Evidence Outline

Penny Oleson Evidence Outline to Study for Final
Key remember, unless otherwise noted, always do 403 analysis after you think it gets in
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Relevance Relevant evidence is evidence that makes a key fact either more or less likely to be true than it would have been w/out the evidence. All relevant evidence is admissible unless otherwise provided by Constit., act of Congress, the FRE or other rules prescribed by SCOTUS pursuant to statutory authority. Evidence that is NOT RELEVANT is inadmissible. Overview of FRE - PSO y Introduction y Evidence is about the limits we place on the information juries/fact-finders hear. y Why should we put limits on information for juries? Trials have to end someday! Fruit of the Poisonous Tree and other Constitutional violations per SCOTUS Society has chosen to protect certain types of communications wife/husband, lawyer/client even at the expense of good evidence. y But the FRE goal is a little more elusive it has to do with achieveing at trial the RIGHT result Truthful verdics the one that accords with WHAT happened. y Why have evidence rules anyway? (FRE) o We cant count on lawyers to present only sound and helpful evidence to juries nor can we count on juries seeing through lawyers tactics! FRE presumes that certain evidence will distract juries from their search for truth and produce wrong results. o Sources of irregularity in FRE We are inconsistent with our trust/faith in juries Public Policy goals have shaped the rules in ways that are not wholly predictable. Rules of evidence are largely the product of centuries of common law contrivance and compromise y Organization of FRE o Relevance - rules of relevance attempt to focus the parties and the jury on the issues at hand. Guard against digression and distraction. (BROAD RULES) o Reliability - rules of reliability attempt to ensure that the evidence the jury hears is as good as it purports to be or at least that its defects are apparent to the jury. (BROAD RULES) o Privileges excludes evidence that is both relevant and reliable to serve other societal interests. y FRE overview Rule 101. Scope - These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101. Rule 102. Purpose and Construction - These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. o o o o o o o Governs Federal not state. 42 states + Puerto Rico have adopted in whole or in great part (includes CT which has rules closely mimicking FRE). 8 states have adopted distinct evidence codes or have not coifed their evidence law (CA, GA, IL, KS, MA, MO, NY, VA) adhere to similar evidence principles. Underlying almost all American evidence law is the common law tradition and FRE borrow heavily from that tradition. Enacted by Congress in 1975 Fundamental statutes and may be interpreted in light of their hx. Hx began formally with Warren Court in 1965 when Chief Justice Warren appointed an advisory committee of judges, practitioners and academics to draft original slate of proposed rules. (headed Professor Cleary) Drew from common law and older codification efforts (Model Code of Evidence 1942, Uniform Rules of Evidence 1953). Committee delivered its proposed rules to the Supreme Court in November 1972. Court approved rules essentially w/out change and sent them to Congress.

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Promulgated versus merely perfunctory Some say SCOTUS promulgated the Rules, Justice Douglas in dissent In 1984, entire court acknowledged it has served in truth merely as a conduit (conveyer of information) o Promulgated - 1: to make (as a doctrine) known by open declaration :PROCLAIM
o Perfunctory - to accomplish, get through withcharacterized by routine or superficiality Congress proved to be a tougher sell scrutinizing and amending many of the rules. Even rejected 13 proposed privilege rules and replaced with a single Rule (FRE 501 - 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 the 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.) Over the years, Congress has amended the FRE several times and added new rules.Most significant editions have been y Rule 412 Rape Shield Provision) - Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (1978) and y Rules 413-415 (1994) generally admit evidence of a criminal or civil defendants propensity to commit certain sexual offenses. Each rule should be taken as the prime source of its meaning and read in light of its legislative history as on occasion that history may override even an apparently plain and unmistable meaning of the words of the rule. Occassionally, history will show a compromise struct between a competing House and Senate version if amended since 1975, legislative hx of amend will follow original rules history in the rulebook. y HR or Senate Judiciary Committee Reports y Excerpts from floor debates y Significance of Advisory Committees notes that accompany each rule o Matter of dispute Prof Clearly recommended whenever Congress adopts a rule written by advisory committee and submitted by Court, the committees Note should be taken as equivalent to congressional committee report representing thinking of Congress. o Justice Scalia disagreed rejected that notion in 1975 (Tome v. US) bear no special authoritativeness as the work of the draftsmen. o More often than not, Courts follow Clearys advice. y If a rules language and history both fail to make its meaning clear, Cleary said to look to the common law for guideance it remains a source of guidance in indentifying problems and suggesting solutions w/in the confines of the rules.
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Unit 1 Relevance - PSO Chapter 1 General Principles of Relevance So if we only had rule 401, a ton of stuff gets inBUT some other rule might get in its way! IMPORTANT!
A. Probativeness and Materiality Rule 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 without the evidence. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Rule 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 unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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FRE 401 most fundamental rule of all definition of relevance - 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/out the evidence a) Study diagram on page 19! Probativeness - Evidence has probative value "if it tends to prove an issue." Black's Law Dictionary 1203 (6th ed. 1990). ... a. Evidence must be probative of a material fact that is have a tendency to make the existence of that fact more probably or less probable that it would be w/out the evidence sometimes referred to as logical relevance. Testimony of an employer about a murder victims salary is surely probative of earnings potential but does not make the evidence material to the Ds guilt or innocence. b. To be probative, evidence need not PROVE anything conclusively. It merely must have some TENDENCY to make a fact more or less probable. Will be probative if it contributes just one brick to the wall of proof by a party. BUT a brick aint a wall! 1) So 401 is a lenient standard of probativeness why?A preference for MORE rather than less evidence *(on the whole FRE is a liberal, evidence-friendly reputation)* c. George F. James: Relevance, Probablity and the Law: 1) Relevancy is not inherent its exists as a relation between an item of evidence and a proposition sought to be proved. 2) Whether the immediate or ultimate proposition sought to be proved is provable in the case at bar is determined by SUBSTANTIVE law governing the case! 3) Material propositions propositions of ultimate fact properly provable in a case under the pleadings and substantive law 4) When an offered item of evidence may be excluded as irrelevant a) Because it is not probative of the proposition at which it is directed OR b) Because that proposition is not provable in the case Materiality a. First, evidence must be MATERIAL it is material if it is bears on a fact that is of consequence to the determination of the action (ex: victims lost earning potential D will object its immaterial) Whether its Material or not is based on the substantive law NOT the rule!
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United States v. James 9th Cir (en banc) 1999 en banc all members of the circuit are sitting y Judge Noonan James appeals her conviction of aiding and abetting manslaughter y Issue:whether 4 exhibits shouldve been admissible and w/out them the whole picture of deadmans character was not seen.. y Exhibits showed answers to jury questions re: bragging or fact of mans character. y Holding: Because crux of Ds defense rested on her credibility and the omitted evidence wouldve directly corroborated that credibility, exclusion of the documents was prejudiced and more probably than not affected the verdict. Reversed. y Analysis Appeals court said the trial judge too narrow that it was critical to Ds defense that she believed ogdens stories and that to prove them to the jury, the records shouldve been admitted y Gem: Probative has to be overcome SUBSTANTIALLY by prejudice! Relevance and some balancing FRE 104, 402, 403 - PSO Ask 3 questions when determining relevance: 1. 2. 3. What proposition is the evidence being offered to prove? (Was Earnestines stories credible) Is the proposition that is being proved of consequence? Does the evidence offered actually help, even a little bit, help refute or prove the proposition?
Cox v. State, Supreme Ct of Indiana, 1998, Justice Boehm y Facts: earlymorning, James and Patricia Leonard sleeping ground floor of apartment, 3 am Patricia awakend by large POP sound *single* and quickly relized James shot in the eye. Rushed to hospital dead 3 days later. y Bullet holes found in the bedroom window/screen, A bullet casing outside the window. Officer called to the scene testifies he could clearly see into the bedroom. Firearms expert testifies pattern of discoloration on the screen COULD have been produced ONLY by a shot w/in 6 inches of screen.

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Cox said he was home by 1 a.m. Later that day a good friend of Coxs said Cox had said he had looked into the window and shot and that after that day Leonards (the family) probably aint going to have a Dad. Another friend, Angela, testified she bought bullets for Cox for his gun the night of the shooting. AND she was with him until he left between 3:30-4:30 that morning they were at Hammers house, mom of Coxs best friend who was in jail as Leonards said hammer molested their young daughter. Issue: Should evidence have been allowed? Holding: Yes cox had been living with hammers mother daily and could have had knowledge of conversation. It is not the trial courts place to make the determination juries are smart enough to figure it out. a. (gems from class) i. Maher believes its better to throw something/anything if you dont know what to use. ii. It doesnt work at SCOTUS level because you have lived/breathed it wonderfully. iii. We have to connect the dots between evidence to a fact that is consequential it be SUFFICIENT that the fact is fulfilled. Here we are determining if Cox Couldve had had knowledge of what happened at hearing. A reasonable jury has to be able to reasonably connect that the evidence presented assisted in proving/disproving a significant fact. (here, he is close friends with hammer, he spends a ton of time at hammers house AND was there the night of the shooting right before the shooting.)
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Rule 104- Under Rule Rule 104(b), the court does not decide questions of conditional relevancy using the preponderance-of-evidence standard, as under Rule 104(a). Rather, the trial court determines only if sufficient evidence has been introduced to support a finding of the fulfillment of the condition. In effect, this is a prima facie standard. The difference is between a preponderance of evidence andevidence sufficient for a jury to find a fact by a preponderance of evidence, a rather subtle difference. Rule 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. Notes: Subdivision (b).In some situations, the relevancy of an item of evidence, in the large sense, depends upon the existence of a particular preliminary fact. Thus when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorized it. Relevance in this sense has been labelled "conditional relevancy." Problems arising in connection with it are to be distinguished from problems of logical relevancy, e.g. evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401.If preliminary questions of conditional relevancy were determined solely by the judge, as provided in subdivision (a), the functioning of the jury as a trier of fact would be greatly restricted and in some cases virtually destroyed. These are appropriate questions for juries. Accepted treatment, as provided in the rule, is consistent with that given fact questions generally. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. The order of proof here, as generally, is subject to the control of the judge. 2. The Problem of Conditional Relevance pg. 34 y 104(b) says evidence MIGHT be relevant BUT ONLY IF some other condition is met that is, its admissible only upon, or subject to, the introudciton of evidence suffiecient to support the finding of the conditional fact. The theory is that a chain of INFERENCES leading from the contested fact Hammers new charges at his hearing, dead wifes conversation to her lover re: telling their son of true paternity to the conclusion of the Ds guilt is simply SEVERED if the conditional fact - did husband know of wifes intentions? Did Cox learn of the new charges? is not established. It REQUIRES that there be SUFFIECIENT EVIDENCE to support a jury finding of the conditional fact. y A sharp lawyer will look for a missing link just because Cox was in the house all the time does not mean he knew of Hammers new charges Did Hammers mom tell anyone else? W/out an objection to the evidence, and the judge looking to Rule 104(b), evidence blithely goes in and the jury gets to hear it.

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Sharp v. slacker lawyer: In the one case, the judge will TEST the opponents evidence against Rule 104(b)s conditional relevance standard. In the other, she will apply only Rule 401s bare relevance standard a. Whats the difference? b. Bare relevance to 401 standard ANY TENDENCY --- vs 104(b) evidence allowed only if prosecutor could produce evidence sufficient to support a finding that Cox was aware of Hammers ordeal. c. But sufficient to support WHAT kind of finding *a fine web we weave* i. Finding beyond a reasonable doubt? ii. Finding by a clear and convincing evidence? iii. Finding by a mere preponderance of the evidence? Writers didnt give us a clear standard. SCOTUS TO THE RESCUE! Chose the more lenient option requires the propoenent introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence (Huddleston v. US 1988). Upon or Subject to Trial judge shall admit [the contested evidence] upon or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Lets say prosecution is about to have witness testify to Hammers new charges. If there is already enough evidence IN THE RECORD to support an inference that Cox heard them before, then testimony may be admitted w/out objection. Otherwise, judge may permit testimony subject to a connection Prosecution must still introduce evidence that connects the new charges against Hammer with Cox motive to kill. If they fail, then judge will instruct jury to disregard testimony. A misplaced word NOT? Rule 104(b) comments If after all the evidence on the issue is inthe jury could reasonably conclude that fulfillment of the condition is NOT established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. Textbook believes the NOT should not be therethey are right with it in there, both sentences mean the same thing! 3. Probativeness Versus the Risk of Unfair Prejudice a. FRE 403 virtually every piece of evidence admitted at trial must survive this rules probativeness-versus-risk-of-unfairprejudice weighing test. Only 609(a)(2) is altogether exempt from rule 403 scrutiney (impeachment by evidence of commitment of a crime) i. Although relevant- permits exclusion of otherwise relevant evidence ii. evidence may be excludedMAY being the operative word to the trial judges discretion and reviewable on appeal only for abuse of that discretion. iii. if its probative value is substantially outweighed by - liberal rule friendly toward admission of evidence if the evils of a particular piece of evidence (potential to confuse jury for ex) EXACTLY offset the probative vlue of the evidence, Rule 403 grants the trial judge no discretion to exclude. Even if evils actually outweigh probative evalue, though only slightly, the rule still grants no permission to exclude. ONLY if evils SUBSTANTIALLY OUTWEIGH does it give judge DISCRETION to exclude the evidence. Could still allow it! iv. the danger of unfair prejudice - UNFAIR is key only UNFAIR prejudice, SUBSTANTIALLY outweighting would permit exclusion v. [the danger of] confusion of the issues, or misleading the jury - distracting the jury from the task at hand may also supply grounds for excluding evidence vi. or by considerations of [1] undue delay [2] waste of time, or [3] needless presentation of cumulative evidence. even sheer time waste may justify exclusion. b. The case law recognizes that certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission. c. Exclusion for risk of: i. unfair prejudice, confusion of issues, ii. misleading the jury, iii. or waste of time, all find ample support in the authorities. iv. "Unfair prejudice" within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.The rule does not enumerate surprise as a ground for exclusion. d. In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. 4. Photos and Other Inflammatory Evidence a. State v. Bocharski review (In class I gave a great point that impressed Maher).
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i. No murder weapon found only a fingerprint of Borcharski. Its not a slam dunk case only hearsay on his friends part yet, he got murder conviction. Which is why the defense wanted the pictures OUT! ii. Why did the defense not want the photos in? Why are gruesome photos prejudicial? 1. Makes the victim a real person get emotional reaction 2. They might behave in a way we dont like because of their emotional reaction. 3. They may lash out at any person alleged to have murdered/hurt the person iii. Rule 403 only kicks in if evidence is relevant 1. Did AZ supremes say the photos were relevant? a. Generally, they say relevant if they go to the cause/fact of death b. Indiv photos (Borcharski conceded relevancy of photos, but disagreed including due to prejudicially affecting the verdict). c. The case is NOT about relevancy its about PREJUDICE (GEM). i. Supremes say 46/47 are not only relevant but prejudicial as its gore to inflame the jury. Gruesome! ii. BUT it did not affect the jurys verdict there was no testimony for them (so how did they get entered into evidence?) So the Court asked the question did the jury get swayed? No. Harmless error. iii. Just because its an error, it may be a harmless error. d. It is much much much better to get the trial judge to do it your way than to try and get an Appellate judge to see it your way. Have the judge like you. Professional Connection Honorable. Respectful. e. Concurring opinion photographs do not incite emotions jurors are more mature than we give them credit for i. Problem 1.8 US v. Hitt (9th Cir 1992) 1. Unregistered machine gun handmade gun altered trigger to fire more than one shot. 2. Govt did a test and with one pull of trigger it fired more than one shot. 3. Ds experts test with one pull of trigger it fired only one shot. Govts test was an anomaly, malfunction of the gun. Dirty/worn/defective insides may have gummed up their test. 4. Govt brings a photograph of the rifle an arsenal photo and buried in there somewhere is the gun its clean on the outside but doesnt show the inside. a. Is it relevant? NOPE the issue was: was the gun inside clean? Govt says if the gun is clean on the outside, its clean on the inside. WEAK!!! Federal judge said no relevance! b. Well pretend the judge thought it was relevantso was it prejudicial? i. YES!!! An entire arsenal was shown may imply that ALL those weapons were used OR ii. It might make Hitts look like a gun head (but they are not even his guns). iii. Govt those guns are his roommates jury may believe he associates with gun heads. iv. A real risk is that once the photo is shown, it cant be forgotten. During deliberation, the jury may forget that only one gun was HITTs gun. v. SO CROP IT! (Remain calm when opposing council loses their cool law is about remaining calm) Commonwealth v. Serge see good notes from study notes a. This case is not about allowing CGA in, its about ways to think of how we think about the prejudicial analysis b. What ways could the CGA be prejudicial? i. Visually seeing someone get shot even though only a depiction seeing can be believing people more inclined to believe what they see versus what they hear in oral testimony ii. Sensationalism if the CGA had color, sound and facial expressions will elicit that emotional response but my thought is if its sterile, wont people build their own story? iii. Cost of money to make it versus his defense fund 1. Judges actually say this may matter however, if he needed a CGA he couldve requested it.
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Jury instruction can handle it so say this Court -- but juries may zone it all out and forget it during deliberation.
Michael Serge shot his wife Jennifer, 3 x, killing her inside their home in Scott Townships, Lackawanna County, PA. - was a former LT of detectives with Scranton Police Dept. was arrested and charged with one count of first-degree murder e. On June 18, 2001 prior to trial, Commonwealth filed a Motion in limine (asks the court to decide that certain evidence may or may not be presented to the jury at the trial. This keeps the other party from letting the cat out of the bag even if a jury is supposed to DISREGARD, they already heard it!) Were attempting to allow computer-generated animation of the fatal shooting. f. Sept. 14, 2001, following an evidentiary hearing, trial court granted the motion providing that certain evidentiary foundations were established at trial. g. Required them to authenticate the animation as both a fair and accurate depiction of expert reconstructive testimony h. Exclude any inflammatory features that may cause unfair prejudice i. To safegauard against potential prejudice, the trial court required the pretrial disclosure of the CGA j. Michael alleged he acted in self-defense as his wife attacked him with a knife.Commonwealth countered saying Michael used his years on the force to tamper with the crime scene to set-up a self-defense setting. They say he had moved his wifes body and strategically positioned it near a knife he had placed on the floor as depicted in the CGA k. Commonwealth, along with expert testimony of Dr. Gary Ross, pathologist, presented the CGA as demonstrative evidence to illustrate his opinions and of crime scene reconstructionisht Trooper Beach. The CGA showed the theory of Michael shooting his wife first in the lower back and then through the heart as she knelt on the LR floor of their home. l. Jury found Michael guilty of first degree murder and sentenced him to life. Michale appealed:whether the admission of the CGA depicting the theory was proper m. Court Discussion CGA should be deemed admissable as demonstrative evidence if: a. Is a fair and accurate representation of the evidence it purports to portray b. Is relevant pursuant to FRE 401 and 402 c. Has probative value that is not outweighed by the danger of unfair prejudice per FRE 403 n. Being persuasive more than chalkboard renderings doesnt make it grounds for exclusion o. Question of Unfair Prejudice a. CGA was neither inflammatory nor unfairly prejudicial b. Any prejudice resulted not from the on-screen depiction theory but from the reprehensible act of murder c. CGA did not include sounds, facial expressions or evocative or even life-like movements Held affirmed the decision of the Superior Court life in prisonment 4. US v. James - Facts (dissenting opinion see prior info) -Appears to agree that evidence proving the man had killed people was admissible (daughter shot mothers abusive lover) BUT says failing to admit evidence is not an abuse of discretion - Said the papers were not direct evidence of anything relevant - showed nothing directly about mothers state of mind because she had never seen them - risked unfair prejudice to the prosecution was considerable - he was a bad man and some people would say he deserved it but no says such things in a courtroom because the law does not permit murder, even of bad people (Death Penalty)? Majority said evidence went to mothers credibilitybut jurys questions begged the suggestion that they were wondering if victim really did what he claimed as opposed to the mother believing himproof he was a bad man? Trial judge who was there may have seen that comingits the trial judges job to weigh permissible and impermissible uses of evidence Should exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice (FRE 403) does not limit unfair prejudice to one side. It means, at its most serious an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one. 5. Excerpts from the Ruling on the Fuhrman Tapes
OJ Simpson trial defense alleges officer was motivated by his hatred of African Americans to place a bloody glove from the crime scene to the defendants home. Officer alleged in testimony he had not used the word nigger in over 10 years. Defense had 41 taped conversations of officer using the word court determined: Probative value comes from the fact that officer has testified he had not used the term in last 10 years, thereby impacting his credibility. Although allowed defense to say they had 41 instances of the use of the most inflammatory word in
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modern America, they could only play 2 instances: We have no niggers where I grew up.Thats where niggers live. The other 39 were found to be substantially and overwhelming outweighed by the danger of undue prejudice. First, was use of racial epithet relevant and admissable? Yes, goes to impeachment of him as a witness credibility. Second, should it be admitted? Rule 403 allows exclusion if: 1 probative value is substantially outweighed by the probability that its admission will: a) Necessitate undue consumption of time OR b) Create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evidence of Flight Should it be admitted? In terms of relevance, general consensus is yes it is general idea is people who run are guilty. Marginally probative of guilt (also false ID, destroy evidence, fabricate evidence, threaten a witness, bribe an official). US. V. Myers Flight is an admission by conduct Its probative value as circumstantial evidence of guilt depends upon the degree of confidence from which four inferences can be drawn: i. From the defendants behavior to flight ii. From flight to consciousness of guilt iii. From consciousness of guilt to consciousness of guilt concerning the crime charged iv. From consciousness of guilt concerning the crime charged to actual guilt of the crime charged. b. Widely criticized 2 and 4 not supported by common experience c. Widely acknowledged that evidence of flight or related conduct is only marginally probative as to the ultimate issue of guilt or innocence. (US v. Robinson) d. Nevertheless, in US v. Ballard this court stated: it is today universally conceded that the fact of an accuseds flight, escape from custody, resistance to arrest, concealment, assumption of a false name and related conduct are admissible as evidence of consciousness of guilt and thus of guilt itself. (quoting Wigmore Evidence, section 276, at 111 3d ed. 1940). Court held it was error to instruct jury they could infer consciousness of guilt from an alleged flight as there was not support in the record for a flight. Additionally, inferring his motive to flee was a feeling of guilt from a prior possible robbery (#3 requirement) was error for although Myers was guilty of a PA robbery, the prosecution used testimony of the FL and CA robberies as evidence that Myers felt guilty but we dont know if Myers committed the FL robbery or CA robbery so instructing the jury to consider THOSE as guilt reasons was improper. Because of the inherent unreliability of evidence of flight and danger of prejudice it may entail, flight instruction to a jury is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences. 4. US. V. Jackson in class Bank robbery in 1971 in NY Jackson allegedly did it. Jackson pulled over in GA for traffic stop no drivers license, gives a fake ID, has a ton of guns, then he escapes. If the jury hears all those facts, they make think he is on a crime spree and be prejudiced. Judge says, to find balance, stipulate you fled to GA and gave a false name. Well leave out why you were pulled over and there were guns. Old Chief Souter writing for the court Maher loves this case says its all about human behavior! If youre a convicted felon, you cant have a gun; Old Chief is a felon for serious bodily assault prior conviction. This case is about a stipulation BY the D: wants to say I served for a crime for over a year. Thats it. Prosecution wants to bring everything in the felony record convicted serious bodily assault. Lower courts believed Prosecution should be allowed to use the whole. Old Chief gets convicted for 5 years in jail. Point 1: Govt says Name of the Crime is relevant because the NAME of the CRIME says he is a felon. The Chief only wanted to say he had been convicted of a crime punishable by more than 1 year. Serious Bodily Assault by statute is a felony. Name of the CRIME says hes a felon. Alternative proof cannot be used for relevancy. Admission of a felony doesnt work either in todays world someone can be convicted of a crime for more than 1 year and its not a felon (Check with Model Penal Code Crim Law). Is this really critical? Only to me it seems. Maher says a felony = crime punishable by more than 1 year. I verified this online he is correct. Can you tell I didnt like Crim law? In case at hand a.
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At Issue: whether a DC abuses its discretion if it spurns an offer and admits the FULL record of a prior judgment, when the name and nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to PROVE the element of prior convictions. COURT HELD IT DOES ABUSE ITS DISCRETION! Background: 18 USC 922(g)(1) prohibits (w/some limitations) possession of firearms by anyone with prior felony conviction. Govt is allowed to prove this by introducing a record of judgment or similar evidence indentifying the previous offense. Fearing prejudice if the jury learns the NATURE of the earlier crime, Ds sometimes seek to avoid such an informative disclosure by offering to Concede (their own stipulation offered) THE FACT OF A PRIOR CONVICTION. I did this felony no details to the jury. Court said: improper grounds existed in case at hand: Generalizing a Ds earlier bad act into bad character Taking that as raising the odds that he did this later bad act as charged Or worse, punishing him NOW as prevention of future crimes or punishment of past crimes Judge Bryer once said: propensity evidence is relevantbut the risk that a jury will convict for crimes other than those charged or for uncertain of guilt will convict anyway because hes a bad person deserving punishment this creates a prejudicial effect that outweighs Ordinary relevance. Rule 404(b) says: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewigh. While showing the character of a person WILL indicate a propensity to commit a crime/do a wrong, the problem is it will do it TOO well may overpersuade a jury to prejudge w/bad general record and deny the fair opportunity to defend against a particular chage. Stipulation AND name of case both conclusively show Old Chief was convicted of a crime for more than 1 year. BUT is the probative value of HIS stipulation versus EVIDENCE (telling a story) Souter says they arent equivalent People are wired to think of thing in terms of a story from these stories, we extract principles from the stories of people the moral of the story we build a character based on what people tell us or what we hear about that person. We learn the law by reading stories cases jurors have certain expectations and things are missing, stipulations, you begin wondering where is the rest of the story and begin making inferences that are not helpful. He says this is a very narrow band of cases where there is little storytelling value to a piece of evidence. In fact, to NOT allow the stipulation AND ALLOW the evidence (storytelling) would be in error. [ALL IN HIGHLIGHTED YELLOW IS FROM MAHER IN CLASS] Dissenting oconnor writing for the 4 dissents She buys that the prosecution has the right to tell the story. She doesnt like the outcome in this case. Im confused. What is the unfair prejudice here? The govt. is just proving an element of the crime (that he was convicted for a felony, named) so how could that be prejudicial? Any incremental harm can be mitigated by limiting jury instructions. In case there is ANY incremental harm, just tell the jury not to imply character from his previous felony crime or that its evidence to the guilt of the crime at hand. Oconnor has another concern (section 2): Why does the Court think this item of evidence raises the risk of a verdict tainted by improper consideration? The plurality said it would be easy to KNOW when it applies (not telling the NAME of the crime). Really, she says? WHEN/HOW do we apply that standard? Why is that THIS stipulation in lieu of this evidence NOT a missing chapter? Didnt the plurality go on and on about this?? How is the jury not going to have a missing chapter problem? Didnt Souter (majority opinion) say the jury expects to learn this part of the story? When congress made a prior conviction an element of the crime, why are we coming up with this difficult to apply and understand holding?
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o Maher Overview of Evidence more generally Evidence fact based and down and dirty reasoning Read the rule, apply the facts. Remind myself that common sense is more a function of common sense mindset and effort. An ERISA case retirements, benefits,pension explore this something I might be good at?

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Just think about human behavior how other people act in situations see all angles. Common sense reasoning is going to get me through.
Specialized Relevance Rules PSO FRE 407, FRE 408, FRE 409, FRE 410, FRE 411 - These rules stand in a class of their won. Each of these rules has a fairly narrow range of applicationsyet, in terms of concept, structure, and rationales, they have a great deal in common. Deal with evidence of low probative power. To some extent all five rules serve public-policy concerns. - PSO
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Rule 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 negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. Problem 2.1 - 2 different lawsuits: Beagle: Cant use 407 its after the fact that he chained the dog policy reasons: dont want to punish people for taking precautions. If taken previously applies to the Beagle case. That is, had the wolf been chained he would not have attacked the beagle. Child: Is the chaining of the wolf evidence admissible? YES, because this is a subsequent event AFTER the change/modification occurred. So bring it in!
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Rule 407 only applies to this chain of events: bad thing happened > D makes alterations/changes/modifications so bad thing no longer happens DOES NOT PERTAIN TO 3rd party repairs In 1997 Rule 407 applies to strict liability (defective product). Tuer v. Mcdonald med mal suit 1. Mr. Tuer had suffered from angina pectoris for about 16 years, and was scheduled to have a coronary artery bypass graft (CABG). He had been put on Heparin to relieve the angina, but was taken off the medication the morning before surgery to allow his blood to coagulatethere was a 5%-10% chance of puncturing the internal jugular vein during surgery, and an anticoagulant could cause complications. The surgery was delayed, Dr. McDonald didn't restart Heparin, and Mr. Tuer went into cardiac arrest and died. The hospital later changed their protocol so that Heparin is now discontinued only when the patient is taken into the operating room. Dr. McDonald testified that he believed it unsafe to restart Heparin. Can evidence of subsequent remedial measures by the hospital be introduced?Held Not under Maryland's Rule 5-407, which mirrors FRE 407. Subsequent remedial measures cannot be introduced to show culpability because (a) such measures are also consistent with accident or contributory negligence, and (b) from a social policy standpoint this would discourage remedial measures, which are good things. As an exception of FRE 407, should the remedial measures be introduced to show feasibility?Held No, Dr. McDonald didn't testify that restarting Heparin would have been unsafe in an absolute sense or that one could not restart Heparinonly that, weighing the alternatives known to them, restarting Heparin would have introduced more risks than not. (Different courts use broader or narrower definitions of feasibility.) As an exception to FRE 407, should the remedial measures be introduced to impeach Dr. McDonald's testimony?Held No, Dr. McDonald's testimony in context didn't mean say that restarting Heparin was itself medically unsafe, but that under the circumstances he then thought that the risks introduced relating to the surgery were greater than not continuing Heparin. That Dr. McDonald now perceives the risks differently, perhaps even because of Mr. Tuer's death, does not contradict that he then thought restarting Heparin would have been too risky.
Controverted - To contest, deny, or take issue with. A claim of reckless driving alleged in a plaintiff's complaint that initiates a lawsuit for Negligence is controverted by the statements made in the defendant's answer that he or she was driving at a speed below the speed limit and was observing the rules of the road. Remember, controverting feasibility means if D point blank says There was no other option because it was physically impossible but P can show it IS at least possibly physically possible, bada boom its in! Other way to controvert feasibility: to do something different would not have changed the result or comparatively a better choice. Feasibility I. II. III. IV. Physically impossible if D says this, hes controverting feasibility The best answer D is controverting feasibility Court says narrow approach is you say its impossibility if you dont, you havent Court says broader approach other motives and explanations for not having adopted the remedial measure earlier that D will offer that is controverting feasibility.
Two seemingly divergent approaches have been taken in construing the feasibility exception: 1. Narrowly, disallowing evidence of subsequent remedial measures under the feasibility exception unless the D has essentially contended that the measures were not physically, technologically, or economically possible under the circumstances then pertaining a. Courts in this camp conclude that feasibility is not controverted and thus subsequent remedial evidence is not admissible under the rule when a D contends that the design or practice complained of was chosen because of its perceieved comparative advantage over the alternative design or practice Broader spectrum of motives and explanations for not having the adopted the remedial measure earlier, the effect of which is to circumscribe the exclusionary provision a. Conclude that feasible means more than that which is merely possible but includes that which is capable of being utilized successfully.
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WHEN THE WITNESS OPENS THE DOOR! When the D opens up the issue claiming that all reasonable care was being exercised at the time, then the P may attack that contention by showing later repairs which are inconsistent with testimony! Ex: D accused of negligence. D will almost always respond I DID use reasonable care. [this is okay plain generic) BUT if D could say option B wasnt feasible. Or we took EVERY option available these are controverting feasibility they have just opened the door for the P to show there WERE better options or plan B WOULDVE worked. Spectrum : Its impossible>>>>>>>>>>>>>>>took every option avail>>>>>>>gave reasonable care y Medical case unsafe depends on the context in what it was said. If unsafe to do so controverting feasibility, true. But in this case unsafe is not controverting, he is saying, for this patient for this protocol, it was the best call. Not saying ALWAYS unsafe. No error on feasibility. In practice, it is very challenging to figure this out. Impeachment hardly ever used but if D made claim GREATER than the circumstance OR if he says procedure is still in place review this. Lesson to be learned on both always going to be some/tiny amt of using subsequent remedial measures as evidence; but check the spectrum. I believed at the time that it was inconceivable there was a different protocol then he changes the protocol after the incident probably grounds for impeachment either he was an idiot/absurd or not credible or misleading us.
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Rules 408 want to settle claims want people to feel free to express opinions and make offers. Rule 408 Compromise and Offers to Compromise (a) Prohibited uses.Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (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 (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. Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. 1. Compromise Offers and Payment of Medical Measures i. FRE 408 1. Rules 408 want to settle claims want people to feel free to express opinions and make offers. 2. Hypo: Car crash Who doesnt drink when they drive! Can we make this go away for 25 grand? If P accepts the offer, we are done. If P doesnt accept the offer, they cant use that statement to show negligence Cant use it to prove validiy or invalidity of the claim or of negligence. 3. Rule applies to settlement offers as well as settlement conducts (what about mediations/arbitrations?) must be premised on the validity or amount of a CLAIM! This was BEFORE a claim. 4. It is about timing ALWAYS assume that after an accident, there is no claim unless Maher tells us otherwise. Especially in CLASS exercises. 5. It has to be a claim. 6. It has to be a disputed claim (validity I know Im 100% at fault, I know your damages are CERTAINLY a 1,000 how about you take $500) not a disputed claim. 7. WHEN did the D say it? Before or after claim is filed? BEFORE claim (after accident) I offer you 6 months of pay because it appears you will be out of work. No claim filed cant be used.
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But you can use it for other purposes like to show that plaintiff A is biased because they got a HUGE settlement so may establish bias that A will do what insurance company says. D wants to argue P wasnt seriously hurt, sued 1 day before SOL ran out P could produce evidence that D and P were attempting to settle the case which is why P hadnt filed.
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ii. Bankcard America v. Universal Bancard 1. Bankcard caseper maher incredibly boring so here is all we need to know 2. U couldnt push merchants to another competitor. BUT U does push it. U says in settlement talks they understood they could do it ---arrangement with the other guy. One we found out we werent supposed to, we stopped it. Judge Duff told U you can bring in the evidence to answer why you pushed it but dont use the word settlement --- Posner takes over the case for a myriad of boring reasonsPosner says evidence should not have been brought in. 7th Circuit said this evidence is relevant and must be able to answer you cant lull someone into thinking there is a settlement/understanding then sue them after the fact for breach then say ha haha you cant bring any of the settlement information in! Rule 409 Rule 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. need not be a claim Hypo jump out the car let me pay your medicals we dont care that theres no claimBUT it doesnt protect collateral statements (100% my fault. Also, let me pay your medical expenses). 409 only excludes pay medical expenses. Now, 100% still cant be used as there isnt a claim and therefore no dispute but remember, its covered by 408, not 409. c. Humane impulses i. Liability Insurance FRE 411 a. b.
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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 proof of agency, ownership, or control, or bias or prejudice of a witness. a. b. c. Whether someone has insurance or not doesnt shed light on negligence of the accident. Prejudice jury thinks w/out insurance that would show negligence. OR Jury would think cool, insurance stick it to the insurance company. We dont like windfalls we dont want jury to tag an insured defendant just because he HAS insuranceonly if D had done something wrong. But who benefits if we allow juries to misuse existence of insurance P would win everytime P could be a shyster, not really hurt so a windfall to them. OR D gets off (insurance pays) if they did something bad. WINDFALL getting something you dont really deserve.
Williams v. McCoy I dont have this??? JIM???? 410 = WEAK! Rule 410 Inadmissibility of Pleas Plea Discussions, and Related Statements - Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere;
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(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 of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the 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 (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 (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. a. 410 Plea negotiations different from the others those say not admitted prove particlur stuffTHIS one says PLEA NEGOTIATIONS ARE NOT PERMITTED UNLESS SPECIFICALLY PERMITTED. i. On final GUILTY PLEAS we wont discuss no lo contrendre ii. Guilty plea that was made and later withdrawn, as well as the plea negotiations are not admissible. iii. We dont care about the perjury or fairness exceptions. iv. Plea negotiations cannot be used to Impeach
FRE 404/405/406 Character and Habit PSO i. The Propensity Box 1. Evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time. True at common law. True today. 2. Cant prove a defendant has a propensity to act in one way in order to prove she acted that way to commit the crime/during the crime. 3. Although it might be relevant (quarrelsome person may have a tendency to quarrel more than not), the problem is that its can cause Unfair Prejudice. 4. Risk that the jury will give EXCESSIVE weight to the vicious record of crime thus exhitied and allow it to bear too strongly on the present charge (From Zackowitz case, pg. 139) 5. Danger of giving too much weight to evidence is especially great b/cause litigants seek to prove a persons character with SPECIFIC ACTS. 6. Second form poses two risks: a. Jury might take proof of character as justifying a condemnation irrespective of guilt of the present charge. b. Might punish Z just because he is a bad man and should be kept off the streets. c. Jury might punish Z for having possessed his small arsenal on the theory that this offense at least deserves punishment even if he is not guilty of what he is charged. d. Justice Souter characterized both these dangers as forms of preventative conviction which the jury considers justified even if the D should happen to be innocent momentarily (Souter in Old Chief case). 7. Other risks: i. Specifc acts to prove character are not normally focus of the present case. ii. So jury gets confused iii. Other side wants to give evidence that she is NOT like that character and pretty soon you have a mini-trial inside the actual trial! 2. Balancing Test under 404 - when conducting a balancing test, TJ normally must weigh the risk of all of these harms (unfair prejudice,juror confusion, waste of time) against the probative value of the evidence. 3. Rule 404 reflects the judgment of Congress that AS A MATTER OF LAW the probative value of propensity evidence is substantially outweighed by the risk it poses of unfair prejudice, juror confusion and waste of time Prosecutor would be arguing they were Zs to show he was AT the scene not a character issue. Jury not confused about why evidence is permitted.
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Of course it may not be enough -- judge may still disallow if she believes jury could conclude on its own that he is a man of vicous and dangerous propensities because he has an arsenal. Instead, may only allow evidence of the actual weapon if part of the arsenal. If not, back to this issue! To get around this, there is rule 105: Jury Instruction - when evidence which is admissable for one purpose but not for another purpose admitted, the court upon REQUEST shall restrict the evidence to tis proper scope and instruct the jury accordingly. Of course juries dont always abide by jury instruction so if judge thinks they will ignore it she will not allow the evidence.
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Close-up of 404(b) several permissible routes around the propensity box: a. 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 (b) IT MAY, however, be permissible for other purposes, such as: i. Proof of motive ii. Opportunity iii. Intent iv. Preparation
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v. Plan vi. Knowledge vii. Identity viii. Absence of mistake or accident ix. (Similar to other rules but not 407-411!) x. KEY: Not a list of exceptions!!! Merely possible uses of other acts evidence NOT BANNED by rule 404(a). xi. Remember, Rule 404(a) only bans trips THROUGH the box, not around it. There ARE six EXCEPTIONS that allow you to go through the box without violating rule 404(a) they admit evidence of character traits precisely to show conformity therewith on a specific occasion -- these ARE NOT the list from 404(b) keep that clear! i. FRE 404(a)(1) ii. FRE (404)(a)(2) iii. FRE 404(a)(3), as elaborated by 607, 608 and 609 iv. FRE 413 v. FRE 414 vi. FRE 415
The propensity box drives the whole chart the dynamics of character evidence rule. General ban against going THROUGH helps explain elaborate routes around the box
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General rule - 404(a) has some TRUE exceptions to the general rule. These go THROUGH the box where you CAN use it TO prove character conformity.Rule 404(b) is limitations, NOT exceptions these are those that go AROUND the box. On final, show chain of reasoning -- one is character (is it allowed? Not unless its an exception as listed in 404(a) the other is one of the get around the boxes such as motive, identity etc.) Is there an allowable chain of reasoning? Get your head in the facts and work it out! D stole car used as runaway > D has character of a thief > D robbed the bank character reasoning change BAD! D stole car used as a runaway > D had a plan as theft shoes > D with the plan robbed the bank this works! The key is to find a chain of reasoning that doesnt get you into character conformity land. 404(b) is one of EXCLUSION not one of admission. If you want to use evidence to prove character conformity, you are excluded from doing so (unless 404(a)) but if you are going to use to prove something else, you cant assume its in! Still have work to do. Go to 403 to see if it balances outand maybe other rules! Create just some other makes sense US v. Stevens , Williams misreads Stevens, and we write to clarify that Rule 404(b)'s proscription against propensity evidence applies regardless of by whom, and against whom, it is offered. Under Stevens, we grant defendants more leeway in introducing "bad acts" evidence under one of the Rule 404(b) exceptionsrequiring only that its probative value is not substantially outweighed by Rule 403 considerations such as unfair prejudice, undue delay or confusion of the issues. But Stevens did not afford defendants more leeway in admitting propensity evidence in violation of the prohibition of Rule 404(b). Because the only purpose for which Williams sought to introduce Urlin's prior conviction was to show that he has a propensity to carry firearms, the District Court correctly excluded the evidence. Accordingly, we will affirm Williams' conviction. We will also reject his reasonableness challenge to his sentenceSuch evidence is most commonly introduced by a defendant to show that someone else committed a similar crime or series of crimes, implying that he or she also must have committed 316*316 the crime in question. US v. Huddleston NOTES??? JIM??? 1) Huddleston unanimous court selling and possessing VHS tapes in April 1985. Huddleston claimed that his partner, W who obtained the tapes. He said he had no knowledge of anything stolen from Wesby. All merchandise was sold way under mfg cost. a. Govt wants to introduce evidence of misconduct on the part of Mr. Huddleston i. Testimony of Paul Tony purchased TVs from Huddleston in 1985 ii. Testimony of Nelson who was offered Amana appliances for low cost in which he was arrested b. Lower court allows evidence instructs jury only use to use to establish petitioners knowledge, and not to prove his character. c. What std did 6th circuit discuss when it affirmed? Preponderance of the evidence prejudicial value did not outweigh the preponderance of the evidence. d. Govt said reason for TV evidence was to show knowledge that he did know it was stolen. Televisions sold for low price, no bill of sale. That suggests they were stolen and this guy knew about it. Engaged in similar conduct with the same partner if he had knowledge of hot goods in one instance, it goes to show knowledge of hot goods in the case at hand. NOT that hes a bad guy. Given familiarity and participation in a series of sales, he knew he was fencing stuff. KNOWLEDGE argument. e. Huddleston agrees Govts point for this entry of TV evidence was admitted for a proper purpose, but says they never proved the televisions were stolen. If they arent actually stolen, they do not show knowledge, they show character issues possible.
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Huddleston wants the trial court (the Judge) to make a preliminary finding about whether TVs are stolen. If not stolen, it does not go to the jury. Preponderance of the Evidence. Or even the clear and convincing standard. g. Look up 104(b) as this case was about how 403(b) and 104(b) work together. h. If the judge can conclude that a reasonable jury could determine that the misconduct could actually occur - is there sufficient evidence in the ENTIRE case that the other misconduct occurred if not, he instructs the jury to disregard? weve been assuming the actual. i. Summary judgement remember, difference between judge and jury making a determinationlooking at the evidence, a reasonable jury would concur P wins j. Same here Rehnquist wants Judge to serve as gatekeeper some cases in which a reasonable jury could never conclude the other acts occurred so he keeps it out. BUT if a reasonable jury could conclude the other acts occurred, then the evidence goes to the jury. k. Court wants matters to be decided by jury (not weighing evidence by a judge) if a reasonable jury could find it matters. l. Judge finding x is true or x is not true versus a reasonable jury could conclude x is true so Im going to let it go to them THIS IS THE POINT OF THIS OPINION. m. JUST GET THE RULE case is more confusing than the rule. Michelson v. US work through facts, holding, issue and then the specifics 1) 2) 3) Charge: bribing a federal revenue agent Defense: he admits I handed over the money but it was ENTRAPMENT (one of the 405(b) allowances for specific acts of character fyi) A piece of evidence that was brought by his own counsel was that he had been convicted in 1927 of trading in counterfeit watch dials. But in cross, the D admitted that in 1930 he had lied on an application for license to deal in second hand goods, that he did not admit to his past conviction. D wants to establish he has a good reputation and would have never broken the law law abidingness. a. Five witnesses knew him over 30 years. b. Prosecutor wanted to ask the witnesses if they knew of D arrest it was NOT a conviction. c. Judge dismissed the jury and asked the prosecutor what is your good faith basis for asking the question? d. Additionally, the Judge gave a warning on 3 different occasions of how they could use this evidence, of the arrest, -1) you cannot assume it happened, 2) you can just use that line of questioning to assess how well the WITNESS knows the reputation of the accussed. e. D was convicted and appealed. The Appeals court said it was permissible but so many different interpretations, it invites the SCOTUS to review the rule. f. Justice Jackson said allowing rep testimony is justified by overwhelming considerations of practicality. o allow character by direct examination of all that know him would complicate and confuse the trial. g. BUT this opens the door for prosecution to bring in own character witnesses to rebut the claim that D has an honest and law abiding reputation. And prosecution can cross-examine! h. Trial courts, though, must keep things in line. i. Limit the number of witnesses ii. Control the cross-examination only allow PERTINENT questions if its about honesty, ask honesty stuff good faith observation. iii. Prevent it from becoming a circus i. Did you hear about Ds arrest in 1920? is allowed i. Crime was about stolen goods and the trial was about bribery even though the crimes were different both acts could affect his reputation on honesty and law abidingwhile the crimes are unalike, both proceed from the same defects of character which the witnesses said this D was reputed not to exihib. ii. As to how long ago it occurred, and the possibility of having been reformed, usually evidence would not be allowed. BUT in case at hand, the witnesses said they had known him and even the D noted the arrest 27 years ago. Its not an abuse of the judge to have permitted questioning of the event because it may very well have had an effect, maybe in small, on his reputation in the community.
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iii. As to confusion of the jury instructions, they are no more confusing than other curative instructions. Its the way it is ---additionally, the D chooses to introduce character evidencehe chooses to open the door to possible confusionhe must have weighed the value of character evidence versus confusing his jury. iv. As to modifying the law of evidence relating to proof of reputation in criminal cases states hear more cases than federal while the law is archaic, paradoxical and full of compromises they have somehow proved workable, albeit clunky. If we stumbled in to fix it we would make it much worse. The pile of rocks analogy. v. Rather, discretionary control should be exercised by trial judges be assertive and sensible about what the trial judge permits. Those most familiar with the facts, more experienced be wise and strong. Control their courtroom. 404(a)(1) EXCEPTION to character conformity rule a. Mercy rule b. Criminal only c. D can introduce evidence that his character is NOT the type to commit the crime d. Limited to offer in reputation or opinion, not specific acts to prove his good reputation (what the community views of his character) e. Rep - Witness has to have appropriate knowledge of Ds rep long enough in the community to know the D and what others think of him. f. Opinion Witness own personal opinion of Ds character known D long enough and in a context that will provide sufficient evidence to speak about the character trait g. Specific acts not allowed through this rule. h. Obvious weakness only polling people who would say good things about you. AND Prosecution can rebut that character witness through cross-examine and witnesses discounting the rep/opinion of Ds witnesses. i. Rebutting witness Prosecutor could call a coworker rep for flying off the handle to rebut Ds mom saying hes peaceful at home wouldnt hurt a fly. And usually a whole lot more persuasive than the Ds list of witnesses. Opening the door can be very dangerous for the D.
Maher review:This was VERY critical he said right at the top, so I wrote down what he said for you. Otherwise, just use your study notes! 5. The Propensity Box a. Evidence that a person has a particular character trait generally is not admissible to show that the person acted in conformity with that trait at a particular time. True at common law. True today. b. Although it might be relevant (quarrelsome person may have a tendency to quarrel more than not), the problem is that its can cause Unfair Prejudice. c. Other risks: i. Specifc acts to prove character are not normally focus of the present case. ii. Other side wants to give evidence that she is NOT like that character and pretty soon you have a mini-trial inside the actual trial! iii. Character Evidence Flowcharts review! d. Routes around the Box i. What if the guns were used to prove he was at the crime scene? Instead of finding them in the house, they find guns/weapons there then determine they belonged to Z? A good reason to allow the evidence 6. Close-up of 404(b) several permissible routes around the propensity box: a. 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 (b) IT MAY, however, be permissible for other purposes. 7. Where we go from here dont forget, just because you met 404 you aint done! You still have to apply 403! Much work left to be done! Refer to chart in book about how 404 works. 8. Concentrate only on 404(b) at this time (limitations) and not 404(a) exceptions for now! We will delve deeply into 404(b) then move back to 404(a)!
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Attacking a 404(b) problem not really about character evidence just stuff that SEEMS like character evidence but is really about how that evidence is used in other ways 1) 2) Know what the other misconduct? Is the other misconduct used to show character conformity or used to show something else? a. What is this used for here? b. Can I think of a something else argument motive, intent, plan, knowledge Once you have something other than propensity, identify particular chain of reasoning Im using MOTIVE, INTENT, KNOWLEDGE, IDENTITY, OPPORTUNITY One you have that line of reasoning (MOTIVE chain of reasoning for example) NOT DONE! Its a rule of EXCLUSION not ADMITTANCE 401/403 analysis a. First explain why evidence is RELEVANT (easy test to meet ANY tendency) 401 b. How probative the evidence is part of 403 because evidence that is relevant varies in its probative status (one mental short cut assign a number to probativeness 1 to 10 Dont put this on the exam! Say its really relevant to Motive how probative is it? 2? 8?) c. Now do the prejudicial question how prejudicial is it? Undue delay? Confusion? Weight of the evidence again mental short cut assign a number. d. Now that you have your 2 numbers, balance them prejudicial value must SUBSTANTIALLY outweigh the Probativeness
3) 4) 5) 6)
Remember: Jury overweighing probative value is ALWAYS a concern when introducing evidence. In particular in 404(b), we are concerned that instead of using the evidence to address Motive, it will use evidence to engage in character conformity reasoning. Sorts of Prejudice to be on the lookout for in the analysis: What would the jury do with it? a. b. Punish the person for prior bad acts other sins! Jury give it too much weight character conformity reasoning which is forbidden! Secretly the jury believes that character PROVES it prejudice Proves THIS case. Difference from the first is that the first one was convicting for prior crimes. This one says huh, bad guy character proves he mustve done this crime!)
Maher problems: 1) VP of Bank loses money betting on the Dallas Cowboys. To cover his losses, VP embezzles money from the bank. Then he learns Federal Bank examiners are going to be reviewing the books next week. Fearing discovery of his embezzlement and not aware that bank records are kept electronically, he burns down the bank. a. Charged with Arson b. Prosecutor wants to introduce evidence that VP had gambling debts and that he embezzled from the bank. Ive got a good 404(b) channel, MOTIVE Is it relevant? Yes, goes to his Motive. Probative value? YES solid ANY tendency to prove Prejudicial/confusion/etc. 1) Jurys thoughts I dont think its high because they are different crimes arson and embezzlement. Secretly believing it proves it wont work so well. 2) What about youre going in for other sins possible we wont be safe if hes off the street. A titch more than the first one. 3) But do either substantially outweigh the MOTIVE probativeness Murder prosecution Road Runner shot and killed Wiley E. Coyote testing my rifle accident. Previous week tried to drop an anvil on his head, home made bomb in his home
2)
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a.
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3)
Intent & Absence of Mistake all acts done show he wants to kill the roadrunner he admits he shot the rifle. But also good stuff on absence of mistake! But if work before they had a series of convulted schemes to kill the victim, absence of mistake is suggested. b. Now lets do prejudice: i. Prior acts pretty high they will convict him for other sins ii. Evil guy so lets convict him for this crime iii. Its high, but evidence probative value is just as high or even a little higher, you let the evidence in! Bank Robberty Spider man carries a gun that has a handle w/spider web, spiderman duffel bag. D claims he was out of town when robbery accussed. Witness said he participated in 2 other robberies where D dressed like spiderman. a. Identity not many spiderman burglars in town. b. Probative value is superhigh again, not many around in town. c. Jury thinks i. Other witness saying he robs banks, who cares if he did this one? Prior sins. Pretty high especially if this is my only real evidence. Robbing propensity while wearing spiderman clothes. ii. Is this prejudice substantial enough to overcome probative value. iii. If you think prejudice may overweigh probative value, think if there is BETTER evidence to prove your chain of thought. iv. Here, identity is STRONG so prejudice loses it does not substantially outweigh it. v. We can always make an argument that the jury may very well engage in character conformity or past sins but it HAS to substantially outweigh probative stuff. ALWAYS ALWAYS engage in the analysis strongly probative for ID not a lot of folks out there robbing banks wearing spidey constumes. BUT this guy robbed 2 other banks and jurys do not like bank robbers especially freaky ones. So lay it all out and balance it SUBSTANTIAL is the key. Heroin possession D admits heroin found in her apartment but she claims she didnt know it as heroin. a. Prosecutor wants to introduce evidence a regular marijuana smoker. b. Knowledge she does drugs and she knows what all drugs look like (just pick ANYTHING that is not character conformity analysis but it is helpful to point to a specific word in the rule). c. Probative value I say thats weak different drugs may not have a clue. No tendency to prove or disprove heroin knowledge. d. Jury prejudice druggie so she knows drugs and shouldve known heroin. High secretly character proves it gateway drug. GUILTY e. Jury punishing her for other sins smoking marijuana depends on what jurisdiction you are in f. In this case, I believe Prejudice substantially outweighs probative value. Just lay out my argument clearly, concisely
4)
5)
D charged with murder. Admits running over victim with car. Accident it was dark. a. Prosecutor D, the victim, Smith and Jones all engaged in a masked bank robberty shortly before this crime. Immediately prior to killing victim, prosecutor says D strangled Jones, tinkered with brakes on Smiths car b. Plan it was a scheme to oust his buddies in a crime. Step by step plan to rob the bank and oust the groups. Not being similar is just a red herring the continuity is the GROUP/CLASS of people. Stronger to go with MOTIVE victim not squawking to police about bank robbery. c. Relevant HIGH direct evidence of what occurred. d. Probative value very high shows Motive, opportunity and plan very suspicious that the other peers ended up murder also shows intent. e. Jury prior sins bank robbery versus murder low f. Jury convict w/bad guy decision possible. g. But probative value not overcome.
9.
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Rape Shield and Sexual Misconduct Rules PSO Propensity Evidence in Sexual Assault Cases 1) 2)
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3) 4)
True exceptions to the so-called propensity box evidence bans All three FRE 413, 414. 415 enacted as part of the Violent C rime Control and Law Enforcement Act of 1994. Purpose: a. Permit prosecutors and civil plaintiffs to offer evidence of the Ds other acts of sexual assault or child molestation on any matter to which it is relevant. b. Includes the Ds propensity to commit sexual assault or child molestation offenses Lannan v. State 1992 IN supreme court rejected a common law rule, that in many jurisdictions, permits the kind of evidence now allowed by Rules 412-415. State v. Kirsch At the time of initial hearing, no rule permitting such evidence NH Supreme Court rebuffed prosecutions arguments that evidence of the Ds other acts of sexual molestation did NOT violate Rule 404(a)s propensity ban. a. 1995 case right after Violent Crime acts enacted, but had to be reviewed based on law at the time at the time of hearing, NH did not have a rule permitting such evidence. No ex post facto laws allowed. b. Prosecutor offered testimony of 3 other women who had been molested as children by this church worker (seriously ill man ick) for 3 purposes not character related: i. Motive reason that nudges the will and prods the mind to indulge the criminal intent 1. State argued this would show Ds motive in selecting these particular victims. And the motive to which the D acted when he involved himself in churchs pre-teen program and subsequently lives of each girl. 2. Court responds crux of this aqrgument appears to be that the other incidents show the Ds DESIRE for sexual activity with a certain type of victim. Proof of propensity, not motive (State v. Whittaker, 1994) ii. Intent state of mind - to be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependant on the defendants character or propensity that the the D had the same intent on the occasions of the charged and uncharged acts. 1. State put forth essentially same argument as motive said actions on the part of D show how he purposely selected and seduced his victims. As such this type of evidence bears directly on Ds intent. 2. Court indistinguable from motive and again, propensity, pure and simple is what is shown calling it relevant to prove state of mind does not make it so. iii. Common plan or scheme each crime must have a scheme not just a plan that is similar a pattern or systematic course of conduct is insufficient to establish a plan. Rather, to be admissible evidence to show Ds plan, other bad acts must be constituent parts of some overall scheme. 1. State Ds routeine used in assaulting these victims is similar, if not identical, to the manner in which he assaulted other victims. 2. Court Not enough The common plan exception to rule 404(b) prohibition requires more. Showing D had a preexisting plan to gain trust of young girls in order to seduce them does demonstrate a common plan or scheme. Again, merely proof of propensity. This is the PRECISE use under 404(b) for which it is NOT to be used. iv. No reason, other than character propensity, for evidence. Should have excluded and its introduction was an abuse of discretion. v. Reversed and remanded. vi. Dissenting Thayer (who concurred in part and dissented in part) 1. Said there was evidence to show Ds plan Says majority was requiring state to show Ds state of mind before he began his spree. Common scheme was to place himself in an authority figure in order to sexually assault young girls.
Notes on Rules 412, 414 and 415 Purpose of Congress was to ensure federal trial judges could admit evidence of past sexual misconduct in sexual assault and child molestations cases without having to stretch the meaning of motive, intent and plan in ways rejected by the NH KIRSCH court.
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Of course, this is only federal courts not state courts where the majority of sexual assault or child molestation cases are tried. But Congress adoption of Rules 413 to 415 has led to parallel action in state legislatures and many may follow. California, Alaska, Arizona, Arkansas, Florida, Illinois, Indiana and Louisiana have adopted as of writing of this text. (2007)
Floor Statement Concerning Prior Crimes evidence rules for sexual Assault and Child Molestation cases Still have to do 403 balancing test probative value outweighed by prejudicial effect will get it tossed! Must disclose, generally, to D any evidence offered under the rules at least 15 days before trial. Why these rules? justified by distinctive characteristics of the cases it affects Child molestation cases hx of similar acts tends to be exceptionally probative because it shows an unusual disposition of the D a sexual or sado-sexual interest in children that simply does not exist in ordinary people. Additionally, it relies on child victims whose credibility is easily attacked in absence of substantial corroboration. There is a compelling public interest in admitting ALL significant evidence that will illumine the credibility of the charge and any denial by the defense Adult-victim sexual assault cases distinctive and often turn on difficult credibility determinations. Alleged consent by the victim is rarely an issue in prosecutions for other violent crimes accused mugger does not claim victim consented but a D in a rape case does so and then says falsely accused. Knowledge that the D has committed rapes onother occasions is frequently critical in assessing the relative plausibility of these claims and accurately deciding cases that wd otherwise become unresolvable swearing matches. Key stuff evidence of uncharged offenses in sexual assault and child molestation on same footing of other types of relevant evidence not subject to a special exclusionary rule. Rules do not impose arbitrary or artificial restrictions on the admissibility of evidence. a presumption in favor of admission Both convicted and crimes not previously prosecuted may be admitted No time limit is imposed on the uncharged offenses for which evidence may be admitted As a practical matter, evidence of other sex offenses by the D is often probative and properly admitted.

Report of the Judicial Conferenceon the Admission of Character Evidence in Certain Sexual Misconduct Cases 1995 Not highly favored by judges or lawyers, law professors and legal organizations largely opposed: Principal objections rules would permit the admission of unfairly prejudicial evidence and contained numerous drafting problems not intended by their authors Advisory Committee for FRE was unanimous except for one lone dissenting vote by the rep of the DOJ! Believe already addressed in 404(b) as allowing admission of evidence against a criminal D of the commission prior wrongsto show intent, plan, motive, preparation, identity, knowledge or absence of mistake or accident. Diminish significantly the protections that have safeguarded persons accused in criminal cases and parties in civil cases against undue prejudice. These protections form a fundamental part of American jurisprudence evolved over the Danger in convicting for past not current charges bad person Prior acts admissible even though not the subject of a conviction would produce mini-trials where D has to rebut the charges. Additionally, rule 412 (adopted as part of the same legislation) had is admissible if it is otherwise admissible under these rules. Which means that you get past 412, but still have to go through 403 and the hearsay rule. THESE rules (413-415) do not carry any such verbiage. So, do they not apply? No qualifications test? Congress did not amend the rules they went into affect in 1995. Baggage Check: How far should we go? Once a Rapist?

US v. Guardia excludes evidence upon grounds it would confuse the jury (Rule 413) 1) Legal issue for 10th circuit: Is 413 bound by 403? Yes. a. 403 is not in the 413 Rule which leads some commentators to infer that 403 is not required.In fact legislative intent/comments indicate that 403 is still required.
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b. c. d. e. f.
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a.
As to their analysis that 402 has the same wording, they misread the rule 402 says all relevant evidence is admissibleexcept by other rules and 403 is the next rule! Just a little Maher entertainment! 413 doesnt automatically get in 403 is the balancing act to give reasons why character evidence might be prejudicial in rule 413. How 413 could be prejudicial: a jury will convict for crimes other than those chargedor confusion of the issues 4 other assaults and all its evidence compared to this one assault of the case. Maybe in 413 we should make the 403 test easier than usual no way said Court no dilution of 403! Do not alter its normal process. Here the Court said it was proper to exclude evidence i. Major concern: mini trials confusion of jury waste the time ii. Outweighed probative value 2) Court gives 5 ways Courts should look at the 403 balancing test to determine: (similar, time, frequency of prior acts, etc.)
I. Requirements of Rule 413 Rule 413 provides in pertinent part: In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. Fed. R. Evid. 413(a). Thus, evidence offered under Rule 413 must meet three threshold requirements before a district court can admit it. 1) 2) 3) A district court must first determine that "the defendant is accused of an offense of sexual assault." Second, the court must find that the evidence proffered is "evidence of the defendant's commission of another offense of . . . sexual assault." Fed. R. Evid. 413(a); The district court implicitly recognized these requirements in its hearing on the motion in limine and in its written opinion. The third requirement, applicable to all evidence, is that the evidence be relevant. See Fed. R. Evid. 402 ("Evidence which is not relevant is not admissible."). The district court also properly concluded that the Rule 403 balancing test applies to evidence submitted under Rule 413. Rule 403 allows a district court to exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice" or other enumerated considerations, including confusion of the issues or undue delay. Rule 403 applies to all evidence admitted in federal court, except in those rare instances when other rules make an exception to it. See, e.g., Fed. R. Evid. 609(a)(2) (mandating that prior conviction of a witness be admitted for impeachment purposes if prior crime involved dishonesty). When balancing Rule 413 evidence under 403, then, the district court should not alter its normal process of weighing the probative value of the evidence against the danger of unfair prejudice. In Rule 413 cases, the risk of prejudice will be present to varying degrees. Propensity evidence, however, has indisputable probative value. That value in a given case will depend on innumerable considerations, including the similarity of the prior acts to the acts charged. 1) 2) Rape Shield Rule continued rule 412 Maher review Using Abbot as a jumping off point to cover rules w/out 412 (top of 308) a. Under what general character rule (that allows us to talk about character) could a criminal alleged with rape bring up victims past prostitution? b. 404(a)(2) character of alleged victim to show prostitutes have a propensity to agree to sex? Yes. c. But you still have a 403 balancing problem. but all Prosecutor would have to show is that it was not an act of prostitution (where she may have a propensity to agree to sex for money) so may not be probative at all or only modestly. d. The point of this exercise is to show that it is not always a but for 412 the evidence would have gotten wouldve got in any way. e. 412 used to be a hot button issue but now more readily accepted and just part of the toolbox.
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4)
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Problem 5.1 pg. 319 a. Fantasies and dreams count as sexual behavior. b. BUT the emails to the D given to any other person may not be sexual behavior. c. Different sort of aim HERE as its directed AT the D and the rule says it would work d. BUT it has to prove consent and they are NOT probative for consent. e. All you need is just a tiny bit all you have to ask is would the person who wrote these things more probable to actually engage in this activity? YES f. BUT the prejudicial value (403 balancing) is outrageous! g. On Final, ALWAYS discuss probative even if its small Problem 5.2 pg. 320 a. Why should Judge have admitted testimony? i. In his defense, he wanted to show two things: 412(b)(1)(B) 1. She had consented in the past to sexual conduct 2. It was THIS event that had his fingerprint in her bedroom ii. But Maher said no strict answer The judge will have to determine the answer. iii. In real life, the constitutional point might work: allow him to launch a full defense (412)(c ). b. Why should Judge not have admitted testimony? 1. It does not go towards showing her consent on the NIGHT in question which is the RULE. 2. Very weak argument to allow in how would I argue this if it had met 412? State v. Smith pg 320 a. False allegations of molestations in the past by victim b. Is evidence of prior false allegations held to rule 412? No said the Supremes of Louisianna. c. Analyze it under other evidentiary rules. Constitutional Limits on excluding 412 (412 (c ) a. Olden v KY Allowed testimony to be brought to jury on 6th amendment rights to cast out credibility of the victim D was not allowed to impeach the victim and it was critical to his case. W/out cross of witness, D has no defense. b. Opinion does not give us a good direction of when extent of cross-examination and other constitutional rights meet 412( c). c. One way to think about it (oversimplification): i. Where the constitution is most likely to afford some protection 1. When using prev incidents of conduct in a 404(b) way not to attack the character of victim, but why she/he may have motive/bias or other non-character reasons. Not attacking truth but trying to give a chain of inferencesif you are doing that the constit is more likely to help you inj that matter (FINAL???) ii. When applying 412, you might want to mention constitution when making 404(b)ish arguments. Best for an intro class.
Modes of Impeachment - 608/609 Truth Character of the Witness set of rules AND a little more about habit per Maher (406) PSO Impeachment and Character Truthfulness 1) Modes of Impeachment a. Non-character impeachment i. Contradiction by Conflicting Evidence ii. Contradiction by Past Inconsistent Statement iii. Evidence of Bias b. Character impeachment i. Rule 607 - Who May Impeach - The credibility of a witness may be attacked by any party, including the party calling the witness ii. Rule 608 Evidence of Character and Conduct of Witness
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iii. Rule 608(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 iv. Rule 608(b) Specific instances of Character - Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness. v. Rule 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, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. (b) Time limit. - Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
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Maher s diagram of 609:

609(a)(2) Convciti on of of dishones N ty/ false stateme nt?
Y Y
609(b) N Convicti on 10+ yrs old?
609(a)(1) "felony" - more than one year or death penalty

N
609(a)(1) postConvi ction of a Y criminal ?

N
609(a)(1) balacining ": probative just outweighs prejudicial affect -quasi '403' - does not have 'substantially outweighs'
Reverse 403 Bal. Inadmissable unless Probative subst. outweighs prejudicial even if false statement
Admissible NO balancing - no 403! Probative value high enough to answer the question itself
Inadmiss able small crime, not typically probativ e of anything
403 Balancing
c.
Impeachment Evidence Flowchart (see below)
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Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (a) Character evidence generally Evidence of a person's 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 by an accused, or by the prosecution to rebut the same, or 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, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of witness - Evidence of the character of a witness, as provided in rules 607, 608, and 609.
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Why do we allow habit evidence? (rule 406) Habit defined more specific than character. If it doesnt say something BIG about a person, just that in certain narrow circumstances, they do this. Habit can turn into character if you are showing something big laziness hitting the snooze alarm everyday. Careful and no way he fell asleep at work he turns his night alarm on every night before falling asleep. Habit is SPECIFIC. Character is BIG in general. 1) 2) 3) Good probative value Not a lot of prejudice shown with habit. unlikely jury will punish you (other sins) because you have a habit of doing something. Its not impossible, but the rule writers believe it has more probative value than preducial value. Hypos Negligence action car crash at intersection a. P D ran stop sign b. P calls W/ I rode w/D 4-5 a week this past yearevery time, D failed to stop at stops sign in question. c. D objects character evidence repetitive action, very specific occurrence. EVERY TIME rolled through THIS stop sign. Same case a. W in my opinion D is a terrible driver.
4)
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b. Ruling character opinion, no specific evidence
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Attacking the Character of a witness for truthfulness/untruthfulness 608/609 A. 608 attacks witness on character of truth/untruth not all attacks on witness are for truth/untruthfulness a. Example of this: murder prosecution eye witness said D shot Victim. i. Assume further D wants to offer evidence that eyewitness lied on a job application 2 years before, ii. Its evidence that D lied in the past has a propensity for truth/untruthfulness. b. Murder - eyeswitness sees D shoot victim i. Prosecution wants to question eyewitness about her glass prescription. ii. Does that go to truth/untruthfulness? NO - - its a specific instance. c. If you attacking the way a witness generally behaves 608. d. If you are attacking specific deficiencies its not 608 stuff When thinking about 608, go in determining am I talking about attacks on character for truthfulness that is all this rule is about. Character Impeachment can occur in 3 ways: 1) opinion and reputation of truth/untruth 608(a) 2) specific instances of conduct 608(b) 3) Convictions that suggest a character of untruth/truth (609 later in course) US v. Whitmore 2004 DC Circuit 1. 2. Facts firearm conviction appealed prevented him from attacking the credibility of the arresting officer. D runs away from officer with right hand close to his jacket but this officer couldnt catch him. But another cop hears about it and is in the neighborhood and gives chase. Says he saw right hand close to his body and then sees D toss a gun which hits a building. Soto catches Whitmore arrests him. First cop catches up with them. Soto discovers a gun in the window well, signs of being thrown against the building. Also D has drugs in his LEFT pocket not the right side. D says Soto fabricated the story of a gun and that Soto was a liar. D wants to bring 3 witnesses that Soto is a liar: a. A reporter for the CITY PAPER reputation of Soto who is a liar known in the community b. Cooper local criminal defense counsel his own opinion that Soto is untruthful and Sotos rep in the court community c. Edmonds rep/op acquaintance of Soto lived in neighborhood where Soto worked left 5 years ago but returns every week to visit his Mama. Opinion based on INCIDENTS arrest of Edmonds friend and Soto goes to pick up property but then says there wasnt any property also, Soto wrongfully accused Edmonds friend of drug possession. d. Additionally, to cross-examine Soto on (608(b)) to dissemble and evade the law (character for truthfulness) i. Drivers license revoked during his tenure as police officer and failed to report this to his superiors and since he is a driver of a police vehicle this is important ii. Back child support not paid District Ct disallowed all witnesses and no cross-examination a. Reporter/Edmonds reputation neither had direct contact w/Soto and community for some time it was too remote in time from the time of trial (Higher court found it did not disabuse its discretion to disallow not probative). b. Cooper reputation - court community is but a subset of community when discussing reputation evidence said it was weak as it was a subset of community and too few people Upper court said district ct didnt disabuse this discretion. c. As to opinion foundational requirement is less stringent than that for reputation evidence nonetheless, the district court rejected both Coopers and Edmonds proposed opinion evidence lacked sufficiently supportive factual information to be credible and would be unfairly prejudicial. Upper court right to exclude.
3. 4.
5.
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d.
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As to cross-examination trial court says it was hearsay but upper court said you only need to have REASONABLE (good faith) basis for asking questions on cross-examination which tend to incriminate or degrade the witness (subject to courts balancing 403 of prejudicial and probative evidence). Upper court said cross-examination of Soto on untruth/truthfulness goes to his being the only one who said there was a gun thrown its a big matter. That if he was cross-examined on specific instances of conduct, IF HE LIES, you have to take the answer (extrinsic evidence not permitted). District Court abused its power. REVERSED. Why did the DC Circ undermine the character witness but not the cross-examination? i. My thoughts character witness is not so probative people are less impressed by opinion/rep evidence. More likely impressed by Sotos own words under cross-examination D has to have a chance to defend himself against his accusers AND it would be two parties putting forth strong arguments direct clash BAM!
Overview II by Maher 1. 2. 6. 7. First, use the MAHER chart to determine the 609 question! For CLASS/EXAM 609(a)(2) definition of honesty (oversimplification) a conviction will qualify if deceit is part of the FORMAL elements of the crime (substantive elements include DECEIT) which you will know when it lays it out for us talking about DECEIT 609(a)(2) False Statement rule it says DISHONEST but that word can confuse us! Problem 4.3, turnstyle conviction w/sentence of 3 months a. Step away from 609(2), could we use 608(b) to justify using a conviction on cross? b. For Class/FINAL we will say you cant use 608(b) convictions to show truthfulness IF 609 said we couldnt. No back-door per MAHER! Anyone can initially attack the character for truthfulness of a witness using reputation or opinion. Cant use specific instances on Direct Good for both Criminal and Civil cases Evidence must bear on trait of truthfulness no other trait You cant bolster your characters truthfulness until that character trait has been attacked on truthfulness grounds if its for some other ground, bolstering for truthfulness isnt allowed. You can use specific instances of conduct on Cross-examination of a witness a. Concerning the WITNESS character for truthfulness/untruthfulness (to show principle witness is a liar or any witness is a liar) OR b. Concerning the CHARACTER of truthfulness/untruthfulness of another witness as to which character the witness being cross-examined has testified. (To show the principle witness is a liar if the character witness is offering character testimony of that witness) c. BUT Judge is empowered to use 403 for balancing test How do we determine what bears on Truthfullness? If youre violent, are you more likely to be untruthful? Narrowly things only bear on character for truthfulness when discussing falsehood/deception (perjuror, embezzler). a. Federal Rules reject that GENERAL moral character *violent* goes to truthfulness b. Federal Rules accept the idea that falsehoods/deceptions goes to truthfulness (narrow view) c. Middle view violation of someones rights, took advantage but not squarely deception modern trend is somewhere between narrow and middle view. Problem 4.1 in class pg. 258 a. Conner Larken sues Eric Parker for assault. b. L calls D.Rice to say Parker hit L with a pool cue. c. L calls one of Rices neighbors, who testifies as follows: i. Rices reputation in the neighborhood for peacefulness is good. OUT because we can only go to truthfulness/untruthfulness of the witness *RICE* so we can witnesses to go to Rices truthfulness but no other trait. ii. Rices reputation in the neighborhood for truthfulness and veracity is good. OUT goes to Rices truthfulness and veracity 608(a) opinion and reputation evidence of character but its on direct not attacked yet. d. Parker calls co-worker of Rice
8. 9. 10. 11. 12. 13.
14.
15.
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i. Rice told me her old car, she told me she had just replaced the brake pads, but she was lying. only allowed on cross. This is Direct. ii. My opinion, based on all my dealings she is a liar op/rep of a character for untruthfulness allowed on Direct. 16. Maher problems a. Prosecution of D for murder during a bank robbery i. P calls W1 who says I was in the bank and I saw the D shoot and kill victim. Claims to have an unobstructed view of the shooting. ii. D calls W2 coworker of W1 W2 she was also in bank at time of shooting, standing next to W1 but there were at least 20 people between them and the D shooting the victim. iii. Ruling allowed, does not go to character evidence (specific incident not the character of person) b. Personal injuries from car crash. D asserts contributory negligence. D says P ran red light and caused crash. i. P calls W minister that P is a truthful person ii. Ruling not allowed, P cannot bring out truthfulness unless someone brings out truthfulness c. Same as above D calls a witness to say he worked with the P in a small office for years, in his opinion, P is careless. i. Ruling: OUT not to truthfulness ii. 608 talks about character for truthfulness iii. AND its a civil suit so cant use 402 to attack a witness d. Same as above D calls a witness to testify that W has lived in same large aprt building as P for years. And that in his opinion P is a liar. i. Objection: two parts a) is there sufficient grounds that even in this large complex, W knew P well enough to give an opinon b) is it okay for them to do so? YES e. Same as above D calls a witness to testify that W has lived next door to P for years. In my opinion, P is a liar. i. Cross Ps atty asks the W, isnt it true that everyone else in apt building, other than you, believes P is honest. ii. Ruling: 608(b) on cross, specific incidents are allowed f. Same as above D calls neighbor as P, next door for years in my opinion, P is a liar. i. Cross P attys asks W Isnt it true Mr. W that three years ago you lied to the FBI ii. Ruling: 608(b)(2) permissible on cross to discredit the character of the witness who is testifying attacking the truthfulness of a character witness. (Miss Oleson asked this question last time). g. Drug prosecution P calls a witness that says D has a reputation for lying. i. D cross Mr. W, have you heard D truthfully admitted to chopping down the cherry tree in the city park ii. Ruling: 608(b) allowed on cross, about Ds truthfulness trying to support Ds truthfulness against what P had witness testify too. HEARSAY - PSO 1. Maher problems a. Murder prosecution i. D wants to prove that Dean Hellman committed the crime rather than D. ii. D testifies Hellman told D I hate Victim iii. Ruling: Hearsay used to prove the truth asserted which is that if Dean Hellman hated the victim, there is at least one other person more likely to kill Victim than othersincluding maybe D! Trying to prove the TRUTH of Dean HELLMANS statement that he hated the victim! b. Personal Injury action i. W on stand said light was green ii. D offers evidence that at the scene of the crime W said it was red. iii. Ruling: NOT Hearsay offered to Impeach Witness on inconsistent statements. iv. Remember 801 (c ) is only concerned w/out of this trials statements 1. Not the complete rule on hearsay. But the key is this part of the phrase: out of the this trial statement so he said/she said works under 801( c) but it would work under something else under 801 2. So if D said at the scene of the accident we are now out of this trial statement!
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3 commonly occurring non-hearsay situations not being offered to prove the truth of the statement 1. 2. 3.
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Missing the first one JIM???? Words offered to prove their affect on the listener good coverage in study notes Legally operative words (Verbal Acts) certain words themselves are legally operative c. Contract formation P sues D for breach of K. Contract was $50 for a copy of Ds evidence notes. Assume Ds defense is evidence notes were a gift. P says we had a deal, I was giving notes he was giving $50. P/W (plantiff witness) Before the notes were handed over P said to D I offered to sell you my notes for $50 and D said I accept your offer. i. Not hearsay not offered as evidence OF THE CONTRACT those words ARE THE CONTRACT ii. Words themselves constitute the legal act not hearsay d. Slander P sues D for slander. P/W says D told P you are a dirtbag you have sex with animals. The words are the operative act they are slander.
Inconsistent Statements Offered to Impeach good study notes as well e. W says A in courtroom. Opposing counsel wants to admit evidence that W said not A prior to trial (to another person). Inconsistency that arises when jury gets A and Not A statements by W is NOT hearsay as we are offering the 2 statement that the W cant get his story straight. Not showing to establish TRUTH of NOT A but to undermine confidence jury has in this witness.
FRE 801. Definitions. Hearsay is a statement made outside of court. Statements that are nothearsay: o Prior Statements by Witness: if the declarant testifies and is subject to cross-examination on the statement and the statement is either inconsistent with testimony and given under oath; consistent with the testimony and offered to dispute a charge that declarant lied, was subject to improper influence or had improper motive; or a statement that identifies a person who was seen. o Statement by Party-Opponent: A statement that is offered against a party is not hearsay if: the statement is the partys own statement, the party seems to have adopted or believed the statement to be true, the person making the statement was authorized by the party to speak of the statement was made by an agent/servant during the existence of the relationship concerning an issue within the scope of the relationship; or was made by a coconspirator during and in advancement of the relationship.
y y y y y
(a) Statement. - A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. - A "declarant" is a person who makes a statement. (c) Hearsay. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. (d) Statements which are not hearsay. - A statement is not hearsay if-(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is o (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or o (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or o (C) one of identification of a person made after perceiving the person; Prior Identifications 801(d)(1)(C ) - Elements y Person who made Id in past has to testify at trial o But it doesnt require them to testify about the ID itself but that they testify could be testify about anything o Another person testifying at the trial may actual explain how the ID occurred Has to be subject to cross concerning statement o Usually satisfied if takes the stand and willingly subjects to cross whether or not she recalls anything (Owens case) Must be one of ID after perceiving the person identified formal identifications o But other prior identifications count informal and unstaged can certainly count
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o
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Imagine a witness ids the suspect in a crowd to a police officer or other person present doesnt have to be formal.
o (2)Admission by party-opponent. The statement is offered against a party and is o (A) the party's 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 party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, 801(d)(2) (C ) & (D) authorized or Agency testimony y Not hearsay because they uttered by people who we are considering to functionally BE the party o Authorized admissions 801(d)(2)(C ) Provides that its not hearsay and is admissible if the statement is offered against a party and is a statement by a person AUTHORIZED to make the statement considering the subject. Sometimes people authorize others to speak for them y i.e., CFO of a corporation goes on TV says weve been screwing our shareholders over for years every cent we makes goes up the nose of the CEO authorized admission. CFO is authorized to make statements about the company part of his job especially financial measures Makes good sense in part because the reach of the rule is within the parties control y If they dont want someone else to speak on their behalf, dont authorize them to do it. If you do authorize, bear the risk as it gets in against you! Controversial what happens regarding admissions not authorized by the party to make statements y FRE allows that as well! That is Agency/Employment admissions! 801(d)(2)(D) o Agency/Employment admissions (801(d)(2)(D)) Statement offered as agent/servant considering a matter w/in scope of agency or employment not hearsay, admissible Agent as employee not as in FBI agent! Situations in which the testimony is NOT hearsay regardless of whether authorized or not. Example: Delivery truck owned by Hellmans books runs over and injures a pedestrian. Immed after accident delivery truck driver told victim I was distracted b/c texting and didnt see you in time. Prior to 801(d)(2)(D) not admissible because drivers not authorized to make statements only drive! BUT now the statement concerns the conduct of an employee w/in the scope of his employement (driving) and was made WHILE employed by Hellmans books Policy: Common-sense. y Normally agent is a party (driver) and admissible ander Admission by party-opponent. y Jury instruction 105 to tell jurors only use testimony against driver not against Agency/Hellmans books.
Mahlandt v. Wild Candid Survival & Research Center, Inc. y y y y y y y Kid injured possibly by a wolf chained in her yard. Neighbor sees wolf over child.Ds son shows up and moves kid away from scene. Ds father is a scientist of wolf and taking it to school to show it was friendly w/children. Evidence: Ds note on his supervisors door (University President): Sophie bit a child that came in our back yard. Evidence 2: a subsequent meeting of staff has minutes that reflect there was a great deal of discussion about the legal aspects of the incident of Sophie biting the child. D was not on the scene until afterwards, talked to some people and took kid to hospital. Trial judge excluded the note, the statement of D telling president of attack and corporate minutes reasoning that D did not have personal knowledge of the facts . P appeals 8th circuit Note & statement as Admission against D himself? Yes, not hearsay as P is trying to prove that Sophie bit the boy it was Ds own statement ad as such was clearly different from the reported statement of another. Note and statement admissible as they were made by D as an agent or servant of the Wild Candid o D argues 801(d)(2) does not provide for the admission of in house statements
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o
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Court found he was an agent or servant not a case of AUTHORIZED admission as its not his job (801 d2C) but lets look at 801d2D: o And in his scope of employment he is overseeing the wolf and we CAN use it against Wild Canid. y As to Ds admission of party opponent, agent or authorized speaker even if you had no first had knowledge, still not hearsay according to the Advisory Committee on Proposed Rules. NOT HEARSAY. o As to the minutes, corporate Not admissible against D no servant or agent relationship which justified admitting the evidences cant be used against a non-attending, non-participating employee of the corporation. Not a direct statement of party opponent and the board is not an agent of D. BUT Admissable against Wild Canid Board of directors speaks for the entity authorized speaker. Federal Court establish he is an agent by preponderance of the evidence under 104(a) - trial judge makes the call std is preponderance of the evidenceJudge will hear evidence from agent that is, judge will hear hearsay in order to determine Agents statement cant be the ONLY evidence that he is an agents employee = 801(d)(2) comments after E state: The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under subdivision (C) ,(agency or employment relationship and scope thereof under (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under Subdivision (e). y or y (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. Co-conspirator we pretend its as if the D said it! 801(d)(2)(E) Preconditions for it to apply: 1) 2) 3) 4) Must have been a conspiracy Declarant and party against whom it was offered mustve been members of the conspiracy Statement must have been made while conspiracy while it was in existence Statement must have been made in the furtherance of the conspiracy
Judge uses 104(a) preponderance of the evidence standard to determine if this co-conspirator exception applies. Not a 104(b) relevancy question: Example: D charged w/robbery. Prosecution calls W, if permitted to testify, will say W tried to recruit Z into this bank robbery plan and told Z that D is the best safe cracker in thebusiness and he is in on this bank job. Statement is relevant even if not all reconditions are met suppose W at time he spoke to Z W is no longer member of conspiracy. Still relevant. Or if W never trying to recruit Z but was boasting about the bank robbery plot. Not furthering, but still relevant. So judge makes a ruling under 104(a) preponderance of the evidence. You can use the co-conspirator rule even if Conspiracy is not charge. Even if Declarant is not a party to the case. Declarant does not have to be produced at trial and be crossed. In fact, very common that not at trial (many disagree but that is the way it is!) As w/authorized and agency rules, the statement may not form the ENTIRE basis for finding there was a conspiracy to prove all the preconditions. Bourjaily v. US pg. 406 Good example of how rules written, Court interprets and there might be holes, so Congress passes amendment and new part of 104(a). 1) 2) 3) 4) 5) Remember was decided prior to adoption of 104(a) part saying it cant be the only piece. Conspirator issue Informant working for FBI agrees to sell a kilo of coke to Lonardo Some tape recordings, conversations etc. Lonardo was to move the kilo to a friends car FBI came in an arrested Lonardo and the friend Bourjaily after kilo was placed in his car and FBI also found 20K *the price negotiated in prior conversations for the kilo*
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6) 7) 8)
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Bourjaily is charged w/conspiracy to distribute Cocaine and distribute Bourjaily wants evidence of telephone conversation re:friend to be excluded Court of appeals allows evidence under 801(d)(2)(E) but to determine, do a 104(a) analysis. Burden of proof is preponderance of the evidence the Court put a judicial gloss on this rule 9) Bourjailys other problem Court should only look to independent evidence no bootstrapping of hearsay to meet the conditions you need separate evidence. 10) Court said plain rule on its face the rule allows the trial judge to consider ANY evidence whatsoever, bound only by the rules of privilege. 11) A judge doesnt look JUST at that piece but all the pieces of evidence also, the evidence itself is probative that there MIGHT be a conspiracy Judges arent bound by the evidentiary rules they can look at ALL the evidence to determine if its admissible. May not to the jury to see all the evidence, but to the Judge. 12) If there was only THIS evidence, Rehnquist punts but he does allude that if it was the only evidence its not allowed. BEAR IN MIND, this part of rule 104(a) wasnt there! y The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
y y
o FRE 802. Hearsay is inadmissible. Exceptions: hearsay admissible where provided by FRE or other rules prescribed by SCOTUS pursuant to statutory authority. FRE 803. Hearsay Exceptions; Availability of Declarant Immaterial. Hearsay does not apply to the following: o Present Sense Impression statement describing or explaining an event/condition made while or immediately after the declarant was experiencing the event/condition. o Excited Utterance statement about a startling event/condition made while the declarant was under the stress of excitement caused by the event/condition. o Then Existing Mental, Emotional, or Physical Condition statements of the declarants then existing (at the time the statement was made): state of mind, emotion, sensation, or physical condition. Examples intent, plan, motive, design, etc. o Statements for Purposes of Medical Diagnosis or Treatment statements made for purposes of medical diagnosis or treatment and describing medical history, past/present symptoms/pain, or general character of the cause of them. o Recorded Recollection record that concerns an issue that the witness had knowledge about but can no longer remember enough to testify fully and accurately, made when the issue was fresh in the mind of the witness and correctly represents the witnesss knowledge. o Records of Regularly Conducted Activity memo/records/reports/data compilations are not hearsay if they record acts/events/conditions/opinions/diagnoses and are recorded by a person with knowledge and from information communicated by a person with knowledge and from information communicated by a person with knowledge at or near the time of the act or event; kept in course of a regularly conducted business activity, and it is a regular practice of that business activity to make such records. y 803 exceptions that apply whether Declarant is available or not immaterial o 803(2) excited utterance o Heightened perception and no time to lie startling things happen, utterance! o Maher says probably not true old wives tale not really borne out by studies but we still got the rule. o Not having time to lie more truth to that but excited utterance can apply even when people may have time to lieand some people are really fast thinking liars! Has to a startling event or condition Statement must relate to that event or condition Declarant must be under stress/excitement caused by the condition when she made the statement. o No clear or precise amt of time that must pass before an utterance is considered having NOT been under the stress of the event could be minutes or even hours good to know for final. Common sense analysis on how stressful event was
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A sufficient amt of time has passed that a person could calmly reflect on what occurred, you are outside of the stressful event utterance territory PER MAHER! Common sense experience make the arguments 803(1) present sense impression o Related to excited utterance but without the excitement factor. o Contemporaneous or near-contemp observation is more reliable because folks dont have time to lie o Requirements Event or Condition Statement must describe the event or condition Declarant mustve made statement while observing the event or condition or immediately thereafter. o For our purposes, the big difference between this and excited utterance: Ecited utterance focuses on psychological stress of declarant Present sense focuses more on the timing of the statement must be contemporaneous or near contemporaneous o immediately thereafter varies on context but more time restrictive than excited utterance because exited utterance can be made long after event if declarant still suffering psychological affects of the event. o Rule of thumb: if enough time has passed for declarant to have opportunity to voluntarily reflect on the events, no longer present sense impression. o This is about right then the excited utterance is more psychological o Despite differences between two, circumstances may satisfy requirements for both rules Maher example: y 2 bikers collide on a bike path y Right before P1 youre veering into my path! crash! Excited utterance! Startling event, describes the event and stressed because crash is pending! y Also a present sense impression o Contemporaneous veering as it is happening! o So you can have both doesnt have to be one or the other! o 803(3) Then existing mental, emotional, or physical condition. STATE OF MIND exception but broader Allows courts to admit then existing states of mind blah blah blah. Key is THEN EXISTING crucial limitation Backward looking statements are NOT THEN EXISTING y Yesterday I was pretty depressed backward looking statement y Ones present state of mind about the future DOES qualify! o Im thinking of driving of New York tomorrow plans she now has in her mind THEN EXISTING y Related limitation to not permitting backward looking statements: o Cant use present statements that concern a fact REMEMBERED or BELIEVED to PROVE the fact remembered or believed. I think husband poisoned me yesterday cant offer to prove husband poisoned her yesterday fact remembered or believed. Reason for exception if you were allowed to do that, this exception would virtually swallow the hearsay rule exceptions! y Dont forget not limited to statements of emotions it covers physical sensations and intentions (READ CAREFULLY!) There can be overlap between (1)(2)and (3)! y Ex: person were to grab stomach and exclaim cramp really hurts excited utterance, present sense of impression and statement of physicial condition! o If they were not at all excited, not excited utterance but the other two would still apply. Courts are split about allowing this if the utterance includes a 3rd person: y I intend to go to dinner at Chatzkys qualifies
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y I intend to go to dinner at Chatzkys with Hans some courts say not qualified! y For our purposes, dont need to resolve just KNOW there is a circuit split! 803(4) Statements for purposes of medical DX or treatment. Pretty straightforward like 801(1) and 803(2) Use the requirements and apply to the facts! Rationale seeking med dx or treatment is unlikely to lie because it could be undermined and in fact harmful to the declarant! No sincerity problem. Includes a parent talking about a childs medical condition. y P takes C to doctor, my kid is running a fever qualifies Only covers those reasonably pertinent to dx or treatment y Stuff not related to be what needs to be told to doctor to receive treatment is not particularly reliable y However, the reach can be pretty big because when telling doctor what happened you usually describe the events because they are pertinent to dx or treatment. o I was riding a bike when a car hit me if doc needs to know this to figure out scope of injury, tests to be run etc (different than being hit be a car not on a bike, or hit by a water balloon) so included! o On the other hand I was hit by a YELLOW car Yellow is irrelevanta Spanish station was playing irrelevant o Be sure you make the argument as to why you want to include those statements in the dx or treatment purposes. y Putting aside Patient/Doctor privilege 803(5) Recorded recollection Basic idea is human memory is not perfectfadesvanishesgreat deal of time could pass between event and trialreliability of testimony becomes more doubtful. A time machine type of answer person may have made a written record of the stuff that at the time was fresh in her mind. Superior source of evidence witness recorded recollection! Different than refreshing recollection!
803(6)Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. 803(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. Palmer v. Hoff: Historical Backdrop 1. A signed statement of a railroad engineer, since deceased, giving his version of a grade crossing accident in which the locomotive he was operating was involved, and made two days after the accident, when he was interviewed by an official of the company and a representative of a state commission, held not made "in the regular course" of business within the meaning of the Act of June 20, 1936, and not admissible as evidence thereunder. 2. A ruling of the trial court that, if the defendant called for and inspected a signed statement which, on cross-examination, a witness for the plaintiff stated he had given to the plaintiff's lawyer, the plaintiff would then be entitled to put the statement in evidence, held not a
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ground for reversal in this case, since the document was not marked for identification and is not a part of the record, and this Court is therefore unable to determine whether the contents would have served to impeach the witness. Affirmed unanimous decision! Key gems: 1) 2) 3) 4) 5) Accident report is not typical entries for a railroad Must be a report that is made systematically or as a matter of routine to record events or ocurrences To reflect transactions with others Or to provide internal controls This was an accident report sure, might be a routine procedure, but routine because its a procedure to use in a possible TORT action in court not in day to day business.
United States v. Vigneau Brief Fact Summary - Defendants are two brothers, Patrick and Mark Vigneau, who were convicted on their participation in a drug distribution scheme. On appeal they claim that the trial court erred in allowing the government to introduce Western Union "To Send Money" forms, in support of the money laundering charges. "These forms, as a Western Union custodian testified, are handed by the sender of money to a Western Union agent after the sender completes the left side of the form by writing (1) the sender's name, address and telephone number; (2) the amount of the transfer; and (3) the intended recipient's name and location." Rule of Law and Holding - Business records will only be eligible for the hearsay exception if there are safeguards of regularity or business checks that would automatically assure the truth of statements therein. Those records contributed to by strangers to the business do not meet this requirement On this appeal, Patrick Vigneau's strongest claim is that the district court erred in allowing the government to introduce, without redaction and for all purposes, Western Union "To Send Money" forms, primarily in support of the money laundering charges. These forms, as a Western Union custodian testified, are handed by the sender of money to a Western Union agent after the sender completes the left side of the form by writing (1) the sender's name, address and telephone number; (2) the amount of the transfer; and (3) the intended recipient's name and location. The Western Union clerk then fills in the right side of the form with the clerk's signature, date, amount of the transfer and fee, and a computer-generated control number; but at least in 1995, Western Union clerks did not require independent proof of the sender's identity. Western Union uses the control number affixed by the clerk to correlate the information on the "To Send Money" form with the corresponding "Received Money" form and with the canceled check issued by Western Union to pay the recipient. The original forms are usually discarded after six months, but the information provided by the sender, as well as the information from all records associated with the money transfer, are recorded in a computer database. In this case, for some transfers the government had the forms completed by the sender, but for most it had only the computer records. Hearsay, loosely speaking, is an out-of-court statement offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Whoever wrote the name "Patrick Vigneau" on the "To Send Money" forms was stating in substance: "I am Patrick Vigneau and this is my address and telephone number. " Of course, if there were independent evidence that the writer was Patrick Vigneau, the statements would constitute party-opponent admissions and would fall within an exception to the rule against hearsay, . . . However, the government cannot use the forms themselves as bootstrap-proof that Patrick Vigneau made the admission. Instead, the government argues that the "To Send Money" forms and the computerized information reflecting those forms and the correlated material were admissible under the business records exception. . . . Rule 803(6) provides that business records are admissible where shown to be business records by a qualified witness, "unless the source of information or the method and circumstances of preparation indicate lack of trustworthiness." . . . The district judge accepted the view that the Western Union records were trustworthy and admitted the "To Send Money" forms (or equivalent computer records) without redaction and for all purposes, advising the jury that "what weight you give to them will be your choice." The inadmissible hearsay evidence also does not warrant reversal of the counts charging Patrick Vigneau with possession, attempt and conspiracy to distribute marijuana. No doubt proof of his money laundering reinforced these counts as well, but this evidence was
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dwarfed by the extensive direct and corroborating evidence that Patrick Vigneau was engaged in a drug smuggling scheme. Similarly, the forms were harmless as to the continuing criminal enterprise conviction, because the drug smuggling activities were treated as the predicate acts to establish a continuing criminal enterprise. . . . Thus, only the 21 individual money laundering convictions must be set aside. Gems: 1) 2) 3) Made on a valid business form for the exception BUT made by someone who IS NOT a part of the business the embraced statements are offered for their truth. A key problem was that a non-employee filled it out and there was no ID validation BY an employee (this has since changed since the 1995 occurrences). Johnson v. Lutz case to point: its hearsay within hearsay check out pg 538 A 803 (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. 803 (10)Absence of public record or entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. Beech Aircraft Corp. V. Rainey Scotus 1988 Brennan delivered opinion Respondents were married to a Navy flight instructor and her student, and brought this product liability action against petitioners, Beech Aircraft Corp., when their spouses were killed during training exercises. The plane they were riding in lost altitude and crashed after they used evasive maneuvers to avoid hitting another plane. The issue at trial was whether the accident was caused by plane malfunction or pilot error. The defense introduced an investigative report, also known as a JAG report, in which the officer who prepared the report stated that the most probable cause of the accident was the pilot's failure to maintain proper interval." Respondents contend that this report is hearsay and should not have been admitted into evidence. Holding - "[N]either the language of . . Rule [803] nor the intent of its framers calls for a distinction between 'fact' and 'opinion' . . . Thus, the traditional requirement that lay witnesses give statements of fact rather than opinion may be considered, '[l]ike the hearsay and original documents rules . . . a best evidence' rule.'" y
FRE 804. Hearsay Exceptions; Declarant Unavailable. o Grounds for unavailability: declarant is exempt because the subject matter of his statement is privileged; refuses to testify; testifies to a lack of memory; death or illness (physical or mental). Exception where the above is the result of the users wrongdoing intended to preent a declarant from attending. o Admissible statements: former testimony; statement made under the belief of impending death about cause of injury/illness; against financial interests or tending to subject declarant to civil/criminal liability; family history; other statements that carry a guarantee of trustworthiness. Rule 804(a) and 804(b)(1):
(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 declarant's statement; or
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(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because 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 declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. (6) A declarant is not unavailable 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. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Lloyd v. American Export Lines, Inv. 1978 3rd Cir cert denied to SCOTUS 1) Lloyd in a fight withAlvarez on board the shipExport Commerce Lines Proceeding: Lloyd filed an action against the ship, Export seeking redress for injuries sustained in the fight. Export joined ALVAREZ as a 3rd party D and Alvarez in turn counterclaimed against Export claiming, as did Lloyd, negligence and unseaworthiness. Trial for Alvarez counterclaim only suit outstanding. Jury found Export was negligenct and contributed to Alverez injuries. Jury returned a verdict in amount of $95,000. What A claimed: Export negligently failed use reasonable precautions to safeguard him from Lloyd after Export had knowledge of Lloyds dangerous propensities! Jury was not permitted to hear any version of the fight other than As it was denied the opportunity of hearing the account rendered by Lloyd who was the only participant and hence eyewitness. It is the refusal of the district court to admit a public record of a prior proceeding and excerpts of Lloyds testimony therein that constitutes the major thrust of Exports appeal. Export contends that this evidence was admissable in the form of transcripts from a Coast Guard hearing conducted intermittently between 1-20-75 through 1-6=76, the purpose of which was to determine whether Lloyds merchant mariners document should be suspended or revoked on the basis of charges of misconduct brought against him for the fight with A. At THAT hearing, both L and A were represented by counsel and testified under oath. Court: Admissibility of excerpts from the transcript is governed in part by FRE 804(b)(1). We believe the Rule was misinterpreted by the district Court. In order for hearsay to apply under 804 it is required that the declarant be unavailable we believe he met this. Now, did A or a predecessor in interest have the opportunity and similar motive to develop the testimony by direct, cross or redirect examination as required by 804(b)(1)? District court took a strict view of the new rule that we do not share. After reviewing Congressional intent, this Court determined that there was a sufficient community of interest shared by the Coast Guard at its hearing and Alvarez in the subsequent civil trial to satisfy 804(b)(1): A sought to vindicate his indiv interest in recovering for his injuries and the Coast Guard sought to vindicate the public interest in sae and unimpeded merchant marine service. Nucleous of Operative Fact (Common Nucleus of operative fact): conduct of L and A aboard the Export. And although the results sought were differed (Ls license v As monetary damages) the basic interest advanced by both was that of determing culpability and if appropriate exacting a penalty for the same condemned behavior thought to have occurred. y Coast Guard was an elaborate hearing conducted before professional hearing examiner. y There was documentation evidence y Testimony was received under oath and subject to direct and cross y Two charges leveled against L: did wrongfully assault and batter A, a fellow crew member with his fits and he did wrongfully fail to perform his duties due to intoxication. Additionally, Ls testimony to Coast Guard is highly relevant to negligence issue raised by A because L testified not only to incident to history of his relationship w/A and that would have been most helpful to the jury in determining the ultimate issue of whether the officers and crew of Export failed to take reasonable precautions to safeguard A against an attack by L. In fact, Ls testimony directly refutes As theory and is at variance with A saying he did not punch or in any way strike A 804(b)(3) Statement against Interest
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Williamson v. US OConnor said the rule is NOT a narrative interpretation. Not ALL statements get in its the Context! Baby, bathtub, bathwater she says baby gets in (clearly self-inculpatory) and some bathwater (close to the context) stuff that makes the declarant clearly against his interest. Look to see what was said o Clear self-inculpatory stuff gets in o Other statements that are clearly against his interest get in o The rest does not get in! Maher thoughts on this rule: o Must be against Declarants interest at the time the statement was made o Rationale is that people wouldnt make these statements unless they are true so trustworthy o Proponent must demonstrate that statement was so far contrary to declarants interest that a reasonable person in the declarants position would not have made such a statement. CONTEXT MATTERS Declarant says I killed Smith myself to police officer while standing over body statement against interest Same statement but to gang members while drinking in a bragging thing not a statement against interest Penal, civil litigation, pecuniary interests this is the interest we are talking about. BIG STUFF that people dont want to give on unless stuff is true Dying Declaration Rule 804(b)2) Declarant not available o Rationaleperson who believes he is about to die wont die with a lie on his lips o Homicide or civil actions only o Made by Declarant when they believed death was imminent Hardest to prove proving state of mind is always problematic Look at each circumstance Contextual -o Concerning the cause or circumstances of what the declarant believed to be impending death. o Dont have to actually have died Forfeiture by Wrong-doing 804(b)(6) aka ensuring witness cant testify o US v. Gray 2005 Requirements: y D engaged or acquiesced in wrongdoing y That was intended to render the declarant unavailable as a witness o Does not have to be the specific trial at hand or any specific trial y And that did, in fact render the declarant unavailable as a witness Whenever the Ds wrongdoing was intended to, and did, render the declarant unavaialbe as a witness against the D, w/out regard to the nature of the charges at the trial in which the declarants statements are offered.
FRE 807. Residual Exception. Other statements are not excluded by the hearsay rule if the court determines that the state is offered as evidence of a material fact; the statement is the bestevidence that the user can obtain through reasonable efforts; admitting the statement will best serve the general purpose of these rules and the interests of justice; the evidence has an equivalent guarantee of trustworthiness as the other exceptions in Rule 803 and 804; the user of the evidence notifies the adverse party in advance of the intention to use the statement and specifics of the statement
Prior Inconsistent Statements need not be made under oath to be permissible. Must be offered to REBUT an express or implied charge against the declarant of recent fabrication or improper influence or motive. Tome Rule Red R. Evid. 801(d) In Tome v. US SCOTUS held that 801(d)(1)(B) permits the introduction of a declarants consistent out of court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive. Opinion PSO
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Lay opinions/Expert Testimony
11/2010
Rule 701. Opinion Testimony by Lay Witnesses - If the witness is not testifying as an expert, the witness' 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 witness' 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. Rule 702. Testimony by Experts - 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. Rule 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 expert's opinion substantially outweighs their prejudicial effect. United States v. Johnson 1979 circuit court (5th) (pg. 694-696) At issue was marijuana and use of expert testimony that it had all been imported from Columbia. No marijuana had been seized so only evidence was this testimony. Out of jury hearing, expert was put to voire dire and cross-examined. His qualifications: Used thousands of times, experience comparing Columbian grown in US and Columbian grown in Columbia. Based his opinion on ID of plants appearance (bud, leaf, stems etc.), smell and effect of smoking it! Against objections of defense, trial court allowed expert to testify in front of jury that he had tested a sample of marijuana from each importation and verified it came from Columbia. Ninth circuit this is 5th circuit so persuasive not binding has held in Fineberg v. US (1968) that to warrant expert testimony, two elements are REQUIRED: 1) 2) Subject of the inference must be so distinctly related to some science, profession, business or occupation as to be beyond the knowledge of the average layman AND The witness must have such knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.
Case at hand: Subject of inference source of marijuana Occupation distinctly related to selling illegal drugs science of botany Beyond common juror? yep, neither wd a common juror possess what juror would say, wait a minute I smoke every day and am an aficionado? (2nd requirement) Witness have such knowledge/experience in field during voire dire it was clear he had experience and training! Will opinion or inference aid trier in search for truth? yesit would assist jury in determining if the marijuana was imported and was from Columbia
In holding the lower court did not err in allowing the witness testimony, the court reminded everyone that the defense is not, well, defenseless. In fact, defense can, and did, call a witness to state his own opinion could rebut part of THIS expert witness. Defense witness, assoc professor of biological science, said it was impossible to determine the origin of a particular sample by
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examining its physical characteristics. BUT he admitted that climate differences could produce differences in the plants (nice cross, Plaintiffs counsel). Jury was duly instructed to give weight to the experts as the jury believes deserves. 727-735: Daubert v. Merrell Dow Pharmaceuticals, Inc. SCOTUS 1993 Key question: what is standard for admitting expert scientific testimony in a federal trial? 2 children were born with serious defects. Mothers claim their use of a drug caused those defects. Drug company had an expert cull all PUBLISHED (key) documents and determined the drug was NOT a human teratogen (that is, a substance capable of causing malfromations in fetuses). So, doctor concluded that when taken in first trimesester it has not shown to be a risk for human birth defects. Respondent moved for summary judgment and District court granted it. Petitioners didnt contest the evidence of this expert witness, but they had 8 of their own experts who concluded it COULD cause birth defects. These were an impressive 8 experts well known in their fields. BUT these 8 used in vitro and in vivo animal studies to show similarities of this drugs effect on animal fetus compared to those known to cause birth defects and the reanalysis (second or subsequent analysis) of previously published epidemiological studies. But court threw them all out and granted summary, court cited the FRYE case which, in 1928, still ruled the world of the 9th circuit (and a majority of courts). Frye Test: general acceptance test. That is, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Court said these 8 experts performed tests/studies that diverged from the generally accepted method in this area. Petitioner, and COURT agreed, that FRE 702 supercedes this old Frye test. And nothing in the words of the rule establishes a general acceptance in fact that old test is too rigid and not in line with the liberal thrust of the FRE and their general approach to relaxing the traditional barriers to opinion testimony (cited Beech Aircraft Corp v. Rainey). Bear in mind, all good for FEDERAL courts as these are FEDERAL rules not state rules! Justice Blackmun said the Rule does require limits on the admissibility (see attached chart for a breakdown). Some key points he makes: All of the following is limited to discussion of scientific knowledge based on this case Evidentiary reliability that is trustworthiness- is based upon scientific validity (defined as does the application of the principle produce consistent results?) Key five words Scientificknowledgeassist the trier Scientific implies a grounding in the methods and procedures of science Knowledge more than subjective belief or unsupported speculation In order to qualify as scientific knowledge an inference or assertion must be derived by the scientific method Proposed testimony must be supported by appropriate validation good grounds based on what is KNOWN The requirement that an experts testimony pertain to scientific knowledge establishes a standard of evidentiary reliability.
46

Evidence Outline

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Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Maher s diagram of 609:

609(b) N Convicti on 10+ yrs old?

609(a)(1) "felony" - more than one year or death penalty

609(a)(1) postConvi ction of a Y criminal ?

Inadmiss able small crime, not typically probativ e of anything

Impeachment Evidence Flowchart (see below)

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

8. 9. 10. 11. 12. 13.

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

Penny Oleson Evidence Outline to Study for Final

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