EVIDENCE OUTLINE

Trials are not about the truth they are about the evidence. Evidence: (CA defn) testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. Evidence includes all the information given to the trier of fact during trial, except for the questions and statements made by the attorneys and judges. 6 Types of Courtroom Evidence 1) Oral Testimony: Oral testimony by witnesses speaking from the witness stand. o 3 Types of Witnesses: 1) Fact Witnesses People who perceived facts related to the lawsuit and testify about those facts. A fact witness may testify about facts even if they do not fit w/in the colloquial concept of being an eyewitness. 2) Expert Witnesses People who use specialized knowledge to interpret evidence or explain it to the jury. Parties sometimes introduce expert testimony to explain the weight of other evidence. Expert witnesses to NOT need to have any firsthand knowledge about the controversy in question. 3) Character Witnesses People who offer information about the good or bad character of a party or witness. Do NOT testify to the facts at issue in the lawsuit. 2) Real Evidence: any physical evidence that a party claims played a direct role in the controversy. o Real evidence must be authenticated meaning the proponent must offer some proof that the piece of physical evidence is what he/she claims it to be. o A video, photo or audiotape may be real evidence if it depicts the events of the controversy. 3) Documentary Evidence: any type of writing or recording of information. o Must be authenticated by the proponent, b/c docs are a subcategory of real (physical) evidence. 4) Demonstrative Evidence: Not an object that played a role in the disputed events. Evidence created by the parties to illustrate concepts or facts to the jury. o A video, photo or audiotape may be considered demonstrative if used to illustrate an aspect of the dispute. 5) Stipulations: Facts both parties agree to be true for purposes of the litigation. Both parties must agree to the exact language of the stipulation. 6) Judicial Notice: The judge can take judicial notice of a fact that must either be generally known or capable of accurate and ready determination by consulting an unimpeachable source. (FRE 201) Circumstantial Evidence: Any evidence that requires the jury to make an inference connecting the evidence w/ a disputed fact. Proof of a chain of facts and circumstances indicating the existence of a fact. Where do the FRE apply? FRE 101: Scope 1

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o These rules govern proceedings In the courts of the United States and b/f the US bankruptcy judges and US magistrate judges to the extent and w/ the exceptions stated in FRE 1101. Do not apply to the Supreme Court or to Administrative Agencies. However, the IRC directs the Tax Court to apply the FRE to certain proceedings.

When do the rules apply? The FRE only applies to the trial. FRE 1101(d) Rules inapplicable. The rules (other than w/ respect to privileges) do not apply in the following situations: o 1) Preliminary questions of fact - The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104. o 2) Grand Jury - Proceedings b/f grand juries. o 3) Miscellaneous proceedings Proceedings for extradition or rendition; Preliminary examinations in criminal cases; Sentencing, or granting or revoking probation; Issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings w/ respect to release on bail or otherwise. FRE 1101(b) rules of evidence to not apply when a court exercises its summary contempt power. FRE 1101(c) Rule of privilege The rule w/ respect to privileges applies to ALL stages of all actions, cases and proceedings. Structure of a Trial 1) Pretrial Motions o Motion in limine Whether or not information is admissible under the FRE. 3 tactical advantages to using MIL 1) Knowing ahead of time what evidence will be admitted and what will be excluded can help an attorney plan trial strategy. 2) Allow the attorneys to make more lengthy and sophisticated legal arguments. 3) Jurors are not aware of the motions. o Motion to suppress Not that the evidence violates the FRE, but that it was illegally obtained. o Motion for Summary Judgment There is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. 2) Jury Selection voir dire. 3) Opening Statements (like a movie trailer) o Framing the evidence and give it context. Party w/ the burden of proof goes first. 4) Plaintiffs/Prosecutors Case-in-Chief o At the close of the s case, the will move for judgment as a matter of law. The judge will grant these motions only if, even after considering the s evidence in the 2

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best possible light, no reasonable jury could find for that side. 5) Defendants Case-in-Chief 6) s Case-in-Rebuttal o rebuts evidence introduced by the defense. may call new witnesses or introduce new evidence only if the evidence is focused on the issues raised by the defense. 7) s Case-in-Rebuttal 8) Further rebuttal and rejoinder 9) Closing (Argument) Statements - can get a rebuttal to the s closing argument 10) Instructing the Jury 11) Deliberation 12) Verdict

OBJECTIONS FRE 103: Rulings on Evidence (a) Effect of Erroneous Ruling Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected... (1) Objection In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; ... (2) Offer of Proof In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. o Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal... (c) Hearing of Jury In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (d) Plain Error Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. Disputing and Defending Evidence - 103 Addresses 4 aspects of evidentiary disputes 1) Raising Objections The process of challenging an opponents evidence Important Points about challenging evidence (FRE 103(a)(1)): o 1) Establishes 2 mechanisms for disputing evidence at trial: Objection A lawyer registers an objection BEFORE the opponent introduces a potentially inadmissible item into evidence. Motion to Strike Occur AFTER disputed evidence has already entered the record. 3

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o 2) Requires parties to challenge evidence in a timely manner. Lawyers must object to evidence as soon as the ground for objection is known or reasonably should be known. Failure to promptly object means the appellate court will NOT consider the evidentiary challenge. Prompt objection also allows the opponents an opportunity to cure any evidentiary defect. o 3) Requires lawyers to state a specific ground for any objection This gives the Judge and the opponent notice about the basis of the objection. Gives the opponent an opportunity to cure. Failure to give a specific ground for an objection means the appellate court will not consider the evidentiary challenge. The lawyer must raise ALL specific grounds for objecting if there are multiple reasons. The lawyer must also designate the portion of a document or witnesss testimony to which he/she objects. Specificity is unnecessary if the basis of the objection is apparent from the context, but the lawyer should always add at least one work or phrase in explanation of the objection. Any grounds not asserted are WAIVED. Putting the Process into Action: o 1) Objection o 2) Motion to Strike (give the portion of testimony you want struck and the reason) o 3) Curative Instruction

2) Defending Evidence FRE 103(a)(2) When one party objects to introduction of evidence, the opponent makes an offer of proof to show the judge what the evidence entails. o The opponent must make the offer of proof or he waives any objection on appeal. o A formal offer of proof is unnecessary if the substance of the evidence is apparent from the context w/in which questions were asked. You must get into record what the evidence would have been for preservation on appeal. 3) Maintaining Objections Once the trial counsel has made a specific and timely objection, and the judge has overruled the objection, the issue is preserved for appeal. You do NOT need to object in a Federal deposition to preserve your right to appeal. However, you must object in a State deposition. You MUST object to questions regarding privilege otherwise you will waive the privilege. Standing or Running objections o Objecting to an entire subject matter or a certain area. You should ask for a standing or running objection that basically says that you object to all questions on that subject matter. This means you dont have to object to every single question. 4) Shielding the Jury FRE 103(c) objections must be conducted in a manner so as to prevent inadmissible evidence from being suggested to the jury. 4

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o If an objection requires further explanation the attorneys will approach the bench to discuss the issue w/ the judge. Response by the Judge Sustain: when the judge agrees w/ an evidentiary objection and excludes the evidence. Overrule: when the judge disagrees w/ an evidentiary objection and admits the evidence. The judge may also admit a portion of the evidence, while excluding other portions. Redact: the judge may ask the party to eliminate portions of the document which violates an evidentiary rule. The judge may direct attorneys to avoid certain topics and questions, but allow a witness to testify on other matters. FRE 105: Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Curative Instruction: If admissible evidence has inadvertently reached the jury the judge tells the jury to disregard the evidence. The judge will sometimes explain why the evidence is misleading or inappropriate to consider. Admission of Evidence for Limited Purposes (FRE 105) o The rules of evidence may permit parties to introduce evidence for one purpose but not for another. o Evidence may be admissible against one party, but not against another. o Limiting Instruction: The judge explains to the jury that the evidence is only to be used for a specific purpose and not another purpose.

On Appeal Appellate courts rarely reverse trial decisions based on evidentiary issues alone for 2 reasons: o 1) appellate courts apply an abuse of discretion standard to most claims of evidentiary error. o 2) An appellate judge is only allowed to reverse a trial decision for evidentiary error if the error affected a substantial right of one of the parties. Meaning there is a reasonable probability that, if the judge had made the correct ruling, the jury would have reached a different verdict. An appellate court may use the substantial right standard when reviewing an evidentiary decision de novo when a trial judge misinterprets a Rule of Evidence or applies the wrong legal standard. Plain Error (FRE 103(d)) o An error that is clear and obvious under current law, ... affects [a partys] substantial rights; and ... would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected.

RELEVANCE FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible 5

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All relevant evidence is admissible, except as otherwise provided o by the Constitution of the US o by Act of Congress o by these rules, or o by other rules prescribed by the Supreme Court pursuant to statutory authority.

Necessary, but not Sufficient - Evidence must be relevant to be admitted, but relevance does not mean it will be admitted. FRE 401: Definition of Relevant Evidence 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 w/o the evidence. 1) Any Tendency to make a fact more probable or less probable o This establishes a very low threshold for relevance. o An individual piece of evidence can be relevant even if it does not conclusively establish any fact on its own. o Any evidence that could shift a fact finders view of the facts even the smallest degree is relevant. 2) Must be a fact of consequence o The fact itself must be related to the cause of action, that is, a fact that matters to someone who is trying to decide the case.

Controversy and Consequence Evidence is relevant even if it addresses a matter that the opponent concedes. Need not be controverted to be relevant. Unrelated Misdeeds (irrelevant) Attempting to influence the jury by introducing evidence that an opposing party engaged in illegal or immoral behavior. Where the evidence is too far removed from the parties dispute in time, place, or other respects. o Under the technical definition of relevance this evidence is relevant. However, we recognize in the law that there is an overwhelming tendency for juries to conclude that people who have had bad behavior in the past, will act badly in the future. Negative Evidence (irrelevant) A lack of evidence that becomes evidence itself. (ex. the dog did not bark) Hindsight (irrelevant) We look to the subjective belief of the person rather than on the actual, objective threat. (ex. deadly force) Opening the Door Irrelevant evidence sometimes becomes relevant to rebut claims made by another party. 6

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This creates a new fact of consequence. Witnesses can also inadvertently open the door in testimony.

Case-by-Case Determination Questions of relevance are determined in the context of the facts and arguments in a particular case. FRE 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of o unfair prejudice, confusion of the issues, or misleading the jury, or by o considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Important elements of FRE 403: May Judges possess considerable discretion under 403. o Judges apply 403 on a case-by-case basis. - Appellate courts rarely reverse 403 rulings b/c they are discretionary. Substantially Outweighed o For the judge to exclude relevant evidence, its unfair prejudice, confusion, or delay must substantially outweigh its probative value. The rule recognizes a firm tilt toward admissibility. Unfair o The most commonly invoked basis for exclusion is that admitting the challenged evidence would cause unfair prejudice. Unfairly Prejudicial Evidence lures the factfinder into declaring guilt [or liability] on a ground different from proof specific to the offense charged. Evidence that will tempt the jury to decide the case on grounds different from those the law demands. Five Factors that frequently influence a judges decision when applying this rule: 1) The extent to which the evidence will arouse emotions or irrational prejudices among the jurors. 2) The extent to which the jury might overvalue the evidence. 3) The strength of the connection b/n the evidence and the elements of the case. 4) Whether the advocate can prove the same facts through less prejudicial or confusing means. 5) Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. Common 403 Scenarios: 1) Damaging Evidence o Evidence that strongly supports the position of one party and damages the other is NOT unfair, it is just persuasive. 2) Videos and Photos 7

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o May be damaging, but not necessarily unfair. o But if a photo or video shows only the effects of the crime, giving no indication of how the crime occurred or who was responsible, the possibility of unfair prejudice is more substantial. o The judge must decide whether the jurors emotional reaction to the devastating effects of a crime will push them to blame the , overlooking any exonerating evidence. 3) Socially Undesirable Behavior o Parties sometimes attempt to introduce evidence of an opponents unconventional lifestyle, hoping the jurors biases will lead them to view the opponent negatively. 4) Flight - Travel has innocent as well as guilty purposes. 5) Stipulations o Old Chief Rule: Trial courts have accepted a s stipulation of felony status in gun possession cases, excluding other evidence of the prior conviction under Rule 403, but have NOT forced the prosecution to accept s stipulations on elements of other crimes. 6) Waste of Time, Undue Delay, and Needless Duplication 7) Bench Trials - Parties do not invoke the 403 evidence is unfairly prejudicial or confusing objection when a judge serves as the fact-finder.

Rules that exclude evidence related to five different subjects: 407 Subsequent Remedial Measures 408 Settlement Negotiations 409 Payment of Medical Expenses 410 Plea Bargaining 411 Insurance Coverage Each of these rules furthers goals of two types: 1) Each rule promotes a socially valuable activity by protecting those who engage in that activity from evidence that might be used against them. 2) Evidence targeted by these rules tends to cause a high degree of unfair prejudice, while contributing little probative value. FRE 407: Subsequent Remedial Measures 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 o negligence, o culpable conduct, o a defect in a product, o a defect in a products design, or o a need for a warning or instruction This rule does NOT require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as o proving ownership, control, or feasibility of precautionary measures, if controverted, or o impeachment. 8

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Evidence that the made such a change is relevant to prove the s case; the change tends to prove a fact of consequence, that the original condition or practice was unreasonably dangerous. However, this evidence causes unfair prejudice that substantially outweighs its probative value. 2 Problems w/ admitting this evidence: o 1) Creates an incentive for the to postpone fixing a condition that injured the , just so that the repair cant be used as evidence at trial. o 2) Juries may give too much weight to evidence of subsequent remedial measures. Admissibility of 407 evidence depends on the purpose for which a party offers the evidence it may be allowed to prove other facts of consequence. The evidence is only inadmissible if it is offered to prove any of the 5 facts listed.

Understanding and applying 407 Timing o Evidence of remedial measures b/n the time the purchased the item and when his/her injury occurred ARE admissible. Only remedial measures AFTER the s injury are inadmissible. o Parties injured after the first-injured may be able to rely upon evidence that is unavailable to the initial . Only excludes evidence of subsequent remedial measures undertaken by a party to the lawsuit. NOT a third partys remedial measures. Other Purposes (If the raising the issue) Ownership or control o If the claims he did not own or control the instrument that injured the may introduce evidence of SRMs as evidence that the did own or control the instrument. Feasibility o When a disputes feasibility meaning it claims it could not have remedied a dangerous situation b/c of economic, physical or other restraints, the can use the s SRM as strong evidence that the measure was feasible. The use of SRM to show these other purpose is only allowed if one of these issues is controverted by the opposing party. Impeachment - The process of discrediting a witness. o A judge is most likely to admit the evidence when: 1) a witness makes a specific representation that conflicts w/ the SRM 2) the witness makes an absolute declaration like the product was perfectly safe, and/or 3) the witness making the statement was personally involved in implementing the remedial measure.

FRE 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 amount of a claim that was disputed as to 9

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validity or amount, or to impeach through a prior inconsistent statement or contradiction: o (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; and o (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 o proving a witnesss bias or prejudice; o negating a contention of undue delay; and o proving an effort to obstruct a criminal investigation or prosecution.

Policy behind 408 To ensure that parties are not inhibited from making offers or statements during the settlement negotiation process. The language defines the reach of 408 broadly in three ways: 1) applies to ALL parties o A party cant offer as evidence its own settlement offer o This includes settlements w/ 3rd parties or other s. 2) offers and acceptances is broad offers, promises, acceptances, offers to accept, promises to accept, and any consideration extended as part of the settlement. 3) the rule protects ALL conduct or statements made in compromise negotiations, not just the operative offers and acceptances. Limits on Rule 408: What is still admissible? 1) For Rule 408 to apply the disagreement b/n parties must have matured into a claim. o A complaint has been filed; or o A party has hired an attorney and threatened to sue. 2) The claim must be disputed as to validity or amount. o If both parties initially agree that liability exists and also agree on the extent of damages, Rule 408 doesnt shield discussions they hold on other matters. 3) Statements or conduct must occur during compromise negotiations. o Factors judges consider when deciding whether a statement occurred during compromise negotiations: 1) Whether the statement was unilateral or occurred during bilateral discussions; 2) Whether either party made a concrete offer; 3) Whether attorneys were involved in the discussions; and 4) Whether the parties used phrases that are commonly used during settlement discussions. 4) 408 excludes statements and conduct made during compromise negotiations ONLY when offered as evidence for one of three purposes: o to prove liability or non-liability o to establish the amount of damages 10

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o to impeach a witnesss prior inconsistent statement. Criminal Cases 408 allows prosecutors and defendants in criminal cases to introduce evidence from one category of civil settlement negotiations When the discussions involved a government agency exercising its regulatory, investigative, or enforcement authority. Purposes where 408 evidence may be admissible To counter an argument that they delayed in pursuing their claim To support a claim that an opposing party engaged in frivolous or vexatious litigation. To show that a witness is biased o Bias Witness has a relationship w/ the party. Impeachment and bias are NOT the same thing. o Impeachment going to show that this particular witness has lied about a particular thing. It may be something at issue in the case or it may just be something you want the jury to see (he lied about this, so he is a liar). It is taking a particular thing the witness has said and show that it is a lie. o Rule 408 does NOT allow evidence of statements made in a conference to impeach a witness. All courts agree that parties cannot shelter preexisting evidence by discussing it during settlement negotiations. Rule 408 does NOT apply to criminal plea-bargaining.

FRE 409: Payment of Medical and Similar Expenses 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. 409 does NOT exclude any other statements that were made contemporaneously w/ the offer. 409 only bars admission of evidence when offered to prove liability. If the evidence is offered to prove some other fact of consequence, the evidence is admissible. The rule does NOT include offers to pay lost wages, to repair a car, or to compensate an injured party for other types of economic or property damage.

FRE 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 defendant who made the plea or was a participant in the plea discussion: o 1) a plea of guilty which is later withdrawn; o 2) a plea of nolo contendere; o 3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either the foregoing please; or o 4) any statement made in the course of plea discussions w/ an attorney for the 11

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prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn However, such a statement is admissible o 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 with it, or o ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

410 Policy and Practice Primarily concerned w/ the case where the conversation happens, but the plea doesnt become finalized. 410 precludes some evidence of offers to plead guilty, as well as statements made during plea bargaining. This is done to advance the social interest in plea bargains and the policy concerns of protecting s who participate in the bargaining process. Prevents juries form hearing unfairly prejudicial information, b/c they are likely to assume that someone willing to plea bargain is guilty. 410 does NOT exclude evidence of FINAL guilty please entered as a result of a plea bargain, b/c these yield a conviction and are of public record. The Opening Language Excludes evidence from BOTH civil and criminal trials 410 precludes this evidence ONLY when introduced against the person who, as a criminal , participated in the plea bargaining process. This allows the to introduce evidence from that process against others. The may introduce protected plea-related evidence, but other parties can not introduce this evidence against the The Prohibitions 1) A criminal who agrees to plead guilty retains complete discretion to withdraw that plea at any time b/f the court accepts it. A can also withdraw a guilty plea after acceptance but b/f sentencing if a fair and just reason exists for withdrawal. 2) No Contest plea (I will not contest the charge) the allows the court to assume guilt for purposes of sentencing, but does not admit guilt for any other purpose. o A nolo contendere plea cannot be used to establish liability by issue preclusion (collateral estoppel) in a civil lawsuit. o allows himself to be criminally punished as if he were guilty, but he does not admit guilt. o NOT admissible 3) protects statements made during a plea bargaining process if that process produced either a withdrawn guilty plea or a plea of nolo contendere. Encompass both the out-of-court bargaining process and any in-court discussion or acceptance of the plea. o All statements that the made as part of the plea negotiation process or during the 12

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aborted court appearance are also inadmissible against the . 4) shields statements made during plea bargaining when no guilty plea results. Limits its protection to plea discussions that occur with an attorney for the prosecuting authority. Only when the bargaining produces a withdrawn plea or no plea.

Exceptions 410 does NOT preclude introducing evidence of a plea bargain that has been entered and finalized. Once a plea is accepted the no longer faces trial on those charges. Protection is no longer necessary. Evidence relating to a plea bargain is inadmissible regardless of the purpose for which it is offered. However 410 does have 2 exceptions. o 1) If a party introduces one statement from a plea bargaining session, another party may introduce additional statements from the same session when fairness requires consideration of those additional statements. o 2) The government may introduce some statements otherwise protected by the rule when necessary to prosecute a for perjury or false statement. What are Plea Discussions? Plea discussions are defined as those that occur with an attorney for the prosecuting authority. o Sometimes there can be enough indicia that the person is speaking w/ authority to make the discussion a plea discussion. Two-tiered approach to analyze if a plea discussion has occurred: o 1) the displayed an actual subjective expectation to negotiate a plea and o 2) that expectation was reasonable given the totality of the objective circumstances. Ask: If you were in this situation would you think this person had the authority to make a deal. Sentencing FRE do not apply to sentencing! Prosecutors can introduced statements from plea-bargaining sessions during the sentencing phase. Waiver Some prosecutors refuse to engage in plea-bargaining unless the agrees to waive his rights under 410 - if the negotiations break down the statements are admissible. Many waivers allow the government to introduce statements made during plea-bargaining even if the does not take the stand at trial. FRE 411: Liability Insurance 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 o proof of agency, ownership or control; or o bias or prejudice of a witness. 13

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For what purpose if the evidence offered? Rule 411 only precludes evidence of liability insurance if it is offered to prove fault. ANY purpose other than proof of liability is permissible under Rule 411 as long as the purpose is relevant to the dispute.

PUTTING A WITNESS ON THE STAND: Qualifying a Witness to Testify To testify in court, a witness must o 1) be competent (601, 605, 606) o 2) have personal knowledge (602); and o 3) take an oath or affirmation (603). Interpreter (604)

FRE 601: General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, w/ respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance w/ State law. The second part of the rule: State law and Federalism o The FRE apply to all civil trials in federal court, whether those claims are based on state law (as in diversity cases) or federal law (as in federal question cases). o This rule carves out a narrow exception to that general principle and acknowledges that competency rules are sometimes interwoven w/ liability principles. o Many states maintain a few exceptions to the modern presumption of competence: Children under a certain age Dead Mans Statutes FRE 605: Competency of Judge as Witness The judge presiding at the trial may not testify in that trial as a witness... No objection need be made in order to preserve the point.

Analyzing Rule 605 Rule 605 also prohibits the judge from offering commentary from the bench that amounts to testimony. Rule 605 similarly prohibits judges from reporting evidence related to experiments they have conducted or visits they have made to a site related to the case. o This is also extended to the judges law clerks and employees. FRE 606: Competency of Juror as Witness 14

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(a) At the trial A member of the jury may NOT testify as a witness before the jury in the trial of the case in which the juror is sitting... If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

Analyzing Rule 606 Can witness outside of the presence of other jurors. Rule 606 does not bar a party asking a juror to appear at a subsequent trial and testify as a witness about something he or she observed in the previous trial. Can Counsel Testify? A lawyer might testify on behalf of the party she represents, or the opposing counsel might call the lawyer to the stand. However, ethical rules limit what the lawyer can testify to. A member of the actual trial team cannot be a witness, but someone else in the same law firm can act as a witness. However, you want to avoid it and you need a waiver.

PERSONAL KNOWLEDGE: FRE 602: Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony... This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. The single most important rule of competency is Rule 602: A witness is required and restricted to that which is of their own personal knowledge. (This is the core concept of hearsay). Capacity to perceive the event and memory or ability to draw upon that information. You must Lay the Foundation to show that the witness has personal knowledge. Sometimes lawyers just assume that b/c a witness is competent, that they have personal knowledge. The single most effective objection is Objection Lack of Foundation. Witnesses can only testify about matters they have seen, heard, or otherwise sensed themselves. They cannot speculate about matters beyond their knowledge. Rule 602 prevents witnesses from testifying to matters that they heard about form others but did not observe firsthand (hearsay). Much of the time, a witnesss own testimony provides the necessary foundation to establish personal knowledge. Sometimes a judge will add commonly known facts to a witnesss testimony to find that the witness has sufficient personal knowledge to testify. Expert witnesses are allowed to offer opinions related to a controversy even if they lack personal knowledge of the underlying facts. 15

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FRE 603: Oath or Affirmation Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness conscience and impress the witness mind w/ the duty to do so.

FRE 604: Interpreters An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

EXAMINING EYEWITNESSES: The process of examining a witness 1) Direct Exam 2) Cross-Exam 3) Redirect Exam 4) Recross Exam 5) Additional Rounds of Redirect and Recross DIRECT EXAMINATION FRE 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 truth, o 2) avoid needless consumption of time, and o 3) protect witnesses from harassment or undue embarrassment. (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. When a party calls a hostile witness, an adverse party, or a witness identified w/ an adverse party, interrogation may be by leading questions. Goal in direct is to get a clear and complete story from the witness. We want to control the flow in which the witness delivers the story through questioning. 1) Leading Questions o A leading question is one that suggests a certain answer to the witness. If a lawyer leads a witness by asking him questions that suggest a particular answer, the witness may give those answers out of deference or confusion. o To identify a leading question, always ask: In this context, does the question suggest a specific answer? 2) Permissible Leading on Direct o 611 gives judges discretion to allow leading questions when that may be necessary to 16

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develop the witnesss testimony. o Four contexts in which judges allow attorneys to lead witnesses on direct examination: 1) To establish pedigree information Educational background and occupation 2) To direct a witnesss attention to a relevant place and time used to shift a witnesss attention to a new chapter of testimony 3) To help a witness who is hesitant, confused, or has trouble recalling Used to get the witness who is embarrassed, nervous, etc. to get back on track. 4) Hostile Witnesses Any witness who is evading questions or otherwise being uncooperative to such an extent that it is interfering w/ the eliciting of testimony. o Why would you want to call a hostile witness? 1) If you call the witness first you get to lead the witness b/f the other side can put the witness on the stand to take the sting out of any bad information. 2) If you call the other sides witnesses in your case-in-chief, the other side will have very few witnesses to put on. This creates the appearance that the defense doesnt really have a case. Other Rule 611 Objections Any objection to the form of a question is an objection based on Rule 611(a). CROSS EXAMINATION FRE 611: Mode and Order of Interrogation and Presentation (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 Ordinarily leading questions should be permitted on cross-examination. Different than Direct in 2 ways: o 1) leading questions are allowed, but o 2) the cross-examiner may ask questions only about issues covered during the direct examination. Cannot ask a question beyond the scope of the direct. The purpose of cross-exam is not to construct a story, as in direct, but to limit or discredit the story told by the witness. 611 qualifies leading questions w/ ordinarily b/c there are instances when leading questions are not allowed on cross. o Ex. If the calls the as a witness, the judge will not allow the s lawyer to use leading questions as freely on cross.

Beyond the Scope This provision makes 3 important points: o 1) Lawyers conducting cross usually cannot ask a witness about topics or incidents that were not addressed during direct. 17

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o 2) The rule gives the judge discretion to expand the scope of cross. But under these circumstances, the cross-examiner must inquire about the new matters as if on direct examination meaning NO leading questions. o 3) Parties are allowed on cross to ask questions affecting the witnesss credibility known as impeaching. Questions related to impeachment are always fair game on cross, regardless of the subject matter of the direct testimony or the number of questions the witness was asked on direct. Redirect Examination Redirect may also be used to rehabilitate the witness whose credibility was called into question on cross. Rehabilitation may include eliciting exonerating details or otherwise combating the negative information. Leading questions should be avoided, but are allowed. Redirect must focus on matters raised during cross. Only use if something came up in Cross that you did not address in your direct. Recross Examination Same rules apply as during cross-examination o the lawyer may use leading questions, but must stay within the scope of the redirect. Only use if something came up in redirect that you did not address in your cross.

FRE 614: Calling and Interrogation of Witnesses by Court (a) Calling by court The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. (b) Interrogation by court The court may interrogate witnesses, whether called by itself or by a party (c) Objections Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

FRE 615: Exclusion of Witnesses At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (they must be included) 1) a party who is a natural person, or 2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or 3) a person whose presence is shown by a party to be essential to the presentation of the partys cause, or 4) a person authorized by statute to be present.

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I wish to invoke THE rule this is the only procedural rule. This danger is especially acute when: o 1) witnesses offer conflicting accounts of an event or o 2) when a partys position depends on persuasive corroborating testimony. The judge has NO discretion. That means if either party makes a request to exclude witnesses, the judge must exclude them from the courtroom. DEFINITION The attorney is drawing inferences or making conclusions that should be reserved for closing argument. These Qs may also constitute harassing the witness, but not necessarily. The attorney has already asked the question and the witness has already answered. These questions include a factual assertion that is imbedded into the question. Cross-examination topic is beyond the scope of direct, OR redirect is beyond the scope of cross. The question is too broad; the witness will tell a story instead of answering a specific questions. The question asks the witness what other people may have been thinking or what might have been happening beyond the realm of the witnesss perception. The question tries to elicit more than one fact at a time. The lawyer is asking the same question repeatedly in different ways, insulting the witness for no purpose, or arguing w/ the witness about his answer. The attorney is pretending to repeat testimony back to the witness as the basis for the next question, but is altering the testimony. The attorney is asking a question that suggests a specific answer. This usually occurs on cross. The attorney who asked the question can object to the witnesss answer as non-responsive, ask the judge to strike that answer, and force the witness to answer the question posed. The question does not give enough detail to allow the witness to respond properly OR a term in the question has an unclear meaning.

Common 611 Objections OBJECTION Argumentative

Asked and Answered Assumes a Fact Not in Evidence Beyond the Scope Calls for Narrative Calls for Speculation

Compound Question Harassing/Badgering the Witness

Improper Characterization of Testimony/Misstates the Testimony Leading Question Non-Responsive Answer

Vague

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REFRESHING A WITNESSS MEMORY: FRE 612: Writing Used to Refresh Memory If a witness uses a writing to refresh memory for the purpose of testifying, either o 1) while testifying, or o 2) before testifying, if the court in its discretion determines it is necessary in the interests of justice An adverse party is entitled to o have the writing produced at the hearing, o inspect it, o cross-examine the witness thereon, and o introduce in evidence those portions which relate to the testimony of the witness. If a witness recalls the general outlines of an incident but is having trouble reciting details, the judge may allow the lawyer to lead the witness even on direct examination. The lawyer can refresh the witnesss recollection with a document or other item. Any document can be used, as long as the witness states that it will help him or her remember the necessary information. If the witness made no written record of her own the attorney can use a writing made by someone else. The witness must first state: o 1) He/she does not remember the answer to the question being asked; and o 2) Seeing the writing will refresh her recollection. The adverse party may introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible. o 612 trumps other rules of evidence when an adverse party invokes it. o Introduced for the limited purpose of assessing the witnesss credibility. The refreshing party may also introduce the writing into evidence, but only if the writing is already admissible under the rules. If the adverse party does choose to admit the writing into evidence, courts have held unless the writing is admissible on other grounds the jury may use the writing only to assess the witnesss credibility. o The jury cannot use the document to establish substantive matters referred to in the document.

612 Procedural Issues 1) Procedures for determining which portions of a writing to admit when only part of the document relates to a witnesss testimony: o FRE 612: If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal... 2) Remedies if a party refuses to produce a writing used to refresh recollection: o FRE 612: If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires except that in criminal cases when the 20

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prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 3) The rule is subject to the Jencks Act, which governs discovery in federal criminal trials. o FRE 612: Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing...

Four Steps for refreshing a witnesss recollection 1) Establish that the witness does not recall the answer to a question. 2) Describe the writing she wishes to use to refresh the witnesss recollection and ask if that writing would refresh the witnesss recollection. 3) Show the writing to the witness. The witness will examine the writing, put it aside (usually giving it back to the attorney), and testify from her refreshed recollection. 4) Either before or during this process, the attorney must be sure to give the opposing counsel a copy of the writing. Voir dire The opposing counsel can ask to voir dire (examine) the witness on her recollection if it appears he/she is just reciting from the document. Opposing counsel will try to show the judge that the witness does not independently recall the events recorded in the writing. A witness w/ no independent recollection lacks the personal knowledge required by Rule 602. IMPEACHING A WITNESS: Federal Rules 607 Allows parties to impeach any witness including their own. 608 How to attack a witnesss character for credibility. 609 When a witnesss prior criminal convictions are admissible to impeach him/her. 610 Forbids an attorney from impeaching a witness b/c of his/her religious beliefs or opinions. Ten Tactics to Combat Damaging Testimony Kleins Tactics o 1) Exclude the evidence o 2) Undercut the other sides evidence contradict or explain it away o 3) Co-opt say that its correct, but useful for you too o 4) Attack the Messenger instead of focusing on the message, focus on the messenger. Offensive o 1) Rebut the evidence o 2) Complete the story Sometimes counsel can use cross to elicit positive information form a witness, completing the story in a way that helps her client. o 3) Clarify the ambiguous testimony o 4) Introduce expert testimony about evidence Defensive 21

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o 5) Show impairment of perception or recollection o 6) Demonstrate inconsistencies o 7) Show bias o 8) Attack the witnesss character for truthfulness Appeal to judge or referee o 9) Exclude the evidence under a specific rule. o 10) Exclude the evidence by demonstrating unfair prejudice, confusion or delay (Rule 403)

FRE 607: Who May Impeach The credibility of a witness may be attacked by any party, including the party calling the witness. The tool primarily used on cross is IMPEACHMENT. Impeachment and confronting a witness on cross are different o Impeachment is just one of the many means for confronting a witness on cross. This is attacking the messenger. A witness must have four basic competencies. If one of more of these is imperfect = impeachment. Highlight this imperfection for the jury. o Narration o Sincerity (this is the key to impeaching the witness) How to attack Sincerity Show: Bias Prejudice A witnesss testimony is improbable Inconsistency Contradict witnesss testimony w/ other evidence from other sources (not their testimony). You want to bring this evidence up when the witness is not on the stand, so they cant reply. Their general character for truthfulness. o Perception o Memory Focus on what is missing and demonstrably inaccurate. Ask about all of the details they did not testify about. Then ask doesnt it seem that you remember all the things that are helpful to that side, but nothing that is helpful to this side. Counter Moves The opposing counsel can use all of the same techniques to rehabilitate his/her witness. However, these counter-moves may be limited by the rules. o Ex. A party may not introduce evidence of a witnesss truthful character until that character has been challenged.

USING PRIOR INCONSISTENT STATEMENTS TO IMPEACH: 22

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Extrinsic Evidence (or non-extrinsic) any evidence other than testimony from the witness currently on the stand. o ex. evidence in the form of testimony or documents, etc. used solely to impeach the witnesss testimony. Another piece of evidence that needs to come in to impeach a witness. Collateral Matter relevant to the case solely b/c it impeaches a witness. A non-collateral matter proves a fact in consequence other than impeachment. If a piece of evidence is used for both, it is non-collateral. Relationship b/n the evidence and the things that are at issue at trial. Relevant to credibility ONLY not relevant to the substantive issues at trial. Non-Collateral Matter Non-Extrinsic Evidence Allowed Non-extrinsic evidence of PIS seeking to impeach on a noncollateral issues is ALWAYS admissible. Allowed Subject to some outer limits under Rules 403 and 611 Extrinsic Evidence Allowed Subject to procedures in Rule 613

Collateral Matter

Prohibited Under Rules 403 and 611. Extrinsic evidence of PIS seeking to impeach on a collateral issues is NEVER admissible.

FRE 613: Prior Statements of Witnesses (a) Examining witnesses concerning prior statement o 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 (b) Extrinsic evidence of prior inconsistent statement of witness o 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 (but it doesnt say when, the confronting attorney doesnt have get the explanation if the witness is subject to recall.) and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

This is just impeachment. It is only used to attack the witnesss sincerity. Only admitted for purposes 23

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of impeachment. If you need the evidence for a substantive issue you will have to get it admitted in a different way. Disclosing the prior statement (613(a)) o Lawyers may surprise a witness by asking them without warning about prior inconsistent statements. The lawyer need only disclose the statement to opposing counsel immediately b/f the lawyer brings up the statement on cross. o Disclosure to the opposing counsel gives that lawyer a chance to raise any evidentiary objections, as well as to prepare to rehabilitate the witness. Procedural Constraints (613(b)) o If a party offers extrinsic evidence of a prior inconsistent statement, the witness who made the prior statement must have: 1) an opportunity to explain the inconsistency; and 2) opposing counsel must have a chance to question the witness about that inconsistency. Substantive constraints on using extrinsic evidence o Judges give parties considerable freedom to ask witnesses about prior inconsistent statements, but judges are more restrictive about introducing extrinsic evidence or PIS. Showing the Statement to the Witness o Judges sometimes exercise their general authority under Rule 611 to require a crossexamining attorney to show the statement to the witness. A judge will do this when the cross might otherwise create an unfair or inaccurate impression. Witness Denials Even if the witness lies or denies the prior statement, the attorney cant introduce extrinsic evidence that is merely collateral. Extrinsic Evidence and Rule 613(b) o An attorney can impeach a witness w/ a PIS after the witness has left the stand. The opposing attorney will have to recall the witness to rehabilitate. The Interests of Justice o This exception is designed for the case in which a witness becomes unavailable after testifying but b/f introduction of the PIS. Judges are reluctant to apply this exception, so it is better to confront the witness w/ the PIS when the witness is on the stand. Limiting Instruction o Sometimes a statement is admissible to discredit a witness by showing an inconsistency, but not to prove the content of the statement.

REVEALING A CHARACTER FOR UNTRUTHFULNESS ON CROSS: FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (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 (3) Character of witness Evidence of the character of a witness, as provide in rules 607, 608, and 609. Character Evidence suggests that, b/c an individual has a particular character trait, the person was likely to have acted in a particular way during a specific incident. o The FRE generally exclude character evidence. Exception: character for telling the truth. 24

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FRE 608: Evidence of Character and Conduct of Witness (b) Specific instances of conduct Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witnesss character for truthfulness...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 witnesss character for truthfulness or untruthfulness... 4 important points o 1) A party MAY ask a witness about specific instances of conduct on crossexamination to suggest that the witness has an untruthful character. o 2) Attorneys MUST limit these questions to actions that are probative of truthfulness or untruthfulness. (Relevancy) o 3) This type of cross-examination is in the discretion of the court. o 4) Bars proof of these specific instances by extrinsic evidence. Attorneys may cross witnesses about acts that suggest an untruthful character, but they may no introduce other evidence of those acts. Good Faith Belief o Before asking a witness about a specific incident suggesting untruthfulness, an attorney must have a good faith belief that the incident occurred. o A good faith belief is one that rests on some evidence, even if the evidence would not be admissible in court.

USING CRIMINAL CONVICTIONS TO IMPEACH A WITNESS: FRE 608: Evidence of Character and Conduct of Witness (b) Specific instances of conduct Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witnesss character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence.

FRE 609: Impeachment by Evidence of Conviction of Crime (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... o ... 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... 2) evidence that any witness has been convicted of a crime shall be admitted regardless of 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... (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 interest of justice, that the probative value of the conviction supported by specific facts and circumstances 25

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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 w/ a fair opportunity to contest the use of such evidence... (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 creim 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. (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. We are only talking about convictions Extrinsic evidence OK - You can bring in the document of conviction. Applies ONLY when a party uses a criminal conviction for a particular purpose: to suggest that a witness has an untruthful character. Rule 609 applies in civil cases as well. o Jury is limited to only considering the conviction to assess the witnesss character for truthfulness.

Three Rules for Three Categories of Witnesses and Prior Convictions a) The first rule governs prior felony convictions used to impeach any witness other than the accused in a criminal case; b) The second applies to prior felony convictions used to impeach an accused; and o The judge must make a distinctive finding that probative value outweighs prejudicial effects. o 609 excludes evidence whenever prejudicial effect equals or exceeds probative value, not only when prejudicial effect substantially outweighs probative value. o Burden on the prosecutor to show probative value outweighs prejudicial effect. c) The third addresses prior convictions for any crime of dishonesty or false statement, whether a felony or misdemeanor, used to impeach any witness. o Judge has NO discretion (even under 403). When Prejudicial Effect... Is less than probative value Rule 403 Admits the evidence Rule 609(a)(1) Admits the evidence 26

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Equals probative value Somewhat outweighs probative value Substantially outweighs probative value Admits the evidence Admits the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence

Balancing Test Factors (affecting the probative value of the prior conviction) 1) Impeachment Value of the Former Crime 2) Timing of the Prior Conviction and Subsequent Criminality 3) Similarity b/n the Prior Crime and the Charged One. 4) Importance of the s Testimony 5) Centrality of Credibility Three barriers to using convictions that are more than 10 years old 1) The party seeking to use the conviction must give the adverse party advance written notice. 2) judge must find specific facts supporting the convictions probative value. 3) The judge must determine in the interests of justice, that the probative value of the conviction... substantially outweighs its prejudicial effect. When Prejudicial Effect... Is substantially less than probable value Is somewhat less than probative value Equals probative value Somewhat outweighs probative value Substantially outweighs probative value Rule 403 Rule 609(a)(1) Conviction LESS than 10 years old Admits the evidence Admits the evidence Rule 609(b) Any conviction MORE than 10 years old Admits the evidence Excludes the evidence

Admits the evidence Admits the evidence Admits the evidence Admits the evidence Excludes the evidence

Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence

Questions to ask (in order) 1) Has the witness received a pardon, annulment, or certificate of rehabilitation? 2) Is the prior crime a juvenile conviction? 3) Is the crime over 10 years old? 4) Is the crime one of falsity?

Applicable Rule 609(c)

609(d) 609(b)

609(a)(2)

Applicable Action EXCLUDE, unless 1) There has been a subsequent felony; AND 2) Prior was not actual innocence finding. EXCLUDE, unless 1) Witness is not the criminal ; and 2) Admitting is necessary for justice. EXCLUDE, unless 1) Probative value (as shown by specific facts) substantially outweighs prejudice (reverse 403 presumption). ADMIT 27

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5) Is the crime a misdemeanor? 6) Is the witness the defendant? 7) Has the answer to every question so far been No? 609(a)(1) 609(a)(1) 609(a)(1) EXCLUDE. ADMIT, if its probative value outweighs its prejudicial effect to the . 403 analysis (presumptively admitted, unless substantially prejudicial).

OPINION OR REPUTATION EVIDENCE OF UNTRUTHFUL CHARACTER: FRE 608: Evidence of Character and Conduct of Witness (a) 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... Presenting a separate witness, a character witness who testifies that the original witness has an untrustworthy character AND/OR presenting a character witness who opines that the original witness is a truthful person. 3 caveats to this rule o 1) The rule only allows general opinion or reputation evidence of character, not testimony giving specific instances of conduct related to a witnesss truthfulness or deceit. NO SPECIFIC INSTANCES! o 2) A character witness may only offer opinion or reputation evidence about another witnesss character for truthfulness or untruthfulness. o 3) A party may introduce evidence of a witnesss truthful character only AFTER that character has been attacked. Character: Based on many experiences w/ the person. Summary of ones own personal experiences w/ an individual. Reputation: What youve heard from others. Summary of a lot of peoples experiences w/ an individual. Fact Witness Parties present fact witnesses to establish facts related to the underlying legal dispute. Character Witness Parties present character witnesses to offer evidence about the truthful or untruthful character of a fact witness.

Opinion or Reputation Evidence The Attorney must first lay a foundation by showing that the character witness knows the fact witness well enough to have formed an opinion about the fact witnesss truthful or untruthful nature. The Attorney will then ask the witness to give his/her opinion or the state the reputation. The rule does NOT allow parties to ask character witnesses questions on direct examination that focus on specific examples of a fact witnesss untruthfulness. Parties ARE allowed to cross-examine fact witnesses about incidents that might reveal untruthfulness, and they may present character witnesses who offer opinion or reputation evidence about the fact witnesss truthfulness, but they may NOT elicit specific details from 28

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the character witness on direct examination. Limited Purpose This evidence is only admissible to assess the credibility of the witnesss courtroom testimony. The evidence is NOT admissible for other purposes, such as establishing guilt or innocence. The judge can still exclude the evidence under Rule 403, if the evidence is more prejudicial than probative. When has Character been attacked? If an opponent presents a character witness who testifies about the fact witnesss lack of truthful character, then character has clearly been attacked. If the opponent conducts a cross of the fact witness and asks questions about specific acts of dishonesty under 608(b), or if the opponent introduces evidence of a conviction under 609, the opponent has attacked the fact witnesss character for truthfulness. FOCUS on the difference b/n a witnesss character for truthfulness and the witnesss credibility when testifying about a particular matter. o Impeaching credibility on cross is NOT focused on character. have you heard? are you aware... o On cross the attorney can ask questions about specific incidents. Applicable only to witnesses If an individual does not testify in court, parties cannot rely upon this rule to attack that persons credibility. CROSS-EXAMINING THE CHARACTER WITNESS Rule 608(b)(2) allows parties to ask character witnesses on cross-examination about specific incidents of a fact witnesss behavior. Although the party who calls a character witness may not ask the witness questions about specific incidents on direct examination, an opposing party may ask about specifics on crossexamination. An attorney who cross-examines a negative character witness can ask that witness whether he/she knows about various truthful acts committed by the fact witness. If the CW has heard of these truthful acts, she has to explain why, in spite of them, she still believes that the fact witness has an untruthful character. The cross-examiner cannot ask these questions on cross unless: o She has a good faith basis for believing that the specific acts occurred; and o She cannot offer extrinsic evidence of the specific act; she is stuck w/ the character witnesss answer on cross. The judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their probative value.

RELIGIOUS BELIEFS AND IMPEACHMENT: FRE 610: Religious Beliefs or Opinions Evidence of the beliefs or opinions of a witness on matters of religion is NOT admissible for the purpose of showing that by reason of their nature the witnesss credibility is impaired or enhanced. 29

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The rule bars evidence of religious beliefs only when offered to attack or buttress a witnesss credibility. The rule, however, does NOT preclude evidence of religious beliefs when they are relevant to other matters, such as bias, damages, or motive.

RULE OF COMPLETENESS: FRE 106: Remainder of or Related Writings or Recorded Statements When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at the time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. There are 4 important aspects to this rule: 1) qualifying portions of a writing or recorded statement may be introduced as soon as the opponent offers the first portion. 2) Only applies to writings and recorded statements; some oral statements are allowed. 3) May introduce whole writings or recordings when necessary to understand another document offered by the opponent. 4) Fairness principle - Gives the judge discretion CHARACTER EVIDENCE: Four Categories of Character Evidence 1) Proof of a Witnesss Propensity to Lie or Tell the Truth 2) Proof of Conduct by Propensity 3) Proof of Character or Reputation by Elements 4) Proof of Other Acts for Non-Propensity Purposes 3) EVIDENCE TO PROVE CHARACTER AS AN ELEMENT Evidence used to prove character as an element of a crime, civil claim or defense. Parties may prove character w/ reputation and opinion evidence and may introduce evidence of specific acts to show character as an element. When character is an element of a crime, claim or defense, then ALL evidence related to that character is central to the case. The main question w/ this type of evidence is the method of proving the relevant character trait how may a litigant present this evidence? FRE 405: Methods of Proving Character (a) Reputation or opinion In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion... On cross-examination, injury is allowable into relevant specific instances of conduct... (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 be made of specific instances of that persons conduct. 30

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Evidence of specific conduct offered under 405(b) must satisfy the other rules of evidence. A party cannot prove specific instances of conduct through a witness who lacks personal knowledge.

When is Character an element? 1) Defamation o If the allegedly defamatory statements concern the s character, then the parties will dispute whether those statements were true. 2) Child Custody o Because the court must determine the best interest of the child, a judge might hear evidence about the character of each parent. 3) Criminal Entrapment o Defenses lacked a predisposition to commit the crime. If you know that the suspect has a propensity to do something and the police dangle it in front of the suspect, that may be entrapment. 4) Negligent Entrustment o knew something about a third partys character and negligently ignored that knowledge.

USING CHARACTER EVIDENCE TO PROVE PROPENSITY Propensity The evidence suggests that, b/c a person had a tendency to act in a particular way, the person was more likely to have committed a particular act on a specific occasion. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions: Other Crimes (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... Analyzing 404 Key elements: The purpose for which the evidence is offered. Applies to any person even to people who never appear in the courtroom. Not distinction b/n Civil and Criminal under 404(a). NO discretion unless it fits into an exception. CHARACTER EVIDENCE TO SHOW PROPENSITY IN CRIMINAL PROSECUTIONS The 2 exceptions to the no propensity rule apply only to criminal prosecutions. Mercy Rule Policy: Both constitutional doctrine and C/L support the principle that criminal s should have as much latitude as possible to present a defense. Give the every chance. Prosecution can only use propensity evidence in responding to the s use of propensity evidence. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions 31

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(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 In a criminal case, evidence of a pertinent trait of character offered o by an accused, or o by the prosecution to rebut the same, or o if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of Alleged Victim In a criminal case, and subject to the limitations imposed by Rule 412 o evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or o by the prosecution to rebut the same, or o evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor... Four KEY POINTS 1) These exceptions to the no-propensity rule apply ONLY in criminal cases. 2) The exceptions allow only proof of pertinent character traits. o Examples of pertinent character traits: Violent nature of the victim in a self-defense case. The s peaceful character in a prosecution charging assault, battery, homicide or other violent acts. The s honest character in a prosecution for fraud. The s aversion to risk and gambling in a gambling prosecution. 3) These subsections of Rule 404(a) allow proof about both the s character and the alleged victims character. 4) The subsections distinguish b/n when the may introduce these types of evidence and when the prosecutor may do so. The general rule applies to the prosecutor unless the opens the door by introducing evidence about the s own character or the victims character. o can admit evidence of his good character and the victims bad character. Prosecutor is only allowed to stay w/in the frame of the door that has been opened meaning they can only speak to the traits the has already introduced. The Prosecutor can introduce the victims character first in this instance: o For a charge of murder o Where the will argue that the Victim was the aggressor o P can show the victims character as a peaceful person. o P has to speak for the homicide victim b/c they cant speak for themselves. Character Evidence Admissible to Prove Propensity in Criminal Trials Rule 404(a)(1) and (2) Type of Character When may the accused When may the prosecution offer this Evidence offer this evidence? evidence? 32

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Pertinent trait of the accused Trait of Peacefulness of alleged victim Other pertinent trait of alleged victim Any time Not applicable: Accused would not introduce this evidence Any time, unless barred by Rule 412 (the rape shield law) To rebut evidence of the same trait offered by the accused, OR to match character evidence that the accused offers about the alleged victim In a homicide case: To rebut any evidence that the alleged victim was the first aggressor In other cases: To rebut character evidence that the victim was not peaceful. Only to rebut evidence of the same trait offered by the accused

Character Evidence Admissible to Prove Propensity in Criminal Trials How the Prosecutor Can Respond: If the accused... Then the prosecutor can: Introduces evidence of his own good character... Introduce evidence of the s bad character for the same character trait. Introduces evidence of the victims bad Introduce evidence of the victims good character character... for the same character trait AND evidence of the s bad character for the same character trait. Introduces evidence that the victim in a homicide Introduce evidence of the victims peaceful case was the first aggressor... character.

Analysis Whenever youre looking at evidence that appears to be character evidence, other than truthfulness, you the following judgment tree: 1) Is this character evidence, other than character for truthfulness, being used to prove propensity? 2) If so, is it allowed under 404(a)(1)-(2)? 3) If so, is it offered in a form approved by 405(a)? METHODS OF PROVING PROPENSITY IN CRIMINAL CASES This is the how of using propensity evidence other than to tell the truth. We have already looked at criminal instances. FRE 405: Methods of Proving Character (a) Reputation or opinion In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct... Rule 608(a) controls proof of a witnesss propensity to lie or tell the truth, while Rule 405(a) governs situations in which Rule 404(a)(1) and (2) allow parties to make other propensity arguments in criminal trials. Testimony about the absence of specific facts, just like evidence of their presence, violates 33

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Rule 405. . Relevant Acts o Although 405 allows attorneys to cross-examine character witnesses about specific acts, the examiners may ask only about acts that are relevant to the character trait described by the witness. Good Faith Belief o The attorney must have a good faith belief that the incidents occurred in order to ask a witness a questions on cross. Extrinsic Evidence o If the witness denies knowledge of the conduct, the cross-examiner cannot introduce evidence that the conduct really occurred. o Under unusual circumstances, when a mistaken inference of bad behavior would be highly prejudicial, the judge might allow the affected party to introduce extrinsic evidence disproving the incident. Rebuttal Witnesses o In addition to cross-examining a character witness, the parties in a criminal case may present rebuttal character witnesses. o These character witnesses testify that the or victim has a character trait contrary to one presented by another character witness.

OTHER CRIMES, WRONGS, OR ACTS This evidence is NOT offered to prove character. Instead, parties present this evidence to prove some other fact relevant to the case. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes (b) Other crimes, wrongs, or acts Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. The rule allows parties to introduce evidence that delivers two separate blows: 1) the evidence accomplishes its stated purpose, to prove identity, intent, motive, or a similar fact; 2) assuming that the evidence shows a prior act that is bad or immoral, the jury may develop a negative view of the person.

Purposes the courts have recognized to support admission of other crimes, wrongs, and acts: Motive A prosecutor sometimes argues that a previous crime or other bad act is admissible b/c it motivated the charged crime. Plan Evidence showing a common plan or scheme. 34

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Identity Admit evidence of prior bad acts b/c participants in those acts were able to identify the and link him to the charged crime. o Signature Elements of a crime may also allow the P to prove identity by introducing evidence of the s other crimes or bad acts. If a charged crime has an unusual feature, and if the has engaged in other acts incorporating that feature, then these common characteristics tend to show the s identity as the perpetrator of the charged crime. o The identity prong of Rule 404(b) only works if two conditions are met: 1) Identity must be at issue; and 2) there must be strong similarities b/n the charged and other crimes. Opportunity To prove that the had the opportunity to commit a crime like this, the P may offer evidence that the enjoyed access to the protected place or special tools on another occasion. Knowledge Ps often cite knowledge as a purpose for introducing evidence of other crimes or bad acts when knowledge of a particular fact is an element of the crime. o As long as the other act evidence proves a relevant facts w/o using the propensity inference, the evidence is admissible regardless of what it is called. Intent Evidence of other crimes, wrongs, or acts may also be admissible to prove that a possessed the intent necessary to commit a crime. Preparation overlaps w/ plan, knowledge and opportunity. Absence of mistake and absence of accident overlap w/ intent, motive, and knowledge.

HABIT FRE 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 w/ the habit or routine practice. Habit refers to specific, repeated responses to a particular situation or stimulus. o An individual who is placed in a particular situation will respond over and over again w/ the same specific behavior. Reasons why habit evidence is admissible: o 1) habit evidence tends to be morally neutral, so there is less chance of unfair prejudice resulting from its admission. o 2) habit evidence has a higher probative value than propensity evidence. 3 factors to distinguish habit evidence from propensity evidence: o 1) The specificity of the conduct. o 2) The distinctiveness of the situation producing the conduct. o 3) The regularity of the conduct.

Not just admissible, but possibly sufficient Where the only information about what happened on a particular occasion is evidence of habit. 35

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In these situations, judges and juries routinely conclude that the habit evidence is sufficient to establish that the witness performed the disputed action in accordance w/ long-standing habit. Routine Practice of an Organization Corporations and other institutions often have standard procedures for dealing w/ particular situations. This evidence can be used both as a sword and as a shield.

RAPE SHIELD LAWS: FRE 412: Sex Offense Cases; Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition. (a) Evidence Generally Inadmissible The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): o (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. o (2) Evidence offered to prove any alleged victims sexual predisposition. (b) Exceptions o (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) Evidence of specific instances of sexual behavior 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 instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; AND (C) Evidence the exclusion of which would violate the constitutional rights of the defendant... o (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim... (c) Procedure o A party intending to offer this evidence must give notice to the court, opposing counsel, and the alleged victim fourteen days before the trial. o The court must hold a secret, sealed proceeding involving both parties and the alleged victim in order to determine whether the evidence is admissible. 4 important points re: section A o 1) Rule applies to BOTH civil and criminal proceedings; o 2) Rule applies ONLY to trials involving sexual misconduct. This is generally broadly interpreted and can include kidnapping if there is 36

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intent to molest, sexual battery or sexual harassment claims. o 3) Rule bars both types of evidence: Other Sexual Behavior Evidence of Specific Acts Sexual Predisposition Evidence of reputation and general character o 4) Rule broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which the litigant offers that evidence. bars designated types of evidence when offered for ANY purpose EXCEPT those outlined in a few narrow exceptions. EXCEPTIONS Criminal o None of the exceptions admit evidence if a rule other than Rule 412 bars the evidence. o Evidence of prior sexual encounters b/n the alleged victim and the may be offered by the ONLY for the purpose of proving consent. However, the Prosecutor may offer this evidence for any purpose. The P can offer evidence of other non-consensual encounters b/n the and the V in order to show a s motive, intent, identity, or any other relevant fact recognized by Rule 404(b). Sexual Behavior has been liberally interpreted by courts to include: Any kind of intimate contact b/n the complainant and the Statements in which the alleged victim expresses an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused. o Catchall Exception (412(b)(1)(C)) is most often invoked to show that the alleged victim has made prior false claims of sexual assault. Also used to argue that the complainant manufactured a rape claim to protect an existing intimate relationship. Most courts reject the s use of the catchall exception to offer evidence of the victims promiscuous reputation to prove that the reasonably believed that she consented to sexual contact w/ him. Civil 4 key points o 1) Subject to all other rules of evidence o 2) Reverse 403 Test The evidence is admissible ONLY if its probative value substantially outweighs the unfair prejudice to any party. o 3) Ensures that the court weighs the danger to the alleged victim, whether or not she is a party to the litigation. o 4) Reputation evidence is only admissible if the alleged victim has opened the door by presenting evidence of his/her own reputation.

PROPENSITY IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES Rules 413, 414, and 415 are exceptions to the general rule barring propensity evidence under Rule 404(a). 413 allows P to introduce evidence of other sexual assaults committed by the and to use that evidence for any purpose, including to suggest that the has a propensity to commit 37

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sexual assaults. 414 P may introduce evidence of other child molestations and argue that the has a propensity to molest children. 415 Allows the same evidence and propensity reasoning in civil cases involving sexual assault or child molestation.

FRE 413 [414]: Evidence of Similar Crimes in Sexual Assault [Child Molestation] Cases (a) In a criminal case in which the is accused of an offense of sexual assault [child molestation], evidence of the s commission of another offense or offenses of sexual assault [child molestation] is admissible, and may be considered for its bearing on any matter to which it is relevant. (b) Special disclosure procedure P must give the notice of the evidence it plans to present. (c) This rule shall not be construed to limit the admission or consideration of evidence under any other rule. (d) Defines Sexual Assault or Child Molestation SA physical, rather than verbal conduct CM child defined as a person below the age of fourteen. 3 point to note about Rules 413(a) and 414(a) o 1) Apply only to criminal cases of sexual assault or child molestation o 2) Allows admission of a single type of evidence other acts of SA or CM. o 3) Admissible for any relevant purpose, including propensity. 413(c) and 414(c) - Do not override other rules such as hearsay and privilege.

FRE 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation (a) In a civil case in which a claim for damages or other relief is predicted on a partys alleged commission of conduct constitution an offense of sexual assault or child molestation, evidence of that partys commission of another offense or offenses of sexual assault or child molestation is admissible an may be considered as provide in Rule 413 and Rule 414 of these rules. These rules do NOT require that the prior act resulted in a criminal charge or conviction. Any conduct that constitutes an offense of SA or CM is admissible under these rules, regardless of whether formal charges were ever brought for the prior conduct. There is NO time limit under these rules, although a judge may exclude conduct that occurred many years ago under Rule 403. 403 Analysis is difficult b/c the rule tells the court this type of evidence is probative. In a 403 analysis the courts will consider: o The length of time that has passed since the other acts o Reliability of the witness testifying about the other acts o Similarity of the other acts to those charged

PRELIMINARY DETERMINATIONS The evidence comes in IF... 38

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General Rule Except for issues of conditional relevance, the judge decides all preliminary questions related to the admissibility of evidence. FRE 104: Preliminary Questions (a) Questions of admissibility generally Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges... (b) Relevancy conditioned on fact When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition... (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 interests of justice require, or when an accused is a witness and so requests... (d) Testimony by accused The accused does not, by testifying upon a preliminary matter, become subject to crossexamination as to other issues in the case... (e) Weight and Credibility This rule does not limit the right of a party to introduce b/f the jury evidence relevant to weight or credibility. Rule 104 divides preliminary determinations into two categories 1) Whether evidence is relevant? o When a factual dispute affects the relevance of evidence, lawyers call this conditional relevance. The evidence is relevant if a factual predicate turns out to be true, but not if the factual predicate is false. 104 gives the jury authority to resolve this type of factual dispute. For questions of conditional relevancy, the trial judge performs only a screening function on the sufficiency of the evidence. The judge will ask whether enough evidence exists that a reasonable jury could resolve the factual dispute in a manner that fulfills the condition and makes the evidence relevant. 2) The factual disagreement affects existence of a policy concern that would bar admission of admittedly relevant evidence. o Under these circumstances, when resolution of the factual issue does not affect relevance, the trial judge decides the factual issue w/o any deference to the jury. The rules of evidence do not apply to preliminary determinations the judge may consider any evidence. 39

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The rules of privilege DO apply to preliminary determinations. Even if the judge admits evidence, the parties may dispute the evidences weight at trial.

10 Things to Keep in Mind: 1) All preliminary determinations are made by the judge; meaning the judge will have to decide whether the predicate falls under 104(a) or (b). And if under (b), does it meet the threshold to get to the jury? 2) The Rules of Evidence do NOT apply to PDs. 3) Except privileges. (Including a 5th A protection) 4) The judge decides issues of law on her own, w/o any reference to what the jury might think. o ex. the judge decides whether a particular crime is a crime of dishonesty or false statement under Rule 609(a)(2) 5) Preponderance of the Evidence standard governs all PDs of fact (even if it is a criminal trial). 6) The person offering the evidence has the burden of proving the predicate by a preponderance of the evidence. 7) 2 types of preliminary factual determinations 8) Rule 104(b) governs factual disputes that bear on the relevance of evidence conditional relevance. o Judge allows the jury to decide matters of conditional relevance. Could a reasonable jury find the predicate? 9) Rule 104(a) governs all other preliminary factual disputes. These disputes center on whether the facts invoke a policy-based restraint on the admissibility of otherwise relevant evidence. Policy based restraints on letting evidence in. 10) 403 Still applies Analyzing Rule 104 1) Rule 104(b): Relevance Depending upon the Fulfillment of a Condition of Fact. o a) Personal Knowledge under Rule 602 o b) Evidence of Other Acts under 404(b) Trial judges admit other act evidence as long as a reasonable jury could find the factual condition that makes the evidence relevant. The jury then determines both whether the factual condition is met and, if it is, how the evidence affects its decision in the case. o c) Factual Determinations under Rule 412 The exceptions to 412 that allow the to introduce evidence generally lead to a factual dispute. o d) Other sexual assaults by under Rules 413-415 If a P or offers evidence of other SAs committed by the , and the denies those assaults, the conflict affects the relevance of the proffered testimony. 2) Rule 104(a): Questions of Admissibility Unrelated to Relevance o a) Timing of Remedial Measures under Rule 407 o b) Whether repeated conduct is propensity or habit under Rule 406 o c) Other 401(a) Determinations 408 Existence of a dispute or compromise negotiations 40

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409 Whether a offered to pay medical, hospital, or similar expenses 410 Whether a plea discussion occurred that would shield statements 608 or 405 Whether a questioner has a good faith belief for questions posed on cross. 3) Standard of Proof o The Supreme Court has held that a simple preponderance standard applies to all preliminary factual issues resolved under Rule 104. o The judge will ask: Whether the fact governing admissibility has been established by a preponderance of the evidence. 4) Burden of Proof o Judges usually place the burden of proof on the party offering evidence. 5) Rule 403 o If a preliminary factual dispute falls w/in Rule 104(a), the judge usually resolves the factual issue at the same time that he applies Rule 403.

Will the relevance turn on the fact? If no B to the Jury. AFTER MIDTERM

HEARSAY WHAT IS HEARSAY AND WHY DONT WE LIKE IT? Firsthand reports are more reliable than secondhand ones. 4 reasons to be suspicious of a persons information: o Perception o Memory o Clarity o Sincerity Analysis: o 1) Define what we know is hearsay 1) Does the evidence contain a statement? 2) Did that statement occur outside the courtroom? 3) Is the party offering the statement to prove the truth of the matter asserted? o 2) Start with the general rule that Hearsay not allowed. (802) o 3) Is this really hearsay or a 801(d) exclusion/exemption to the definition of hearsay? Prior Statement by Witness Admission by party-opponent o 4) Does an exception apply? (803) o 5) Is there a 6th Amendment problem? FRE 801: Definitions 41

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(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... Important parts of the definition o 1) Hearsay requires a statement (oral or written) o 2) Where was the statement made? (out of court) o 3) Why is the statement being put into evidence? (for the truth of the matter asserted) A declarant (the person who makes the statement) is a person who has firsthand information about a fact relevant to the lawsuit. If the declarant offers that information while testifying at trial, the statement is NOT hearsay. o If the declarant makes a statement reporting the information outside the courtroom, and someone repeats the statement at trial, it is hearsay. ALL out-of-court statements are hearsay! Even if a witness quotes her own out-of-court statement! FRE 802: Hearsay Rule Hearsay is NOT admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress

THE TRUTH OF THE MATTER ASSERTED What do we mean when we say for the truth of the matter asserted? o Ask if I assume the content of this statement is a lie, do I still want that evidence in? If you still want the evidence, even if its a lie, then you are not using it for truth of the matter asserted. o If a party introduces an out-of-court statement only to demonstrate that the statement was made, the truth of the statement is irrelevant to the partys purpose. Under these circumstances, the statement is not hearsay. Common Purposes for out-of-court statements that do not depend on the truth of the matter asserted. Statements like these are not hearsay if offered for the purposes identified below: o Knowledge o Notice o Publication o Effect o Legally Binding Statements As long as the other purpose is relevant to the dispute, an out-of-court statement is admissible to prove any fact that does not depend on the truth of the matter asserted. The statement is only w/in 801(c) if the witness is offering the statement for the TRUTH of the matter asserted, not the FALSITY.

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WHAT IS A STATEMENT? The hearsay rule applies to BOTH written and oral communications. o The form in which the statement is made doesnt matter so long as it is communicative. Declarants can also make statements through actions. o Assertive behaviors Nodding your head = Yes Pointing = I want that look at that These actions are statements b/c a party could offer them to prove the truth of the matter they assert. Picking someone out of a lineup is assertive and therefore hearsay. o Non-assertive behaviors are not meant to assert a fact ex. wearing a coat is not meant to communicate a fact to someone else. An assertion is any action undertaken by the declarant that is intended to communicate a fact. The key is whether the declarant intended to communicate a fact through her conduct. FRE 801: Definitions The following definitions apply under this article: (a) Statement A statement is o (1) an oral or written assertion or o (2) nonverbal conduct of a person, if it is intended by the person as an assertion. If a statement is ambiguous the court will look at the context to see if the declarant intended to assert a fact through her actions. Implicit Assertions - Assertions hidden within some actions. Audiotapes o Those assertions are statements; the tape is analogous to a witness who repeats out-ofcourt assertions. o The declarant is not in the courtroom. Jurors cannot fully assess the declarants demeanor; not can adverse parties cross-examine the recorded declarants. o Inadmissible only if a litigant offers them for the truth of the matter asserted. Photographs and Videotapes o If a photo or videotape does convey verbal assertions or assertive behavior, offered for the truth of the matter asserted, then those assertions are statements subject to the hearsay rule. o Admissibility depends on what they portray. Most photos and videotapes shown in the courtroom do not portray human assertions. o Even if a videotape or photo includes spoken or written words, the proponent rarely introduces the evidence for the truth of the matter asserted. Machine Readouts o Information conveyed by a machine usually is not a statement. o When evidence consists of information conveyed by a machine, the judge will explore whether that information incorporates a human assertion. If a person communicated a fact through a machine, then the assertion is a statement subject to the hearsay rule. o If the machine generated information according to its own internal processes, then the machines output is not an assertion by a person. 43

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ADMISSIBLE HEARSAY All of the hearsay exceptions rest on two axioms: o 1) Some hearsay statements are more reliable than others. o 2) Some hearsay statements are more needed than others. Many hearsay exceptions strike this balance in favor of admissibility, especially if circumstances suggest that the needed statement is more reliable than other types of hearsay. 4 Categories of Exceptions: o 1) Rule 801(d) defines two types of out-of-court statements as not hearsay. 1. Prior statements by witnesses, and 2. Statements made by opposing parties. It is best to understand these two statements as exemptions to the general hearsay rule, rather than exceptions, b/c they are still hearsay. 801(d) categories are a distinct class of admissible hearsay. o 2) Rule 804 recognizes five exceptions to the hearsay rule that apply only if the declarant is unavailable to testify in court. o 3) Rule 803 exceptions depend substantially on reliability rather than the need for the evidence. High indicia of reliability allow admission of these statements regardless of the declarants availability. Apply whether or not the declarant is available to testify. o 4) Rule 807 creates a residual exception that allows courts to admit some statements that fall outside the other 30 exceptions but have similar guarantees of truthworthiness.

HEARSAY EXEMPTION PRIOR STATEMENTS BY WITNESSES Usually when a party attempts to introduce a witnesss prior statement instead of asking the witness to testify directly, it is b/c the witness cannot or will not make the same statement on the stand. If the PIS was made in a serious setting we will let the jury hear both, so that they can decide. The person who made the PIS must be a witness at trial. FRE 801: Definitions The following definitions apply under this article: (d) Statements which are not hearsay A statement is not hearsay if o (1) Prior Statement by 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 a trial, hearing, or other proceeding, or in a deposition (B) Consistent w/ the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or 44

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improper influence or motive... (C) one of identification of a person made after perceiving the person...

801(d) established two conditions that must be met to admit any statement under that section: o 1) The declarant must testify at the trial; and o 2) the declarant must be subject to cross-examination on the statement. If the Witness invokes his/her 5th Amendment privilege then he/she is NOT available for cross. o These requirements enhance the prior statements reliability. If these conditions are met, the rule recognizes three types of prior witness statements that are admissible. o A) Statements that are inconsistent w/ the witnesss courtroom testimony; o B) Statements that are inconsistent w/ that testimony; and o C) Pre-trial identification of a person. 801(d)(1)(A) thus exempts a witnesss prior statement if the statement satisfies three conditions: o 1) It is inconsistent w/ the witnesss current testimony; o 2) It was made under oath; and o 3) It occurred at a deposition or during a trial, hearing or other proceeding. 801(d)(1)(B) maintains the hearsay ban when a prior consistent statement would merely repeat the witnesss testimony. o IF an opposing party accuses the witness of lying, counsel may rebut that accusation by introducing prior consistent statements that corroborate the witnesss testimony. 801(d)(1)(C) Out-of-Court identifications are more reliable than in-court identifications. Admitting Prior Statements under Rule 801(d)(1)

Prior statement must have been made by a witness at the current proceeding Witness must be subject to cross-examination Witnesses w/ real or feigned memory loss are subject to cross. Witnesses who assert a blanket privilege are not subject to cross. Witnesses who claim privilege selectively may be subject to cross. Prior Inconsistent Statement: Prior Consistent Statement: Identification: 801(d)(1)(A) 801(d)(1)(B) 801(d)(1)(C) Memory failure constitutes Must be offered to rebut Must be an identification of a inconsistency. express or implied charge of person. recent fabrication or improper Statement must have been influence or motive. given under oath subject to penalty of perjury at a hearing Prior statement must have or other proceeding. been made b/f the motive to fabricate or improper influence Grand jury and deposition began. testimony count as proceedings; statements to police and Do NOT have to be in a 45

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investigators do NOT count. proceeding under oath. Only have to be consistent w/ trial testimony that is under attack. Statements are admitted for the truth of the matter asserted, not merely to impeach a witness.

HEARSAY EXCEPTIONS PRESENT SENSE IMPRESSIONS AND EXCITED UTTERANCES Declarant does NOT need to be available to testify! These statements have special indicia of reliability; as a class, each type of statement is more reliable than the usual out-of-court statement. o These rules are based on the assumption that b/c there is a limited amount of time b/n the event and the statement, the declarant does not have the opportunity to formulate a lie. o No qualitative analysis. When this evidence is admitted it becomes a question of fact for the jury to determine if the evidence is credible. FRE 803: Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (1) Present Sense Impression A statement describing or explaining an even or condition made while the declarant was perceiving the event or condition, or immediately thereafter. (2) Excited Utterance A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition... Present Sense Impressions o Statements that describe an event as it unfolds (ex. sports commentator) o 803(1) imposes two conditions that define present sense impressions: 1) The exception applies only to descriptions or explanations of an event, not to more complex analyses or interpretations. 2) For a statement to qualify as a PSI, the declarant must make it while perceiving the event or immediately thereafter. Excited Utterances o Come from excited people responding to a startling event. o 803(2) contains a different set of prerequisites: 1) The declarant must speak while excited by a startling event. The standard is subjective rather than objective: the particular declarant must have been excited by the event. 2) An excited utterance must relate to the startling event. Unrelated comments are not admissible under this exception, even if the declarant makes them while still excited. 46

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o If your excitement winds down then you have time to formulate a response. These exceptions really matter in terms of 911 calls. We use a 104 hearing to determine if EU or PSI are admissible. Or if evaluative terms are used in the comments does it bar the statements. 104(a) not turning on relevancy b/c these statements are likely relevant. Judge decides outside the presence of the jury.

HEARSAY EXCEPTION STATE OF MIND The contemporaneous expression of an internal state is analogous to the immediate reporting of an external event. FRE 803: Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (3) Then existing mental, emotional, or physical condition A statement of the declarants then existing o State of mind, o Emotion, o Sensation, or o Physical condition (such as intent, plan motive, design, mental feeling, pain, and bodily health), o 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... Broad Application it is hard to imagine any mental state that Rule 803(3) overlooks. State of Mind o Ones state of mind is an intention to do something, and if it is offered to prove the truth of the matter asserted, then the exception lets this statement in. The statement is some evidence that the person actually acted in the manner they intended. Exceptions o Statements of memory or belief are not admissible under this exception when they are offered to prove the fact remembered or believed. MUST be Contemporaneous and Forward Looking! CANT look backward in time. o Exception to the Exception: An out-of-court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity 47

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of the declarants will. Courts redact out-of-court statements to admit the phrases in which a declarant expresses a state of mind and exclude others falling outside any hearsay exception. Out-of-court declarations are hearsay only when a party offers them to prove the truth of the matter asserted. If a party introduces a statement, instead, as circumstantial evidence of the declarants mental condition, the statement isnt hearsay. o Focus on the purpose for which a party offers the statement in evidence.

Statements: Jerry and I are going to rob the First National Bank next Thursday. o Is this admissible against Jerry? Yes under Hillmon Im really excited b/c I will be starting my new job with the US attorneys office. o If it is being offered to prove that he did go to work for the US attorneys office, then it is inadmissible. o If the statement is used to determine his state of mind in determining if he was suicidal or not, it would be admissible. o You can parse out the statement Im really excited. My leg started hurting yesterday. o Backward looking so not admissible. o But what if the law suit turns on whether Gs leg hurt on Monday. If she made the statement on Tuesday, it is admissible? Yes. It is relevant to the question that her leg was injured on Monday, if it hurt on Tuesday. D said I plan to rob the 7-11 o Is this admissible if D actually robbed the 7-11. Admissible b/c it is a description of their state of mind and current intention. It goes to the persons plan. Direct evidence of the intention and circumstantial evidence of the act. Hillmon Case & Implicating 3rd parties with your State of Mind Statements Your present statement of your intention may used to prove some evidence that you acted in accordance with your statement. If you mention someone else the evidence may be used against them as well b/c it is relevant and it shows your state of mind.

HEARSAY EXCEPTION MEDICAL TREATMENT This provision admits out-of-court statements made to obtain medical diagnosis or treatment. Almost any statement made by a patient that appears in a medical record is admissible under 803(4). FRE 803: Hearsay Exceptions; Availability of Declarant Immaterial The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statements for purposes of medical diagnosis or treatment Statements made for purposes of medical diagnosis or treatment and 48

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o describing medical history, or o past or present symptoms, pain, or sensations, or o the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 3 requirements o 1) Declarant must make the statement for the purposes of getting a medical diagnosis or treatment; o 2) The statements must be reasonably pertinent to diagnosis or treatment; and o 3) The statements must fit w/in one of the three categories listed by the rule. No time limit this exception does not limit the declarants statements to contemporaneous expressions. Making a statement to a non-doctor may be admissible if it was to enlist the persons help in securing medical care for you. The rule allows parties to admit statements made to doctors who they consulted purely to prepare for litigation. Statements blaming specific individuals for the cause, or attributing a particular degree of fault to those individuals, usually are NOT relevant to medical care. o Be aware of the line b/n cause and fault buried in the statement. Most courts extend 803(4) to psychological conditions too. Child Abuse Cases o Some courts have found the perpetrators identity pertinent to treatment, and thus admissible under 803(4), in one of two ways. 1) Treatment of a patient suffering regular, ongoing abuse may include separation of the patient form the abuser. Thus, the identity of the abuser is pertinent to formulating the appropriate treatment. 2) Effective psychological treatment of an abuse victim may require the doctor to know who caused the abuse. 4 things to keep in mind o 1) Who can make the statement falling w/in the medical exception? You OR a person that takes you to the Dr. when you are incapacitated. Any speaker in the shoes of the person who need medical treatment or diagnosis. o 2) Who can they be speaking to? Does it have to be a Dr. or a Nurse? No. Anyone you are speaking to when you have the intent to convey medical information to get treatment. o 3) What scope of information is covered? That which is necessary for medical treatment. o 4) Applies to both treatment and diagnosis.

HEARSAY EXCEPTION RECORDED RECOLLECTION 803(5) allows admission of recorded recollection. (ex. when you write down a license plate number) Recorded Recollections are considered reliable b/c o 1) they were made when the declarants memory was fresh, and 49

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o 2) the declarant is available to testify in the courtroom, under oath, and subject to cross-examination. The exception only applies when the witness can no longer recall the information that was recorded. FRE 803(5) Recorded Recollection The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (5) Recorded Recollection A memorandum or record concerning a matter o about which a witness once had knowledge o but now has insufficient recollection to enable the witness to testify fully and accurately, o shown to have been made or adopted by the witness when the matter was fresh in the witnesss memory o and to reflect that knowledge correctly. If admitted, the memorandum or record o may be read into evidence o but may NOT itself be received as an exhibit unless offered by an adverse party. Unlike the other Rule 803 exceptions, (5) requires that the declarant actually be available, b/c the rule applies ONLY when the declarant testifies as a witness. Six requirements for admissibility o 1) The declarant must have memorialized the recollection in some way. o 2) Witness testifying must either be the declarant or a person who saw the record and agreed that it was true. o 3) Witness must testify that she once had knowledge about the information contained in the record, and that she made or adopted the record at the time when she had knowledge. This satisfies 602s personal knowledge requirement. o 4) Made or adopted the record when the memory was fresh. o 5) Testify that at the time the record was made she knew it accurately reflected the knowledge that she had. o 6) Witness must have no recollection about the information contained in the record. 803(5) does NOT allow the party offering a recorded recollection to introduce the document directly into evidence as an exhibit. Instead, the party presenting the evidence must ask the witness to read the document into the record. o An adverse party, however, may choose to introduce the document as an exhibit. Refreshing Recollection Compared to Recorded Recollection Rule 612: Refreshing Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge. Rule 803(5): Recorded Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge. 50

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What Witness Does: Looks at evidence (usually a writing) to jog memory, then testifies orally w/o referring further to evidence. What Type of Evidence: Any writing or other evidence that will help witness remember; the witness need not have created or adopted the material. Who May Introduce Evidence Used to Refresh: Only adverse party (i.e., party that did not call witness). Relationship to Hearsay: Witness testifies directly from memory after refreshment, so there is no hearsay issue. If adverse party introduces writing into evidence, it is admissible only on the issue of credibility. For the jury to consider the writing for the truth of the matter asserted, it must fall w/in a hearsay exception. What Witness Does: Reads into record information from a document or other recording. What Type of Document or Recording: One that the witness made or adopted when the matter was fresh in the witnesss memory. Recording must correctly reflect witnesss personal knowledge at time it was recorded. Who May Introduce Recorded Recollection: Only adverse party (i.e., party that did not call witness). Relationship to Hearsay: Statements contained in the record are admitted as an exception to the hearsay rule. The jury may consider the content of document or other recording, as read into record by witness, for the truth of the matter asserted.

RULE 805 HEARSAY WITHIN HEARSAY Rule 805 allows hearsay within hearsay to be admitted as long as each out-of-court statement is admissible under an exception. FRE 805: Hearsay Within Hearsay Hearsay included within hearsay is NOT excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.

HEARSAY EXCEPTION BUSINESS RECORDS Two reasons to believe that business records are more reliable than other kinds of hearsay: o 1) Most documents are generated as routine practice. o 2) Documents are used to make important company wide decisions that can cost a lot of money. The exception admits nearly every document that an organization generates in the ordinary course of business. FRE 803(5): Business Records The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 51

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(6) Records of regularly conducted activity A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses o made at or near the time by, or from information transmitted by, a person with knowledge, o 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, o all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, o 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.

o 803(6) has six major parts o 1) Includes almost any kind of information that an organization documents, regardless of format. o 2) To meet 602s personal knowledge requirement, information admitted under this exception must have been recorded by a) a person w/ personal knowledge of the data, or b) a person who received that information from someone else in the organization w/ personal knowledge. o 3) The organization must have made the record in the course of regularly conducted business activity, and the organization must have a regular practice of keeping such records. o 4) A qualified witness must introduce the record into evidence. Custodian the person who maintains the record for the organization. Any person with the necessary knowledge to lay a proper foundation for admission of a document is qualified to introduce the document. The witness lays a foundation for the documents by testifying that: 1) The record was kept in the course of a regularly conducted business activity; 2) The record was kept in the regular practice of business; and 3) The record was made by a person with personal knowledge of the recorded information or from information transmitted by a person with personal knowledge. o 5) Records are not admissible if the source of the information or the method or circumstance of preparation indicate lack of trustworthiness. o 6) The term business is interpreted very broadly.

HEARSAY EXCEPTION PUBLIC RECORDS FRE 803(8): Public Records & Reports The following are not excluded by the hearsay rule, even though the declarant is available as a 52

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witness: (8) Public Records and Reports Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: o (A) the activities of the office or agency, or o (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 police officers and other law enforcement personnel, or o (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. Subsection B o Applies only to matters that the agency has a DUTY to observe and report. o Reports that exceed an agencys authority do not fall w/in the exception. o Information from 3rd party outsiders reported to the agency is excluded. o This exception only limits the Prosecutor. The may use public records and reports, even if they are made by law enforcement. Subsection C 4 significant aspects o 1) Results of government investigations are NOT admissible against a in a criminal case. o 2) Factual Findings include the opinions and conclusions of the investigator, as well as the underlying facts. o 3) Ensures that the investigator was performing an official function and t/f acting in the public interest in preparing the report. o 4) Results of a government investigation are not admissible if a trial judge finds a lack of trustworthiness. B & C prevent the Prosecutor from using any public record that constitutes factual findings resulting from an investigation. The Courts have narrowed B to only prevent prosecutors from introducing records of law enforcement observations when they are made in an adversarial setting. o routine non-adversarial matters are admissible. o ministerial law enforcement records are generally admissible. Four Factors that a court should consider in determining whether a public records of an investigation is trustworthy: o 1) The timeliness of the investigation; o 2) The special skill or experience of the official conducting the investigation; o 3) Whether a hearing was held by the public agency prior to the report being made; and o 4) Whether the motivation of the public agency is suspect for example, whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation. Top 10 points on Public Records o 1) Make sure you have a public record. (Branches of the government) o 2) If you do have a public record, it MUST satisfy 803(8), not just 803(6). o 3) Records of the agencys activities generally are admissible. 53

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o 4) Observations pursuant to duty are generally admissible. (ex. Census) o 5) EXCEPT matter observed by law enforcement personnel are not admissible against a criminal . o 6) UNLESS the observation was ministerial. o 7) Results of an investigation by ANY public agency are not admissible against a criminal . o 8) Factual findings resulting form an investigation include opinions and conclusions. o 9) Results of government investigations are not admissible if they lack trustworthiness. o 10) Statements by third parties require a separate hearsay exceptions. (i.e., watch out for hearsay w/in hearsay) Rule 803(8) Logic Tree: First ask: Is this record a hearsay use? Questions to Ask 1) Is the record generated by a NON-public entity? 2) Has the public entity exceeded its powers or authority in generating the record? 3) Is the record setting forth the activities of the public entity? (ex. official decisions of a government unit, legislative vote, housekeeping records, etc.) 4) Is this a civil case? 5) Is the record an observation of law enforcement personnel? 6) Is the record offered against the government? (who is the proponent?) 7) Is the record a finding from an investigation? Response

If yes, then 803(8) does not apply; whether to ADMIT or EXCLUDE will turn on other rules of evidence. If NO then go to the next question. If yes then EXCLUE the evidence (and do not seek to apply any other hearsay exception/exclusion.) If yes, then ADMIT the evidence pursuant to 803(8)(A), unless ther is a trustworthiness concern under 803(8) If yes, then ADMiT the evidence pursuant to 803(8)(B) or (C) I yes, then EXCLUDE the evidence pursuant to 803(8)(B), unless the record is ministerial (and do not seek to apply other hearsay If Yes, then ADMIT the evidence pursuant to 803(B)(C), unless If Yes If No go through the chart again.

HEARSAY EXCEPTIONS: OTHER 803 EXCEPTIONS Rule 803(7) & (10): Absence of Records The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (7) Absence of entry in records kept in accordance with the provisions of paragraph (6) 54

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Evidence that a matter is NOT included in the memoranda reports, records, or data compilations, in any form, o kept in accordance w/ the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, o if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, o unless the sources of information or other circumstances indicate lack of trustworthiness. (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 o 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 w/ rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

o Sometimes the absence of a record is as significant as the presence of one. Absence of a record rarely, if ever, would constitute an assertion falling w/in the hearsay rules, so an exception for these absences is not necessary. Absence of records rarely constitutes a statement.

FRE 803(16): Ancient Documents The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (16) Statements in ancient documents Statements in a document in existence twenty years or more the authenticity of which is established. Watch out for hearsay-within-hearsay in ancient documents. (16) admits the writing, but it does not encompass hearsay reported within the document. FRE 803(17): Market Reports The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (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 in particular occupations. The exception encompasses only lists or compilations of data, not more discursive or evaluative material. FRE 803(18): Learned Treatises 55

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The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (18) Learned Treatises to the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, o statements contained in published treatises, periodicals, or pamphlets o on a subject of history, medicine, or other science or art, o 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. Four points on this rule: o 1) Treatises can only be introduced in connection w/ an experts testimony. A party, t/f, cannot simply introduce the treatise itself; a learned treatise is always connected to an expert witness in the courtroom. o 2) To prevent the jury from examining portions of the treatise on their own, w/o an experts guidance, the rule prohibits introduction of the treatise itself into evidence. o 3) The proponent must establish the treatise is a reliable authority. The rule offers 3 routes to foundation: (a) The expert witness who relies upon or acknowledges the treatise may confirm that the treatise is a reliable authority in the field; (b) another expert witness may establish that fact; or (c) the judge may take judicial notice of the treatises authoritativeness. o 4) Rule encompasses learned treatises in almost any field of stud.

RULE 804 - WHAT IS UNAVAILABILITY? Different category of exceptions that apply only if the declarant is unavailable as a witness. How does an advocate prove that a declarant is unavailable? FRE 804: Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability Unavailability as a witness includes situations in which the declarant: (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or (2) persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarants statement; or (4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means. A declarant is not available as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. (5) Absence. This type of unavailability most commonly arises when o (a) the party cannot find the declarant after making a diligent search; or 56

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o (b) the declarant refuses to come to court and is currently outside the courts jurisdiction. 804(5) imposes 2 additional obligations on a party attempting to introduce the declarants statement. o 1) the party must use any reasonable means, in addition to serving a subpoena, to persuade the declarant to attend the trial. This may mean paying travel expenses. o 2) The proponent must use reasonable means to take the declarants deposition if the declarant will not attend the trial. The proponent of a hearsay statement offered under 804 has the burden of proving that the declarant is unavailable.

HEARSAY EXCEPTION FORMER TESTIMONY FRE 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: (1) Former Testimony Testimony o given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, o if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, o had an opportunity o and similar motive to develop the testimony by direct, cross, or redirect examination. Foundation requirement: The party offering the former testimony must show that the declarant is unavailable. 4 Factors courts use when determining whether an opposing party had a similar motive to develop a witnesss testimony in the prior proceeding: o 1) The type of proceeding in which the testimony was given; o 2) trail strategy; o 3) the potential penalties or financial stakes; and o 4) the number of issues and parties. In criminal cases, Rule 804(b)(1) supports admission of prior testimony ONLY if the opposing party personally had the opportunity to cross-examine the witness at the prior proceeding. o NO predecessors in interest or other substitute cross-examiners in criminal cases. Prior Inconsistent Statements by Witness 801(d)(1)(A) Declarant: Must testify at current hearing Former Testimony 804(b)(1) Must be unavailable 57

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or trial Must be subject to crossexamination concerning the statement Content of Statement: Context of Prior Statement: Inconsistent with current testimony Must have been under oath Made at any prior proceeding, deposition, or grand jury presentation Any content Must have been under oath Made at a prior proceeding at which the opposing party (or, in a civil case, a predecessor in interest) had the opportunity to cross-examine or develop testimony on direct, and had a similar motive as in the current proceeding

HEARSAY EXCEPTION DYING DECLARATIONS The assumption that dying declarations are truthful rests on three rationales: o 1) Religious A person does not want to meet his/her maker with a lie upon his/her lips. o 2) Secular Dying people have little incentive to lie, b/c they cannot gain anything from deception. o 3) Intuitive appeal to heeding a dying persons last words. FRE 804(b)(2): Dying Declarations (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. Four important facets of this rule o 1) Applies only if the declarant is unavailable. o 2) This exception applies only in homicide prosecutions and civil proceedings; it does not apply to most criminal prosecutions. This limit recognizes the criminal s constitutional right to confront witnesses, as well as policy concerns with convicting s based on secondhand statements. o 3) The declarant must believe that death is imminent when he makes the statement. 58

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This is a subjective requirement. The person must believe that death will happen very soon (w/in a few hours) and that it is inevitable. The statement is still admissible if the person recovers, so long as the person truly believed he would die when he made the statement. o 4) The content of the statement must concern the cause or circumstances of the declarants death. Many dying declarations are also admissible under other hearsay exceptions, such as excited utterance, state of mind, statements to obtain medical treatment, and forfeiture. Under Rule 104(a), the trial judge will determine whether the declarant sincerely believed death was imminent when the statement was made. The party offering the dying declaration must prove this belief by a preponderance of the evidence. The proponent can rely on any type of evidence to prove this belief, but courts most often consider: o Statements by the declarant o Statements made by medical personnel and others to the declarant o The nature and extent of the wounds or illness o The length of time b/n the statements and the declarants death o The opinion of medical personnel who treated the declarant about the declarants death. Six things to remember about 804(b)(2) Dying Declarations o 1) The starting point is that all 804 hearsay exceptions the statement must be hearsay (an out of court statement offered for the truth of the matter asserted) and the declarant must be unavailable. o 2) The declaration must be made when the declarant had a subjective belief that death was imminent. o 3) Thus, most, but not all, dying declarations are from an unavailable declarant. o 4) The admissible portion of the statement is limited to that concerning the cause or circumstances of death. o 5) The exception is not exclusive other exceptions might apply. o 6) The exception only applies to civil cases or homicide cases

HEARSAY EXCEPTION STATEMENTS AGAINST INTEREST The assumption underlying this rule is that self-inculpatory statements are true. Analysis: o 1) Is X unavailable? o 2) Was Xs statement against his/her interest? o 3) Was it against his/her interest at the time it was made? o 4) Is corroboration necessary, assuming it is against his/her interest? FRE 804(b)(3): Statements Against Interest (b) Hearsay exceptions the following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 59

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(3) Statement against interest A statement which was at the time of its making o so far contrary to the declarants pecuniary or proprietary interest, or o so far tended to subject the declarant to civil or criminal liability, or o 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 statement. Four parts to this rule o 1) Declarant must be unavailable for the exception to apply o 2) Statement must be against the declarants interest at the time it was made. o 3) Three ways that a statement can be against a declarants interest. Pecuniary or proprietary interest Civil or criminal liability Render invalid a claim o 4) Any statement that exposes the declarant to criminal liability is admissible to exculpate a criminal only when corroborating circumstances clearly indicate the statements trustworthiness. Statements offered to minimize guilt o A declarant sometimes makes a statement that admits wrongdoing but minimizes her role while blaming others. Under these circumstances, the court must decide whether the statement was really against the declarants interest. o May not be sufficiently against the persons interest to qualify under the rule. Trustworthiness when exculpating a criminal o Courts are suspicious when a criminal attempts to exculpate himself by using a third partys alleged confession. Witness testifies she heard someone else confess to the crime. o A statement against interest exculpating a criminal is admissible only if corroborating circumstances clearly indicate the trustworthiness of the statement. Most courts require corroboration both of the declarants trustworthiness and of the statements trustworthiness. o 6 factors in determining whether this type of statement is sufficiently trustworthy to admit under 804(b)(3): 1) Whether the declarant had plead guilty b/f making the statement or was still exposed to prosecution (that is, how far against the declarants interest the statement was at the time); 2) The declarants motive in making the statement and whether there was a reason for the declarant to lie; 3) Whether the declarant repeated the statement and did so consistently; 4) The party or parties to whom the statement was made; 5) The relationship of the declarant w/ the accused; and 6) The nature and strength of independent evidence relevant to the conduct in question. o Under 104(a) the judge determines trustworthiness and the standard is by the 60

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preponderance of the evidence.

HEARSAY EXCEPTION FORFEITURE This rule deals with the case when an opposing party causes a declarants unavailability, intending to prevent her testimony (ex. kidnap, beat, murder). Implied Waiver by causing the unavailability of a witness, the opposing party waives the right to object to the witnesss prior statements as hearsay. Forfeiture o 1) Declarant unavailable o 2) Opposing party engaged or acquiesced in wrongdoing o 3) Intended to cause unavailability o 4) Wrongdoing caused unavailability FRE 804(b)(6): Forfeiture (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. 3 requirements o 1) The opposing party must have engaged or acquiesced in wrongdoing. The rule does not apply to legitimate means. o 2) The opposing party must have intended to make the declarant unavailable. If the declarants absence was an unintended consequence of the partys wrongdoing, the exception does not apply. o 3) The wrongdoing must have caused the declarant to become unavailable. Courts have interpreted the wrongdoing language to mean coercion, undue influence, or pressure to silence testimony and impede the truth-finding function of trials. o Merely persuading a witness to claim a privilege or forego testifying does not fall w/in the rule. Mixed Intent o As long as one of the abusers intentions is to silence the victim, the victims out-ofcourt statements may be admissible under the forfeiture exception.

HEARSAY EXEMPTION STATEMENTS BY PARTY-OPPONENTS Allows a party to introduce any out-of-court statement made by the opposing party. Derives from the concept of estoppel The adversarial nature of the judicial system suggests that a party should be held accountable for any statements that he/she makes. FRE 801(d)(2): Statements by Party-Opponents (d) Statements which are not hearsay A statement is not hearsay if 61

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(2) Admission by party-opponent The statement is offered against a party and is o (A) the partys own statement, in either an individual or a representative capacity or o (B) a statement of which the party has manifested an adoption or belief in its truth, or o (C) a statement by a person authorized by the party to make a statement concerning the subject, or o (D) a statement by the partys agent or servant concerning a matter w/in the scope of the agency or employment, made during the existence of the relationship... The rule imposes one significant limit: To qualify for this exemption, a partys statement must be offered against that party. o Parties cannot introduce evidence of their own statements under this rule; they can only offer evidence of an opponents statements. A party seeking to preclude his/her own statements can object under 403. Statements do not require the party be available. The statement can be signing a document An individuals silence can constitute an adoptive admission if the circumstances are such that a reasonable person would speak up rather than remain silent.

STATEMENTS BY PARTY-OPPONENTS IN THE CONTEXT OF MULTIPLE PARTIES Same-side Statements o the rule allows one to introduce out-of-court statements made by another , as long as the introducing the statement offers it against the codefendant. o The rule authorizes any litigant to introduce a partys statement against a party. Thus, as long as one offers a codefendants out-of-court statement against that codefendant, Rule 801(d)(2) supports admitting the statement. Spillover Effects in Civil Cases o What effect do those statements have on other parties on the same side of the litigation? A partys own statement only allowed against that own party, but is not authorized to be used against anyone else. o So how does a judge admit evidence said by one against him, but not against his codefendants? The judge will give the jury a limiting instruction telling them that they may consider the content of the statement in assessing the speakers liability, but not in evaluating the other codefendants behavior. o In civil case, Rule 801(d)(2) authorizes introduction of an out-of-court statement against the party who made the statement, but not against other parties. The Confrontation Clause o A limiting instruction often is insufficient if a court admits an out-of-court statement against one that also incriminates other codefendants. o Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him... o Brunton offers these options to a prosecutor who obtains an out-of-court admission from one of several s: 1) The prosecutor can redact the s admission so that it does not implicate any other s. The redacted statement will be admissible under Rule 801(d)(2) 62

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against the who made it, and will not infringe the Confrontation Clause rights of other s. 2) The prosecutor can sever the trial and try each of the s separately, introducing the out-of-court admission against the who made the statement at that s trail. 3) The prosecutor can forego use of the statement, relying on other evidence instead. Adoptions, Agents & Authorized Speakers o 801(d)(2)(B) allows introduction of statements adopted by a party, including statements endorsed through silence; o 801(d)(2)(C) permits introduction of statements made by a person that the party authorized to speak on that subject; and o 801(d)(2)(D) admits statements made by a partys agent or employee. o In some cases involving multiple s, these provision allow the to introduce one s statement against all of the s. Redacted Statements o Bruton, Richardson and Gray o Guidelines governing the redaction of out-of-court statements implicating a codefendant: 1) A statement that explicitly names a codefendant and implicates that codefendant on its face violates Bruton. The statement cannot be admitted in this form. 2) A statement that simply replaces the codefendants name w/ blanks or other obvious marks of deletion also violates Bruton. A statement in this form inevitably will tempt the jury to fill in the blanks w/ the codefendants name. 3) A statement that does not refer explicitly to a codefendant, and that contains no obvious omissions tempting the jury to fill in the gaps, satisfies Bruton. The prosecutor can admit statements that satisfy this condition in their initial form or that can be redacted to reach this form. These statements still are admissible only against the who made the out-of-court statement, and the judge will instruct the jury not to consider these statements in connection with any codefendants. But the form of the statement makes it plausible that the jury will follow those instructions, resolving the 6th Amendment concerns raised by Bruton. o (See Chart on pg. 681)

HEARSAY EXEMPTION STATEMENTS OF COCONSPIRATORS Extrajudicial statements by one member of a conspiracy. To prosecute these crimes effectively, prosecutors need to introduce statements against ALL participants in the illegal scheme. Allows a litigant to introduce the statement of one coconspirator against any other member of the conspiracy, as long as the statement was made during the course of the conpirarcy and to further the joint enterprise.

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FRE 801(d)(2)(E): Statements of Coconspirators (d) Statements which are not hearsay A statement is not hearsay if... (2) Admission by party-opponent The statement is offered against a party and is... o (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Key points o Conspiracy = Joint Venture, partnership o Statement must occur during the course of the conspiracy and in furtherance of it Arrest usually ends the conspiracy Boasting doesnt count as furtherance. o Another avenue for attributing statement to co- , so avoids Sixth Amendment issues.

FRE 807: Residual Exception A statement not specifically covered by Rule 803 or 804 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 a 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 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. Gives judges flexibility by allowing them to admit hearsay that falls outside the standing exceptions, as long as the evidence has sufficient guarantees of trustworthiness and is the best available way to prove a needed fact. Must satisfy 6 conditions to gain admission o 1) The statement must not be specifically covered by Rule 803 or 804. o 2) A statement admitted under Rule 807 must have circumstantial guarantees of trustworthiness that are equivalent to those found in the enumerated exceptions of 803 and 804. o 3) A statement must offer evidence of a material fact. o 4) The proffered hearsay must be more probative of the information it conveys than any other evidence that the proponent could procure through reasonable efforts. o 5) The trial judge must find that admission of the statement is consistent with the general purposes of these rules and the interests of justice. o 6) Must give notice.

Hearsay Policies Residual Exception Out-of-court statement is more reliable than most. Out-of court statement has guarantees of trusthworthiness Out-of-court statement is more necessary than Out-of-court statement satisfies important need 64

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most

ATTACKING A DECLARANTS CREDIBILITY Rule 806 gives parties a way to attack a declarants credibility, whether or not the declarant appears as a witness. The rule allows parties to impeach declarants in the same manner that they impeach witnesses, using any of the tools recognized by Article VI of the rules. o Impeach declarants as if they were witnesses. o If you can ask the declarant the question, then you can ask the witness the same question. o Imagine the declarant is in the stand. Put the declarants face on the witnesss face. FRE 806: Attacking and Supporting Credibility of Declarant When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent w/ the declarants hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. Six Key Points o 1) This rule applies to ALL hearsay statements admitted under an exception, as well as to statements governed by 801(d)(2)(C), (D), or (E) admissions made by a partyopponents agent, spokesperson, or coconspirator. o 2) Allows a party to attack a declarants credibility by introducing evidence that would be admissible if the declarant had testified as a witness. Including: Evidence of the declarants bias, prejudice or interest in the case Inconsistent Statements Rule 613 Lacks Personal Knowledge Rule 602 Lacks Capacity to testify truthfully Rule 603 Reputation or opinion for untruthfulness character Rule 608(a) Criminal Convictions Rule 609 o 3) Once a declarants credibility has been attacked, the other party may rehabilitate the declarant. o 4) 806 allows a party to present a declarants inconsistent statements w/o giving the declarant an opportunity to deny or explain those inconsistencies. o 5) Allows a party to impeach a hearsay declarant. o 6) Recognizes that parties sometimes use a hearsay exception to avoid cross65

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examination of a witness. Under these circumstances, the opposing party should be allowed to call the declarant as a witness and cross-examine the declarant about the statement (can use leading Qs). Rule 806 does NOT apply when the court admits prior statements by a witness that fall w/in Rule 801(d)(1)s not hearsay category. Rule 806 does NOT apply to out-of-court statements made or adopted by a party-opponent.

THE SIXTH AMENDMENT AND HEARSAY Crawford v. Washington o Supreme Court held that the Confrontation Clause guarantees a procedural right the criminal s right to confront witnesses against him. o Crawford has significantly affected application of 7 hearsay exceptions o Restricts ONLY a prosecutors use of hearsay against a criminal . o ALL of the hearsay exceptions retain full force in civil cases, and most remain unchanged in criminal ones. Sixth Amendment In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him... Crawford and the 6th Amendment The Court ruled the term witnesses applied to people who provide testimonial statements against a criminal . Thus, under Crawford, a criminal s sixth Amendment right to be confronted with the witnesses against him is a right to cross-examine people who make testimonial statements against him. o Only some out-of-court statements are testimonial; the Sixth Amendment limits admission of testimonial statements but does NOT apply to non-testimonial statements. th 6 A: Five Principles o 1) All evidence must satisfy the FRE o 2) 6th A applies only to evidence offered against the accused o 3) If a statement is non testimonial it satisfies 6th A o 4) If testimonial, the accused must have a chance to cross exam the declarant o 5) If the accused doesnt have that chance at trial, he must have had the opportunity before.

When the Prosecutor offers hearsay against a Criminal : Question to Ask 1) What is the difference b/n testimonial and nontestimonial statements?

The Rule

The prosecutor may introduce non-testimonial hearsay as long as those statements comply w/ 66

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the hearsay rules. The 6th A does NOT limit the admission of non-testimonial hearsay. 2) When is a declarant available? The prosecutor may introduce testimonial hearsay if the statements comply w/ the hearsay rules, and the declarant is available as a witness. Under those circumstances, the has a chance to cross-examine the declarant about the testimonial statement and any other matters. If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may offer the statement only if the declarant had a prior opportunity to cross-examine the declarant.

3) What constitutes a prior opportunity to crossexamine the declarant?

What is a Testimonial Statement? Look for: o Formal proceeding/solemnity o Government involvement o Statement made to prove a fact related to a crime o Statement that declarant reasonably would expect to be used prosecutorially Kleins Definition of Testimonial Evidence collected by the Government, in a context where the declarant would be aware that this is what was happening. (think: Sir Walter Raleigh) When did have prior opportunity to cross-examine? o Declarant was under oath in formal setting (hearing, deposition) o had opportunity to question o had similar motive to question A solemn declaration or affirmation made for the purpose of establishing or proving some fact. o Examples include: Prior testimony at a preliminary hearing; Prior testimony at a grand jury; Prior testimony at a former trial; Statements made during police interrogations. o Statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Three Factors that contribute to the determination of whether a reasonable person would expect his statement to be used prosecutorially: o 1) Statements uttered solemnly or under formal circumstances are more likely than casual statements to be testimonial. o 2) Statements to law enforcement agents or other government employees are more likely than those to private parties to be testimonial. o 3) Statements made to prove a fact are more likely than those made for some other purposes (such as gaining help) to be testimonial. 67

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Two Types of statements to law enforcement workers present special problems under Crawford: statements to 911 operators and statements made to police officers when they first arrive at the scene of a crime. o Davis v. Washington the Court held that the purpose of statements made to law enforcement agents may determine whether they are testimonial: Nontestimonial Made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. Testimonial Made under circumstances objectively indicating that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. No court has extended Crawford to statements made by a declarant to friends or associates. o Are statements made to an undercover police officer or to a government informant testimonial? Courts have held that these statements are NOT testimonial if the declarant does not know that the is speaking to a government informant, since in that circumstance he would not believe that his statement would be used later at trial. The Confrontation Clause does NOT bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Does not apply to: Dying declarations and Forfeiture. Divide hearsay exceptions into 3 categories: o 1) Those that never raise Confrontation Clause issue b/c the exception itself satisfies the clause; 801(d)(1) Prior Statements by Witness 801(d)(2) Party Opponent Admissions 803(5) Past Recollection Recorded 803(7) and (10) Absence of Entries in Business and Public Records 804(b)(1) Prior Testimony 804(b)(2) Dying Declarations 804(b)(6) - Forfeiture o 2) Those that rarely generate Confrontation Clause issues but might admit evidence violation the clause in unusual cases; and 803(4) Statements Made for Medical Treatment or Diagnosis 803(6) Business Records 803(17) Market Reports and Commercial Publications 803(18) Learned Treatises o 3) Those that often raise CC issues when a prosecutor relies upon the exception to admit evidence against a . 803(1) and (2) Present Sense Impressions and Excited Utterances 803(3) Statements of Mental or Physical Condition 803(8) Public Records 803(16) Ancient Documents 804(b)(3) Statement Against Interest 807 Residual Exception 68

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Melendez-Diaz and the Sixth Amendment o in possession of cocaine. Officers find a white powdery substance on the suspect, the substance goes to the lab, the lab checks the substance, the lab states that the substance is cocaine. The lab tech report is used as a declaration and put into trial. o The SC saw these reports as 803(8)(B) and ministerial. o Is there a 6th A problem? Each signature in the chain of custody is a testimony. They each must be available. The lab tech is likely unavailable for lack of memory, BUT once they are on the stand the may be able to use the report as a past recorded recollection. This area of the law is evolving. (remember this for the final)

JUDICIAL NOTICE FRE 201: Judicial Notice of Adjudicative Facts (a) Scope of Rule This rule governs only judicial notice of adjudicative facts. (b) Kinds of Facts A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When Discretionary A court may take judicial notice, whether requested or not. (d) When Mandatory A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to be heard A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor (nature) of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of Taking Notice Judicial notice may be taken at any stage of the proceeding. (g) Instructing Jury In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. What is an adjudicative fact? One that helps prove the elements of a specific case. Legislative - Where the factual question is not something that goes to the elements of the case itself, rather there is a law that may or may not apply based on the facts. o No rules guiding Legislative Facts.

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FRE 701: Opinion Testimony by Lay Witnesses If the witness is not testifying as an expert, the witnesss testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witnesss testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Lay witness opinion must be: o A) Based on actual perception (personal knowledge) o B) Be helpful (move the case along) o C) NOT based on scientific, technical, or other specialized knowledge

WHAT SUBJECTS ARE APPROPRIATE FOR EXPERT TESTIMONY? The FRE impose a gatekeeping function on trial judges. Before allowing the expert to testify, the judge must determine that both the field of expertise and the experts application of that knowledge are reliable. What constitutes reliable? Daubert Case o The Court stressed that judges, not a closed circle of experts, determine the reliability of expert testimony. To decide whether testimony is reliable judges should consider factors such as: Whether the theory or technique has been tested Whether it has been subject to peer review and publication The techniques error rate The existence of standards controlling the techniques application Whether the theory or technique has been generally accepted in the relevant scientific community Frye Rule: (MIN) Allowed scientists and other experts to set the bounds of reliability w/in their fields. Courts admitted expert testimony based on whether the experts approach had gained general acceptance w/in the field. Shifts this gatekeeping role to judges. The trial judge now decides whether an experts approach is sufficiently reliable to present to the jury. In making that decision, the judge relies upon a variety of factors that include, but are not limited to, general acceptance.

Daubert Rule: (MAJ)

FRE 702: Testimony by Experts 70

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If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Analyzing 702 Is the expert: o qualified o helpful o reliable principles and methods o factual basis o reliable application 702 and 403 o 403 requires the trial judge to exclude any evidence when the danger of prejudice, confusion of the issues, or misleading the jury substantially outweighs the evidences probative value. Three Part Analysis o 1) Is the evidence reliable, both in its underlying principles and its application to the case? o 2) Does the evidence fit the case and help the trier of fact? o 3) Even if the evidence satisfies these requirements, does the danger of unfair prejudice, confusion, or misleading the jury substantially outweigh the probative value? o A judge will analyze the expert testimony in a pretrial hearing known as a Daubert hearing. Dont forget strategy! You dont have to bring a Daubert motion against your opponents expert if you dont want to. You have to be precise what is THIS person helpful for. QUALIFYING EXPERTS Rule 702 clarifies two points about expert witnesses: o 1) A witness must in fact be qualified b/f offering evidence about scientific, technical, or other specialized knowledge. o 2) The witness may establish her qualifications by pointing to a number of different factors: knowledge, skill, experience, training, or education Process of Qualifying an Expert o 1) Lay a foundation for the witnesss expertise by asking questions about the witnesss credentials and qualifications. 71

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Leading questions are OK (even on direct), b/c the attorney is eliciting uncontested background information about pedigree. Move that the judge certify the witness as an expert. o 2) Judge allows opposing counsel to voir dire the witness. Opposing counsel has a chance to ask the witness questions in order to test his credentials. After the voir dire, opposing counsel decides whether to object to the witnesss certification as an expert. o 3) Judge rules on the motion to certify the witness. o The parties can stipulate that the witness is an expert to expedite this process. Once Dauberts reliability, fit and Rule 403 requirements have been met, the judge will certify almost any witness with specialized training or experience in the field.

BASES OF EXPERT OPINION Three Permissible Factual Bases of Expert Opinions: o 1) Personal Knowledge o 2) Facts or data admitted into evidence o 3) Inadmissible facts or data IF they are the type reasonably relied upon by experts in the particular field. The rules confer at least four special powers on expert witnesses compared to lay witnesses: o 1) If the experts testimony requires knowledge of other trial testimony, the expert may remain in the courtroom even if the judge excludes other witnesses under Rule 615. o 2) Experts are the only witnesses who can certify documents as learned treatises under Rule 803(18). o 3) Experts may do more than give commonsense opinions; they may draw inferences from the evidence and state conclusions based on their special training or expertise. o 4) Experts, unlike lay witnesses, do not have to base their opinions exclusively on personal observations. FRE 703: Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing... ...If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. ... Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect.

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FRE 705: Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise... ... The expert may in any event be required to disclose the underlying facts or data on crossexamination.

LIMITS ON OPINION AND EXPERT TESTIMONY FRE 704: Opinion on Ultimate Issue (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact... (b) No expert witness testifying w/ respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Legal Conclusions o Although Rule 704 allows witnesses to testify about ultimate issues, most judges prefer witnesses to avoid legal terms like negligent or guilty beyond a reasonable doubt. Mental States o Courts restrain experts from testifying explicitly that the possessed a particular mental state, but they allow experts to testify that circumstances were consistent with that state. Probabilities o 4 defects 1) Lack proper factual foundation 2) Technical flaws 3) Distract the jury from assessing conflict in the eyewitnesses testimony 4) Confuses the rarity of an event with the probability of the s guilt. o However we do allow DNA o Problems Factual foundation Technical Flaws Distract jury from conflicts in testimony Confuse rarity of event with probability of guilt o Be alert for these types of evidence sneaking into trails Nystagmus crossed eyes Fingerprints 73

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DNA Police officers testifying on the investigation Damages evidence The power of coincidence Polygraph Tests Eyewitness Testimony o The courts have limited expert testimony in two ways: 1) The expert may only describe general findings about eyewitness testimony; the expert may not offer an opinion about whether a particular eyewitness is reliable. 2) Most courts allow expert testimony about EW reliability only when circumstances suggest than an EW identification is less reliable than usual. Experts concluding negligence in medical malpractice cases. The Fuzzy Line on Ultimate Issue Opinions o IN Court allowed Expert (Engineer): Machine was unreasonably dangerous. Lay Witness: s investment was a scam Expert: had filed 20 false returns o OUT testifying on the law RR crossing was extra-hazardous s were material participants in a fraudulent scheme to manipulate stock s owed no taxes for years w/o returns FACTORS o Opinion literally tracks legal standard o Conclusion given w/o detail o Opinion offered by Prosecutor o Opinion offered by criminal

COURT-APPOINTED EXPERTS FRE 706: Court Appointed Experts (a) Appointment The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. o The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. o An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witnesss duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. o A witness so appointed shall advise the parties of the witnesss findings, if any; the witnesss deposition may be taken by any party; and the witness may be called to testify by the court or any party. o The witness shall be subject to cross-examination by each party, including a party 74

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calling the witness... (b) Compensation Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the 5th Amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. (c) Disclosure of Appointment In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness... (d) Parties experts of own selection Nothing in this rule limits the parties in calling expert witnesses of their own selection.

PRIVILEGES This piece of evidence, which is otherwise completely admissible, is not coming in for some other reason. External policy reason (like Subsequent Remedial Measures) o Policy justifications privileges are essential to protect certain socially beneficial relationships. Must meet 3 criteria: 1) The relationship must be one that society wants to foster. 2) Confidential communications must be essential to maintaining the relationship. 3) The injury to the relationship from disclosure must be greater than the benefit to the truth-seeking process from that disclosure. What Purpose? o 1) Protect the jury from misleading information o 2) Eliminate unnecessary delay and promote efficiency o 3) Protect a social interest o 4) Ensure evidence is sufficiently reliable? A roadmap of Privileges o How Strong? (How deep is the lake?) Privileges can be absolute or qualified. In an absolute privilege (attorney client and state secrets) shiels a communication, the opposing party cannot pierce the privilege; in other words, the information cannot be discloses unless the party who controls the privilege waives it. No matter how beneficial the information is to the case, it will not be disclosed. The opposing party can overcome a qualified privilege o What is its scope? how broad. (How wide is the lake?) A privilege usually covers: 1) confidential communications; 2) with a certain type of person (attorney, therapist); 3) for a specific purpose (seeking legal admvise or with the goal of 75

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receiving diagnosis or treatment). o Who is the holder of the privilege? Who can assert or waive? The person in control of the privilege. ex. the client is the holder in the attorney-client relationship All privileges can be waived, but the rules for waiver Privileged or not? o State Secrets Privilege o Executive Privilege o 5th Amendment In a criminal case a Prosector is not allowed to comment on in closing in a criminal Trial Can comment in closing in a civil trial You can call a witness, make them take the 5th and then comment on it in your closing. Federal Privileges o Right against self-incrimination guaranteed by the 5th Amendment o Attorney-Client & Work-Product o Spousal o Psychotheraptist-patient o Executive o Clergy-communicant Privileges NOT recognized by federal law o Physician-patient o Journalists o However, state law may apply. When a state claim and defense are litigated in federal court, they apply. FRE 501: General Rule - Privilege Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. ... However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State Law.

ATTORNEY-CLIENT PRIVILEGE Attorneys honor two overlapping commitments to maintain the confidences of their clients. o 1) Professional Obligation to keep client information confidential; the rules of professional responsibility prohibit an attorney from disclosing to any person 76

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information that a client wants to keep confidential. o 2) Evidentiary Privilege this privilege, recognized in all state and federal courts, prevents an attorney from offering testimony or other evidence about confidential client communications. Stronger than the professional obligation. Narrower covers only confidential communications made to obtain legal services.

Proposed FRE 503 (not enacted): Lawyer-Client Privilege (b) General rule of privilege A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client... (c) Who may claim the privilege The privilege may be claimed by the client ... The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary... (d) Exceptions There is no privilege under this rule: o (1) Furtherance of crime or fraud If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or o (3) Breach of duty by lawyer or client As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or o (5) Joint Clients As to a communication relevant to a matter of common interest b/n two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action b/n any of the clients. When does the privilege apply? o The privilege prevents disclosure of privileged information in any context. Discovery, trial, grand jury, pretrial hearings, and every other stage of litigation. The Attorney-Client Privilege is absolute o A party may not overcome the privilege by proving a strong need for the protected information. Does NOT protect the underlying information. o This means that a client cannot hide information, documents, or objects by communicating them to an attorney. o Attorneys have an affirmative duty as officers of the court to disclose any contraband or physical evidence of a crime that comes into their possession. ELEMENTS: o Communication Communication, NOT information. Oral or written including gestures Usually doesnt protect clients identity, existence of relationship, or fee 77

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arrangement. Flows in both directions o Between a client Or his representative Includes a preliminary consultation Corporation or organization o and a lawyer or his representative Authorized to practice law in any jurisdiction Someone client reasonably believes is a lawyer Includes in-house counsel o that is confidential Reasonable expectation Only necessary parties present (or someone with another privilege). o and concerns legal advice. For the purpose of facilitating professional legal services to the client Not business advice Not advice for future illegal conduct Even if the attorney did not know illegal purpose Even when no duty to report Discussion about legal implications of past conduct are shielded. Crime-Fraud exception strips the attorney of use of the privilege. o A client needs to be able to disclose prior illegal acts to further his legal representation, but society has no reason to facilitate new crimes. o Clients cannot use the privilege as a cloak to hide the perpetration of a crime or fraud. o The crime-fraud exception to the attorney-client privilege applies if: 1) the client is committing or intending to commit a fraud or crime; and 2) the attorney-client communications are in furtherance of that alleged crime or fraud. FRE 502: Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstance set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. (a) Scope of a Waiver When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: o 1) the waiver is intentional; o 2) the disclosed and undisclosed communications or information concern the same subject matter; and o 3) they ought in fairness to be considered together. (b) Inadvertent Disclosure When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: o 1) the disclosure is inadvertent; 78

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o 2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and o 3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Fed. R. Civ. P. 26(b)(5)(B). (c) Disclosure made in a state proceeding When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: o 1) would not be a waiver under this rule if it had been made in a federal proceeding; or o 2) is not a waiver under the law of the state where the disclosure occurred...

The most important sections: o 1) if a client or attorney inadvertently discloses information covered by the attorneyclient privilege during a federal proceeding, the disclosure does NOT waive the privilege if a) the holder of the privilege took reasonable steps to prevent disclosure, and b) the holder took reasonable steps to rectify the error. o 2) If an attorney or client intentionally discloses some privileged information in a federal proceeding, other privileged communications remain protected unless a) they concern the same subject matter, and b) the communications ought in fairness to be considered together. Who qualifies as a client in a corporate setting FACTORS determining if a manager is acting as a client and thus communicates w/ the corporate attorney under privilege (Upjohn) o The managers provided information directly to the companys counsel to help the company secure legal advice o The managers knew this was the purpose of supply the information o They provided this information in response to a superiors request o The communications related to matters w/in the scope of the managers duties This is the key factor o Other EEs could not provide this information to counsel o All parties treated the communications as highly confidential. WORK PRODUCT Broader than the attorney-client privilege. Protects any documents or other materials prepared by an attorney or client, rather than just communications b/n the two. Two important limitations: o 1) the privilege only protects documents or objects prepared in anticipation of litigation; and o 2) when work product consists soley of facts about the dispute, the privilege is qualified. An opposing party may obtain access to this type of work product by demonstrating that he has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Codified in the Federal Rules of Civil Procedure 26 o Prepared in anticipation of litigation 79

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o By attorney OR client OR their employees o Qualified privilege for facts o Absolute privilege for lawyers mental impressions, theories, etc. o Holder is NOT the client. It is also a common law doctrine recognized by courts. o Can be transactional too. o Doesnt reach to client work done unless by the attorney

OTHER PRIVILEGES These rules are not codified in the FRE, but the Supreme Court has formally approved. Spousal Privileges The federal courts recognize two different, but overlapping, spousal privileges. o 1) The Spousal Testimonial Privilege Arises only when a spouse is a criminal defendant or the target of a grand jury investigation. The other spouse may refuse to testify against the or target spouse Does NOT apply in civil proceedings. Purpose: to promote marriage privacy interests Applies only during the life of the marriage. Once a marriage ends, the testimonial privilege offers no protection to either spouse. While the spouses remain married, this privilege applies event to information that one of the spouses obtained b/f the marriage. Shields any information that one spouse might offer against the other. Shelters all information that the government might attempt to obtain from a spouse. The witness spouse controls the privilege. They may waive the privilege and choose to testify. Exceptions The privilege does not arise if the government suspects one spouse of committing a crime against the other spouse or against a child in their custody; nor does the privilege exist if the government suspects both spouses of jointly committing a crime. Under these circumstances, the government can compel the spouses to testify against each other. o 2) The Marital Communications Privilege (the pillow talk privilege) Protects confidential communications b/n two spouses. This privilege is broader than the testimonial privilege in several ways: 1. Applies to ALL stages of all judicial proceedings, both civil and criminal. o Applies regardless of whether either spouse is a party to the litigation. o No litigant may force a spouse to reveal information protected 80

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by this privilege. 2. Protects marital confidences even after the marriage ends. o Assumes that spouses will communicate freely only if they know that their confidences can never be used against them. 3. Both spouses control the communication privilege. o Neither the government nor any civil litigant may persuade one spouse to testify against the other, unless the other spouse also consents. This privilege is narrower than the testimonial privilege in sever ways too: 1. The privilege protects only communications that occur during the life of the marriage 2. The privilege protects only communications that one spouse makes to the other in confidence. o The presence of a third party almost always defeats the marital communications privilege, except the presence of very young children. 3. Only protects communications b/n the spouses. The privilege does NOT protect matters that the testifying spouse observed during the marriage. Exceptions: Same as above. (Intra-family crime exception) Marital Communications Privilege

TWO SPOUSAL PRIVILEGES: FEDERAL LAW Spousal Testimonial Privilege Does the privilege apply in civil proceedings? Does the privilege protect actions and observations? NO. Just in grand jury investigations or criminal prosecutions of the spouse.

YES

YES

NO. Just confidential communications

Does the privilege apply to communications or events that occurred BEFORE the marriage? Does the privilege survive end of the marriage?

YES

NO.

NO Only the witness spouse; the target spouse may not prevent testimony.

YES Both spouses must consent to waive.

Who may waive the privilege?

Are there exceptions?

Yes. For intra-family crimes and Yes. For intra-family crimes and 81

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jointly committed crimes. jointly committed crimes.

This privilege has not been extended to homosexuals or cohabitating couples. Psychotherapist-Patient Privilege Broad privilege: o Applies to social workers, psychiatrists and psychologists. NOT an absolute privilege. Applies only to communications that a patient makes to a licensed therapist for the purpose of diagnosis or treatment of a mental or emotional problem. A patient WAIVES the psychotherapist privilege if the puts his mental condition in issue during trial. Executive Privilege Protects confidential communications b/n the President and his/her close advisors. 2 levels of executive privilege: o 1) Shelters military, diplomatic, and national security secrets. Absolute privilege The President must specifically claim the existence of a national security interest and must point to circumstances suggesting the presence of such concerns. o 2) Presidents more generalized interest in confidentiality. Shields the Presidents conversations with top advisors so that these leaders can feel free to explore alternatives ... in a way many would be unwilling to express except privately. Qualified privilege. Clergy-Communicant Privilege Covers o 1) Communications o 2) Made in confidence o 3) By a person seeking spiritual counseling o 4) to a member of the clergy. Any religion Privilege Against Self-Incrimination An individual can invoke the 5th Amendment privilege at any stage during a civil or criminal proceeding if she believes her answer could be used against her in a criminal trial. Available to any witness in any proceeding Protects people, NOT organizations o A company cannot take the 5th Applies only to criminal liability Applies to testimony only Can be waived o Disclosure waives privilege with respect to related details Scope of cross-examination 82

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o Waiver lasts only for that proceeding Immunity o Immunity is a guarantee that information learned from the testimony will not be used against the witness in any future criminal proceeding. o Immunity overcomes privilege o Two Types: 1) Use immunity guarantees the witness that the prosecutor will not use anything she says or any information derived form those statements in any future prosecution. 2) Transactional immunity prosecutor guarantees that he will not prosecute the witness for any wrongdoing that she mentions in her testimony, even if the prosecutor obtains independent evidence of that wrongdoing.

AUTHENTICATION Serves 3 important functions o 1) Necessary to establish relevance. o 2) Offers the jury some assurance that a piece of evidence is genuine. o 3) Places the evidence in proper context. 2 objectives that authentication does NOT serve o 1) does not guarantee the identity or genuineness of any evidence. o 2) does not establish compliance with other evidentiary rules. As with many other aspects of Evidence, laying the proper foundation is not just a matter of proving the bare minimum to admit the evidence, but also of providing sufficient information to persuade the jury that the evidence is what the lawyer claims it to be. Authentication does not prove that an item is what its proponent claims; it merely offers enough evidence for the jury to make that finding. Authentication DOES... Help establish relevance Help show genuineness Place evidence in context Authentication does NOT... Foreclose challenges to relevance or genuineness Satisfy other rules of evidence

FRE901: Requirement of Authentication and Identification (a) General Provision The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims... (b) Illustrations By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming w/ the requirements of this rule: 83

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Analyzing 901 3 important concepts o 1) authentication is a condition precedent to admitting any document or object. The party must establish the identity of the object b/f it is admitted into evidence. o 2) the threshold for establishing identity or authenticity is very low. Only needs to introduce evidence sufficient to support a finding of authenticity. o 3) Common-sense definition it is what its proponent claims. Two categories of evidence o 1) Evidence that requires some kind of extrinsic information to be authenticated and o 2) Evidence that is self-authenticating, so it needs no extrinsic information to establish its authenticity. 901(b) all requires some type of extrinsic information to authenticate the proffered evidence. o Ex. testimony from a witness who provides information to authenticate the evidence. FRE 902: Self-Authentication Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following... Documents which display their identity in an obvious and trustworthy manner. FRE 903: Subscribing Witnesss Testimony Unnecessary The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. A subscribing witness is a person who signs a document to indicate that she saw another person execute the document. Analyzing 901 & 902 Distinctive Features o If a piece of evidence has distinctive characteristics, a witness familiar w/ the item can identify it in court. Chain of Custody o To demonstrate a chain of custody, the party calls a series of witnesses, each of whom describes how they obtained the item and passed it to the next person in the chain. o Parties also use chain of custody testimony to establish that the condition of evidence has not changed in a way that would affect the case. Handwriting o 5 ways to authenticate handwriting 1) the person who authored the note or signature may identify the writing as their own. 2) someone who saw the act of writing may identify the person who wrote or signed the document. 3) an expert witness may identify handwriting by comparing the disputed 84

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writing w/ a sample that has been verified by other means. 4) A party may introduce both the disputed writing and the admitted samples into evidence. The jurors will compare the writings and draw their own conclusions. 5) allows a lay person who is familiar with another persons handwriting to identify that handwriting in court. Voice Identification o Any witness who is familiar with a persons voice may identify that voice in court. o The rules allow a witness to develop voice recognition solely in connection w/ litigation. Photographs and Videos o Any witness who is familiar w/ the photographed scene or the videotaped events may authenticate them. o The witness performing the identification simply testifies that, based on his personal knowledge, the photo or video offers a fair and accurate representation of the scene. Public Records o Under Rule 902, some documents authenticate themselves; a party offering these documents does not need to lay any foundation other than the documents. Public records are self-authenticating. o 902(1) a party may introduce an original public document form any federal, state or local government unit if that document bears both a signature attesting to the documents authenticity and the official seal of the government unit. The signature and seal substitute for live testimony authenticating the document. o 902(2) government units that lack their own seals o 902(4) allows a party to introduce a certified copy of any official record or report or entry therein. o 902(3) Foreign Public Documents Must carry both: 1) the signature of a foreign official responsible for verifying the document and 2) a diplomatic or consular certification. o 902(5) recognizes all books, pamphlets, or other publications purporting to be issued by public authority as self-authenticating. Newspapers and Periodicals o Self-authenticating under 902(6) Business Records o Self-authenticating under 902(11) and (12) o A certificate satisfying the requirements of the business records exception (Rule 803(6)) also authenticates the document. Circumstantial Evidence o Parties may identify evidence through appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. Admissions and Stipulations o parties authenticate most pieces of evidence b/f trial.

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BEST EVIDENCE When a party relies upon a writing, recording, or photograph to prove the content of that document, Article X requires the party to introduce the original document. If a party wants to prove the content of a document, then the party should produce the document itself. The BE rule rests on 3 policies: o 1) the content of a W,R, or P is more detailed and difficult to describe than most events or objects that witnesses relate in the courtroom. o 2) W, R, and P are relatively easy to produce, especially since modern rules allow for liberal use of duplicates. o 3) the rule reduces opportunities for fraud or distortion. Writings, Recordings, and Photographs FRE 1001: Definitions of Best Evidence Rule For the purpose of this article the following definitions are applicable: (1) Writings and recordings Writings and recordings consist of o letters, words, or numbers, or their equivalent, o set down by handwriting, typewriting, printing, photostating, photography, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs Photographs include still photographs, X-ray films, video tapes, and motion pictures... (3) Original An original of a writing or recording is o the writing or recording itself or o any counterpart intended to have the same effect by a person executing or issuing it. o an original of a photograph includes the negative or any print therefrom. o If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original... (4) Duplicates a duplicate is a counterpart o produced by the same impression as the original, or o from the same matrix, or o by means of photography, including enlargements and miniatures, or o by mechanical or electronic re-recording, or o by chemical reproduction; or o by other equivalent techniques which accurately reproduces the original.

Offered to Prove the Content FRE 1002: Requirement of Original To prove the content of a writing, recording, or photograph, the original W, R, or P is required, except as otherwise provided in these rules or by Act of Congress. 86

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Two categories of cases in which parties prove the content of a W, R, or P o 1) W, R, or P has independent legal significance: the content of the document itself controls some facet of the litigation. o 2) A party seeks to prove the content of a WRP, the party chooses an item falling in one of those categories as a convenient option for proving some fact. FRE 1003: Admissibility of Duplicates A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original, or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Exceptions FRE 1004: Admissibility of Other Evidence of Contents The original is NOT required, and other evidence of the contents of a writing, recording, or photograph is admissible if: (1) Original lost or destroyed All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) Collateral matters The WRP is not closely related to a controlling issue. Proof by Admission FRE 1007: Testimony or Written Admission of Party Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that partys written admissions, without accounting for the nonproduction of the original. If an opponent admits the contents of a writing, recording, or photograph, then the party does not have to produce the original document or account for its absence. FRE 1005: Public Records The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

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FRE 1006: Summaries The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by the parties at reasonable time and place. The court may order that they be reproduced in court.

FRE 1008: Functions of Court and Jury When the admissibility of other evidence of contents of WRP under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104... ... However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

PRESUMPTIONS 4 Types o 1) Permissive Inferences The judge simply instructs the jury that it may infer one fact from another. o 2) Burden-of-Production-Shifting Presumptions (aka Bubble Bursting or weak) Burden of Proof (persuasion) Who wins if it is a tie? The person w/o the burden. Burden of Production (producing evidence) If no one produced any evidence who would win? o 3) Burden-of-Proof-Shifting Presumptions (aka Rebuttable or strong) o 4) Conclusive Presumptions (aka Irrebuttable Presumptions) FRE 302: Applicability of State Law in Civil Actions and Proceedings In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.

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FRE 301: Presumptions in General in Civil Actions and Proceedings In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. 3 points about 301 o 1) The rule applies only to civil proceedings Criminal Law presumptions are not affected by the FRE. Constitutional presumptions control. o 2) Creates a default principle that applies only when some other provision does not. o 3) When 301 applies, most court agree that it creates the second type of presumption: burden shifting. Bursting Bubble o A presumption disappears once the opposing party offers some evidence disputing the presumed fact. The opposing party need not persuade the fact finder that she is right; she only needs to offer evidence that a reasonable jury could accept. Top 3 points o 1. Rule 302: State rules govern state claims o 2. 301: burden of production shifting (bubble bursting) presumptions are the federal default o 3. Identify presumptions carefully Burden of Proof Shifting If introduces sufficient evidence to persuade reasonable jury, issue goes to jury and must prove unreasonable or unnecessary.

THE ROLE OF THE JURY FRE 606: Competency of Juror as Witness (b) Inquiry into validity of verdict or indictment Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to o any matter or statement occurring during the course of the jurys deliberations or o to the effect of anything upon that or any other jurors mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or o concerning the jurors mental processes in connection therewith. But a juror may testify about o (1) whether extraneous prejudicial information was improperly brought to the jurys attention, o (2) whether any outside influence was improperly brought to bear upon any juror, or o (3) whether there was a mistake in entering the verdict onto the verdict form. A jurors affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. 89

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