if: 1. The decedent s representative does not object. 2. The decedent s representative testifies about the transaction. 3. The decedent s testimony is introduced. The NY Dead Man s statute is similar to the rule in most other states but with one important exception. Accident Exception: In an accident case on negligence, the surviving party may: y Testify about facts surrounding the accident (what the decedent did), but y May not testify about what the decedent said. Ex: P sues D s estate after auto accident. D died shortly after. The P may testify that immediately after the accident D staggered as she approached. But, P may not testify that D said so, sorry this was all my fault. Look at anything to refresh, but can t read directly from it. W may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.

Waiver of the Dead Man s Statute

NY Wrinkle on the Dead Man s Statute

Present Recollection Revived (Refreshing Recollection)

Past Recollection Recorded (Recorded Recollection)

If refreshing fails, may read the writing directly into evidence if a proper foundation is laid. Foundation for Past Recollection Recorded 1. W had at one time personal knowledgeof the facts 2. Writing was made by witness, under her direction, or adopted by witness. 3. Writing was timely made when the matter was fresh in W s mind. 4. Writing is accurate. 5. Witness has insufficient recollection to testify fully and accurately. Inspection & Use on Cross: Adverse party is entitled to have the writing produced at trial, to cross-examine the witness on the writing, and introduce portions relating to the witness s testimony into evidence. Present Recollection Refreshed Past Recollection Any writing can be used, including Recorded Only a writing that meets 5 foundational photos. requirements may be used. Witness cannot read from the writing while testifying. The writing itself is read into evidence.

Past Recollection Refreshed vs. Past Recollection Recorded

General Rule for Opinion Testimonyof Lay Witnesses

This is hearsay, but falls within a specific exception There is no hearsay problem, because to the hearsay rule. the writing is not offered into evidence. RULE: Opinion testimony of lay witnesses is inadmissibleunless the testimony is regarding: 1. The general appearance of condition of a person. 2. The state of emotion of a person 3. Matters involving sense recognition 4. Voice or handwriting identification 5. The speed of the moving object 6. The value of his own services 7. The rational or irrational nature of another s conduct 8. Intoxication of another. Law Testimony is NOT Admissible: In general and with regard to whether one acted as an agent or whether an agreement was made. An expert may state an opinion or conclusion, provided: 1. The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact (i.e. it s relevant and reliable). 2. The witness is qualified as an expert (i.e. posses special knowledge, skill, experience, training, or education). 3. The expert possesses a reasonable probability regarding his opinion, and 4. The opinion is supported by a proper factual basis. 1. Personal observation 2. Facts made known to the expert at trial 3. Facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field. An expert may render an opinion as to the ultimate issue in the case. Except in a criminal case where the D s mental state is an essential element of the crime or defense, an expert may not state an opinion as to whether the accused did or did not have the mental state in issue.

General Rule for Opinion Testimony from Expert Witnesses

Proper Factual Basis for Expert Opinion

Exception to the Admissibility of Expert Opinion

Expert Cross Examination on Text and Treatises

Expert may be cross-examined concerning contents of any publication established as a reliable authority. Texts can be used to not only impeach experts but also as substantive evidence subject to the following limit: 1. An expert must be on the stand when an except is read from a treatise; and 2. The relevant portion is read into evidence but is not received as an exhibit. Scope 1. The scope of direct examination, including all reasonable inferences that may be drawn from it 2. Testing the credibility of the witness. Collateral Matters General rule is that cross-examiner is stuck with whatever answers the witness gives him. But, certain recognized matters of impeachment (bias, interest, or a conviction) may be developed by extrinsic evidence because they re sufficiently important. Impeachment means the casting of an adverse reflection on the veracity (character for truthfulness) of the witness. y May Not Impeach on Collateral Matters: Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statement untrue by extrinsic evidence or by prior inconsistent statement. Impeachment By Prior Inconsistent Statements: The witness has made statements inconsistent with his present testimony. The statement must be relevant to some issue in the case. Means of Proof 1. Cross Examination 2. Extrinsic Evidence (if not a collateral matter) Foundation: Witness must be given an opportunity to explain or deny the inconsistent statement. y Exception: Inconsistent statements by hearsay declarants may be used to impeach despite the lack of foundation. y Exception: When justice requires (witnesses unavailable when inconsistent statement is discovered). Prior Inconsistent Statements & Hearsay: Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes. If however, the statement was made under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence. Bias or Interest for Impeachment: Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. Means of Proof 1. Cross Examination 2. Extrinsic Evidence Foundation: y Witness must be asked on cross-examination about facts showing bias or interest before extrinsic evidence is allowed. y If these facts are admitted on cross-examination, admissibility of extrinsic evidence is within the court s discretion. y Tip: Watch for facts indicating that the foundation requirement for extrinsic evidence of bias or interest has been fulfilled. Evidence that is otherwise inadmissible (e.g. arrests, liability insurance) may be introduced if relevant for these impeachment purposes, provided the proper foundation is laid.

Cross-ExaminationScope Restrictions

Impeachment Defined

Prior Inconsistent Statements for Impeachment

Bias or Interest for Impeachment

Conviction of a Crime for Impeachment

Rule: A witness may be impeached by proof of a conviction (arrest or indictment is not enough) for certain crimes. A pending appeal or review doesn t affect the availability for impeachment. Types of Crimes Allowed to Use for Impeachment y Crimes Involving Dishonesty (No Discretion to Court): Any crime requiring an act of dishonesty or false statement. y Felonies Not Involving Dishonesty (Discretion): A witness may also be impeached by any felony that does not involve dishonesty but the court has direction not to allow it if: o Witness is Criminal D + Prosecution Can t Meet 403 Burden: Witness being impeached is a criminal defendant and the prosecution has not shown that the conviction s probative value outweighs its prejudicial effect. o All Other Witnesses + Court Does 403 Balance: In the case of all other witnesses, the court determines that the conviction s probative value is substantially outweighed by its prejudicial effect. y Juvenile Delinquency, Remote, or Defective Convictions: Never are admissible. Means of Proof 1. Cross Examination 2. Extrinsic Evidence Foundation: None required Prior Bad Acts: A An act of misconduct can only be asked about in good faith and only if it is probative on the issue of truthfulness (i.e. is an act of deceit or lying). Means of Proof 1. Cross ExaminationOnly: A specific act of misconduct, used to attack veracity (not propensity) can be elicited on cross, only. Foundation: None required. Arrests vs. Bad Acts: Asking about specific instances of misconduct does not include asking about arrests. An arrest in and of itself is not a bad act.Ex: You can ask if witness embezzled $, but not if he was arrested for embezzlement. Opinion or Reputation for Truthfulness: A witness may be impeached by showing that he has a poor reputation for truthfulness. y Includes reputation in business circles and in the community. Also includes personal opinion or reputation. y NY Wrinkle: Reputation only, not opinion. Means of Proof 1. Calling Other Witnesses Foundation: None required. Means of Proof: 1. Cross Examination 2. Extrinsic Evidence Foundation: None required.

Prior Bad Acts for Impeachment (Specific Instances of Misconduct)

Opinion or Reputation Evidence for Truthfulness for Impeachment

Sensory Deficiencies for Impeachment

Impeachment of Hearsay Declarant

Impeaching Someone Not Testifying: The credibility of someone who does not testify but whose out-of-court statement is admitted may be attacked (and supported by evidence that would have been admissible had the declarant testified as a witness. No need to give opportunity to the declarant to be given the opportunity to explain or deny the statement. Party against whom the statement was offered may call the declarant and cross-examine him on the statement. Once a witness has been impeached, may rehabilitate by: 1. Explanation on Redirect 2. Good Reputation for Truthfulness 3. Prior Consistent Statement Federal 1. Attorney Client 2. Husband Wife 3. Clergy penetant 4. Psychotherapist Patient 5. (In Most jurisdictions) doctor-patient NY: All of the privileges above, plus . . . 1. Social worker client 2. Reporter source General Rule: Apply the federal rules of evidence. Exception Diversity Cases: In federal diversity cases (where state law will govern the substantive claims), still apply the federal rules of evidence, but apply state law with respect to: 1. Burdens of Proof 2. Dead Man s Statute 3. Privileges Most privileges have four general requirements: 1. Communications a. Communications do NOT Include i. Underlying information ii. Pre-existing documents iii. Physical evidence 2. Between members of a status relationship 3. When the communicated is intended to be confidential. 4. And sometimes only when made for a specific purposes

Rehabilitation

Recognized Testimonial Privileges Federal & NY

Federal vs. State Laws for Testimonial Privileges

General Principles Governing Privileges

Waiver of Privileges & Exceptions

Losing the Privilege 1. Voluntary (Explicit Waiver): Only the privilege holderhas the power to waive the privilege (because they own it). 2. Subject Matter Waiver: A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if: a. The partial disclosure is intentional, and b. The disclosed and undisclosed communications concern the same-subject matter, and c. Fairness requires that the disclosed and undisclosed communications be considered together. 3. Failure to Claim: Failure to claim privilege waives it. 4. Waiver by Contract: Privileges may be waived by contract. Exceptions 1. Inadvertent Waiver: Privileged is not waived if it is done with no fault on the part of the privilege owner. This may happen because there was a. Eavesdroppers b. Someone wrongfully waives the privilege. 2. Future Crime or Fraud: Example the client tells the attorney Help me make these bribes look like business expenses. 3. Holder Puts the Content in Issue: Ex, D is in a tax fraud case claims that her attorney told her to do it; patient in a personal injury suit puts her physical condition into issue. Elements 1. Confidential Communication 2. Status: Client and attorney 3. Purpose: Communication is for the purpose of obtaining legal advice. Definitions 1. Attorney: Includes a member of the bar, as well as a. Someone the client reasonably believes is a member of the bar, and represents as such. b. Any agent reasonably necessary to facilitate the provision of legal services (eg. Paralegals, translators, investigators, and accountants, if they are helping the attorney provide legal services). 2. Client: Includes a person seeking to become a client. 3. Confidentially: Client must intend confidentiality, so there is no confidentiality when: a. The client knows a third party is listening b. The client asks the attorney to disclose to a third party 4. Joint Client Rule: If two or more clients with common interest consult the same attorney, their communications concerning the common interest are privileged as to third parties. a. Limit: If they later have a dispute with each other concerning the common interest, the privilege does not apply as between them. Elements: 1. Confidential Communications and information 2. Status: doctor and patient 3. Purpose: Medical Treatment Special Considerations 1. Broad Construction of Doctor Includes therapists, nurses, and doctor s assistants. a. NY Wrinkle: Also includes social workers, dentists, podiatrists, and chiropractors. 2. Scope: Extends to include information acquired by the doctor (like tests results and observations) in addition to communications from the patient. 3. Psychotherapists: a. Federal: Covers only psychotherapists. b. For the Bar: Apply doctor patient unless specifically told you re in federal court.

Attorney-Client Privilege

Doctor-Patient Privilege

Marital Communications Privilege

Application: Civil and criminal, communication only (as opposed to the substance of the communication). Elements 1. Confidential communications 2. Between married spouses 3. For the purpose of anything Rationale: To encourage frank and open discussion among spouses. Who Owns the Privilege: Either spouse may invoke the privilege, meaning that it can be waived only by both spouses. Application: Criminal cases only (no criminal cases), testimony against the spouse. Federal Rule: In a criminal case, the prosecution cannot compel the D s spouse to testify against the D. y NY: Not recognized in NY. Rationale: To protect marital harmony. Elements: 1. Applies only to criminal cases. 2. Covers only testimony against the spouse. 3. So long as witness and defendant are currently married. 4. May be waived by the witness spouse. Exceptions: Applicable to both spousal immunity and confidential communications privileges. 1. In furtherance of future crime or fraud 2. Acts those aredestructive to the family unit. Example: He told me he had a gun. If offered to show that he really had a gun, it is hearsay. y Hearsay, Defined: A statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. y Hearsay is NOT Admissible: If a statement is hearsay and no exception to the rule applies, the evidence must be excluded upon appropriate objection. y Rationale for Rule: The adverse party has no opportunity to cross the declarant. For the purposes of the hearsay rule, a statement is: 1. An oral or written assertion, or 2. Non-verbal conduct intended as an assertion (nod of the head).

Spousal Immunity (Spousal Testimonial Privilege)

Hearsay Rule (Rule 801)

Statement, Defined (for Hearsay Rule)

Four Principal Categories of Non-Hearsay Purposes

Key Question When Determining Hearsay Out of Court Statements Not Hearsay Under the Federal Rules (3)

Impeachment: Prior statement offered to show that the witness has been inconsistent, without necessarily being offered to prove the truth of the prior statement. a. Limit: BUT, if the purpose of the prior statement is being offered to prove the truth of the matter than it is inadmissible hearsay. b. Example: W testifies for P that he saw the Dodge run the red light. Evidence that W told police a few days after the accident that it was actually the Pontiac that ran the red light. 2. Verbal Acts: Words with independent legal significance(when the law attaches rights and obligations to certain words simply because they are said) will not be hearsay. a. Types of Verbal Acts: i. Words of offer, repudiation, and cancellation of contract. ii. Words that have the effect of making a bribe. iii. Words that are themselves an act of perjury or a criminal misrepresentation or a defamation. b. Example: P s complaint alleges newspaper libeled him. P s introduction of the newspaper article saying that P stole a car. Admissible because libel is a verbal act with legal significance. Admissible verbal acts, not hearsay. The purpose is to show the words were said, not whether or not they re true. c. Example: To prove that P had permission to drive to Student s car, may P testify over a hearsay objection: As student handed me the keys to his car he said You may drive my car to Buffalo this weekend. Admissible verbal acts, not hearsay. The purpose is to show they had an agreement, they have legally operative effect. 3. To Show Effect on Person Who Heard Or Read Statement: If a statement is relevant simply because someone heard it or read it, it is not hearsay. Ex, to show that someone had notice or that someone had a reasonable belief. a. Example: P sues after slipping on a banana peel in supermarket. Witness testimony: Several minutes before P fell, I heard another shopper tell the manager there was a banana peel on the floor. This is admissible non-hearsay, offered to show the notice on manager, not that the banana was actually on floor. 4. Circumstantial Evidence of Speaker s State of Mind: Statement that unintentionally reveals something about the speaker s state of mind is not hearsay. Ex, statements demonstrating insanity, lies that demonstrate a consciousness of guilt, questions that demonstrate a lack of knowledge. a. Example: D is charged with murder and he claims insanity. W for defense testifies that two days before the killing, D said I am Elvis. It s good to be back. This is admissible non-hearsay because the purpose is to reflect state of mind, not whether he is truly Elvis. Ask yourself: does it matter if the declarant is telling the truth? If the answer is no, then it is not hearsay, because we don t really care about the declarant s credibility.This should get you to the purpose for which the statement is being offered. 1. Prior Statement By Witness 2. Admissions by Party Opponents 3. Vicarious Admissions 1.

Prior Statement By Witness Hearsay Rule

Admissions by Party Opponent Hearsay Rule

Vicarious Admissions Hearsay Rules

Hearsay Exceptions Unavailability Required (5)

Rule: Under FRE, prior statement by a witness is not hearsay if: 1. (Not in NY)The prior statement is inconsistent with the declarant s in-court testimony and was given under oath in a formal proceeding. Note, police statements are never formal proceedings. a. Example: W testifies at deposition that the light was green. At trial, W testifies that the light was red. May counsel introduce evidence of the deposition testimony? i. FRE: YES, for BOTH impeachment purposes, AND for the substantive content under the prior statement by witness exception. ii. NY: YES for impeachment. No for substantive matters. 2. (Not in NY) The prior statement is consistent with the declarant s in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive (and the statement as made before any motive to lie or exaggerate arose); or 3. The prior statement is one of identificationof a person made after perceiving him. a. NY Distinction: Hearsay exception for prior statements of identification applies only to criminal cases. Rule: Admissions of a party opponent are not hearsay under the Federal Rules. To be an admission, the statement need not have been against the declarant s interest when made, and may even be in the form of an opinion. Rationale: You say it, you re stuck with it. Example: D charged with tax evasion in 2004. To prove it, P offers into evidence a loan application D submitted to bank in 2004. D objects that the loan application, which was filled out with inflated numbers, was self-serving and unreliable. This is admissible hearsay because it is an admission by a party opponent. 1. Co-Parties Admissible of co-parties are not receivable against other co-parties merely because they happen to be joined as parties. 2. Authorized Spokesperson The statement of a person authorized to speak on its behalf can be admitted against the party as an admission (e.g. statement by a company s PR firm). 3. Agents Statements by an agent concerning a matter within the scope of the agency, made while the relationship exists, are not hearsay and may be admitted. 4. Co-Conspirators Admissions of one conspirator, made to a third-party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. a. Limit Testimonial admissions of a conspirator are admissible against another conspirator only if there was an opportunity to cross examine the hearsay declarant. 1. Former Testimony: Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony. 2. Statement Against Interest: Statement against declarant s pecuniary, proprietary, or penal interestwhen made. 3. Dying Declaration: Statement made while declarant believed death was imminent, concerning the cause of circumstances of impending death. 4. Statement of Personal or Family History: Statement of personal or family history (e.g. birth, death, marriage) made by a family member or one intimately associated with the family. 5. Statement Offered Against Party Procuring Declarant s Unavailability: Statement of unavailable declarant offered against party who procured declarant s unavailability.

Unavailability Definition (Grounds) for Purposes of Hearsay Rule

Former Testimony Exception to Hearsay

Statement Against Interest Exception to Hearsay

Dying Declarations Exception to Hearsay

Statements of Personal Family History Exception to Hearsay

Statements Offered Against Party Procuring Declarant s Unavailability Exception to Hearsay (Forfeiture by Wrongdoing)

Grounds of Unavailability 1. Privilege 2. Absence from Jurisdiction 3. Illness or Death 4. Lack of Memory (NOT NY) 5. Stubborn Refusal to Testify (NOT NY) Additional NY Grounds 1. Declarant is 100+ miles from the court. 2. Declarant is a doctor. Prerequisite: Unavailability Rule: Testimony of now unavailable witness, from prior hearing or deposition, is admissible if: 1. Party against whom the testimony is offered or (in a civil case) the party s predecessor in interest was a party in the former action. 2. Former action involved the same subjection matter (though need not be identical COA). 3. Testimony was given under oath; and 4. Party against whom testimony is offered had opportunityand similar motive at prior hearing to develop the declarant s testimony. Rationale: If the line of questioning already occurred, and we can t get the live witness, then we d rather have the transcript from that as opposed to nothing. Grand Jury Testimony Not a Hearing Because they do not provide opportunity for cross. NY Distinction: Additional Requirements: (1) Criminal Trial Only; (2) Hearing on felony complaint or a conditional deposition; (3) D and charge must be the same. Prerequisite: Unavailability Elements: Statements and collateral facts contained in the statement are admissible if: 1. Statement is against declarant s pecuniary, proprietary, or penal interest. 2. Statement was against declarant s interest when made. 3. Declarant had personal knowledge of the facts. 4. Declarant knew the statement was against her interest when she made it. Extra Elements in Criminal Cases: When a criminal D wants to show innocence by introducing another s statements admitting the crime, corroborating circumstances indicating the trustworthiness of those statements are required. Limit: Covers onlyremarks implicating declarant, not the whole conversation. Prerequisite: Unavailability. Elements: A statement made by a now unavailable declarant is admissible if: 1. In a homicidecase (civil or criminal), 2. The declarant believed his death was imminent (even if he survives); and 3. The statement concerned the cause or circumstances of what he believed to be his impending death. NY Wrinkle: Only criminal homicide cases (Cf. FRE, which allows in civil cases too). Prerequisite: Unavailability Elements: Statements by a now unavailable declarant are admissible if 1. Statement concernsbirths, marriages, divorces, relationships, genealogical status, 2. The declarant is a member of the familyin question or intimately associated, and 3. Statements based on personal knowledge of the facts or knowledge of family reputation. Prerequisite: Unavailability Elements: A declarant s out of court statement may be offered against a party who: 1. Intentionally, and 2. Wrongfully 3. Making (or acquiescence thereof) the declarant unavailable. 4. Intent must be specifically to prevent witness from testifying. NY Distinction: Burden of Proof Regarding Party s Wrongdoing 1. FRE: Preponderance 2. NY: Clear & Convincing

List of Hearsay Exceptions When Declarant s Availability is Immaterial (12)

(1) Present State of Mind Exception to Hearsay

(2) Excited Utterance Exception to Hearsay

(3) Present Sense Impression Exception to Hearsay

(4) Statement of Then-Existing Mental, Emotional, or Physical Condition

1. Present State of Mind 8. Ancient Documents & Property Docs 2. Excited Utterances 9. Learned Treatises 3. Present Sense Impressions 10. Reputation 4. Declarations of Physical Condition 11. Family Records 5. Business Records 12. Market Reports 6. Past Recollections Recorded 13. Statements Made to Obtain Medical Care 7. Official Records & Other Official Writings A statement of a declarant s then-existing state of mind, emotion, sensation, or physical condition is admissible. It is usually offered to establish a person s intent or as circumstantial evidence that the intent was carried out. Except as to certain facts concerning the declarant s will, however, a statement of memory or belief is not admissible to prove the truth of the matter. Elements: 1. The statement concerns a startling event 2. And was made while the declarant was still under the stress caused by the event 3. Rationale: Speaker is too freaked out to lie. Excited Utterance Factors 1. Traumatic Event 2. Relatively Short Passage of Time 3. Verbal Clues (exclamations, yelling, etc.) What it Is: Comments made concurrently with the sense impression of an event that is not necessarily exciting may eb admissible. Elements: 1. The statement describes an event, 2. And is made while the event is occurring, orimmediately thereafter. 3. Rationale: Contemporaneousness declarant has no time to fabricate. 4. NY Distinction: Requires corroborating evidence. Example: D on trial for stealing from P s garden. P testifies that on the day of the robbery, his neighbor called and said, I m looking out my window, and I m watching D take your prized tomatoes. Admissible hearsay because it is a present sense impression. Elements: This exception allows admission of: 1. A contemporaneous statement 2. Concerning the declarant s then existing a. Physical condition, or b. State of Mind (includes emotions, mental feelings, intent or future plans). 3. Does NOT Include: Statements of memory about a past condition. 4. Does Include: Statements of future plans. NY Distinctions: 1. Physical Condition to Layperson: Declarant must be unavailable if it s a statement about a physical condition made to a layperson (and not a doctor). 2. Future Intent to Prove Conduct of Third-Party: If a statement of future intent is offered to prove the conduct of a third person, New York requires: a. Corroboration (of the connection between the declarant and the third person ), and b. That the declarant is unavailable. Example: P s estate sues D life insurance company for nonpayment of proceeds upon P s death. Defense is suicide. D seeks to introduce a note found in P s apartment in which she said: 1. I was sad. Inadmissible because it is a statement of a memory of a past condition. 2. I am sad. Admissible under then-existing emotional condition b/c it s contemporaneous. 3. Next week, I m going to end it all. Admissible because it is a statement of a then-existing future plan.

(5) Business Records Exception to Hearsay

Hospital/Nurse Example of the Business Records Exception to Hearsay

Laying the Foundation for Business Records & Official Records (Exception 5 & 7)

(6) Past Recollection Recorded Exception to Hearsay

Elements: Allows admission of: 1. Records of a business (any type, including public agencies) 2. Made in the regular course of business (i.e. is germane to the business or relates to what the business does). 3. Where the business regularly keeps such records 4. Made contemporaneously with the event recorded, and 5. The contents consists of a. Information observed by the employee of the business, or b. A statement that falls within some other hearsay exception. Caution Police Reports: While police reports may qualify as business records under some circumstances, remember that witnesses are not under a business duty to convey information to the police. If this information doesn t get in here, try public records hearsay exception. Example: Pedestrian sues driver for recklessly running him down. At trial, P seeks to introduce the report of the officer, who arrived at the scene 10 minutes after the accident. The report states: 1. Upon arrival, I measured the skid marks 50 feet in length. Admissible as a regular business record, made in the regular course of business, observed by the employee, contemporaneously with the event. 2. Another officer, who witnessed the accident, told met that Driver was driving nearly 60 miles per hour. Police Officer A Police Officer B Report. Admissible as a regular business record, made in the regular course of business, observed by the employee contemporaneously with the event. 3. Bystander told me, I saw the accident and Driver ran through the stop sign. Bystander Officer Record. Inadmissible because the bystander is not an employee of the business. 4. Driver told me, I didn t see the stop sign. Driver Police Officer Report. Inadmissible as a business record because the driver isn t a police officer, BUT gets in as a statement against interest. P taken to ER and treated by nurse. P sues D for negligence as cause of accident. D seeks to introduce hospital record in which the nurse made the following notations immediately after examining the P: 1. Slight bruises on arms and legs. Nurse Report. Admissible as business record exception to hearsay rule. 2. Patient says she feels no pain. P Nurse Report. P to nurse is germane to medical treatment so it gets in under that exception to hearsay. Nurse to report gets in as business record exception. 3. Patient says she ran a red light. P Nurse Report. Inadmissible. This is a party admission but it is not germane to medical treatment so it doesn t qualify for the exception. Two Methods to Lay Foundation for Business Records: 1. Live Testimony: Call a knowledgeable witness who can testify to the five elements of the business records hearsay exception (called a custodian of records). 2. Affidavit: Submit a written certification under oath attesting to the elements of business records hearsay exception. NY Distinction: Written certification may be used only in civil cases and only for the business records of a non-party. If a witness s memory cannot be revived (by refreshing), a party may introduce a memorandum that the witness made at or near the time of the event. The writing itself is not admissible, it must be read to the jury.

(7) Official Records/Official Documents Exception to Hearsay

Types of Official Records/Public Documents (4)

(8) Ancient Documents Exception to Hearsay

(9) Learned Treatises Exception to Hearsay

(10) Reputation Evidence Exception to Hearsay

(11) Family Records Exception to Hearsay (12) Market Reports Exception to Hearsay

Federal Elements: 1. In addition to observations by employees of the public agency, may also include a. The conclusions made by public employees after an official investigation. i. Ex: Police officer s conclusion about fault in an accident report. 2. Caution Police Reports: Police reports that do not qualify as business records may be admitted as an official record. Even officer s opinion and non-legal conclusions are admissible under this exception. BUT: a. Police report may NOT be offered against a criminal defendant, and b. Statements of others within the report will be excluded unless they can get in under another hearsay exception. NY Distinction: Rarely applies the public records exception to the hearsay rule. Example: Pedestrian sues driver for recklessly running him down. At trial, P seeks to introduce the report of the officer, who arrived at the scene 10 minutes after the accident. The report states: Cause of accident: Driver s excessive speed and failure to yield right-ofway. Admissible because it is a conclusion about fault in a civil case. This is admissible in the federal courts, though would likely be inadmissible in NY. 1. Police Reports (see above) 2. Records of Vital Statistics: Admissible if the report was made to a public officer pursuant to requirements of law. 3. Statement of Absence of Public Record: Testimony from the custodian of public records that she has diligently searched and failed to find a record is admissible to prove the matter was not recorded, and inferentially that the matter did not occur. 4. Judgments: A certified copy of a judgment is always admissible proof that a judgmenthasbeenmade. a. Felony Conviction Admissible: Felony conviction judgments are admissible in criminal and civil actions to prove any fact essential to the judgment. i. Limit: In a criminal case, only used for this purpose against the accused and it may not be used for impeachment purposes against other witnesses. b. Prior Criminal Acquittal Excluded: The exclusionary rule is still applied to records of prior acquittals. c. Judgment in Former Civil Cases Inadmissible: Inadmissible in a subsequent criminal proceeding and generally inadmissible in subsequent civil proceedings. Elements: Admissible if it is authentic. Authenticity is inferredif the document: 1. Is at least 20 years old. 2. Is facially free of suspicion. 3. Is found where one would expect it to be found. 4. As are documents affecting an interest in property, regardless of age. NY Distinction: Document must be 30 years old. Elements: Admissible as substantive proof if: 1. Called to the attention of, or relied upon by an expert witness; and 2. Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice. Elements: Admissible under several exceptions to the hearsay rules, as evidence of: 1. Character 2. Personal or family history 3. Land boundaries, and 4. A community s general history. Statements of fact concerning personal or family history contained in family Bibles, jewelry, engravings, genealogies, tombstone engravings, are admissible. Market reports and other published compilations are admissible if generally used and relied upon by the public or by persons in a particular occupation.

(13) Statements for Medical Treatment or Diagnosis

Catchall Federal Exception to Hearsay Rules

Confrontation Clause Issues for Former Testimonial Evidence Against Criminal Ds

Preliminary Determinations of Admissibility (Judge s Role vs. Jury s Role)

Judge s Discretionary Powers/Obligations Throughout Trial

Accused Testimony Effect on Right Against SelfIncrimination

Elements: Allows the admission of a statement: 1. Made for the purpose ofdiagnosis ortreatment. 2. Concerningpresent Symptoms, past Symptoms, orgeneral cause of medial condition. 3. But NOT statements of fault or of the wrongdoer s identity. Rationale: Patients have an incentive to be honest and accurate to get good medical care. NY Distinction: Does not apply to statements made solely for obtaining experttestimony. Elements: For a hearsay statement that is not covered by a particular exception, under the FRE it still may be admitted if: 1. That the hearsay statement possesses circumstantial guarantees oftrustworthiness. 2. That the statement be strictly necessary, and 3. That noticebe given to the adversary as to the nature of the statement. Elements: Because the use of hearsay evidence in a criminal case may violate the Confrontation Clause of the 6thAmendment, prior testimonial evidence against a criminal defendant is inadmissibleUNLESS: 1. The hearsay declarant is unavailable, and 2. D had opportunity to cross-examine the declarant at the time the statement was made Waiver: D forfeits his right of confrontation if he committed a wrongful act that was intended to keep the witness from testifying. Application: Additionally, hearsay rules and other exclusionary rules cannot be applied where such application would deprive the accused of her right to a fair trial or deny her right to compulsory process. Generally: existence of preliminary or foundational fact is an essential condition to the admissibility of proffered evidence. Judge s Job vs. Jury s Job: 1. Jury: Makes preliminary determinations of relevancy of proffered evidence. a. Agency b. Authenticity of a document c. Credibility of a witness d. Personal knowledge 2. Judge: Preliminary facts decided by the judge involve competency of relevant evidence. a. Requirements for hearsay exceptions b. Privileges c. Expert Testimony d. Mental Competence What Evidence Judge May Consider When Making Preliminary Competency Findings: Trial judge is able to consider anyrelevant evidence even if it is not otherwise admissible. 1. Limit: However, most state courts hold that the rules of evidence apply in preliminary fact determinations as much as in any other phase of trial, thus judges may only consider evidence that is otherwise admissible. 2. Presence of Jury: Whether or not the jury should be excused during the preliminary fact determination is generally within the discretion of the trial judge. 1. Judge may comment on the weight of evidence in federal court but not in state court. 2. Judge may call and interrogate witnesses on her own initiative. 3. A trial judge has an obligation to rule promptlyon counsel s evidentiary objections, and, upon request, state the grounds for her rulings. 4. A judge will restrict evidence to its proper scope and instruct the jury accordingly. Rule: An accused may testify on any preliminary matter (ex, circumstances surrounding an allegedly illegal search) without subjecting herself to testifying at trial.