Introduction and Article I

I. Types of Courtroom Evidence: a. Definition: Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. Prosecutor never appears as a witness or party No distinction of direct or circumstantial evidence in Federal Rule. We infer a fact directly from evidence=Direct Evidence

Circumstantial Evidence=evidence + chain of inferences fact. b. Oral Testimony: witnesses speaking form the witness stand. Three types of witnesses: i. Fact Witnesses: 1. People who perceived facts related to the lawsuit and testify about those facts. 2. They may not have been an eye witness but just perceived a fact related to the case. ii. Expert Witnesses: 1. They use specialized knowledge to interpret evidence or explain it to the jury. 2. They did not perceive anything, they just review data or documents and apply their expertise. iii. Character Witnesses: 1. They offer information about the good or bad character of a party or witness. 2. The Federal Rules limit the use of character witnesses, but they do still appear from time to time. iv. Parties and Victims also appear as witnesses. c. Real Evidence: i. It is any physical evidence that a party claims played a direct role in the controversy. ii. It must be authenticated, even if just accompanied by a witness statement. d. Documents: i. It is any type of writing or recording of information, such as contracts, bills of sale, real estate leases, and wills. ii. They must be authenticated. e. Demonstrative Evidence: i. These are charts, tables, pictures, maps and graphs used to demonstrate something to a jury. ii. They can make literal demonstrations in the court room and act out the situation. f. Stipulations: i. Both parties must agree to the exact language of the stipulation, but it is a fact that they both agree on. g. Judicial Notice: i. If a fact is indisputably true, then the judge can take judicial notice of the fact 1. i.e. Boston is in Massachusetts 1

h. Circumstantial v. Direct: i. Direct Evidence: Evidence that points to a fact without much inference. ii. Circumstantial evidence: any evidence that requires the jury to make an inference connecting the evidence with a disputed fact. iii. They are not legally distinguishable, but rather lie on a spectrum. EVIDENTIARY ISSUES What materials should be admitted into evidence for consideration by the Trier of fact (TOF)? What use is (or should be) made by the TOF of materials that are admitted? Once admitted, unable to control how it is used by the jury Admissibility: A decision as to what a TOF is entitled to hear Time (e.g., too many same testimonies)

The Jury can influence admissibility (jury needs protection from prejudicial evidences) II. Who wrote the Federal Rules of Evidence? a. It was drafted by the Supreme Court Advisory Committee b. In 1972, it went to Congress, but because of Watergate, it revised the rules i. Pass on January 2, 1975. c. Federal Rules of Evidences legislative history comes from two different sources: i. Notes written by the Advisory Committee ii. Committee Reports and other legislative history from Congress d. It matters to know who wrote it only because you might need to know the legislative history. III. Why Use Rule of Evidence? (1) Protecting the jury from misleading information Could give wrong weight on certain non-relevant details.

(2) Eliminating undue delay and promoting judicial efficiency Move the case along. (e.g., push for stipulation of fact)

(3) Protecting a social interest Trial related

Unrelated-privilege-promote social interest such as marriage, although run counter to getting to the truth. (AC or spousal). Ultimately help find the truth Rape-shield statue-protect both trial and non-trial interest. Can exclude potentially relevant evidence to protect privacy.

(4) Ensuring that evidence is sufficiently reliable Rules against hearsay

Only well grounded, scientific statements. IV. The Scope of the Rules, what courts they apply to: a. Rule 101: Scope i. Apply in the courts of the United States, bankruptcy judges, and United States magistrate judges. 1. Every District Court 2. Exceptions and applicability in Rule 1101 ii. It does not apply to the Supreme Court, this is basically because they do not get a whole lot of evidence anyways because of their appellate function. However, they will somewhat look to them in the cases that they adjudicate between states. iii. It does not apply to the Supreme Court, this is basically because they do not get a whole lot of evidence anyways because of their appellate function. However, they will somewhat look to them in the cases that they adjudicate between states. iv. Applies for both civil and criminal v. If state adopted the rules for their own, then they will follow Federal Rules (46/50) vi. In some states, even if some languages are the same, the definition/effects are different, unless SC says it is a constitutional issue. If not, no power over diverse interpretation of a given rule. V. When? a. They govern in civil and criminal trials, and admiralty and maritime cases. b. Note: In Grand Jury and sentencing cases, only privilege apply. i. Anything probable would work in grand jury c. FRE govern in civil and criminal trials, and admiralty and maritime cases. d. They are inapplicable (Rule 1101(d)) i. Preliminary questions of fact 1. Preliminary determinations about admissibility ii. Grand Jury iii. Miscellaneous proceedings 1. Proceedings for extradition or rendition 3

2. Preliminary examinations in criminal cases 3. Sentencing or granting or revoking probation 4. Issuance of warrants for arrest, criminal summonses, and search warrants 5. Proceedings with respect to release on bail or otherwise. iv. Also do not apply to administrative agencies 1. Except the tax court 2. They might find them persuasive. v. The State courts do not have to follow them. 1. Many have adopted them however and many find them persuasive. Some have even adopted the language and the numbering. 2. Every state makes a few changes however. vi. 1101(c): 1. The rule with respect to privileges applies at all stages of all actions, cases, and proceedings. Even in the grand jury. vii. Basically: The Rules apply only during the main event of trial. viii. The privilege rules always apply. VI. Structure of a trial a. Pretrial motions i. Motions in limine: A pretrial motion to either request a piece of evidence be admissible, or to exclude a piece of evidence. ii. Motion to suppress: The evidence was illegally obtained. b. Jury Selection c. Opening Statements d. Plaintiffs/Prosecutors Case-in-Chief i. Burden of proof to make prima facie case of each element e. Defendants Case-in-Chief or Case-in-Defense f. Plaintiffs/Prosecutors Case-in-Rebuttal g. Defendants Case-in-Rebuttal or Case-in-Rejoinder h. Further Rebuttal and Rejoinder Email Problem o Certificatenot relevant

o Testimony-is there any danger in having jury hearing this propensity of violence? Risk distracting. IF the gun is the same, could be more relevant o o Sally testimony-potential motive. Probative value v. prejudicial effect. (a) Rachael-character opinion v. specific bad act

o (b) physiology professor expert opinion v. credibility August 25, 2011 Ch. 5 VII.Raising and Resolving Evidentiary Objections a. Burden is placed on parties, not judges b. Most disputes of evidence are resolved in court during trial. Trial judge given great discretion and appeal exercise very limited review of evidentiary rulings. 4

c. Strategic elements of motions in limine: i. Lose the element of surprise which might be helpful in criminal court. ii. The judge rules on it and so you know whether the evidence is good or not. iii. The judge can: 1. Sustain it 2. Overrule it 3. Reserve it for later ruling. If this happens: a. In order to preserve the objection for appeal, you have to renew the objection in trial. d. We use the adversary system (jousting) in order to identify inadmissible evidence. The judge allows the parties to decide. e. Rule 103: Rulings on Evidence i. Goes from an appellate standpoint. A lawyer must do these steps before he can challenge the evidence in the appellate court. ii. (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless 1. Raising Objections: 103(a)(1) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. a. Two mechanisms for disputing evidence i. Objection: Before an opponent introduces an item, before it emerges fully. ii. Motion to strike: occurs after disputed evidence has already entered the record. They may do it later, after the evidence becomes irrelevant. b. Also, the parties must challenge in a timely manner. i. The lawyer must object to evidence as soon as the ground for objection is known or reasonably should be known. c. They must state a specific ground for any objection. i. It allows the judge to rule and the other party to cure any defect in the evidence. ii. The attorney must state what is wrong with the evidence. There might be more than one defect. iii. The attorney must designate the portion of a document or witnesss testimony to which they object. iv. Though Rule 103 allows attorneys to forego this requirement if it is apparent from the context, it is still a good idea to throw in one word. 2. Defending Evidence: 103(a)(2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. 5

a. The opponent makes an offer of proof to show the judge what the evidence entails. If he does not, he waives any objection on appeal. i. Can either describe the evidence, or ii. Can demonstrate with the witness the actual questions that would be asked and answered. iii. Careful attorneys usually make at least a brief offer of proof. 3. Maintaining Objections: a. Rule 103(a) Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. i. Motions in Limine are definitive rulings. 4. Shielding the Jury: Rule 103(c) In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. a. If it requires further explanation, attorneys will approach the bench. f. Response by the Judge: i. Sustain: The judge agrees with the objection. ii. Overruled: The judge disagrees with the objection and it is admitted. iii. Redact: The judge orders certain portions of the document to be eliminated. iv. Curative instruction: If some inadmissible evidence reaches the jurys ears, the judge tells the jury to disregard the evidence. But hard to do and hard to prevent abuse. v. Limited Instruction: Judges will admit evidence for specific, limited purposes. 1. Rule 105: Limited Admissibility a. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. b. Here, the judge does not have discretion, but must do what the parties ask. 2. For examples, see p. 48 g. Appeals: i. Rule 103(d): Plain Error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. 1. The reverse on this ground, courts require an error that is clear and obvious under current law, affects a partys substantial rights, and would seriously affect the fairness,

VIII.

integrity or public reputation of judicial proceedings if left uncorrected. The Rule of Completeness a. Rule 106: Remainder of or Related Writings or Recorded Statements i. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. b. If one party introduces a party of a document, then the opponent may introduce other portions in fairness. c. United States v. Castro-Cabrera i. Prosecution for illegal reentry after deportation ii. Defendant claims that he was a citizen based on his mother. iii. Defendants previous statement 1. Q. What country are you a citizen of now? 2. A. I guess Mexico, until my mother files a petition a. This is full admissible. iv. Defendant wants to admit more of the statements. 1. Q. Of what country are you a citizen? 2. A. Hopefully United States through my mother. v. Now it is more complete. d. Four important aspects of the rule: i. Allows a party to introduce qualifying portions of a writing or recorded statement as soon as the opponent offers the first portion. 1. The opponent does not have to wait for its rebuttal in order to submit it. Contemporaneously. ii. It only applies to writings and recorded statements. iii. The opponent may introduce whole writings or recordings, not just segments of a single writing, when it is necessary to understand another document offered by the opponent. iv. The fairness principle: it is a flexible standard to allow judges to correct a misleading impression created by taking matters out of context. e. In the Courtroom: i. Oral Statements: 1. Some courts will allow oral statements, not just writing in order to be fair. Some justify it under 403, some under 611(a). 2. Courts differ in their willingness to expand Rule 106s completeness principle. 3. You have a very good chance of achieving this. But you cant do it on 106, but you need to do it with 403 or 611(a). 611 is probably the better one to turn to. ii. Timing or Admissibility: 1. Most circuits interpret 106 as a rule of timing. a. You can only complete the evidence only if it is admissible. 7

2. Some courts have found that in order to rebut the statement, you may only introduce evidence that is otherwise admissible. a. Some courts have seen this more broadly and allow you to rebut with evidence not otherwise admissible. This is a view of the rule as governing admissibility. IX. Preliminary Determinations a. Some evidence things fall under an issue of law. Some fall under contested facts. i. The Rules of Evidence do not apply ii. The rules of privilege do apply b. The judge decides issues of law. i. What is a crime of dishonesty under Rule 609? c. Jury determines factual disputes. i. But all preliminary factual issues are decided by the preponderance of evidence standard. ii. The admissibility might depend on the preponderance standard as applied by the judge. d. Rule 104 establishes a process for resolving disputed factual issues related to admissibility. Two categories: i. Whether the evidence is relevant. 1. Conditional Relevance: when a factual dispute affects the relevance of evidence. 2. For questions of conditional relevancy, the trial judge performs only a screening function on the sufficiency of the evidence and then lets the jury decide. a. The just only asks whether enough evidence exists that a reasonable jury could resolve the factual dispute in a manner that fulfills the condition and makes the evidence relevant. ii. The factual disagreement affects existence of a policy concern that would bar admission of admittedly relevant evidence. 1. In these parts, the judge decides the factual issue with no deference to the jury. e. Factual issues that affect relevance often determine both the admissibility of evidence and its weight. Since jurors determine the weight of admitted evidence, it makes sense for them to decide whether the evidence deserves any attention at all. f. Conversely, jurors have little knowledge of the policy issues motivating exclusionary rules like 407 and letting the jury decide the factual issues of these might defeat the policy altogether. g. RULE 104: Preliminary Questions i. 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. 8

ii. 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. iii. Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. iv. Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to crossexamination as to other issues in the case. v. Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. h. Explanations: i. Part (b)- when relevance turns on resolution of a factual dispute, this rule tells the judge to screen only the sufficiency of the evidence. Two aspects: 1. This does not just apply to issues raised under 401 and 402. 2. Judges should let the jury decide the factual issue if enough evidence exists that a rational jury could resolve the factual dispute either way. a. If the evidence will only point one way, creating a prima facie evidence, then the judge will not submit it to the jury. 3. The prima facie standard: a. Is there enough evidence here that a jury could find based on the preponderance of the evidence that a certain thing is true? i. We use this when the factual questions relate to relevance. ii. Part (a): This is the default rule that, except for issues of conditional relevance, the judge decides all preliminary questions related to the admissibility of evidence. 1. Two points: a. The rules of evidence do not apply to preliminary determinations. b. The rules of privilege do apply to preliminary determinations. iii. Part (c): 1. Sometimes a hearing outside of the courtroom and away from the jury is required in order not to prejudice the case. iv. Part (d): 1. The accused in a criminal case is allowed to testify on preliminary matters, such as the voluntariness of a confession, without subjecting himself to cross.

a. This allows the accused to contest potentially unreliable evidence without waiving the right against self-incrimination. v. Part (e): 1. You may still impeach a witness. i. The Courtroom i. 104(b): Relevance Depending upon the Fulfillment of a Condition of Fact 1. Personal Knowledge under Rule 602 a. 602, the witness must have personal knowledge. Here is a factual dispute. b. If there is evidence sufficient to support a finding that the witness had personal knowledge, even if the jury decides they didnt, it is still admissible. c. The judge will not admit the evidence if there was no possible way the person could have personal knowledge of such a thing. 2. Evidence of other acts under Rule 404(b) a. To admit evidence, the trial judge only has to find that a reasonable jury could find that the television sets were stolen. 3. Factual determinations under Rule 412 a. Sometimes the jury needs to resolve issues, such as having an affair. 4. Other Sexual Assaults by Defendant under Rules 413-415 a. The judge will determine whether a reasonable jury could find that the other assault occurred and will allow the jury to determine both the existence and probative value of the alleged assault. ii. Rule 104(a): Questions of Admissibility Unrelated to Relevance 1. Timing of Remedial Measures under Rule 407 a. Whether the remedial measure occurred before or after is up to the judge because it is relevant either way. Therefore the court decides the issue. 2. Whether Repeated Conduct is Propensity or Habit under Rule 406 a. Some are mixed questions of law and fact. Separating an admissible habit from inadmissible propensity evidence may depend on answers to a host of factual questions. 3. Other 104(a) Determinations a. Another issue includes the existence of a dispute or compromise negotiations sufficient for Rule 408, b. Whether a defendant offered to pay medical hospital or similar expenses, Rule 409 c. Whether plea discussions occurred under Rule 410 d. Whether a questioner has a good faith belief for questions posed on cross examination under Rule 608 or 405. 4. Standard of Proof 10

a. Preponderance of the evidence is how the judge will decide. 5. Burden of proof a. Usually it is on the party who is trying to admit the evidence. 6. Rule 403: a. In many situations, jurors may not be able to disregard evidence that they have rejected under the preponderance standard, but shadows of that evidence may still color the jurys judgment. b. If there are facts that are weakly supported, then there might be unfair prejudice. i. Hotly disputed facts are more likely to confuse or delay the trial. iii. If the judge is putting something into a category, then it is an issue of law to be decided by the judge. iv. Example: The wife comes in and says that he tried to poison his father last week with arsenic and now he ran him over. He is charged with murder. 1. How does this get resolved? a. Judge asks under 104(b): Could a reasonable jury find by a preponderance of the evidence that the substance was arsenic? i. The answer is typically yes. b. But we would want to argue under 403 that the evidence of the action actually happening is weak and it is then unfairly prejudicial. Because we dont know if it happened, then we would want to get rid of it.

Article VI: Relevancy and its Limits

I. RELEVANCE a. It saves time from not delving into extraneous matters. b. It focuses the jurors on facts that the law deems important c. The Rules i. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible 1. All relevant evidence is admissible, except as otherwise provided a. By the Constitution of the United States b. By Act of Congress c. By these rules, or d. By other rules prescribed by the Supreme Court pursuant to statutory authority. 2. Evidence which is not relevant is not admissible. ii. Rule 401: Definition of Relevant Evidence 1. Relevant Evidence mean 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. 11

d.

e.

f.

g.

h.

a. Any tendency b. More probable or less probable c. Of consequence Any Tendency to Make a Fact More Probable or Less Probable i. More probable or less Probable- a low threshold, indicates that it can be relevant even if it does not conclusively establish any fact on its own. ii. any tendency- by stating that relevant evidence is evidence that has any tendency to make a fact more probable or less probable, Rule 401 embraces evidence that could shift a fact finders view of the facts even the smallest degree. iii. Any tendency sill has causation and some degree of culture reorganization involved. iv. If it moves the believable either one way or the other, then it is relevant. Must be a Fact of consequence i. Facts proven in the courtroom (facts in evidence) are distinct from facts related to the controversy (facts in consequence) ii. Relevance depends upon the substantive law governing the controversy. iii. It must be related to the cause of action, that is, a fact that matters to someone who is trying to decide the case. iv. It is the most limiting but still a low threshold. v. It depends on the legal theory of the case. One theory may make it relevant whereas another may not. vi. A good lawyer will try to get the evidence introduced to prove one fact, even if the other party objected and succeeded in having it restrained for another reason. The judge will use a limiting instruction, but the jury still sees the evidence. vii. As trial proceeds a partys evidence and arguments may generate new issues or facts o consequences. Evidence tat was irrelevant at the start of trial may suddenly acquire relevance. viii. Example of FIE: race, wealth, insurance in negligence drunk driving case. Relevance Themes i. Facts proven in the courtroom (FIE) are distinct from facts related to the controversy (FIC) ii. Relevance depends upon the substantive law governing the controversy iii. Same evidence can be used to build opposite, contrary theory iv. Culture can make different FICs Concepts i. Relevance-see above. ii. Probative Value-number of bricks each evidence carries. How strong can evidence be weighted? Might be sufficient to establish guilt. iii. Sufficiency-Can evidence support a verdict The Courtroom i. Controversy and Consequence:

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1. The fact to which the evidence is directed need not be in dispute 2. Evidence is relevant even if it addresses a matter that the opponent concedes. (cannot force stipulation) Old Chief v. US on page 62. Concession does not destroy relevance. ii. Unrelated Misdeeds 1. Sometimes a party will try to influence the jury by showing them bad deeds performed by the opposition. 2. This can be used if it is part of the legal theory, but many times it is not included. 3. You cannot introduce evidence that is too far removed from the parties dispute in time, place or other respects. a. Such as past discrimination based on race is not relevant to discrimination based on age. iii. Negative Evidence: 1. The Dog did not bark- usually judges reject this type of evidence. 2. No one submitted claims-can still be relevant. Lots of reasons people dont file claims. iv. Hindsight: 1. Example would be the defendant saying that he felt threatened and used self-defensive means. 2. Whether or not the person was armed is a fact that is not admissible because it is after the fact. What matters is if the person thought that the aggressor was armed. v. Opening the Door: 1. Irrelevant evidence sometimes becomes relevant to rebut claims made by another party. vi. Case by Case Determination: 1. Courts should not create broad per se rules governing the relevance of whole categories of evidence. vii. RELEVANCE IS AT THE FOREFRONT OF THE LAW: You bring it up first so that you can get a new legal standard. Evidence standards are important. i. Points of Relevance to Remember: i. Only relevant evidence is admissible ii. Relevance rests/depends on the legal case, underline legal theory iii. Battles over relevance help shape new legal claims and defenses iv. SODDI defense=some other dude did it. II. Prejudice, Confusion, or Waste of Time a. RULE 403 limits the evidence. (not every piece relevant are admissible) b. Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time i. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of 1. Unfair prejudice, confusion of the issues, or misleading the jury, or by

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2. Considerations of undue delay, waste of time, or needless presentation of cumulative evidence. c. Key Message i. The rule prohibits only unfair prejudice ii. The judge may exclude evidence only if the unfair prejudice (or another Rule 403 ground) substantially outweighs its probative value. iii. Decisions under Rul3 403 are highly discretionary d. Metaphor i. net at beginning of river is relvance 1. most pieces of evidence are deemed relevant ii. at the end of the river is another net, Rule 403 1. tighter net than 401 & 402 2. most pieces of evidence do still clear 403 iii. In between the two big nets, are other smaller nets 1. more specialized nets, trying to scoop the fish out of the river 2. opponents try to catch the other sides evidence w/the other nets e. Old Chief i. *D offered to stipulate fact of prior felony conviction ii. *stipulation does not destroy relevance iii. *offer to stipulate affects prejudice iv. *But here, given the Ds offer to stipulate, the evidence was held to be unfairly prejudicial v. *In most other cases, however, offer to stipulate has little effect under 403 f. May: i. Judges possess discretion ii. Means two things: 1. Appellate courts rarely reverse Rule 403 rulings. 2. The discretionary nature of Rule 403 offers opportunities for persuasive advocacy. g. Substantially outweighed: i. The rule recognizes a firm tilt toward admissibility. ii. The rule assumes that the jury will weigh the evidence appropriately 14

h. Unfair prejudice: i. The evidence lures the fact finder into declaring guilt or liability on a ground different from proof specific to the offense charged. i. In the Courtroom: i. Five Factors influence a judges decision when applying this rule: 1. The extent to which the evidence will arouse emotions or irrational prejudices among the jurors 2. The extent to which the jury might overvalue the evidence- that is, take a piece of evidence which is only slightly relevant and give it undue weight. 3. The strength of the connection between the evidence and the elements of the case. Judges are more likely to admit evidence that is closely related to essential elements of a case, even when that evidence is highly emotional. 4. Whether the advocate can prove the same facts through less prejudicial or confusing means. If alternative routes are available, the judge is less likely to admit the challenged evidence. 5. Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. If the judge can redact prejudicial components of the evidence or instruct the jury to refrain from improper uses of the evidence, he or she will be more likely to admit the evidence. ii. Damaging Evidence: 1. Parties will claim this because it damages their case, but usually the court rejects this. 2. inflammatory language heightens the prejudice iii. Videos and photos: 1. As long as the affected party has an opportunity to crossexamine the filmmaker about perspective and editing, and to explain to the jury how the videotape might convey an erroneous impression, the tape seems to be as accurate as, or even better than, eyewitness testimony. a. But they are very emotional. b. Videos or photos that only show the effect of the crime are a little more suspect. iv. Socially Undesirable Behavior. 1. Judges often exclude evidence of a partys lifestyle that might be unseemly to the jury. a. Gambling, strip clubs, etc. b. In criminal cases, the judge might be less willing to admit this evidence as it might paint the side as more of a criminal. In civil cases, the judge might be more willing to allow it. 2. Evidence of wealth and lifestyle can be rejected because the wealth could have come from a variety of means. Some

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v.

vi.

vii.

viii.

courts grant it though because one party might be showing the motive to upkeep that lifestyle. a. It could show a motive. Flight: 1. Courts carefully look to flight because people might leave for innocent reasons or fear of unfair treatment by the criminal justice system. They balance the other evidence to decide if it is admissible. Stipulations: 1. The presence of a stipulation may affect the balance of unfair prejudice and probative value under Rule 403. a. The availability of alternative evidence, including stipulations, affects the balance. b. Prosecution can choose to present detailed evidence rather than accept a defendants offer to stipulate. c. The felon in possession statute is special because any felon may not possess a firearm so there is no need to reveal the nature of the felony. So stipulations might be better than allowing the prosecution to go on because of its prejudicial effects. i. Old Chief: Give the offer to stipulate, evidence was unfairly prejudicial. Evidence of prior conviction was still relevant, but because there was not much probative value in revealing that the felony was for assault, it was excluded based on unfair prejudice. d. Defendant cannot get rid of evidence just by stipulating it. But in the circumstances of Old Chief, it seemed very prejudicial. 2. Overview: a. Stipulation does not destroy relevance b. Offer to stipulate affects prejudice c. For felon-in-possession-of-gun cases, Ds stipulation to prior conviction excludes other evidence under 403. d. In most other cases, offer to stipulate has little effect under 403. Waste of Time, Undue Delay, and Needless Duplication 1. If the party is trying to submit voluminous evidence that is not necessary, the judge may sustain an objection, especially if it will just confuse the jury. Bench Trial: 1. It is foolish to claim prejudice in a bench trial because the judge then would be deciding that he could not fairly decide the case from hearing it. Counterintuitive. 2. Can argue waste of time 3. legally educated judges arent going to be unfairly prejudices, confused, or misled 16

j. Putting it all Together i. First: Trial attorneys have to activate the rules. ii. The Rules only say what to exclude, not what to admit. iii. Evidence must survive scrutiny under every rule. iv. Rule 403 is special in giving the judge discretion, even if the evidence survives the more specific rules. v. Attorneys try to help the evidence get in and argue its way in. III. Subsequent Remedial Measures a. 407-411 accomplish two goals: i. Each rule promotes a socially valuable activity, like plea bargaining or purchasing liability insurance, by protecting those who engage in that activity from evidence that might be used against them. ii. The evidence targeted by these rules tends to cause a high degree of unfair prejudice, while contributing little probative value. In other words, these rules apply Rule 403s balancing approach to exclude particular categories of evidence. iii. These rules also show that we can exclude evidence when offered for some purposes, but not others. iv. To work, a D needs to know about the rule in the first place, but typically dont know. v. b. These rules require the attorneys to identify the purpose of the evidence. c. RULE 407: bars evidence of subsequent remedial measures. i. This is when the defendant does something to make up for the action that caused the suit. For example, a person slips on an icy sidewalk so the defendant starts to ice it. This evidence process a fact of consequence, that the original condition or practice was unreasonably dangerous. There are two problems with this though: 1. It creates a perverse incentive for defendants. They wont fix it. 2. Juries give too much weight to evidence of subsequent remedial measures. a. The danger may not have been something that a reasonable person would have seen, but the defendant may take measures to correct it regardless. But the jury may interpret the defendants subsequent repair as an admission of fault. 3. The rule does not always bar evidence, only when it is used to prove the defendant was negligent or otherwise at fault. However, they may use it to show that repairs are feasible, or something like that. d. Rule 407: Subsequent Remedial Measures. i. When, after an injury or harm allegedly caused by an event, measures are take that, if taken previously, would have made the injury or harm less likely to occur,

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evidence of subsequent measures it not admissible to prove: 1. Negligence 2. Culpable conduct 3. A defect in a product 4. A defect in a products design, or 5. A need for a warning or instruction. ii. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as 1. Proving ownership, control, or feasibility of precautionary measures, if controverted, or 2. Impeachment. e. In the Courtroom i. What is a measure? 1. Changing a situation, taking a product off the market, firing an employee, a policy change, or any action really is a measure. ii. When is a Remedial Measure, Subsequent 1. The rule can only shield measures taken after the injury. So if the defendant sells a product to the plaintiff, changes it to make it better, and then the plaintiff gets injured, this evidence can be shown. (hence the recall). 2. It creates an incentive for the defendant to act as quickly as he knows about the dangerous situation instead of waiting for someone to get hurt. iii. Negligence, Strict Liability, and Other Mental States 1. It was originally for tort claims, but people invoke the rule in lots of cases. 2. In contract law, the reason for the rule is not to protect third parties, but to mitigate harm to the plaintiff. 3. It now applies to strict liability now too. iv. Remedial measures by non-parties: 1. The policy of the rule is not to discourage one of the parties, and because non-parties have no fear of implicitly admitting liability, they dont need the incentive offered by the rule. 2. This is a bit in limbo and is evolving a. A few lower courts and dissenting opinions have followed the rules literal language. b. You might argue it under 403, saying the admission of third party remedial action creates unfair prejudice, and just stay away from a 407 argument. v. Other Purposes: Ownership or Control 1. If the defendant claims that it did not own or control the instrument that injured the plaintiff, the plaintiff may introduce evidence of subsequent remedial measures, not to prove that the original condition of the instrument was unreasonable dangerous, but rather as evidence that the

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defendant did own or control that instrument, because few people fix items that dont belong to them. vi. Other Purposes: Feasibility: 1. A party disputes feasibility when it claims it could not have remedied a dangerous situation because of economic, physical, or other constraints. 2. Strategy: a. cross examiner will attempt to get witness to say something opening the door to evidence b. A defendant might not want to claim that it was not feasible, or they had no control for the reason that the jury might not be able to differentiate feasibility from liability and hear that evidence as proof of unreasonableness. i. Wouldnt a jury necessarily conclude that feasibility of a safer design establishes fault in the earlier one? ii. However, there is evidence around that other companies make locking pressure cookers, which will hurt your case. The jury will take note however of the action of THIS party if it can be introduced. You must balance between whether you think you can win on the feasibility argument or whether opening the door will create more problems for you. vii. If controverted 1. The plaintiff cannot introduce evidence of subsequent remedial measures to prove ownership or control unless the defendant somehow denies that she owned or controlled the dangerous condition. 2. These exceptions only arise if controverted by the opposing party. 3. Problems arise with feasibility: a. It is hard for the defendant to prove that his product was safe without bringing in some kind of feasibility. b. A lawyer can sometimes make a defendants witness admit feasibility. Example: Isnt it true that there were safer ways to design the thresher? viii. Other Purposes: Impeachment 1. This is the process of discrediting a witness. 2. The courts have crafted a narrow meaning of the word impeachment. The trial judge looks for a closer fit between the remedial measure and the testimony it is supposed to impeach. They will allow when: Strategy a. A witness makes a specific representation that conflicts with the subsequent remedial measure b. The witness makes an absolute declaration like the product was perfectly safe and/or i. You want them to use superlatives

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c. The witness making the statement was personally involved in implementing the remedial measure. 3. This puts the defendant in a tough spot. The defendant wants to tell the jury that the original product was safe, but he opens himself up to impeachment if he has changed the product since the accident. a. One strategy is to avoid calling witnesses who were directly involved in remedial measures. b. Another strategy is for defense witnesses to limit their testimony to general statements about safety. c. Feasibility and impeachment may overlap: i. If a defendant claims that a product was as safe as it possibly could have been, the plaintiff may argue that evidence of subsequent remedial measures is admissible both to impeach the witness and to show feasibility. f. Rules 105 and 403: Limiting Instructions and Unfair Prejudice: i. These rules complement 407. If the judge admits evidence of subsequent remedial measures for a purpose other than proving liability, the defendant can request a limiting instruction. The judge MUST give that instruction if the party requests it. ii. Because juries will have a hard time differentiating between proving fault or proving impeachment, the defendant will ask the judge to exclude the evidence under 403, unfair prejudice. 1. But the defendant must show that the evidences unfair prejudice substantially outweighs its probative value. 2. Most cases, the judges decide that a limiting instruction will sufficiently reduce the unfair prejudice to admit the evidence. g. Medical Malpractice i. Existence of a professional Relationship ii. Obligations, usually created by standards of the profession, legislation, or court order iii. Breach of duty in question iv. Breached caused damages 1. issue used throughout this class 2. p must prove each & every element 3. must prove it substantively 4. doesnt just impeach the Ds witness 5. Cant use impeachment to establish an element of the COA 6. can make defense disappear 20

7. wipes out potentially critical testimony 8. character of being a liar h. Admit Other Purposes (can possibly introduce, unless falls under 403) i. Explaining changing circumstances when admitting a photo of an accident scene ii. Instances where a D claims contributory negligence by the P. iii. For example, P should have known the danger, but the evidence can be seen as part of Ps legitimate effort to rebut contributory negligence. Then D might want to drop contributory evidence if it is weak. iv. Controversial whether 407 Apply to criminal purposes (culpable conduct, harm, injury). i. Summary i. One of the many intermediate fishing nets ii. defined by remedial measure & subsequent iii. net allows some evidence to flow through iv. evidence introduced for other purposes is one hole and third party repairs is another v. problem is when the owner makes a repair vi. 407 Applies in strict liability (product liability). Should 407 be stopped? Since these companies tend to change unsafe design regardless of litigation outcome. Most courts says neither accident report or 3rd party evidence would be barred by 407. Settlements and Offers to Compromise j. Rule 408: (unilateral offer does not work) i. Facilitates civil settlements and the negotiations that precede them. ii. It attempts to protect statements made during settlement discussions, while allowing parties to capitalize on admissions made by an adversary in other contexts. iii. Not just to promote settle, but promote to stop dispute. Allow juries to hear evidence, unless statements clearly where made for and during a settlement. k. Broadest Reach, what is excluded? i. Rule 408: Compromise and Offers to Compromise 1. 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: a. Furnishing or offering or promising to furnishor accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim; and 21

b. Conduct or statements made in compromise negations regarding the claim. ii. It defines the reach of the rule broadly in three ways: 1. It applies to all parties. They cannot even introduce evidence of their own offers or statements. 2. It defines compromise offers and acceptances very broadly. 3. It protects all conduct and statements made in compromise negotiations not just the operative offers and acceptances. l. The limits on Rule 408: What is still admissible? (Applies to both parties) i. There are four limiting features: 1. The rule repeatedly uses the word claim. a. The disagreement between parties must have matured into a claim. 2. The parties must dispute some aspect of the claim as to validity or amount . a. If they agree on liability and the extent of the damages, Rule 408 doesnt shield discussions they hold on other matters. 3. To invoke Rule 408s shield, the statements or conduct must occur during compromise negotiations or while compromising or attempting to compromise the claim. 4. It only excludes statements and conduct made during compromise negotiations only when a party offers that evidence for one of the three purposes specified in the rule a. To prove liability or non-liability b. To establish the amount of damages, or c. To impeach a witnesss testimony through a prior inconsistent statement. i. Basicallywhat is the party trying to prove by offering this evidence? m. Still more limiting language i. Rule 408: Compromise and Offers to Compromise 1. (a) Prohibited uses. Evidence of the following it not admissible a. (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. 2. (b) Permitted Uses: This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a) Examples of permissible purpose include: a. Proving a witnesss bias or prejudice b. Negating a contention of undue delay; and c. Proving an effort to obstruct a criminal investigation or prosecution

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3. Subsection (a)(1) continues to prohibit prosecutors and criminal defendants from introducing evidence of civil settlement offers, promises and acceptances in criminal proceedings even if those offers, promises, or acceptances occurred when negotiating with a government agency exercising its regulatory, investigative or enforcement authority. n. Issues in the courtroom i. What is a claim? 1. It arises once a complaint has been filed 2. Most judges also agree that a claim arises once a party has hired an attorney and threatened to sue ii. When do compromise negotiations occur? 1. Formal negotiations, where both parties meet for the express purpose of discussing settlement are easy to recognize 2. It is more difficult to determine whether other, less formal communications between parties are part of compromise negotiations 3. One example a. The businessman approached the other president unilaterally, so the judge said it was not a negotiation. Nor did he make a concrete offer. 4. Another example a. In a letter to another companys lawyer, the other company set out the list of damages which did not match the damages claimed in trial b. The judge accepted it because it referenced prior discussions, the phrase without prejudice and the request for a quick response all suggested ongoing attempts to settle the lawsuit 5. Factors to consider when deciding whether a statement occurred during compromise negotiations: a. Whether the statement was unilateral or occurred during bilateral discussions b. Whether either party made a concrete offer c. Whether attorneys were involved in the discussions d. Whether the parties used phrases that are commonly used during settlement discussions iii. Settlements with third parties 1. It applies to all settlements, even those conducted by parties who are no longer involved in the case. iv. Other Purposes: 1. May use it to counter a claim that they delayed in pursuing their claim. 2. May use it to support a claim that an opposing party engaged in frivolous or vexatious litigation v. Bias 1. Show that the witness is biased. A witness who has settled a claim with one of the parties, for example, may develop a 23

bias in favor of that party; other litigants may try to introduce evidence of the settlement to demonstrate that bias. vi. Impeachment: Inconsistency versus Bias 1. You may use settlement evidence to impeach based on bias, but not based on inconsistency. 2. Why? a. It comes from the encouragement of settlements. Parties would have to watch their words carefully during compromise discussions, shading every meaning to favor their legal claim. vii. Pre-existing evidence 1. A party may not immunize evidence by discussing it during a settlement conference. viii. Criminal Cases: 1. Apply to criminal cases, but does not cover plea bargaining. 2. If settle for civil suit, cannot use it against you in criminal suit. 3. However, sometimes a defendant will face both civil and criminal liability for his actions, and he may make statements relevant to the criminal case while trying to settle his civil dispute. 4. Only from these settlement conferences with government regulatory agencies. It is quasi criminal. a. If negotiation with a SCC or FDA investigation, 408 cannot bar evidence admittance. IV. Medical Expenses: a. Rule 409: (only to medical bills, differ compare to 408) i. The simplest of the narrowly focused rules in Article IV. ii. It encourages individuals and organizations to pay medical expenses for people who have been injured. 1. It excludes evidence of offers or promises to pay medical expenses, as well as payment of those expenses when offered to prove liability. iii. It advances important business and judicial purposes 1. Some businesses find it beneficial to pay immediately because it a. Promotes good customer relations b. Encourages rapid settlement of any legal claims that develop c. Sometimes reduce the extent of damages by treating injuries before they develop expensive complications iv. It is justified as a specific application of 403 1. An offer to pay medical expenses often has limited value in proving liability, especially given the business motives for making some of those payments. b. Rule 409

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i. 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. ii. It is both broader and narrower 1. Broader: a. It applies in any situation in which an individual or organization pays or agrees to pay medical expenses, instead of just on claims or disputes. 2. Narrower: a. It only excludes the offer to pay or the furnishing of medical expenses. It does not exclude any other statements that were made contemporaneously with the offer. iii. It bars admission of covered evidence only when offered to prove liability. c. RULE 409 in the Courtroom i. Furnishing, offering, promising 1. If you admit fault and then offer to pay, the only evidence that is excluded is the offer to pay. ii. Medical, Hospital, or similar expenses: 1. Similar expenses includes fees for all kinds of medical treatment and physical rehabilitation, but the rule does not encompass offers to pay lost wages, to repair an automobile, or to compensate an injured party for other types of economic or property damage. iii. To Prove Liability: 1. You must establish some other purpose for the evidence if you want it admitted. These purposes might be: a. To prove that the party is injured V. Criminal Plea Bargaining a. Rule 410: (apply to both civil and criminal trials) i. The criminal system is crowded, so the judicial system has a strong interest in encouraging criminal defendants to bargain with prosecutors ii. However, defendants are also going to be less powerful than the government at the risk of unfairness. iii. It prevents the jury from hearing unfairly prejudicial information. iv. It does not exclude evidence of final guilty pleas entered as the result of a plea bargain. b. Opening Language i. Rule 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements 1. 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: ii. Two key points 1. It excludes evidence from both civil and criminal trials

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c.

d. e. f.

2. It precludes this evidence only when introduced against the person who, as a criminal defendant, participated in the plea bargaining process. 3. It is only against one type of party, against the D who participated in the plea bargain. However, if the defendant brings in evidence, the judge MAY allow the prosecutor to do the same. Prohibitions: i. Rule 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements 1. Evidence of the following is notadmissible a. A plea of guilty which was later withdrawn b. A pleas of nolo contendere c. 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 d. 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. ii. Subsection (1) 1. Protects guilty pleas that the defendant withdraws. iii. Subsection (2) 1. Nolo contendere= no contest. (otherwise, can be use in civil cases) 2. He allows the court to assume guilt for the purposes of sentencing. 3. It may not be used to establish liability by issue preclusion. iv. Subsection (3) 1. All statements that the defendant made as part of the plea negotiation process or during the aborted court appearance are also inadmissible against that defendant. v. Subsection (4) 1. It limits its protection to plea discussions that occur with an attorney for the prosecuting authority. It protects statements made during plea bargaining, but only when the bargaining produces a withdrawn plea or no plea. Remember: A guilty plea, as well as statements made during bargaining sessions producing that plea, may provide damaging evidence against the defendant in other criminal proceedings or civil suits. Can civil case introduce statement s in criminal bargain? Usually No Exceptions: i. Rule 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements 1. However, such a statement is admissible a. In any proceeding wherein

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i. Another statement made in the course of the same plea or plea discussions has been introduced and ii. The statement ought in fairness be considered contemporaneously with it, or b. In a criminal proceeding for perjury or false statement if i. The statement was made by the defendant under oath ii. On the record and iii. In the presence of counsel ii. Notice, evidence relating to plea bargaining is inadmissible regardless of the purpose for which it is offered. iii. Two exceptions: 1. By allowing the introduction, it prevents a litigant from creating a misleading impression by introducing selected parts of a negotiation. a. The judges decision is discretionary and will depend on other evidence in the case, the degree of harm to the defendant, and whether the first statement is misleading without evidence of the second. b. The prosecutor has no right to introduce, but it depends on the judges interpretation of fairness 2. The government may introduce some statements otherwise protected by the rule when necessary to prosecute a defendant for perjury or false statement. a. Because most plea bargaining discussions do not happen under oath, on the record, and in the presence of counsel, this is a very limited exception. g. Rule 410 In The Courtroom i. What are Plea Discussions? 1. One that occurs within an attorney for the prosecuting authority. a. A suspect who volunteers an immediate confession to the arresting police office is not engaged in plea discussions. b. When arresting, not plea bargained c. When being interrogated, not plea bargaining (police are allowed to lie). d. Will only count if the police officer affirmatively proclaims that he has talked to the prosecutor of the case. e. If you dont talk to the prosecutor, not likely a p bargain 2. Two tiered approach. A plea discussion occurs if: a. The defendant displayed an actual subjective expectation to negotiate a plea and

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b. The expectation was reasonable given the totality of the objective circumstances. 3. Factors: a. Whether it happened before or after a charge was made b. Whether the attorneys are present c. Whether a definitive statement was made that they wanted to bargain. d. Involvement of prosecutor e. Involvement of defense attorney f. Specific terms discussed g. Government expressed interest in defendants offer h. Absence of caveat statements. i. Whether the officer or lawyer said you had the right not to cooperate j. Whether the officer or lawyer stressed the inability to make promises k. Indication of interest in the drug transition deal l. Conveying the deal to the prosecutor m. Returning to the defendant for further discussion. ii. What will we allow the evidence for? 1. Completeness, if fairness requires 2. Perjury prosecution under noted conditions. iii. Sentencing: 1. They do not apply to sentencing proceedings and so you can introduce statements from plea bargaining there. iv. Waiver: 1. Some prosecutors will not engage in plea bargaining unless the defendant waives his Rule 410 rights. a. This practice has grown. Most US attorneys will require this now. b. It allows the government to enforce Ds promises to cooperate. c. Cynical view: If theres no waiver, its not a plea bargaining session i. However, if you look at it this way, if you do not call the defendant to the stand, then you dont have to worry about it. 2. The broadest interpretations allow the prosecution to introduce statements made even if the defendant does not take the stand at trial. h. Remember Rule 403: i. Courts will often invoke Rule 403 to exclude similar evidence offered against the prosecution. VI. Liability Insurance a. Rule 411 i. It is the last of the narrowly focused rules in Article IV. 28

ii. It encourages individuals and organizations to obtain liability insurance. Not covering health, disabilityetc insurances. Can always try to use 403 to keep them out iii. Reasons a party would want to claim: 1. Plaintiffs to sway the jury, showing defendants liability insurance would possibly help persuade the jury to award a large recovery. 2. Defendant might want to escape liability by arguing they are uninsured and would go bankrupt. iv. It has low probative value. b. Rule 411: Liability Insurance i. 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. ii. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as 1. Proof of agency, ownership, or control, or 2. Bias or prejudice of a witness. c. In The Courtroom i. What is Liability Insurance? 1. First, the rule only excludes evidence of liability insurance a. It compensates the policy holder for specified types of damages owed other people. b. Car insurance c. Not health insurance d. Some judges overlook this narrow aspect and apply it to all types of insurance. i. You could urge the court to exclude evidence of other types of insurance under rule 403. 2. Indemnity agreements a. These are similar in one respect: Under an indemnity agreement, one party agrees to reimburse another party for damages if a specified form of liability arises. i. They are usually one-time agreements between parties, do not require the ongoing payment of premiums, and do not spread the risk of financial loss over a large number of people. ii. Common type: 1. When one company purchases another, the seller may agree to indemnify the purchaser for liability arising from conduct that the selling company engaged in prior to the transfer of ownership. b. Courts are split over whether these types of agreements qualify as liability insurance. ii. For what Purpose is the Evidence offered? 29

1. It only precludes evidence of liability insurance if it is offered to prove fault. 2. Other permitted purposes: a. Proof of agency, ownership or control b. Bias or prejudice of a witness iii. What if you show that a third party did not have insurance and that shows that the defendant was poor in choosing this person (Coach having a student with no car insurance pick up, sued for negligence). 1. One side would say that is was not admissible. 2. One side would say that because this evidence is not of liability insurance of the defendant, but another person, it falls outside the rule. 3. The trial court ruled one way and the appellate court ruled another so its in flux. 4. Make sure it is about the party being sued, otherwise can be admissible

Article VI: Witnesses

I. Putting a Witness on the Stand a. ARTICLE VI i. It governs how attorneys elicit evidence from witnesses and present that testimony to the jury 1. Qualifying witnesses 2. Questioning them 3. Impeaching their credibility ii. Qualifying: A witness must 1. Be competent (601, 605, 606) 2. Have personal knowledge (602) 3. Take an oath or affirmation (603) 4. Qualifying an interpreter (604) b. Competence: Who can Testify? i. The Basic Rule: Everyone is Competent 1. Rule 601: General Rule of Competency a. Every person is competent to be a witness except as otherwise provided in these rules 2. Another rule must specifically deny competence to exclude a witness from the stand. 3. As long as a witness appreciates his duty to tell the truth, and is minimally capable of observing, recalling, and communicating events, his testimony should come in for whatever it is worth. It is then up to the opposing party to dispute the witness powers of apprehension, which may well be impaired by mental illness or other factors. Drawing from 602 and 603 ii. State Law: The limiting factor 1. Rule 601: General Rule of Competency a. However, in civil actions and proceedings, with respect to an element of a claim or 30

defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. 2. This rule acknowledges that competency rules are sometimes interwoven with liability principles. 3. Only competency follows this rule. iii. Can the Judge Testify? 1. Rule 605 says that a judge who presides over a case cannot also testify as a witness, because the roles of testifying and presiding are incompatible. 2. Rule 605: Competency of Judge as Witness a. The judge presiding at trial may not testify in that trial as a witness b. No objection need be made in order to preserve the point 3. The rule recognizes that as a practical matter a party might withhold an objection to a judges testimony, fearing that the judge might retaliate against a party raising this kind of complaint. 4. It also prohibits the judge from offering commentary from the bench that amounts to testimony. 5. It also applies to the judges law clerks and other employees. c. What about Jurors? i. Jurors cannot testify where they play a decision making role. ii. Rule 606: Competency of Jurors as Witness 1. (a) At The Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. iii. It does not bar a juror as a witness from a previous trial. d. Can Counsel Testify? i. The federal rules leave open the possibility that a lawyer might testify on behalf of the party she represents, or that opposing counsel might call the lawyer to the stand. Ethical rules, however, discourage lawyers from testifying in cases in which they represent a party, and lawyers rarely take the stand in cases where they appear as counsel. II. Personal Knowledge a. The basic rule: i. The witness may only testify about matters that they know about personally. ii. Rule 602: Lack of Personal Knowledge 1. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter Evidence to prove personal knowledge 31

may, but need not, consist of the witness own testimonyThis rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. iii. Only about matters they have seen, heard, or otherwise sensed themselves. b. Establishing Personal Knowledge i. The lawyer must lay the foundation to support the witness testimony. ii. Evidence to prove personal knowledge may, but need not, consist of the witness own testimony iii. As long as the witness claims that she was at a certain place at a certain time and saw certain things, this should be good. It is up to the opposing party to prove that wrong. c. Experts and Personal Knowledge i. Expert witnesses may offer opinions related to a controversy even if they lack personal knowledge of the underlying facts. d. Competence i. There is no competence requirement, but the judges will build one out of rule 602 and rule 603 1. They have to understand their requirement and commitment to telling the truth in court 2. They have to be able to remember and comprehend their testimony in order to qualify for the personal knowledge. III. Oaths and Affirmations a. The first words out of a witnesss mouth are the oath, not testimony. b. Oath has swear, affirmation has promise c. Rule 603: Oath or Affirmation i. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness conscience and impress the witness mind with the duty to do so. d. If the witness lacks the ability to understand the truth or to appreciate the seriousness of testifying in court, then the judge may find that the witness is incapable of taking the oath or affirmation required by Rule 603. IV. Interpreters a. Rule 604: Interpreters. i. An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. b. The interpreters competence rests on two factors: i. The interpreter must qualify as an expert under the rules governing expert witnesses ii. The interpreter must make an oath or affirmation not to tell the truth, but to make a true translation. V. Examining the Witness a. Rules 611, 614, 615 32

i. The basic structure for examining witnesses. ii. Sequence 1. Direct examination by the attorney who called the witness 2. Cross-examination by attorneys for other parties 3. Redirect Examination 4. Recross-Examination 5. Additional Round of Redirect and Recross (although these are rate). VI. Direct Examination: a. The process: i. Introduce the witness to the jurors. ii. Lay the foundation: Establish personal knowledge. iii. Allow witness to tell his story. b. The attorney reveals the story through questioning a witness. c. Leading questions: i. The witness must tell the story, not the lawyer putting words into the witnesss mouth. ii. Rule 611: Mode and Order of Interrogation and Presentation. 1. Leading questions: Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimonyWhen a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. iii. A leading question is one that suggests a certain answer to the witness, it leads the witness to that answer. iv. You might make a multiple choice question, listing off possible answers. As long as it does not suggest that any specific answer is correct, it is good. d. Permissible Leading on Direct i. Leading questions are also allowed on direct examination whenever the opponent doesnt object. 1. But they are usually a bad strategy on direct examination. ii. To establish Pedigree information 1. Establishing uncontested points like educational background and occupation. iii. To direct a witnesss attention to a relevant place and time 1. It helps shift a witnesss attention to a new chapter of the testimony. a. now directing your attention to Monday, December 3rd, did you attend the board meeting at the Chicago offices on that day? iv. To help a witness who is hesitant, confused, or has trouble recalling. 1. Witnesses might have difficulty testifying because of youth, nervousness, illness, memory problems, or other characteristics.

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2. In physical or sexual abuse cases, sometimes the witnesses are reluctant to testify directly and find it easier to answer yes-or-no questions. 3. Though this type of leading is permitted, remember it is not always effective because the jury knows it is going on. v. Hostile Witnesses 1. Leading questions are appropriate on direct examination when a party calls a witness who is likely to resist that parts position. 2. A hostile witness is any witness who is evading questions or otherwise being uncooperative to such an extent that it is interfering with the eliciting of testimony. e. Other Rule 611 Objections i. Rule 611: Mode and Order of Interrogation and Presentation. 1. (a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to a. Make the interrogation and presentation effective for the ascertainment of the truth b. Avoid needless consumption of time, and c. Protect witnesses from harassment or undue embarrassment. ii. Any objection to the form of a question is an objection based on Rule 611(a). Common Rule 611 objections are: 1. Argumentative a. The attorney is drawing inferences or making conclusions that should be reserved for closing argument. These questions may also constitute harassing the witness. 2. Asked and Answered a. The attorney has already asked the question and the witness has already answered. 3. Assumes a Fact Not in Evidence a. These questions include a factual assertion that is imbedded into the question. 4. Beyond the scope a. Cross-examination topic is beyond the scope of direct, OR redirect is beyond the scope of cross. 5. Calls for narrative a. The question is too broad; the witness will tell a story instead of answering a specific question. 6. Calls for speculation a. The question asks the witness what other people may have been thinking or what might have been happening beyond the realm of the witnesss perception. This objection is based on both Rule 602 (need of personal knowledge) and Rule 611 (the question calls for speculation). These questions can 34

VII.

sometimes be rephrased so that it is clear that they are asking for information that the witness personally perceived. 7. Compound question a. The question tries to elicit more than one fact at a time. 8. Harassing/badgering the witness a. The lawyer is asking the same question repeatedly in different ways, insulting the witness for no purpose, or arguing with the witness about his answer. 9. Improper characterization of testimony/misstates the testimony a. The attorney is pretending to repeat testimony back to the witness as the basis for the next question, but is altering the testimony. The attorney may use a more powerful word or change the facts themselves. This affects the witnesss testimony and can also make it difficult for the jury to remember the original testimony. The misstatement may occur immediately or much later in the trial, when it will be harder for the judge and opposing counsel to detect. 10.Leading question a. The attorney is asking a question that suggests a specific answer. 11.Non-responsive answer a. This usually occurs on cross-examination. The attorney who asked the question can object to the witnesss answer as non-responsive, ask the judge to strike that answer, and force the witness to answer the question posed. 12.Vague a. The question does not give enough detail to allow the witness to respond properly OR a term in the question has an unclear meaning. Cross-examination a. Differs i. Leading questions are allowed ii. (obtain detail, discredit witness, tell a different story, do no harm) iii. The cross-examiner may ask questions only about issues covered during the direct examination. 1. Cant ask questions that are beyond the scope b. Leading questions on Cross: i. The purpose of cross-examination is to limit or discredit the story told by the witness. ii. Rule 611: Mode and Order of Interrogation and Presentation. 1. (c) leading questions Ordinarily leading questions should be permitted on cross-examination.

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c. Ordinarily: if the witness is a friendly one on cross-examination, the judge might limit this right. (hostility can treat if cross-examining) d. Beyond the scope: i. Rule 611: Mode and Order of Interrogation and Presentation 1. (b) Scope of Cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. ii. Three points: 1. Lawyers conducting cross-examination usually cannot ask a witness about topics or incidents that were not addressed during direct examination. 2. The rule gives the judge discretion to expand the scope of cross-examination. a. For example, if the witness is about to leave town and will not be able to be called back, then the judge might permit the cross to introduce new topics. i. If this IS allowed, the cross examiner may not use leading questions. 3. Parties are allowed on cross-examination to ask questions affecting the witnesss credibility. a. The subject that ALWAYS falls within the scope of cross-examination are questions designed to test the credibility of the witness. VIII. Redirect Examination a. The lawyer may explore issues that were raised during the crossexamination b. This is not referred to by the Federal Rules of Evidence. c. Judges are more tolerant towards leading questions in this stage. IX. Recross and further rounds a. Each must only address the round before it, making the testimonies increasingly narrower. X. Miscellaneous Issues: a. Rule 614: Calling and Interrogation of Witnesses by Court: i. (a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called. ii. (b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party. iii. (c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present. b. Judges often do not do this, but when they ask a question, it is either to clarify something or to repeat something that the court reporter did not hear.

36

c. All parties are entitled to cross-examine any witnesses called by the judge. d. Any objections that the parties may have can be said later, because a jury may disapprove of an attorney objecting to a judges questions. e. Rule 615: Exclusion of Witnesses i. At request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. ii. This rule does not authorize exclusion of 1. A party who is a natural person, or 2. An officer or employee of a party which is not a natural person designated as its representative by its attorney, or 3. A person whose presence is shown by a party to be essential to the presentation of the partys cause, or refers to expert witnesses 4. A person authorized by statute to be present. f. Things to think about. i. The rule can be invoked by either party or by the judge herself. ii. The judge has no discretion, once either party makes a request to exclude the witnesses, the judge must exclude them from the courtroom. 1. In the real world, witnesses are almost always excluded from the courtroom as a matter of course, there is no need to make any kind of formal request. iii. Two categories of people are exempted from the rule 1. Parties to the case are allowed to watch the entire trial, even though they may be called as witnesses. a. If the party is an organization, then an officer or employee represents the organization in the courtroom. 2. A witness whose presence is shown by a party to be essential to the presentation of the partys case. This provision refers primarily to expert witnesses. XI. Refreshing a Witnesss Memory a. A lawyer can jog a witnesss memory by using leading questions, whenever the judge grants permission b. Rule 612 allows the attorney to refresh the witnesss memory with a document or other item. In order to use any writing the witness must first state i. That she does not remember the answer to the question being asked ii. That seeing the writing will refresh her recollection. c. Rule 612: Writing Used to Refresh Memory i. if a witness uses a writing to refresh memory for the purpose of testifying, either 1. (1) while testifying, or 2. (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice. ii. an adverse party is entitled to 37

d.

e. f.

g.

Have the writing produced at the hearing To inspect it To cross-examine the witness thereon, and Introduce in [as] evidence those portions which relate to the testimony of the witness. Note: the adverse party may introduce a writing used for refreshment into evidence even if the writing would not otherwise be admissible. i. The rule gives the adverse party the right to introduce the writing solely for the limited purpose of assessing the witnesss credibility However, if the plaintiff wants to offer the report as evidence, he would have to comply with other evidentiary rules. Procedural parts of the rule i. Rule 612: Writing used to refresh memory 1. If it is claimed that the writing contains matters not related to the subject matter of the testimony that court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal 2. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. 3. Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing ii. First, the rule outlines which parts of a writing to admit. iii. Second, the rule discusses remedies if a party refuses to produce a writing used to refresh recollection iv. The rule makes clear in its opening phrase that it is subject to the Jencks Act, which governs discovery in federal criminal trials. In the Courtroom i. Method of Refreshing Recollection 1. Establish that the witness does not recall the answer to a question 2. Describe the writing she wishes to use to refresh the witnesss recollection and ask if that writing would refresh the witnesss recollection. 3. Either before or during this process, the attorney must be sure to give the opposing counsel a copy of the writing. This is the only one in the rules. RULE 612 4. Show the writing to the witness. The witness will examine the writing, put it aside (usually giving it back to the attorney), and testify from her refreshed recollection. 38

1. 2. 3. 4.

5. Take memory jogger away 6. Ask witness to testify from memory. ii. Testifying from Original Memory. 1. The witness probably doesnt have her memory jogged, but just recites what was given to her. 2. If the opposing council can ask questions to show the judge that the witness is not independently recollecting, then the witness can no longer testify on the matter. Voir direexamine iii. What type of writing? 1. It can be anything. The limit on the attorneys creativity when choosing ways to refresh: a. The jurys perception b. Opposing counsels Rule 612 rights. iv. Refreshing Memory before Testifying. 1. Courts tend to limit an adverse partys right to see documents that a witness reviews before testifying. It would legitimize endless fishing expeditions through the opposing counsels files otherwise. 2. When refreshment occurs before testifying, the adverse party may examine the materials only when justice requires. a. Criminal case: when an officer is reviewing a lot of material because they probably dont remember the individual, then they might admit those materials. v. Adverse Parties 1. The opposing party can get the document and crossreference. vi. Effect of Introducing the Writing 1. If the adverse party does choose to admit the writing into evidence, courts have held that, unless the writing is admissible on other grounds, the jury may use the writing only to assess the witnesss credibility. vii. The jury may use a writing introduced as evidence under Rule 612 ONLY TO ASSESS CREDIBILITY. viii. What if the information was illegally obtained? Can you use it to refresh the witnesss recollection? 1. The courts have allowed it. You can use anything at all. 2. The other side will get the opportunity to look at the evidence and possibly introduce it. XII.Impeaching Witnesses (witness not believable) a. Rules 608, 609, 610, 607. b. Only for impeachment, but not able to use as material evidence. XIII. A Toolbox of Ten Tactics: ways to respond to devastating testimony a. Exclude the Evidence Through a Specialized Rule b. Claim Unfair Prejudice, Confusion, or Delay i. Rule 403 c. Compete the Story

39

XIV.

i. Additional information may reduce or eliminate the negative effect of testimony. d. Clarify the Ambiguous Testimony i. Jurors may differ in the way they interpret some words, so clarifying them is good. ii. Sometimes clarification helps. e. Show Impairment of Perception or recollection i. Sometimes even raise drug impairment or disabilities ii. E.g., couldnt see as well as he claimed due to poor eyesight. f. Demonstrate Inconsistencies i. Opposing counsel may try to undermine a witnesss testimony by showing that the testimony is internally inconsistent or contradicts earlier statements made by the witness. g. Rebut the Evidence i. You can submit evidence that contradicts a witnesss testimony. h. Show Bias i. 403 still a major constrain i. Attack the Witnesss Character for Truthfulness i. Show that the witness is a generally untruthful person. ii. This is limited j. Introduce Expert Testimony About Evidence k. Summary: i. Three sets of tactics 1. Offensive- offering new evidence to combat a witnesss damaging testimony a. Rebut b. Complete c. Clarify d. Expert Testimony 2. Defensive- attack the messenger a. Impairment of Perception or Recollection b. Inconsistencies c. Bias d. Character for Truthfulness 3. Referee- appeal to the judge a. Exclude under a specific rule b. Exclude on unfair prejudice, confusion, or delay l. Countermoves i. The opposing lawyer can use all of these tactics to bolster the testimony and use the tactics to discredit the other partys testimony. Which Witness and how? a. Rule 607: Who May Impeach. i. The credibility of a witness may be attacked by any party, including the party calling the witness. ii. Example, 1. hostile witness, or 2. changed story or 3. draw a string on a negative testimony iii. Vouching Rule=does not allow the ATTY to attack his/her own witness b. Methods of Impeachment 40

XV.

Attack witness perception Attack memory Attack narrative capacity Attack sincerity 1. Show prejudice, bias, interest or corruption (improper interest) 2. Show witness is improbable 3. Compare to her prior inconsistent statements 4. Contradict witnesss testimony with already established 5. Show untruthful character 6. Offer reputation or opinion evidence 7. Offer evidence of the witnesss untruthful acts. 8. Prior convictions Using Prior Statements to Impeach Witnesses a. Extrinsic evidence: i. Any evidence other than testimony from the witness currently on the stand. ii. Can be introduced when? 1. Asking question is quicker than introducing extrinsic evidence 2. If the inconsistency involves a fact of consequence, the judge will take time for extrinsic evidence 3. If inconsistency relates to collateral issue, the judge probably will limit exploration to questions b. Collateral matter: i. It is relevant to the case solely because it impeaches a witness. c. THE RULE i. Rule 613: Prior Statements of Witnesses 1. (a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, a. The statement need not be shown nor its contents disclosed to the witness at that time, b. But on request the same shall be shown or disclosed to opposing counsel. 2. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless a. The witness is afforded an opportunity to explain or deny the same b. And the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. ii. Disclosing the prior statement. 1. The rule only requires that the lawyer disclose the statement to opposing counsel immediately before the lawyer brings up the statement on cross-examination. 2. The content cannot be used for any incrimination weapon. 41

i. ii. iii. iv.

iii. Procedural rules: 1. This part of the rule only produces problems when a lawyer introduces evidence of a prior inconsistent statement after a witness has left the stand. iv. Substantive constraints on using extrinsic evidence: 1. Judges usually exclude extrinsic evidence of a prior inconsistent statement that relates solely to a collateral matter. (still can ask though) 2. Usually the decision rests on Rule 403s balancing test or on the judges Rule 611 authority to create an orderly trial.

XVI.

d. In The Courtroom: i. Inconsistent Statements: 1. Rule 613 says prior statements, not just inconsistent statements. However, the judge usually only allows inconsistent statements, because consistent statements add nothing. Rule 401-403 will limit these prior statements. ii. Prior Consistent Statements for Rehabilitation 1. Usually judges will exclude these statements because they are duplicative and confusing. iii. Showing the Statement to the Witness: 1. Sometimes judges exercise their general authority under Rule 611 to require a cross-examining attorney to show the statement to the witness. iv. When is an Issue Collateral? 1. If an inconsistency relates solely to a collateral issue, then the potential for prejudice, delay, or confusion substantially outweighs the probative value of admitting extrinsic evidence of the previous statement. v. Witness denials 1. What if a witness denies making a prior statement that the attorney knows the witness made? 2. If it is non consequential, it still does not matter and will not be admitted or allowed. vi. Extrinsic Evidence and Rule 613(b) 1. The witness must explain or deny the statement and the opposing party must have a chance to interrogate the witness. vii. Limiting Instruction: 1. Sometimes a statement is admissible to discredit a witness by showing an inconsistency, but not to prove the content of the statement. Revealing Untruthful Character on Cross-examination: a. You may introduce evidence to show that the witness has an untruthful character.

42

b. Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. i. (a) Character evidence generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except 1. (3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 609, and 609. c. Rule 608: i. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness character for truthfulness may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness character for truthfulness or untruthfulness d. Four important points: i. A party may ask a witness about specific instances of conduct on cross-examination to suggest that the witness has an untruthful character. ii. Attorneys must limit these questions to actions that are probative of truthfulness or untruthfulness. 1. Drunkenness is not probative. iii. This type of cross examination is allowed only in the discretion of the court. iv. The rule bars proof of these specific instances by extrinsic evidence. 1. The attorney may cross examine witnesses about acts that suggest an untruthful character but he may not introduce other evidence of those acts, such as disciplinary reports or testimony from other witnesses. e. In The Courtroom: i. Probative of Truthfulness or Untruthfulness: 1. Examples: a. Using a false name b. Lying on an employment or loan application c. Failing to file tax returns d. Drug trafficking?? 2. Other immoral behavior is not probative. ii. Good Faith Belief 1. The attorney must have a good faith belief that the incident occurred before asking the question. Otherwise, parties could attack witnesses simply by asking wildly incriminating questions based purely on imagination. iii. Judicial Discretion 1. The judge does have discretion and will disallow certain lines of questioning if it is unfairly prejudicial. iv. Extrinsic Evidence: XVII. Using Criminal Convictions to Impeach a Witness 43

a. The cross-examiner may not introduce intrinsic evidence if the witness denies the untruthful conduct b. Rule 609 is an exception to that. Parties may introduce evidence of a witnesss prior criminal convictions c. The Rules i. Rule 608(b) explicitly acknowledges that 609 creates an exception to the extrinsic evidence rule ii. Rule 608: Evidence of Character and Conduct of Witness 1. (b) Specific Instance of Conduce: 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. iii. Rule 609: Impeachment by Evidence of Conviction of Crime. 1. (a) General Rule. For the purpose of attacking the character for truthfulness of a witness, a. 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 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 b. 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 2. (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. 44

3. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if a. The conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime that was punishable by death or imprisonment in excess of one year, or b. The conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. 4. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. 5. (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. d. Opening Provision i. You can only use it for a particular purpose to suggest that a witness has an untruthful character. e. Three Rules for Three Categories i. The first rule governs prior felony convictions used to impeach any witness other than the accused in a criminal case ii. The second applies to prior felony convictions used to impeach an accused and iii. The third address prior convictions for any crime of dishonesty or false statement, whether a felony or misdemeanor used to impeach any witness. iv. Felony Convictions/Any witness except the accused 1. The drafters believed that commission of any felony was serious enough to affect a witnesss courtroom credibility. 2. The judge still has discretion under 403 that the evidences unfair prejudice may outweigh its probative value. v. Felony convictions/Criminal accused 1. The judge has discretion. This rule differs from 403 in three ways a. The standard weighs only the prejudicial effect of other evidence on the accused, not any other types of prejudicial effect.

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b. It excludes evidence whenever prejudicial effect equals or exceeds probative value, not only when prejudicial effect substantially outweighs probative value. c. It places the burden on the prosecutor to demonstrate that probative value outweighs prejudicial effect so that evidence of a prior conviction should be admitted. vi. Crime of Dishonesty or False Statement/Any Witness 1. Conviction of this type of crime is probative to any witnesss character of truthfulness. Section (a)(2) does not include any balancing test or reference to 403. 2. Trial judges have no discretion. vii. Time Limit. 1. An older conviction is less probative than a recent one. 2. Three special barriers: a. The party seeking to use the conviction must give the adverse party advance written notice b. The judge must find specific facts and circumstances supporting the convictions probative value c. The judge must determine in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. i. This is the opposite of rule 403 viii. Pardons, Annulments, and Certificates of Rehabilitation 1. In most cases, a conviction that has been subject to one of these procedures cannot be used for impeachment. 2. The exception: When the witness has since committed another felony and the original conviction was not pardoned based on a finding of innocence. ix. Juvenile Adjudications 1. These are never admissible against the accused in a criminal case. Most of the time they are not admissible to impeach a witness. 2. Evidence of a juvenile conviction may be admissible to impeach such a witness if the evidence would be necessary to fairly determine the defendants guilt. x. Pendency of Appeal 1. Conviction can still be admitted even if it is under appeal. The parties may also let the jury know it is under appeal. f. In the Courtroom i. Rule 609 plays a key role in determining whether a criminal defendant will testify at trial. ii. The prosecution, who may have made deals with other criminals to get testimony, needs to think about the credibility of those witnesses in court. iii. Defining Felonies: 1. crimes punishable by death or imprisonment in excess of one year.

46

2. The witness need not receive such a sentence for impeachment to occur. iv. Special Balancing Test for Accused: 1. Factors that judges look to a. Impeachment value of the former crime. i. A crime that relates to truth telling has more probative value than one that does not. b. Timing of the prior conviction and subsequent criminality. i. Convictions that occurred long ago have less probative value, unless they are part of a pattern of criminality. c. Similarity between the prior crime and the charged one. i. When the prior crime is similar to the charged one, the likelihood of prejudice is particularly high, because the jury may use the prior conviction not just to judge credibility but to reason that the defendant has a tendency to commit this type of crime. d. Importance of the Defendants Testimony i. The risk that a defendant will forego testifying should always count as an element of prejudice. In some case, that testimony may be particularly important to help the defendant present his case. e. Centrality of Credibility. i. If guilt turns on a swearing match between the defendant and the prosecutions witnesses, the prosecutors interest in impeaching the defendant is higher and the jury may have greater need of that testimony. f. Courts citing these factors stress they are merely guidelines. v. Crimes of Dishonesty and False Statement. 1. How do you define one of these crimes? a. Congress envisioned fraud, perjury, and embezzlement. b. Crimes of violence do not count c. Counterfeiting does d. Split on failure to file an income tax return. e. In 2006 Congress amended it to mark it clearer and narrower. i. it readily can be determined that establishing the elements of the crime required proof or an admission of an act of dishonesty or false statement. ii. Dishonesty or false statement must be an element of the crime.

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iii. Or it is readily ascertainable that act of dishonesty was used to convict this defendant (obstruction of justice through false affidavit). f. Examples on p 266-267 vi. Time Limits: 1. This is especially important for the dishonesty crimes because the judge otherwise has no discretion. However if it is older than 10 years, then the judge can exclude it. 2. Violations of probation that result in re-incarceration can extend the period even longer. 3. A judge allowed the prior conviction from 10 years earlier because (example on p 269) a. If the defendant testified, his credibility would be a crucial issue. b. The impeachment value of a fraud conviction is high c. The two crimes were dissimilar enough to reduce the defendants prejudice d. The age of the prior conviction and the defendants subsequent history did not suggest that he had abandoned his earlier ways. vii. Limiting Instructions: 1. The judge will tell the jury only to consider the prior conviction in determining whether the person is telling the truth 2. But as always, limiting instructions are debatably useful. viii. Other: 1. An arrest is not a conviction and cannot be used in 609. But what about 608(b)? a. Asking about an arrest is unfairly prejudicial, so it will be excluded. However, you could ask about the act, because it gives the attorney a good faith belief. g. CHART: i. Look to the chart on p 272 for a great breakdown of the rule. XVIII. Opinion or Reputation Evidence of Untruthful Character a. Rule 608(a) allows presenting a character witness who opines that the original witness is a truthful or untruthful person. 3 caveats: i. The rule only allows general opinion or reputation evidence of character, not testimony giving specific instances of conduct related to a witnesss truthfulness or deceit. ii. Character witnesses may only offer opinion or reputation evidence about another witnesss character for truthfulness or untruthfulness. iii. A party may introduce evidence of a witnesss truthful character only after that character has been attacked. b. Rule 608: Evidence of Character and Conduct of Witness. i. (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:

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XIX.

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 c. Character witnesses on Another Witnesss Character for Truthfulness i. Must relate to a witness ii. Must relate to truthfulness iii. Reputation or opinion evidence on direct iv. Cross-examination on specifics v. No extrinsic evidence of specifics vi. Testimony on good character only after character attacked. d. Courtroom: i. Opinion or Reputation evidence: 1. Opinion: a. The attorney will first law a foundation by showing that the character witness knows the fact witness well enough to have formed an opinion about the fact witnesss truthful or untruthful nature. 2. Reputation: a. The attorney first establishes that the character witness has a basis for knowing the fact witnesss reputation. The attorney then will ask the character witness to state that reputation. ii. Character for Truthfulness and Untruthfulness. 1. ONLY truthfulness or untruthfulness iii. Limited Purpose. 1. Again, it can only be admissible to assess the credibility of the witnesss courtroom testimony. iv. When has Character Been Attacked? 1. If the attorney on cross-examination asks questions dealing with specific acts of dishonesty or if the opponent introduce evidence of a conviction, the opponent has attacked the fact witnesss character for truthfulness. 2. Attacking and cross-examining a witness in order to point out inconsistencies in a testimony is not an attack of truthfulness. v. Applicable only to Witnesses 1. If an individual does not testify in court, parties cannot rely upon this rule to attack that persons credibility. Cross-Examining the Character Witness a. Rule 608(b)(2)- allows parties to ask character witnesses on crossexamination about specific incidents of a fact witnesss behavior. b. Rule 608: Evidence of Character and Conduct of Witness. i. (b) Specific instance of conduct. Specific instances of the conduct of a fact witness, for the purpose of attacking or supporting the fact witness character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, 49

XX.

however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on crossexamination of the character witness 1. (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. c. The Courtroom: i. Cross-examination of the Character Witness. 1. The theory behind these questions is that the crossexaminer is entitled to test the basis of the character witnesss opinion or recital of reputation. 2. Two limits to the cross-examination of the character witness a. First, the cross-examiner may only ask questions for which that have a good faith supporting belief. b. The trial judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their prejudicial value. ii. Extrinsic Evidence. 1. Parties may cross-examine character witnesses about a fact witnesss specific conduct, but they may not offer extrinsic evidence of that conduct. Religious Beliefs and Impeachment a. Rule 610- prohibits parties from using a witnesss religious beliefs to attack the witnesss credibility or to enhance it. b. Rule 610: Religious Beliefs or Opinions. i. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness credibility is impaired or enhanced.

CHARACTER EVIDENCE AND THE RULES

I. Character Evidence and the Rules: a. Depends on: i. What the proponent is trying to prove ii. The type of inferences the proponent relies upon when using that character evidence. b. Character, Reputation, and Actions i. Character traits: 1. They are internal and reside within a person. ii. Reputation 1. External, and reflects what other people think about an individual iii. Actions 1. Lie between character and reputation. We deduce character traits from actions. 2. We use actions to construct an individuals reputation. iv. Propensity 1. A tendency to do a certain action. c. Problems: 50

i. Character is hard to prove. d. Four Categories of Character Evidence i. Proof of a Witnesss propensity to lie or tell the truth 1. Rule 609 and 608 will allow this. The jury is asked to make this set of inferences: a. This witness has an untruthful character b. A person with an untruthful character has a tendency to lie. c. Therefore, this witness lied on the stand. 2. This relies on propensity. A person with a propensity to lie will do it on this occasion. a. This propensity inference oftentimes determines whether it is admissible or not. i. An assumption that someone with a particular character tends to act in a particular way. ii. A conclusion that the person acted consistently with that tendency on a particular occasion. ii. Proof of Conduct by Propensity 1. Rule 404(a) bars most attempts to prove conduct by propensity. a. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. 2. This person acted violently in the past, therefore they are violent, therefore they committed the assault. 3. We want to look only at one incident, not all the incidents in this persons life. We dont want the jury to fall into the trap of deciding the case in the way they would make everyday decisions. iii. Proof of Character or Reputation as Elements 1. A party may offer evidence of character or reputation for reasons that do not depend on an inference of propensity. 2. Defamation often uses character traits to prove or disprove the defamation. 3. You must also prove an injury to your reputation for defamation to succeed so again that evidence will need to be admitted. 4. Character and reputation are elements of the action. iv. Proof of Other Acts for Non-Propensity Purposes 1. Actions may show something other than character and can support inferences other than one based on propensity. 2. 404(b) usually allows the evidence if is for another purpose than to prove character and a propensity to act in a particular way.

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Proof of a Witnesss Propensity to Lie X-examine on acts Character witness Criminal conviction Character as Element Proof allowed

Proof of Partys Conduct by Propensity Usually forbidden Exceptions Proof of Acts to Prove Something OTHER THAN Propensity Usually allowed

II. Evidence to Prove Character as an Element. a. This does not often arise because a persons character is not typically an element of the crime, civil claim, or defense. b. Types where it is an element i. Defamation ii. Child custody c. The Rule: i. There is no express authorization of the evidence. However, rule 402 allows all evidence that is necessary to prove an element of the case. ii. Rule 405: Methods of Proving Character. 1. (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 2. (b) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. iii. On Cross: 1. You can look into the specific acts, like Rule 608. iv. Acts: 1. When it is a specific element of the crime, proof may also be made of specific instances of that persons conduct. i. In the Courtroom: 1. Foundation for Opinion or Reputation Testimony: a. Must prove that the witness knows the person whose character is at issue or knows that persons reputation. 2. Good Faith Belief for Cross-Examination on Specifics: 3. Proof of Specific Incidents a. (b) 4. Relationship to Rule 403 and Other Rules a. May exclude because of the danger of confusion, delay or unfair prejudice. 5. What is character? a. Litigants rarely dispute the meaning of character. 52

b. It includes almost any personality trait. 6. When is Character an element? a. Four types of cases i. Defamation ii. Child custody cases iii. Criminal cases when the defendant claims entrapment. 1. The defendant must prove that she lacked a predisposition to commit the crime. iv. Negligent entrustment claims. 1. The defendant must have known something about a third partys character and negligently ignored that knowledge. 2. Example of the coach who has the player pick up the recruit from the airport and he sues for negligent choice of driver. They can produce evidence of the players a. Reputation for bad driving b. Tendency to run stop signs c. Known to drink and drive 3. Character is an element to prove negligent choice of drive/negligent entrustment. b. Character is sometime also an element in finding damages. i. Loss of consortium ii. Lost wages iii. Pain and suffering III. Using Character Evidence to Prove Propensity a. This is not allowed. It does not prove an element directly, but just shows that because this person has acted this way before, it is more likely that they did it. b. It is unfairly prejudicial. c. You are only liable for the act for which you are being tried, not prior past bad acts. d. Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes i. (a) Character evidence generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. e. Courtroom. i. Good Character and Bad: 1. It bars both. ii. Any person 1. This applies to people who have never even appeared in the courtroom. 53

f. If Fred had been convicted of perjury, we cannot use 403. However, if he is a civil defendant that testifies, we can introduce evidence of a prior conviction if it is a felony and if he testifies. IV. Character Evidence to Show Propensity in Criminal Prosecutions a. 404(a)(1-2) only applies to criminal prosecutions. b. Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes i. (a) Character evidence generally. Evidence of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 1. Character of accused. In a criminal case, evidence of a pertinent trait of character offered a. By an accused, or b. By the prosecution to rebut the same, or c. 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, a. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or b. By the prosecution to rebut the same, or c. 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 c. Four key points to the provisions (The Mercy Rule): i. These exceptions to the no-propensity rule only apply in criminal cases. ii. The exceptions allow only proof of pertinent character traits. iii. These subsections allow proof about both the defendants character and the alleged victims character. iv. The subsections distinguish between when the defendant may introduce these types of evidence and when the prosecutor may do so. d. Look to table on p 326 e. Defendant may introduce any evidence except i. If it is not pertinent ii. If it falls within Rule 412, the rape shield law f. The prosecutor may only offer in response to the defendant. These fall within three categories. i. The defendant offers character evidence about herself, the prosecutor may rebut that evidence with proof that the defendant lacks that trait or holds an opposite one.

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ii. If the defendant introduces character evidence about the alleged victim, the prosecutor may rebut that evidence by showing that the victim lacked that trait or held the opposite one. iii. In a homicide case the prosecutor may offer evidence that the decease victim was a peaceful person in response to any evidence that the deceased was the first aggressor. 1. The prosecutor does not have to wait for character evidence. Any evidence will do. iv. Table on p 328 for Character Evidence Admissible to Prove Propensity in Criminal Trials- How the Prosecutor can Respond g. These policies allow the defendant to make the defense of her choice. i. Also, a dead victim cannot respond to evidence suggesting that he was the first aggressor in a fight. h. Courtroom i. Pertinence. 1. Examples a. The defendants peaceful character in a prosecution charging assault, battery, homicide, or other violent acts b. The defendants honest character in a prosecution for fraud c. The defendants aversion to risk and gambling in a gambling prosecution. d. A defendant claims self defense in a homicide trial 2. Bad examples: a. Evidence of good treatment of patients in a Medicare fraud action. b. Evidence of being a good father in a human smuggling operation. ii. Matching Traits 1. The prosecution must offer evidence on traits that match those raised by the defendant. iii. Homicide Cases: 1. May introduce evidence of the victims peaceful character regardless of whether the defendant used character evidence to raise the issue. iv. If the defendant attacks the victims character, the prosecutor can not only rebut that character evidence, but can also go against the defendants character itself. V. Methods of Proving Propensity in Criminal Cases a. HOW may this evidence be presented though? b. Proof of a witnesss propensity to lie or tell the truth. Three different ways i. 608(b) allows parties to cross-examine witnesses about conduct that suggests a truthful or untruthful character. The questioner, however, must accept the witnesss answer. ii. Rule 608(a) allows parties to offer reputation or opinion testimony about a witnesss truthful or untruthful character. The party offering the testimony cannot ask the character witness to cite specific examples of conduct supporting her opinion but the 55

opponent may inquire about them on cross-examination. Once again, neither side may offer any extrinsic evidence of conduct asked about on cross-examination. iii. Rule 609 allows parties to introduce extrinsic evidence of some prior criminal convictions to suggest a witnesss character for untruthfulness. c. Proof of Character or Reputation as Elements i. Parties may offer proof in any way. ii. Rule 405 allows parties to present both opinion/reputation testimony and extrinsic evidence of specific instances of conduct related to character. iii. Rule 404(a) allows evidence like Rule 608(a)-(b). d. Rule 405: Methods of Proving Character. i. (a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On crossexamination, inquiry is allowable into relevant specific instances of conduct. ii. (b)- discussed in Chapter 26 e. The Courtroom i. 405(a) applies to proof of a defendants or victims propensity in criminal cases. ii. Lay a foundation 1. The attorney must lay a foundation showing that the witness has sufficient knowledge to offer an opinion about character or reputation. iii. Cross-Examination on Specific Acts 1. These questions into the acts can cause damaging effects to the jurys perception of a witness. iv. Relevant Acts 1. It is similar to rule 611(b) 2. The question whether a particular act relates to a character trait does not always generate a straightforward answer. This is an issue on which persuasive advocacy may make a difference. v. Good Faith Belief 1. The cross-examiner must have a good faith belief that the incidents occurred. 2. The standard is not very high. vi. Extrinsic Evidence 1. A party who cross-examines a character witness about specific conduct under Rule 405(a) must accept the witnesss response. vii. Rebuttal Witnesses 1. In addition to cross-examining a character witness, the parties in a criminal case may present rebuttal character witnesses. 2. A rebuttal character witness is treated exactly the same as any other character witness: The party calling the witness 56

can ask only about opinion or reputation, not about specific acts. The opponent may ask about specific acts on crossexamination to test the witnesss knowledge, but she cannot prove these specific acts with extrinsic evidence; the cross-examiner is stuck with the witnesss answer. VI. Other Crimes, Wrongs, or Acts a. The final category: evidence of specific acts that reveal an individuals character but are also relevant to prove some other fact of consequence in the case. i. This evidence is not offered to prove character. ii. A party may introduce character evidence for any purpose other than to prove that a person acted consistently with their character on a particular occasion. b. Rule 404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes i. (b) Other Crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that 1. Upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. ii. The six points to the rule: 1. The opening sentence restates the principle established by Rule 404(a). Character evidence is not admissible to prove that a person acted inconformity with their character. 2. The section affirms that evidence of these other acts may be admissible for other purposes. a. May means that rule 403 could still come in. 3. The section lists nine specific examples of other purposes for which evidence of other acts may be admitted a. These are only examples and the list is not limited. 4. The section applies to both criminal and civil cases. 5. The last clause of Rule 404(b) requires the prosecution to provide reasonable notice in criminal trials of its intent to introduce evidence of prior crimes or other acts in the manner sanctioned by the rule. 6. This is a completely unnecessary provision because courts could reach the result contemplated without the text. iii. This rule helps litigants make the distinction between permissible and impermissible uses of character-related evidence by suggesting some permissible uses of that evidence. c. The Courtroom:

57

i. Rule 404(b) is a battle of wits. Judges will construe other purposes very broadly so you must be a good advocate. 1. Motive a. Example: they are involved in white supremacist activities, therefore there is a motive for building a bomb. b. Example of a prior crime: A dude set his warehouse on fire. Recently it was uncovered that he had been evading taxes. The prosecutor brings the tax thing in as a motive to torch the warehouse. 2. Plan a. In the same arson case, DeCicco (dude) had tried setting fires in his warehouse before. This is an indication that he had a plan. 3. Identity a. A guy hires prostitutes. He then decides to rob people getting prostitutes. Evidence of him hiring prostitutes is admitted because some of the prosties are witnesses. b. Also, if a certain past crime the person has been convicted of has similar oddities of the present one, you can use that to identify the person i. Determining whether the features of one crime are similar enough to those of another to constitute proof of identity requires judges to scrutinize the facts closely. c. Two prongs must be met i. Identity must be at issue ii. There must be strong similarities between the charged and other crimes. d. Doctrine of chances: i. What are the chances of these three things happening in the exact same way? e. The pattern can suggest intentional plan. f. This pattern is quite important in employment discrimination: What was the employers intent? i. Often both sides will introduce evidence of prior acts. 1. Such as, they will bring in evidence of all these other employees that were fired once they reached 50. 2. The employer will try to show that all those people were fired because of bad reviews and all that. 4. Opportunity a. The defendant needed an opportunity such as access to a protected place or to special tools. 5. Knowledge

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VII.

a. Example: If you steal money from a safe two months ago and money is missing now, you can think that that person might have something to do with it. 6. Intent a. Example: i. JR is charged with killing his father by running him over. The prosecution tries to bring JRs wife to the stand to say that she saw him trying to put arsenic in his fathers bourbon. b. This type is the most like propensity and walks the fine line 7. Other purposes a. Preparation b. Absence of mistake c. Absence of accident 8. Good Acts a. You can use good acts and bad acts 9. Civil actions a. The Rule applies to these too. d. The question is not whether there is unfair prejudice. There definitely will be. However, you have to prove that this unfair prejudice outweighs the probative value. i. Judges will look at this more seriously. ii. As an advocate, you have more likelihood of winning on a 403 claim than on some other rules. Habit a. Rule 406 adds another permissible purpose to the list of non-propensity uses recognized in Rule 404(b): use of other acts to prove an individuals habit or an organizations routine practice. i. Distinguishes between habit and propensity. b. Definition of habit: specific, repeated responses to a particular situation or stimulus. The person will respond in the same situation in the same way over and over again. c. Why is this admissible? i. There is no emotional connection with a jury like that of propensity evidence. ii. It has a higher probative value than propensity evidence. d. Tricky: i. How specific and how repetitive does conduct have to be before it transforms from inadmissible propensity to admissible habit? e. To distinguish habit from propensity, focus on three factors i. The specificity of the conduct ii. The distinctiveness of the situation producing the conduct iii. The regularity of the conduct f. Rule 406: Habit; Routine Practice. i. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a

59

particular occasion was in conformity with the habit or routine practice. g. Note: i. There is no definition for habit or routine practice so they go to the advisory committees notes. 1. Habit: ones regular response to a repeated specific situation. 2. Routine practice: the equivalent of habit for an organization. ii. It allows admission of habit evidence whether corroborated or not and regardless of the presence of eyewitnesses 1. A person can testify about her won habit even if no one else has ever seen her act that way. 2. But this becomes a question of credibility. iii. It is silent about how to prove habit. 1. Can do it through opinion testimony and specific instances of conduct. 2. Specific conduct is better because you have to show a repeated pattern. Opinion would be hard to use in this context. h. The Courtroom i. Not just admissible, but possibly sufficient 1. Sometimes habit is the only evidence. Sometimes people do something every day so they cant recall the way they did it on a certain day. 2. Habit can even be good in criminal trials; all that is needed to prove beyond a reasonable doubt. ii. Routine Practice of an organization Rape Shield Law a. This is another law blocking evidence of specific acts that a person has the propensity to act in certain ways. i. 404 does not block evidence of past sexual encounters in two ways 1. Defense attorneys in cases can introduce character evidence of a victim. 2. 404 b allows admission of other acts when offered to prove some other relevant fact. ii. Reasons for the rape shield law: 1. A victims sexual reputation and prior sexual history usually are not relevant to prove whether the victim consented to a particular sexual act 2. This kind of evidence often id unduly prejudicial to the prosecutor or other party who calls the alleged victim as a witness 3. Robust protection of sexual assault victims is necessary to encourage them to come forward and testify. iii. The rule divides into three portions: 1. Declares a general prohibition against using evidence of an alleged victims past sexual behavior or sexual reputation 2. Recognizes several exceptions to that general rule 60

VIII.

3. Establishes procedural guidelines to protect privacy while the judge determines the admissibility of evidence under the exceptions. b. RULE 412: Sex Offense Cases; Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition i. Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): 1. Evidence offered to prove that any alleged victim engaged in other sexual behavior. 2. Evidence offered to prove any alleged victims sexual predisposition. ii. Exceptions. 1. In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: a. Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; b. Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct i. Offered by the accused to prove consent or ii. By the prosecution; c. Evidence the exclusion of which would violate the constitutional rights of the defendant. 2. In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger a. Of harm to any victim and b. Of unfair prejudice to any party. 3. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim. iii. Operation of part (a). four points 1. The rule encompasses both civil and criminal proceedings. 2. It applies only to trials involving alleged sexual misconduct. 3. It prohibits evidence both of specific acts and of reputation or general character 4. It broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which a litigant offers that evidence. a. So it is like 410, in that it bars all evidence except those exceptions listed in the rule. 61

iv. The Exceptions 1. Criminal cases (b)(1) a. It remains subject to all other rules of evidence. b. First section focus: allows proof of a complainants prior sexual conduct when that evidence suggests that someone other than the accused was responsible for semen or other physical evidence. c. Second section focus: admits evidence of prior sexual encounters between the complainant and the defendant. i. The defendant may offer this kind of evidnce for just one purpose: to prove consent. ii. The prosecutor may offer this evidence for any purpose. d. The third section: The catchall. It allows evidence of sexual acts or reputation in criminal cases if excluding them would violate the constitutional rights of the defendant. i. We want to give all criminal defendants a fair opportunity to defend themselves. 1. Defendants usually invoke this exception when they claim that the alleged victim made prior allegations of sexual assault that were false. 2. Civil Cases (b)(2) a. Four key points to the exception: i. Evidence fitting this civil exception remains subject to all other rules of evidence. ii. Evidence of sexual acts or sexual predisposition faces a reverse 403 test in civil cases: The evidence is admissible only if its probative value substantially outweighs the unfair prejudice to any party. iii. The rule ensures that the court weighs the danger to the alleged victim, whether or not she is a party to the litigation. iv. Reputation evidence is admissible in civil cases involving alleged sexual misconduct only if the alleged victim has opened the door by presenting evidence of her own reputation. 1. This only applies to reputation evidence, not to evidence of sexual conduct. v. Procedures: 1. Section (c): two step procedure for determining the admissibility. a. A party intending to offer this evidence must give notice to the court, opposing counsel, and the alleged victim fourteen days before trial. 62

b. The court must hold a secret, sealed proceeding involving both parties and the alleged victim in order to determine whether the evidence is admissible. 2. These procedures ensure that parties do not violate the privacy protected by the rule during the process of determining admissibility. c. The Courtroom i. Physical Evidence 1. It is relevant when it is used to show that another person was the source of semen, injury or other physical evidence. ii. What is Sexual Behavior Under 412(b)(1)(B)? 1. This is sexual behavior between the complainant and the defendant. 2. It is applied very liberally. a. It includes statements in which the alleged victim expresses an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused. iii. The Catchall Exception. 1. Often used to show that the alleged victim has made prior false claims of sexual assault. 2. Prior allegations are not sexual behavior. 3. Also a way to argue that the complainant manufactured a rape claim to protect an existing relationship. 4. A final way some courts sometimes allow is to allow evidence of the alleged victims reputation to show the defendants state of mind. 5. Most courts think this would eviscerate the rule however. iv. Civil Cases 1. Admit if the probative value substantially outweighs the prejudice. 2. v. Gender and Sexual Orientation 1. Gender does not matter. 2. Cannot ask questions as to whether a man had had sex with other men in the past. vi. State Rules a. State law governs most violent crime. b. Rape Shield laws in the state fall into three categories. 2. Broad Prohibition with Specific Exceptions a. Most have adopted that follow the federal pattern . 3. Barring Evidence Offered for a Specific Purpose a. Some states go this way. The two most common prohibited purposes are: i. To prove the alleged victims consent ii. To attack the alleged victims credibility. 4. Judicial Discretion

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a. Nin states have no codified rape shield law. Arizona did not adopt its law until 2003. They are a newer type of law. IX. Propensity in Sexual Assault and Child Molestation Cases a. There are three exceptions to the Rule 404(a) prohibition on character to show propensity: i. When a criminal defendant offers evidence to prove his own propensity or that of his victim ii. When a prosecutor responds by offering evidence to prove the defendants or victims propensity iii. When any party offers evidence to prove a witnesss propensity to lie or tell the truth. iv. 1995, another exception: the use of character evidence to prove a defendants tendency to commit sexual assaults or child molestation. Rules 413-415 codify the exception. 1. 413- for sexual assault 2. 414- for child molestation 3. 415- both for civil cases involving these two claims. 4. Parties can introduce the evidence of a defendants other sexual misdeeds without identifying a non-propensity purpose for the evidence. a. There are no exceptions and even 403 can be limited in this context. b. The Advisory Committee strongly objected to this. All but one rejected these rules. But Congress passed them anyways. v. Supporters had two arguments for this exception 1. Individuals who commit sexual assaults or child molestation possess a distinctive dispositionthe desire to commit violent sexual acts or sexual acts with childrenso that prior acts of this kind are unusually probative. a. There is no evidence for this. 2. Case of sexual assault and child molestation are particularly hard to prove because they frequently turn on the credibility of the victim and the defendant. a. Child molestation: the victim may have difficulty testifying. vi. There were three objections: 1. Rule 404(b) already allowed parties to admit evidence of a defendants misconduct if it proved anything other than propensity 2. The proposed rules increased the danger that a criminal defendant would be based on his past conduct rather than the charged crime. 3. The rules allowed the prosecutor or plaintiff to offer evidence of sexual misconduct even if the defendant has not been convicted of any crime for those acts, the rule would produce a number of distracting and timeconsuming mini-trials in which each side attempted to prove or disprove that the prior offense occurred. 64

4. Congress ignored these. vii. Something to think about: 1. This is for federal crimes. Therefore it only rules on Indian reservations and federal property. 2. Also against state police officers. b. The Rules i. Rule 413 [414]: Evidence of similar crimes in Sexual Assault [Child Molestation] Cases. 1. (a) In a criminal case in which the defendant is accused of an offense of sexual assault [child molestation], evidence of the defendants commission of another offense or offenses of sexual assault [child molestation] is admissible, and may be considered for its bearing on any matter to which it is relevant. ii. Three points: 1. The rules apply only to criminal cases in which the defendant is charged with either sexual assault or child molestation. 2. Each rule allows admission of a single type of evidence: evidence showing that the defendant committed another offense of sexual assault or child molestation. 3. It is admissible for any relevant purpose including propensity. iii. Section (b) 1. Requires the government to follow a special disclosure procedure if it plans to introduce evidence under the rule. The government must give the defendant notice of the evidence it plans to present. iv. Section (c) a. This rule shall not be construed to limit the admission or consideration of evidence under any other rule. 2. This section emphasis that these rules do not override any other rules except for modifying Rule 404s general bar to propensity. 3. The judge must decide whether the unfair prejudicial effect of these rules substantially outweigh its probative value. v. Section (d) 1. Defines sexual assault and child molestation. a. Sexual assault focuses on physical, rather than verbal conduct. b. Child as a person below the age of fourteen. vi. Rule 415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation. 1. (a) In a civil case in which a claim for damages or other relief is predicated on a partys alleged commission of conduct constituting an offense of 65

sexual assault or child molestation, evidence of that partys commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules. 2. (b) The same notice provision found in Rules 413 and 414. 3. (c) Offers the same proviso acknowledging application of other evidentiary rules. c. In the Courtroom i. Prior Crime Need Not Be Proven 1. The three rules do not require that the prior act resulted in a criminal charge or conviction. 2. Also, there is no time limit. ii. Rule 403 1. A judge may, in her discretion, decide that evidence of a prior sexual assault or child molestation is so unduly prejudicial to the defendant that its unfair effect substantially outweighs the probative value. 2. Because the rules favor the probative value of these acts, despite their prejudicial effect, judges have a difficult time identifying additional forms of prejudice that might outweigh this probative value. Courts will consider these factors: a. The length of time that has passed since the other acts b. Reliability of the witness testifying about the other acts c. Similarity of the other acts to those charged d. Whether the government could make similar points with less prejudicial evidence. 3. In the high school abuse case, the evidence that the prior action was an intentional sexual assault was equivocal and the action was not very similar to the actions Johnson complained about. 4. When the facts of another assault or molestation more closely resemble the charged crime, courts seem more reluctant to exclude the evidence. a. Time between the offenses will not suffice if the similarities of the facts of the incidents are so close as to increase their probative value. iii. States not Following Suit 1. Only a minority of states have adopted these rules. 30 states lack them. Some state courts have struck down the rules as being unconstitutional. 2. Some prosecutors in these states allow the evidence under other things when not used for propensity.

Article VIII: HEARSAY

I. Introduction to Hearsay 66

a. We trust information we hear firsthand much more than information we hear secondhand. Why? i. Reduce change of error ii. Assess credibility iii. Test through questions iv. The person has already taken the oath. b. Four concerns: i. Perception: Might have seen it wrong ii. Memory: Might be mixing something up iii. Clarity: Might not be reporting accurately iv. Sincerity: might be lying c. A first hand report will have these concerns, but a secondhand one will have these concerns with the speaker AND the person from whom they heard the report. The concerns are doubled. d. When you get the news of what someone else said, then you are not able to question the original speaker to remedy your concerns. e. We prefer firsthand testimony to secondhand because: i. Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying. ii. Firsthand testimony can be tested by cross-examination iii. The finder of fact can better evaluate the confidence and sincerity of the information if they can watch the individual report it firsthand. iv. At trial, firsthand testimony is made under oath in a formal, solemn setting. f. The Rules: i. 802 is the basic rule ii. Rule 802: Hearsay Rule. 1. Hearsay is not admissible except a. As provided by these rules or b. By other rules prescribed by the Supreme Court pursuant to statutory authority or c. By Act of Congress. iii. Rule 801: Definitions 1. The following definitions apply under this article: 2. (b) Declarant. A declarant is a person who makes a statement. 3. (c) Hearsay. Hearsay is a statement, a. Other than one made by the declarant while testifying at the trial or hearing. iv. Part (c) 1. Hearsay requires a statement 2. The statement must be made by a declarant in a context other than testimony at trial. 3. A party must offer the statement to prove the truth of the matter asserted g. The Courtroom i. a person who makes a statement is modified by 602s requirement for personal knowledge.

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ii. In the Greg and Lisa context. If you ask Greg, he has personal knowledge of where the partner is. However, if you ask Lisa, she only has personal knowledge of what Greg told her. Lisa is the declarant who made a statement about another declarant. iii. Declarants and Witnesses: 1. All witnesses are declarants. 2. But declarants are witnesses only when they testify under oath at a trial or hearing. 3. Suspect any testimony that refers to a statement made anywhere but on the witness stand in the current proceeding. iv. Recognizing Declarants: 1. A declarant is a person who has firsthand information about a fact relevant to the lawsuit. 2. If the declarant offers that information while testifying at trial, the statement is not hearsay. 3. If the declarant makes a statement reporting the information outside the courtroom, and someone repeats the statement at trial, it is hearsay. v. Witnesss prior statement. 1. If Greg said on the stand: Well my friend Karen asked me where the lawyer was an I told her near the auditorium, then he has turned his testimony into hearsay. 2. It refers to ANY prior statement not made on the witness stand. II. The Truth of the Matter Asserted a. Whether it is admissible or not depends on the purpose for which the party introduces the out-of-court statement. b. If the party introduces the out of court statement because they want the jury to believe its content, then it is hearsay. c. If the party introduces the statement because they only want the jury to know the statement was made and what was said was irrelevant, then it is admissible and is not hearsay. d. The Rule: 802 and 801(c). Some reasons to introduce out of court statements that would not be considered hearsay: i. Knowledge of the speaker ii. Prior inconsistent statements: 1. To impeach a witness 2. The statement isnt offered for the truth of the matter asserted iii. Notice to a listener iv. Publication in a defamation case v. Effect on the listener vi. Legally binding statements. Contracts cases e. In the Courtroom i. Evidence relevant for Multiple Purposes 1. You might introduce it to prove that a certain condition existed, which would be hearsay. 2. However, you could use it prove that the defendant KNEW the condition existed and that would not be hearsay. 68

I. What a.

b.

c.

3. The judge will balance the probative value of the nonhearsay purpose against the unfair prejudice of the hearsay purpose because of Rule 403. ii. Hearsay puzzles: 1. The occurrence of a statement and its effect on listeners usually do not depend on the truth of the statements content a. Such as the killer bees example in the restaurant. 2. Notices of breach are hearsay if introduce to prove the underlying facts of the breach, but are not hearsay if offered to prove that notice was given. 3. Most of the time, a witnesss testimony that another persons statement prompted them to act in a particular way is not hearsay. is a Statement? Can be words or actions. A nod of a head is a statement. As long as it asserts a fact, it is a statement. i. A good rule of thumb for distinguishing between assertive and non-assertive conduct is to ask: 1. Do we need to assess the actors sincerity in order to rely upon the conduct? a. If yes, then the conduct contains an assertion and the hearsay rule applies. The Rule i. Rule 801: Definitions. 1. The following definitions apply under this article: a. (a) Statement. A statement is i. (1) an oral or written assertion, or ii. (2) nonverbal conduct of a person, if it is intended by the person as an assertion. 2. An assertion is any action undertaken by the declarant that is intended to communicate a fact. The Courtroom i. Assertive v. Non-Assertive Conduct 1. Often the court must look at the context to see if the declarant intended to assert a fact through her actions. ii. Implicit Assertions 1. Sometimes assertions might be hidden. 2. Example: Police officer comes and asks for the shit John wore on December 2. His wife hands it over. a. The hearsay here is that This is the shirt John wore on December 2. The truth being asserted is that he wore this shirt that day. 3. Police can seize stuff and be questioned about it. Here, Mrs. Schultze was unavailable and could not be cross examined. iii. Audiotapes 1. Recorded statements are hearsay only if a litigant offers them for the truth of the matter asserted. iv. Photographs and Videotapes 69

1. Most photos and videos do not portray human assertions. 2. Usually videos take place of an eyewitness. 3. Example when a video is hearsay: a. A person is injured and records her nurse talking about the extent of her injuries. This is hearsay. v. Machine Readouts 1. Machines dont make hearsay. Clocks, breathalyzers, etc, report information. 2. However, if a machine conveys an assertion made by a person, such as through email, then it is hearsay. 3. If a machine generated information according to its own internal processes, then the machines output is not an assertion by a person. II. Admissible Hearsay a. The hearsay exceptions rest on two axioms i. More reliable than others ii. More needed than others b. Four Categories of Exceptions i. Rule 801(d) defines two types of out of court statements as not hearsay 1. Prior statements by witnesses 2. Statements made by opposing parties 3. These are hearsay, but they are called not hearsay. These are the EXEMPTIONS instead of the EXCEPTIONS. ii. Rule 804 1. Five exceptions that apply only if the declarant is unavailable to testify in court. a. Such as the dying declaration. iii. Rule 803 1. The largest category and they apply whether or not the declarant is unavailable. 2. The high indicia of reliability is the reason for these exceptions. iv. Rule 807 1. The residual exception. It is rarely used. c. Who Decides? i. The judge decides these questions under Rule 104(a) III. Hearsay Exemption- Prior Statements by Witnesses a. Parties usually offer a witnesss prior statement when the witness can no longer remember the specific incident directly, claims a privilege against testifying, or changes her testimony. b. The Rule i. Rule 801: Definitions. 1. The following definitions apply under this article: a. (d) statements which are not hearsay. A statement is not hearsay if i. (1) Prior statement by witness. 1. The declarant testifies at the trial or hearing

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2. And is subject to cross examination concerning the statement 3. And the statement is a. (A) Inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. b. (B)consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. c. (C) one of identification of a person made after perceiving the person. ii. Explanation: 1. The first part helps enhance reliability. 2. (A): It exempts a witnesss prior statement if the statement satisfies three conditions: a. It is inconsistent with the witnesss current testimony b. It was made under oath c. It occurred at a deposition or during a trial, hearing, or other proceeding. 3. (B): This does not require an oath or whether it was done at a proceeding. a. The witness is willing to affirm the substance of the prior statement under oath in the courtroom, so the jury can assess credibility and responses to crossexamination at that time. b. Requirement: i. It must be a situation in which a party attempts to rebut the opponents claim that the witness has fabricated the testimony in response to improper influence or some other motive. 4. (C): Requirements a. Introduction of any identification of a person b. The person who made the identification must i. Testify at trail ii. Be subject to cross-examination on the identification

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c. This makes sense because the person identifying usually does it soon after a crime and has seen the person before in order to identify. c. The Courtroom i. Subject to cross examination 1. Owens: The witness is placed on the stand, under oath and responds willingly to questions. 2. Keeter: They witness does not even have to be willing in a feigned memory loss situation. 3. Privileges: these witnesses are not subject to cross because they are unwilling to respond. ii. When is a statement inconsistent? 1. Lack of memory is inconsistent with a prior, detailed statement to a grand jury when claimed in trial. 2. Memory loss is inconsistent. iii. Oath and Proceeding 1. Interrogation, even if under oath, is not a proceeding. 2. Grand jury sessions are proceedings. 3. There is no definite criteria, but these are indicative a. Existence of a transcript b. Presence of some type of audience, even if only the jurors in a sealed grand jury session iv. Timing of Prior Consistent Statements 1. Consistent statements are only admissible if the prior consistent statement occurred before the motive to lie or improper influence arose. a. This helps it not be duplicative. b. Example on 493-494 is the best. c. But when does the motive to fabricate arise? v. Out of Court Identifications 1. d. Rule 801(d)(1) and Rule 613 i. 613- used to impeach the witnesss credibility. 1. They dont use them for the content of the statements themselves. ii. 801(d)(1): offered for their content. iii. Comparison when a party offers a prior inconsistent statement: Rule 613 Rule 801(d)(1)(A) Any prior inconsistent Prior inconsistent statement statement related to a fact of must have been made under consequence is admissible. penalty of perjury; under oath; at a trial, hearing, other proceeding, or deposition. Statement is admissible only to Party may rely upon the impeach the witnesss statement to prove the truth of credibility. the matters asserted. Judge will instruct the jury to No limiting instruction. use the prior statement only to assess credibility. IV. ADMITTING PRIOR STATEMENTS UNDER RULE 801(d)(1) 72

Prior statement must have been made by a witness at the current proceeding. Witness must be subject to cross-examination. Witnesses with real or feigned memory loss are subject to cross. Witnesses who assert a blanket privilege are not subject to cross. Witnesses who claim privilege selectively may be subject to cross. Prior Inconsistent Prior Consistent Identification: 801(d)(1) Statement: 801(d)(1)(A) Statement: 801(d)(1)(B) (C) Memory failure Must be offered Must be an constitutes to rebut express identification of a inconsistency or implied person charge of recent Statement must fabrication or have been given improper under oath influence or subject to motive. penalty of perjury at a Prior statement hearing or other must have been proceeding made before the motive to Grand jury and fabricate or deposition improper testimony count influence began as proceedings; statements to police and investigators do not Statements are admitted for the truth of the matter asserted, not merely to impeach a witness. III. The Hearsay Four: a. Is the witness referring to a statement that occurred outside the courtroom? b. Are you sure its a statement? c. Is a party offering the statement to prove the truth of the matter asserted? d. Does an exception apply? IV. Hearsay exceptions- Present Sense Impressions and Excited Utterances a. Rule 803 collects twenty three exceptions to the hearsay rule. It governs present sense impressions and excited utterances. i. Present sense impressions: describe an event as it unfolds. They are relating exactly what they see as it happens. ii. Excited utterances come from excited people responding to a startling event. b. Reasons: i. More reliable because they dont have time to formulate a lie. ii. Jurors do not have to accept the evidence though and will reject it if the circumstances are appropriate. c. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial. 73

i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness. 1. (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 2. (2) Excited Utterance. A statement relating to a startling event or condition made while declarant was under the stress of excitement cause by the event. 3. (3) In the next section. ii. (1): Two conditions: 1. The exception applies only to descriptions or explanations of an event, not to more complex analyses or interpretations. 2. The declarants must make it while perceiving the event or immediately thereafter. a. Must be short enough that the speaker has no time to create a lie. 3. Rationales: a. Accuracy: Declarant wasnt relying on memory. b. Sincerity: Its hard to lie quickly. c. Utility: Declarant may be unavailable OR the contemporaneous statement may have particular meaning. iii. (2): 1. The declarant must speak while excited by a startling event. a. Subjective, not objective. 2. The utterance must relate to the startling event. a. It can move beyond description by analyzing unlike 803(1). d. In the Courtroom i. Description or Analysis? 1. Statements of present sense impression should stick closely to the unfolding facts; the absence of analysis suggests that the speaker is not engaging the mental processes that might support deception. ii. Immediately Thereafter. 1. Usually it has to do with what the person was doing in the meantime before the statement was made. 2. If the person is trying to find a way to communicate, then it is less likely they are trying to fabricate something. Judges usually allow this type of immediately thereafter. iii. Startling Events and Excited Declarants 1. The declarant must have been subjectively excited while making the statement. 2. Sometimes most normal people wouldnt get excited over certain things, but the individual does. These still count. iv. Relating to the Event. 74

1. The excited utterance exception relies upon the declarants excitement, rather than on her descriptive focus, to enhance reliability. v. How long does excitement last? 1. Declarant must speak while still in an excited state. 2. The duration of the excited period depends on the characteristics of the declarant, as well as of the startling event. vi. Foundation: 1. You must lay the proper foundation in order to get these types of statements admitted. 2. To show a present sense impression, the proponents also commonly introduce: a. The declarants in-court testimony, affirming that she made the statement as she perceived the event b. Testimony from other witnesses who can confirm that the declarant made the statement while the event unfolded 3. Establishing that the declarant was excited is somewhat harder. Proponents of excited utterances often introduce: a. The declarants in-court testimony, affirming that he was excited when making the statement. b. Testimony from witnesses who perceived the declarant when he made the statement. These witnesses could testify to: i. The declarants mannerisms and tone of voice when he made the statement (e.g., he was crying, he was speaking rapidly, he looked upset). ii. The time that elapsed between the provoking incident and the statement iii. The declarants relationship to the provocation (e.g., was she a bystander on the opposite side of the street or was she personally involved in the incident?) c. Evidence about the declarants age, prior experiences, and other characteristics that might affect how excited the declarant would become in certain situations. d. Evidence about how traumatic or exciting the event that provoked the declarants statement was. V. Hearsay exception- State of Mind a. Rule 803(3)- What if the declarant describes her present state of mind? It is analogous to the immediate reporting of an external event. b. Rule 803: Hearsay exceptions; Availability of Declarant Immaterial. i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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1. (3) Then existing mental, emotional, or physical condition. A statement of the declarants then existing a. State of mind, b. Emotion, c. Sensation, or d. Physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), But not including a statement of memory or belief to prove the fact remembered or believed unless it related to the execution, revocation, identification, or terms of declarants will. ii. Things to think about: 1. The exception only covers statements about the declarants then existing state of mind. 2. There are four types of internal states. These categories are broad. a. The parenthetical offers specific examples of these categories. 3. Statements of memory or belief are not admissible under this exception when they are offered to prove the fact remembered or believed. 4. An out of court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity of the declarants will. a. This exception almost never arises. c. The Courtroom i. What is a State of Mind? 1. You can admit things that refer to state of mind, but not statements that say why they have that state of mind. a. Ex. Im afraid sometimes, Melvin acts like he is going to kill me. i. First part admissible, second part not. ii. Circumstantial evidence of Mental State. 1. Sometimes statements about external facts or event are admissible to prove state of mind. iii. I think, I believe, I remember 1. Usually phrases beginning with these words are not admissible because they introduce statements about external facts or events. 2. Sometimes the memory itself is relevant, such as in the trademark case where the guy remembers the wine from the state fair, showing likelihood of confusion. iv. Looking Back: 1. Out of court statements describing past, rather than current states of mind are not admissible. 2. However, knowledge today is some evidence of knowledge yesterday. So if you say, my toe hurts today then it is likely that it might have hurt yesterday as well. 76

v. Looking Forward 1. Parties may introduce hearsay expressions about then existing mental states to help prove subsequent thoughts or acts. 2. You can use it to prove motive. However, it is also circumstantial evidence to show that the person acted in conformity with her plan. vi. Looking Forwardwith Someone Else 1. This idea is in limbo. 2. The Hillmon case is the pivotal case in deciding the question. 3. It seems that 803(3) should be read as an exception for a declarants expressed intention to prove his subsequent acts, and not for a declarants expressed intent to prove another persons actions. a. Ex. I plan to go to Topeka with Mary. 4. However, the majority of courts allow the broad Hillmon reading. VI. Hearsay Exception- Medical Treatment a. 803(4) assumes that people who make statements while seeking medical diagnosis or treatment are not going to lie. b. It rests on two grounds: i. First, although patients do lie to their doctors, these statements as a class are more reliable than most out of court statements. ii. The exception serves a need for efficiency. They use this to introduce medical records. c. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness 1. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and a. Describing medical history, or b. Past or present symptoms, pain, or sensations, or c. The inception of general character of the cause or external source thereof Insofar as reasonably pertinent to diagnosis or treatment ii. Three requirements: 1. The declarant must make the statement for the purposes of getting a medical diagnosis or treatment. 2. The statements must be reasonably pertinent to diagnosis or treatment. (objective counterpart to the first part) 3. The statements must fit within one of the three categories listed by the rule. a. They try to exclude statements that blame a particular person or organization for causing the condition. iii. Notice there is no time limit. 77

VII.

d. The Courtroom i. Who is the Declarant? 1. It is not always the person seeking the treatment, but someone else such as a parent of a child. The court will assume that the statements made by the family members are true. a. However, an advocate might try to get it quashed because sometimes family members hurt their loved ones. ii. Who is the Audience? 1. It does not have to be a doctor or any medical professional, though most of these statements are. iii. Diagnosis OR Treatment 1. Problem: A doctors expert opinion about a patients condition is a type of diagnosis, even if the doctor renders that opinion only for purposes of pending litigation. 2. It is suspect in cases like this because a patient seeking a doctor for litigation will probably embellish his or her problems. iv. Cause and Source v. Fault and Blame 1. Statements blaming people or attributing a particular degree of fault to a person is not relevant to medical care. v. Psychologists and Psychiatrists 1. The rule applies. 2. However, sometimes statements about the cause or external source of a psychological injury sometimes are very difficult to separate from comments attributing blame. See below vi. Medical Treatment for Domestic or Sexual Abuse 1. Sometimes the victims in these cases refuse to testify so the prosecutor goes to the doctor. 2. In child abuse cases, however, they have found the identity to be pertinent. a. First, some courts have held that treatment of a patient suffering regular, ongoing abuse may include separation of the patient from the abuser. b. Effective psychological treatment of an abuse victim may require the doctor to know who cause the abuse. 3. In one case, it depended on 2 criteria a. The doctor made clear to the victim that disclosing the abusers identity was important to treatment. b. The victim understood that fact. Hearsay Exception- Recorded Recollection a. Rule 612 anticipates that a trial judge will allow witnesses to refresh their recollection from notes or other documents. However, usually the witness may not just read off what is on the note or other document. b. However, 803(5) allows admission of this type of evidence, called recorded recollection under specified circumstances. i. They are reliable because the person can be cross examined 78

ii. They are needed more often than other types of hearsay. c. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial. i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1. (5) Recorded Recollection. A memorandum or record concerning a matter a. About which a witness once had knowledge b. But now has insufficient recollection to enable the witness to testify fully and accurately c. Shown to have been made or adopted by the witness when the matter was fresh in the witness memory d. And to reflect that knowledge correctly. 2. If admitted, the memorandum or record a. May be read into evidence b. But may not itself be received as an exhibit unless offered by an adverse party. ii. Break it into two parts: 1. Admissibility of Recorded Recollection a. Requires that the out of court statement appear in a memorandum or record. This is usually done through writing. b. The witness testifying in court must either be the declarant who made the record or a person who saw the record and agreed that it was true. i. In the latter case, the person adopted the record as true. c. The declarant/witness must testify that she once had knowledge about the information contained in the record, and that she made or adopted the record at the time when she had the knowledge. i. Satisfies Rule 602 (personal knowledge) d. The witness must have made or adopted the record at a time when he knowledge was fresh e. The witness must testify that at the time she made or adopted the record, she knew that it accurately reflected the knowledge the she had. f. The witness must now have no recollection about the information contained in the record. 2. Introducing Evidence a. 803(5) recognizes that the writing might be even more convincing to a jury than an oral statement so the presenting party may only read it into evidence. Only the adverse party may admit it as an exhibit. d. The Courtroom i. Insufficient Recollection: 1. This is a requirement because otherwise the attorney could just circumvent the hearsay rules.

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VIII.

2. Sometimes witnesses will feign memory failure in order to protect people, so prosecution might be able to use a written statement in order to get that going. ii. Made or Adopted 1. As long as the witness approved the content of the recording while his recollection was still fresh, then affirms at trial that he believed the recording was accurate at the time, the rule is satisfied. iii. Freshness 1. It does not require contemporaneous note taking. iv. Beyond Writings 1. It can include audiotapes and other media. v. Recorded Recollection and Refreshment Rule 612: Refreshing Recollection Rule 803(5): Recorded Recollection Need Arises When: Witness Need Arises When: Witness cannot recall details of an event or cannot recall details of an event or other matter of which she once other matter of which she once had personal knowledge. had personal knowledge. What Witness Does: Looks at What Witness Does: Reads into evidence (usually a writing) to jog record information from a memory, then testifies orally document or other reading. without referring further to evidence. What Type of Evidence: Any What Type of Evidence: One writing or other evidence that will that the witness made or help the witness remember; the adopted when the matter was witness need not have created or fresh in the witnesss memory. adopted the material. Recording must correctly reflect witnesss personal knowledge at time it was recorded. Who May Introduce Evidence Who May Introduce Evidence Used to Refresh: Only adverse Used to Refresh: Only adverse party (i.e. party that did not call party (i.e. party that did not call witness) witness) Relationship to Hearsay: Relationship to Hearsay: Witness testifies directly from Statements contained in the record memory after refreshment, so are admitted as an exception to there is no hearsay issue. If the hearsay rule. The jury may adverse party introduces writing consider the content of the into evidence, it is admissible only document or other recording, as on the issue of credibility. For the read into record by witness, for the jury to consider the writing for the truth of the matters asserted. truth of the matter asserted, it must fall within a hearsay exception. Hearsay Within Hearsay a. Rule 805 allows hearsay within hearsay to be admitted as long as each out-of-court statement is admissible under an exception. b. Rule 805: Hearsay Within Hearsay. 80

i. Hearsay included within hearsay is not excluded under the hearsay rule if each party of the combined statements conforms with an exception to the hearsay rule provided in these rules. c. In the Courtroom i. Laying a Foundation 1. It can be difficult if the person is not there to testify. As the chain extends, it is harder to tell what state of mind the other person said, etc. ii. Multiple Layers and Truth of the Matter Asserted 1. Sometimes it is easier. A statement offered for some other purpose than the truth of the matter asserted, such as to show the existence of a warning, it not hearsay. IX. Hearsay Exception- Business Records a. Rule 803(6) acknowledges that business records are hearsay but are more reliable because i. Organizations generate most of these documents according to well established, routine practices. ii. Organizations rely upon documents like these to make important decisions. b. They are also more needed i. They often document thousands of pieces of information and all those pieces are compiled by different employees so it would be cost prohibitive and annoying to get ALL of those employees to testify. c. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1. (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnoses, a. Made at or near the time by, or from information transmitted by, a person with knowledge, b. 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, c. 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, d. 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, 81

and calling of every kind, whether or not conducted for profit. ii. Things to consider: 1. The exception applies to any memorandum, report, record, or data compilation in any form, of acts, events, conditions, opinions, or diagnoses. a. Includes almost any kind of information that an organization documents, regardless of format. 2. The exception builds upon Rule 602s personal knowledge requirement. a. Must have been recorded by i. A person with personal knowledge of the data or ii. A person who received that information from someone else in that organization with personal knowledge. b. Must be recorded at or near the time that the data arose. i. It is not as strict as the contemporaneous condition. Just must be reasonable. 3. The organization must have made the record in the course of a regularly conducted business activity and the organization must have a regular practice of keeping such records. a. They ensure that the recordkeeping is a routine process, which will tend to make the recordkeepers more accurate. b. They ensure that those who keep the records know that the company will rely on the records to be accurate. 4. A qualified witness must introduce the record into evidence. a. Usually it is the documents custodian the person who maintains the record for the organization. b. Courts interpret this broadly. c. The 902(11) and (12) things just talks about authenticating the document. 5. It provides a caveat that a business record is not admissible if the source of information or the method or circumstances of preparation indicate lack of trustworthiness. a. Example: if the company regularly looks into and documents injuries in preparation for litigation, these might not be super reliable. 6. It defines business very broadly. d. The Courtroom i. What is a Business? 1. It can include records of prisons, college, hospitals, and even an individual who collected guns for investment

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ii.

iii.

iv.

v.

purposes. Self-employed individuals qualify as businesses. 2. The courts have even allowed entries of anothers personal diary of tips earned in order to prove tips. Who is a Custodian or Other Qualified Witness? 1. The witness must be able to testify that: a. The record was kept in the course of a regularly conducted business activity; b. The record was kept in the regular practice of business; and c. The record was made by a person with personal knowledge of the recorded information or from information transmitted by a person with personal knowledge. 2. The witness does not have to be the person who made the record nor know the person who did. They just must know the organizations recordkeeping practices. 3. Sometimes even a person outside the organization can lay the foundation. 4. Written authorization must contain the same information that the witness would offer through live testimony. Regularly Conducted Business Activities and Regular Practices. 1. Two separate regularity requirements: a. The record was kept in the course of a regularly conducted business activity i. Ensures that the organization relies on the document as part of its regular business. b. The record must arise from the regular practice of that business activity to keep the record means that the organization must make this type of record on a regular basis. i. Not weekly or monthly, but on some regular or routine basis. ii. Documents prepared on an irregular basis are more likely to contain self-serving statements created for litigation or other unreliable comments. c. A record that satisfies one of these requirements usually satisfies the other as well. Lack of Trustworthiness 1. This is usually applied in instances where the document was prepared in anticipation of litigation. 2. An employees post accident statement lacks the reliability of other business documents. Their primary use is in litigating, not in the running of the business. 3. The court will dismiss documents in other contexts as well. a. Example: the guy who altered check stubs admittedly, but still wanted to introduce them. Insiders, Outsiders, and Double Hearsay

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1. The rule only encompasses information transmitted from one organizational insider to another. a. This does not include customers or other third parties to the organization. These people do NOT count as insiders and their reports will NOT be admitted. b. This makes sense because of the reliability concern. 2. Statements by third parties to business people in relation to the records might still be admitted, but under a different hearsay rule. X. Hearsay Exceptions- Public Records a. 803(8) allows parties to admit public records into evidence for the truth of the matter asserted. i. Reliable because courts assume public officials perform their duties properly, knowing that they are under an obligation to the public to make accurate and honest observations. 1. Also they might be neutral because there is no incentive to make false reports. ii. More needed: 1. No individual official could recall all of the information because there are so many people compiling it. b. Reports by police officers and other law enforcement personnel are not as reliable. c. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: 1. (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth: a. (A) The activities of the office or agency, or b. (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. (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. ii. Checklist: 1. Make sure you have a PUBLIC record 2. If you do have a public record, it must satisfy 803(8) not just 803(6). 3. Records of the agencys activities generally are admissible. 4. Observations pursuant to duty are generally admissible. 84

5. Except matters observed by law enforcement personnel are not admissible against criminal D. 6. Unless the observation was ministerial 7. Results of any investigation of any public agency is not admissible against a criminal defendant 8. Factual findings resulting from an investigation include opinions and conclusions. 9. Results of government investigations are not admissible if they lack trustworthiness. 10.Statements by third parties require a separate hearsay exception. (watch out for hearsay within hearsay). iii. Chart: Police and Law Other Agencies Enforcement Ministerial Admissible against Admissible against Observation all all Other Observation Not admissible Admissible against Against D all Investigation Not admissible Not admissible against D against D iv. Things to think about: 1. It begins by broadly encompassing any records, reports, statements, or data compilations, in any form. 2. It includes any government agency, whether state, local, or federal. 3. Then the records exception divides into three parts: a. Subsection (A): admits all documentation of all the activities engaged in by the agency. b. Subsection (B): admits records of matters observed by the agency. A wide range of concrete facts that the agency might observe. i. Applies only to matters that the agency has a duty to observe and report. 1. Excludes information that third parties observe and report to agencies. (Like the business records exception). ii. Excludes all records of observations made by police and law enforcement personnel when offered in a criminal case. 1. Law enforcement personnel have a strong interest in ensuring that criminal defendants are convicted, so their observations are not neutral. 2. The Sixth Amendment guarantees criminal defendants the right to confront witnesses against them. iii. Bars only evidence offered by the prosecutor. c. Subsection (C): admits factual findings resulting from an investigation. Four aspects: 85

i. Results of a government investigation are not admissible against a defendant in a criminal trial. ii. Courts have interpreted factual findings broadly to include opinions and conclusions of the investigator, as well as the underlying facts. iii. The investigation must have been conducted pursuant to authority granted by law. iv. Not admissible if the judge finds a lack of trustworthiness. d. The Courtroom i. Law Enforcement and Criminal Defendants 1. Subsection (B) is narrower in that it allows observations by other government agencies besides the police or law enforcement. 2. Also, it has been narrowed more because they will allow these records if they were produced in a non-adversarial setting. 3. In the example: a. 9th circuit said that the rule only bars subjective reports made by a law enforcement official in an onthe-scene investigation, which lack sufficient guarantees of trustworthiness because they are made in an adversary setting and likely to be used in litigation. b. It is a difference between adversarial observations and ministerial ones. ii. Lack of Trustworthiness 1. Four factors to consider in determining whether a public record of an investigation is trustworthy: a. The timeliness of the investigation; b. The special skill or experience of the official conducting the investigation; c. Whether a hearing was held by the public agency prior to the report being made; and d. Whether the motivation of the public agency is suspect- for example, whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation. 2. Sometimes the fourth factor is not even determinative a. Example: the Oklahoma shooting report that got all comments from witnesses, etc. It was not biased, although it was internal and possibly self-interested. 3. The best way is to be a good advocate. 4. It applies to Subsection (C) but some courts have used 403 to get it out on (A) or (B) grounds. iii. Factual Findings

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1. The courts should interpret factual findings broadly to encompass all facts, opinions, and conclusions found in the report of an investigation. 2. If any opinions or conclusions in a report are questionable, the trial court has discretion to exclude them under the lack of trustworthiness provision. iv. Hearsay-within-Hearsay 1. Unless third party statements in a report are admissible under another rule of evidence, the judge must exclude it. 2. However, conclusions and inferences drawn from third party reports are admissible if they are in the report. v. 803(8) and Other Rules 1. 803(6) also is good in this because public agencies would have business records. However, 803(8) just narrows it. 2. When information in a public record violates another Rule of Evidence, the trial judge will redact inadmissible evidence and admit any remaining portion of the report. XI. Other 803 Hearsay Exceptions a. We will cover Absence of Entries in Business Records and Public Records, Ancient Documents, Market Reports and Commercial Publications, and Learned Treatises. b. Rule 803: Hearsay Exceptions; Availability of Declarant Immaterial. i. The following are not excluded by the hearsay rule, even though the declarant is available as a witness. 1. (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, a. Kept in accordance with the provisions of paragraph (6) to prove the nonoccurrence or nonexistence of the matter, b. If the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, c. Unless the sources of information or other circumstances indicate lack of trustworthiness. 2. (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 a. 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. 87

3. (16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established. 4. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. 5. (18) Learned treatises. To the extent called to the attention of an expert witness upon crossexamination or relied upon by the expert witness in direct examination, a. Statements contained in published treatises, periodicals, or pamphlets b. On a subject of history, medicine, or other science or art, c. Established as a reliable authority by the testimony or admission of a witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. ii. (7) The party must address three points: 1. The proponent must show that the records containing the omission are kept in accordance with Rule 803(6), the business record exception. a. A custodian or other witness will testify that they were kept in the ordinary practice of business. 2. The party must show that the absence relates to a matter about which the business regularly made and preserved records. a. Silence would indicate something ONLY if it is a regular practice to keep track of the certain fact being looked at. 3. The proponent must be prepared to rebut any argument that the absence of a record is unreliable under the circumstances of the particular case. 4. It does not specify the manner in which the evidence may be admitted. iii. (10): The proponent must meet just one foundation element: 1. That party must show that the absent record relates to a matter for which the public agency regularly made and preserved records. 2. Two ways the party can prove the records non-existence: a. The party may call a witness to testify that a diligent search was made and no record was found. b. The party may present a certified document from the agency, pursuant to Rule 902, attesting that a diligent search failed to yield the particular document. 88

iv. (16): Statements in ancient documents: Documents written many years before a dispute arises are more reliable because the authors motive is less open to suspicion. Also, it is needed because the declarant is probably not available. 1. There are two requirements: a. The document must be at least twenty years old. b. The party offering the document must establish its authenticity. i. Watch out for hearsay within hearsay however. You cannot admit something in the document that is hearsay unless it is met by another exception, which it probably will not because it is so old, you wouldnt be able to prove it. v. (17): Market reports, commercial publications: 1. Public reports, market reports, telephone books, and other documents that the public relies on are hearsay, but are accurate because the companies providing them have high incentive to keep them accurate. a. It applies to directories and lists that the general public uses, as well as to more specialized tabulations that members of a particular occupation generally use and rely upon. 2. There are two components: a. The document must be one of market quotations, tabulations, lists, directories, or other published compilations. i. Must be data, not evaluative material. ii. You can get data from the newspaper but not articles analyzing it. b. You must show that it is generally used and relied upon by the public or by persons in particular occupations. i. For some widely used directories, such as a telephone directory, the judge may take judicial notice that the public generally uses and relies upon that document. vi. (18): Learned Treatises. 1. If many experts consider a certain publication as accurate, then you can use it. It is a convenient way to give the jury basic facts. 2. Four significant points about this rule: a. The rule allows parties to introduce learned treatises only in connection with an experts testimony. i. A party cannot just introduce the treatise itself. ii. It makes the party interpret the treatise for a lay jury. b. Complements this requirement by providing in its final sentence that statements from a learned 89

treatise may be read into evidence but may not be received as exhibits. c. The rule requires the proponent of a learned treatise to establish that the treatise is a reliable authority. There are three routes to lay that foundation: i. The expert witness who relies upon or acknowledges the treatise may confirm that the treatise is a reliable authority in the field. ii. Another expert witness may establish that fact iii. The judge may take judicial notice of the treatises authoritativeness. 1. Judges will only take judicial notice of a treatises status only when a publication is particularly well known and respected. d. It encompasses learned treatises in almost any field of study. c. The Courtroom: i. Foundation and Testimony: 1. The process for introducing a learned treatise: a. They must establish it is reliable and link it to expert testimony. I. Rule 804- What is Availability a. Rule 804 is another group of exceptions that apply only if the declarant is unavailable as a witness. b. This promotes one of the policies: the hearsay is MORE NEEDED. c. Rule 804: Hearsay Exceptions; Declarant Unavailable. i. Definition of unavailability. Unavailability as a witness includes situations in which the declarant1. Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or 2. Persists in refusing to testify concerning the subject matter of the declarants statement despite an order of the court to do so; or 3. Testifies to a lack of memory of the subject matter of the declarants statement; or 4. Is unable to be present or to testify at the hearing 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 declarants attendance (or in the case of a hearsay exception under subdivision (b) (2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means. A declarant is not 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 90

the purpose of preventing the witness from attending or testifying. ii. There are five types of unavailability: 1. Privilege: 2. Refusal to Testify: a. The witness might claim a privilege that the jurisdiction does not recognize. Or they may refuse in order to protect a family member. b. The court will hold the witness in contempt, but the party calling the witness will not suffer. 3. Lack of Memory: a. It doesnt matter if it is real or feigned, it is just a loss of the testimony. b. They must have absolutely no recollection of the subject matter, not just forgetting some details. 4. Death, physical illness, mental illness. a. It must be sufficiently disabling that i. The declarant cannot come to court to testify. ii. There is little likelihood of recovery within a reasonable time. 5. Absence: a. This usually arises when: i. The party cannot find the declarant after making a diligent search, or ii. The declarant refuses to come to court and is currently outside the courts jurisdiction. This isnt enough though: 1. The party must use any reasonable means in addition to serving a subpoena, to persuade the declarant to attend the trial. 2. For three of the hearsay exceptions contained in Rule 804, the proponent must use reasonable means to take the declarants deposition if the declarant will not attend the trial. 6. Wrongdoing Caveat: a. It is meant to prevent improper behavior by the parties. They cannot cause the unavailability by wrongful means. d. In the Courtroom: i. Privilege: 1. Often you must call the declarant to the stand who then asserts the privilege unless it is for self-incrimination where the judge will infer that the declarant will claim it. ii. Refusal or lack of memory. 1. You must still call the declarant to the stand and have them refuse or say they dont remember. iii. Death or Incapacity.

91

1. Death- you introduce a death certificate or other evidence of the declarants death. 2. Incapacity- you may introduce live testimony or something like a doctors note. Remember that this is preliminary so a doctors note, which is hearsay, may still be considered. iv. Absence: 1. A party must show a good faith, genuine effort to procure the declarants attendance. 2. They could make a showing of documents including registered letters or subpoenas sent to the declarant. II. Hearsay Exception- Former Testimony a. What if a witness made a statement in a trial, but the appellate court granted a retrial. During the appeal, the witness died. What do we do? i. It is reliable because it happened in a courtroom setting. ii. It is needed because the prior testimony might be the fact finders only means of obtaining the evidence. b. Rule 804: Hearsay Exceptions; Declarant Unavailable. i. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. (1) Former testimony. Testimony a. Given as a witness at another hearing of the same or a different proceeding, or in a deposition take in compliance with law in the course of the same or another proceeding, b. If the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, c. Had an opportunity d. And similar motive to develop the testimony by direct, cross, or redirect examination. ii. First, you must show that the declarant is unavailable. Then there are four other requirements: 1. The prior testimony must have been given at a hearing or deposition. a. Makes sure it was under oath and in a formal setting. 2. The opposing party must have had an opportunity to question the declarant in the prior hearing or deposition. a. They didnt have to do it, just had the opportunity to do so. 3. The opposing partys motive in questioning the declarant in the prior hearing must have been similar to the motive the opposing party would have in cross-examining the declarant in the current hearing or trial. a. Must be a good substitute for cross in the first case. 4. Fourth a. In a criminal case, the party with the opportunity to question the declarant in the prior hearing must

92

have been the same party as the opposing party in the current case. b. In civil cases, the requirement is not as strict, but allows a party to introduce evidence as long as the opposing party or his predecessor in interest had an opportunity and similar motive to cross-examine the witness. c. In the Courtroom: i. Similar Motives: 1. If the stakes in the previous proceeding were different that in the current one, the opposing party might not have cross-examined the witness in the same manner that the party would employ at the current hearing. 2. Parties at pre-trial hearings in the criminal context often have different motives than at trial. a. It may reveal an attorneys theory of the case if they do full blown examination. 3. In the civil context, courts are more lenient because the motives at pre-trial are similar at trial. 4. Four factors to determine: a. The type of proceeding in which the testimony was given b. Trial strategy c. The potential penalties or financial stakes d. The number of issues and parties ii. Against the Same Party in Criminal Cases: 1. The criminal defendant has the right to conduct his own cross-examination of any witnesses against him. 2. A deposition allows an opportunity to crossexamine, so these are allowed. iii. Predecessors in Interest: 1. It does not mean privity. 2. It looks to the similarity of issues between the prior case and the current one and the purpose for which the prior testimony was given. 3. Good advocacy probably will determine admissibility. iv. Opportunity to Develop Testimony: 1. The predecessor in interest must have a. Had an opportunity to develop the declarants testimony at the prior proceeding and b. During the prior proceeding, had a motive for developing that testimony similar to the current opposing partys motive for cross-examination. 2. v. 804(b)(1) and 801(d)(1)(A): 1. When the declarant is on the stand, there is no reason to require cross-examination during the former statement. 2. Memory loss is inconsistent with prior detailed statement so if they are on the stand and say they cant remember, then they can use 801(d)(1)(A). 93

Declarant:

Content of Statement: Context of Prior Statement:

Prior Inconsistent Statements by Witness 801(d)(1) (A) Must testify at current hearing or trial Must be subject to crossexamination concerning the statement. Inconsistent with current testimony Must have been under oath Made at any prior proceeding, deposition, or grand jury presentation.

Former Testimony 804(b)(1) Must be unavailable

Any content

Must have been under oath Made at a prior proceeding at which the opposing party (or, in a civil case, a predecessor in interest) had the opportunity to crossexamine or develop testimony on direct, and had a similar motive as in the current proceeding.

XII.

Hearsay Exception- Dying Declarations a. We assume that individuals who are about to die will speak honestly. b. Dead declarants cannot testify. c. Reliability: i. Religious: they wouldnt want to meet their maker with a lie on their lips ii. There is no incentive to lie iii. There is an intuitive appeal to heeding a dying persons last words, particularly if those words identify the persons killer. d. Rule 804: Hearsay Exceptions; Declarant Unavailable. i. (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. ii. Four facets to the rule: 94

XIII.

1. It applies only if the declarant is unavailable. a. Do not necessarily have to be dead, just have to be unavailable. 2. This exception applies only in homicide prosecutions and civil proceedings. a. 6th Amendment policies in play here. 3. The declarant must believe that death is imminent when he makes the statement. a. Subjective belief that death will happen within a few hours. 4. The content of the statement must concern the cause or circumstances of the declarants death. e. In the Courtroom: i. When is Death Imminent? 1. The declarant must have a settled hopeless expectation that death is near at hand. 2. The statements must be spoken in the hush of its impending presence. 3. The declarant must have spoken with the consciousness of a swift and certain doom. 4. The focus is on how long the declarant believed he would survive, not on how long the declarant actually survived. 5. A declarants sincere belief that death will occur swiftly and inevitably is more important than any specific time limit in determining whether a statement qualifies as a dying declaration. ii. Dying Declarations and Other Exceptions 1. Might be admissible under other exceptions such as excited utterances, state of mind, statements to obtain medical treatment, and forfeiture (Chapter 52). iii. Proving State of Mind 1. The judge decides whether the conditions supporting the admission of a dying declaration exist. 2. The party must prove the belief of imminent death by a preponderance of the evidence. 3. Will often consider: a. Statements by the declarant b. Statements made by medical personnel and others to the declarant c. The nature and extend of the wounds or illness d. The length of time between the statement and the declarants death e. The opinion of medical personnel who treated the declarant about the declarants health. Hearsay Exception- Statement Against Interest a. Sometimes people write or say things against their own interests. i. Reliability: 1. Reasonable people, even reasonable people who are not especially honest, tend not to make self-exculpatory statements unless they believe them to be true. 95

ii. Unreliable when: 1. In a criminal trial, a defendant might claim that someone else committed the crime and to support this claim, testify that she overheard the third party confess to the crime. 2. Therefore, the rule requires corroboration for statements b. Rule 804: Hearsay Exceptions; Declarant Unavailable. i. (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. (3) Statement against interest. A statement which was at the time of its making a. So far contrary to the declarants pecuniary or proprietary interest, or b. So far tended to subject the declarant to civil or criminal liability, or c. To render invalid a claim by the declarant against another, That a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. ii. Four important parts to the rule: 1. The declarant must be unavailable 2. The statement must be against the declarants interest at the time it was made. a. If the declarant makes a statement that seems innocuous when made, the statement falls outside the exception even if later circumstances render the statement incriminating. 3. The rule lists three ways that a statement can be against a declarants interest. It could: a. Be contrary to her pecuniary or proprietary interest b. Expose her to civil or criminal liability c. Render invalid a claim that declarant has against another person. 4. Any statement that exposes the declarant to criminal liability is admissible to exculpate a criminal defendant only when corroborating circumstances clearly indicate the statements trustworthiness. c. The Courtroom: i. What is Against Interest? 1. It must be so far contrary to a declarants interest that no reasonable person in the declarants position would have made the statement unless believing it to be true.

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XIV.

2. If the declarant is getting a grant of immunity from prosecution, then it is a bit more suspect. ii. Other Interests. 1. Other types of interest, including the family and physical retaliations, may help persuade a court that no reasonable person would have made the statement unless it was true. iii. Minimizing Guilt. iv. Mixed Statements. v. Trustworthiness when Exculpating a Criminal Defendant Hearsay Exception- Forfeiture a. If a party uses physical threats or other wrongful behavior to prevent a witness from testifying, the least we can do is admit the witnesss hearsay statements against that party. b. Parties may be more likely to silence truthful witnesses than lying ones indicating reliability. c. Rule 804: Hearsay Exceptions; Declarant Unavailable i. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 1. (6) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. ii. There are three requirements 1. The declarant must be unavailable 2. The opposing party must have engaged or acquiesced in wrongdoing. 3. The opposing party must have intended to make the declarant unavailable. 4. The wrongdoing must have caused the declarant to become unavailable. a. This is the tricky one. d. In the Courtroom: i. What is wrongdoing? 1. It does not have to be a criminal act, but it has to be improper in some way. 2. Coercion, undue influence, or pressure to silence testimony and impede the truth-finding function of trials. a. Mere persuasion is not bad 3. Example: all that was needed was to show that they had talked and that the person believed they would be hurt if they testified. ii. Acquiescing in the Wrongdoing 1. The proponent needs only to show that the opposing party acquiesced in the improper behavior. 2. Evidence that the opposing party tacitly agreed to the wrongdoing is sufficient. 3. If you are party of the conspiracy, you dont even need to know it is going on. iii. Intent 97

XV.

1. As long as the party was motivated in part by a desire to silence the witness, the forfeiture exception applies. 2. If the party does it in one case, it applies to all cases. 3. It also applies when a party intimidates a potential witness. Hearsay Exemption- Statements by Party-Opponents a. This is the most commonly used exception. b. The idea; a person isnt going to say that their out-of-court statement is unreliable if they said it themselves. i. It does not need to be an admission. Any statement by a party is exempt from the hearsay rule when offered against that party. c. We will devote three chapters to this rule: d. Rule 801: Definitions i. (d) Statements which are not hearsay. A statement is not hearsay if 1. (2) Admission by party-opponent. The statement is offered against a party and is a. (A) the partys own statement in either an individual or a representative capacity or b. (B) a statement of which the party has manifested an adoption or belief in its truth, or c. (C) a statement by a person authorized by the party to make a statement concerning the subject, or d. (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship ii. There is one significant limit 1. To qualify for this exemption, a partys statement must be offered against that party. iii. The rule is broad, it admits every statement by the party iv. (B) But it also admits any statement by another person that the party has adopted as their own v. (C) admits any statement by a person that the party has authorized to speck on that subject vi. (D) admits most statements made by the partys agents or employees (servants) vii. ADVICE TO CLIENTS: 1. Dont discuss the case with anyone, unless the conversation is privileged. e. In the Courtroom i. Opponents 1. Parties cannot introduce evidence of their own statements under this rule. ii. Admissions 1. They do not need to be admissions, just any out of court statement will do. iii. Personal Knowledge

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XVI.

1. Can admit them even if the opposing party had no person knowledge of what he was saying. 2. Rule 403 can still limit it, especially if they are recounting double or triple hearsay in their statement. iv. Partys Availability Immaterial 1. v. Admission by Adoption- Signing a Document 1. They do not necessarily need to say something, just endorse it. vi. Admission by Adoption- Silence 1. This can be constructive adoption. The circumstances must be such that a reasonable person would speak up rather than remain silent. 2. One test: a. Whether the circumstances as a whole show that the lack of a denial is so unnatural as to support an inference that the undenied statement was true. 3. There are other formulas, but what is more important are the facts of the case because good advocacy will probably determine admissibility. 4. Once you have been read your Miranda rights, then you can no longer use silence as adoption. vii. Agents 1. The statements can be made to outsiders as well as insiders to the company or whatever. 2. These statements must be in the course of regular employment and regular duties. 3. Independent contractors usually qualify as an agent. viii. Authorized Speakers 1. Something like a reference letter would be authorization to speak. You asked them to write it for you. ix. Criminal Defendants 1. This rule is bad for defendants because if they take the stand to try to rebut the statements and have priors, those priors can be introduced against them. f. Relationship to other Rules i. This rule would be bad in settlement discussions and other things if not for the 400 rules. Statements by Party-Opponents in the Context of Multiple Parties a. There are two problems with the multiple party context: i. When a party attempts to introduce an out-of-court statement made by a party on the same side of the litigation. 1. A fair reading will allow a codefendant to introduce a statement by another defendant. ii. Arises with multiple parties is the spillover effect of out-of-court statements offered against one party: What effect do those statements have on other parties on the same side of the litigation?

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1. If one defendant makes an incriminating statement, is that statement admissible against all defendants or only against the defendant who made the statement? 2. These statements can only be used against one. However, can juries really separate them? a. Example: In cocaine, there is a joint trial for three people. A person introduces a statement by one of them incriminating all three. It is only admissible against that ONE person though. b. The Rule: i. No new provisions. 801(d)(2) ii. Same-Side Statements: 1. The rule authorizes any litigant to introduce a partys statement against a party. The definition of party is not narrow. 2. They may introduce it as long as the litigant introduces the statement against the interests of that party. iii. Spillover Effects in Civil Cases: 1. It allows a litigant to introduce a partys own statement against that party, but it does not authorize admission of the statement against anyone else. 2. A statement can only be used against the party who said it. 3. Statements can be cured by giving limiting instructions, but this is only in the Civil Case context. 4. In a criminal case, the rule works in the same way but the court must also consider the defendants rights under the Confrontation Clause of the Constitution. c. The Confrontation Clause: i. Limiting instructions are often insufficient if an out-of-court statement against one defendant also incriminates other codefendants. ii. Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. iii. Confronting = cross-examination. iv. The Supreme Court in this context: 1. There are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant are deliberately spread before the jury in a joint trial. Bruton v. These are the options left to a prosecutor who obtains an out-ofcourt admission from one of several defendants 1. The prosecutor can redact the defendants admission so that it does not implicate any other defendants. The redacted statement will be admissible under Rule 801(d)(2) 100

against the defendant who made it, and will not infringe the Confrontation Clause rights of other defendants. 2. The prosecutor can sever the trial and try each of the defendants separately, introducing the out-of-court admission against the defendant who made the statement at the defendants trial. 3. The prosecutor can forego use of the statement, relying on other evidence instead. 4. If the defendant who made the out-of-court admission takes the stand, the prosecutor may also be able to use that statement to impeach the testifying defendant. d. In the Courtroom: i. Adoptions, Agents, and Authorized Speakers: 1. Sometimes these provisions allow the plaintiff to introduce one defendants statement against ALL of the defendants. 2. You have to find an adoption, authorization, or agency relationship linking the multiple parties. a. Example: two people murder another and talk about it afterwards. A person overhears and introduces it at trial. When the two were talking, one person said stuff and the other slapped him with a high five (showing adoption) b. Look at p 677 ii. Redacted Statements: 1. First, if the statement only implicitly implicates the codefendant after being linked with other evidence, introduction of the statement does not violate Bruton. a. Example: i. These people rob a museum. One, Williams, admits to it and says he was dressed as a vampire. They find a vampire costume in the other, Andersons car. ii. The admission is allowed because it is only implicitly saying that Anderson had something to do with it. 2. Second, a redacted statement that just blanks out a codefendants name will violate Bruton. 3. The Guidelines governing the redaction of out-of-court statements implicating a codefendant: a. A statement that explicitly names a codefendant and implicates that codefendant on its face violates Bruton. The statement cannot be admitted in this form. b. A statement that simply replaces the codefendants name with blanks or other obvious marks of deletion also violates Bruton. A statement in this form inevitably will tempt the jury to fill in the blanks with the codefendants name. c. A statement that does not refer explicitly to a codefendant, and that contains no obvious 101

omissions tempting the jury to fill in the gaps, satisfies Bruton. The prosecutor can admit statements that satisfy this condition in their initial form or that can be redacted to reach this form. These statements still are admissible only against the defendant who made the out-of-court statement, and the judge will instruct the jury not to consider these statements in connection with any codefendants. But the form of the statement makes it plausible that the jury will follow those instructions, resolving the Sixth Amendment concerns raised in Bruton. XVII. Hearsay Exemption- Statements of Coconspirators a. Many conspiracies are like joint enterprises and so dividing up statements to the person who said them would divide the single criminal enterprise into a confusing array of fragmented pieces. b. Rule 801(d)(2)(E) allows a litigant to introduce a statement of one coconspirator against any other member of the conspiracy, as long as the statement was made during the course of the conspiracy and to further the joint enterprise. c. Rule 801: Definitions. i. (d) Statements which are not hearsay. A statement is not hearsay if 1. (2) Admission by party-opponent. The statement is offered against a party and is a. (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. ii. Three elements that a proponent must establish to introduce a statement under that section: 1. The statement must be made by a coconspirator a. A prosecutor can invoke Rule 801(d)(2)(E) in most cases of criminal activity involving more than one individual b. The statement must occur in furtherance of the conspiracy. i. A statement that advances the underlying joint enterprise speaks for all of the participants and should be admissible against them. c. The statement must occur during the course of the conspiracy. d. In the Courtroom: i. The meaning of Conspiracy 1. You only have to prove that the declarant and the party against whom the statement is offered were members of a common venture. The declarant and defendant must have agreed to use their joint efforts in some way to reach a common goal.

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ii.

iii.

iv.

v.

vi.

a. The meaning is different and separate from the definition of criminal conspiracy. Course of conspiracy: 1. It only includes statements that occur during the course of the conspiracy. 2. A conspiracy sufficient to satisfy the rule begins as soon as two or more people agree to pursue a common goal. 3. One question is whether the prosecutor can admit one coconspirators post-arrest confession against other members of the conspiracy. a. The courts have held almost always that an arrest ends a conspiracy and therefore the post-arrest statements are not admissible. i. This makes sense because now someone cant blame someone else and have it admissible. 4. Sometimes an arrest does not end it a. Example: when a person gets arrested and then agrees with police to communicate with the other conspirator. Concealment 1. If members are still working to conceal, then statements can be admitted. 2. But if the members are just keeping quiet, but are not actively concealing, then you cant introduce a statement. 3. Also, unilateral steps by on conspirator to cover up a crime do not signal an ongoing conspiracy. Furtherance of the Conspiracy 1. It does not require a coconspirators statement to further the conspiracy, the statement need only be in furtherance of the conspiracy. a. Confessions then fall out of this b. Boasts to people outside the conspiracy fall outside too Civil Cases: 1. Parties in civil antitrust cases, for example, use the rule to urge the admission of an opponents out of court statements against all members of an antitrust conspiracy. Preliminary Determinations 1. When making preliminary determinations, the judge does not have to follow the rules of evidence. 2. When admitting the statements under 801(d)(2)(C)-(E), the content of the challenged statement can be considered b ut is not alone sufficient to support admissibility. 3. Rule 801: Definitions. a. (d) Statements Which Are Not Hearsay. i. (2) Admission by party-opponentthe contents of the statement shall be considered but are not alone sufficient to establish 103

1. The declarants authority under subdivision (C), 2. The agency or employment relationship and scope thereof under subdivision (D), 3. 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). 4. The judge may consider the statement in determining whether the requisite relationship exists, but some other evidence must also help establish the relationship. e. Relationship to Other Rules: i. The relationship to other party of Rule 801(d)(2) are important to keep in mind 1. Section (E), the coconspirator exception, is not necessary to introduce a statement against the party who made the statement. 2. (E)s value is that it allows a party to admit one conspirators out of court statement against all other members of the conspiracy. 3. Admission of a conspirators statement does not raise any Bruton Sixth Amendment issues because one conspirator speaks for all. 4. Often statements will be argued as a conspiracy, due to Bruton 5. Even if it does not satisfy (E), it may satisfy the other party admission exceptions. ii. Remember that if the statement does not fall within (E), it may fall within one of the other hearsay exceptions. XVIII. Residual Exception a. Rule 807 gives judges the flexibility by allowing them to admit hearsay that falls outside the standing exceptions as long as the evidence has sufficient guarantees of trustworthiness and is the best available way to prove a needed fact. i. It I s only used in exceptional circumstances. b. This rule was previously under two: i. 803(24) ii. 804(b)(5) c. Rule 807: Residual Exception. A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which

104

the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponents intention to offer the statement and the particulars of it, including the name and address of the declarant. i. Hearsay must satisfy six conditions to be admitted under 807 1. The statement must not be specifically covered by Rule 803 or 804. a. This language rarely excludes evidence that satisfies the other five requirement of the Rule. 2. A statement must have circumstantial guarantees of trustworthiness that are equivalent to those found in the enumerated exceptions of Rules 803 and 804. 3. A statement must offer evidence of a material fact. a. This is basically a restatement of 402s relevance standard. 4. The proffered hearsay must be more probative of the information it conveys than any other evidence that the proponent could procure through reasonable efforts a. So the residual exception is the rule of last resort. b. The declarant must be unavailable as a witness. 5. The trial judge must find that the admission of the statement is consistent with the general purposes of these rules and the interests of justice. a. It pretty much reiterate Rule 102: the Rules of Evidence as a whole should be construed to secure fairness in administration of that the truth may be ascertained and proceedings justly determined. 6. There is a notice requirement; the proponent of the statement must inform the opposing party of her intent to use the statement, the details of the statement, and the name and address of the declarant. ii. The Six requirements reduce to just three key ones: 1. The judge must determine that the proffered statement has sufficient guarantees of trustworthiness; 2. The statement must be the most effective way to prove a fact in consequence, despite reasonable efforts to find otherwise admissible evidence; and 3. The proponent of the evidence must give notice of her intent to use the statement at trial. d. In The Courtroom: 105

XIX.

i. The Near Miss Problem: 1. Sometimes some statements just narrowly miss being admitted, so Rule 807 can give judges the discretion to admit it. a. Example: statements from a 19 year old document havent met the 20 year threshold for the ancient document exception. 2. A contrary view is that the intro language to Rule 807, about not admitting under Rule 803 and 804, limits the statement from being admitted. 3. It is a fact dependant situation and requires good advocacy. 4. Typically though, the courts have said that if it does not fall under 803 or 804, then it is not covered by them and therefore, Rule 807 can come into play. ii. Trustworthiness 1. Factors to consider a. Whether the statement was made under oath. b. Whether the declarant had first-hand knowledge of facts in the statement. c. Whether the declarant ever recanted the statement. d. Whether other evidence corroborates the statement. e. Whether that corroborating evidence is subject to cross-examination. f. Whether other evidence undermines or contradicts the statement. g. Whether the defendant had any incentive to lie when making the statement. iii. Probative Value: 1. You must show that it is more probative than any other evidence which the proponent can procure through reasonable efforts. Attacking a Declarants Credibility a. Rule 806 allows parties a way to attack credibility. They can use any of the tools recognized by Article VI of the rules. It treats declarants as if they were witnesses. b. Rule 806: Attacking and Supporting Credibility of Declarant. When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), (E), has been admitted in evidence, 1. The credibility of the declarant may be attacked, 2. And if attacked may be supported, By any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarants hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is 106

entitled to examine that declarant on the statement as if under cross-examination. ii. There are six points to this rule: 1. It applies to all hearsay exceptions as well as statements under Rule 801(d)(2)(C), (D), (E). a. Rule 806 does not apply to other out of court statements that fail to qualify as hearsay, which means those offered not to prove the truth of the matter asserted, prior statements by witnesses, and statements made of adopted by the opponent. 2. A party may attack a declarants credibility by introducing any evidence that would be admissible if the declarant had testified as a witness a. Evidence of the declarants bias, prejudice, or interest in the case b. Statements made by the declarant that are inconsistent with the hearsay statements (613) c. Evidence that the declarant lacks person knowledge or the capacity to testify truthfully (602, 603) d. Reputation or opinion evidence that the declarant is untruthful, given by a character witness (Rule 608(a)) e. Any criminal convictions allowed by Rule 609 i. This List does not contain 608(b), questions about dishonest acts on cross-examination. This is because you cant cross-examine a declarant. 3. Once a declarants credibility has been attacked, the other party may rehabilitate the declarant in any way that is allowed with witnesses. 4. It allows a party to present a declarants inconsistent statements without giving the declarant an opportunity to deny or explain those inconsistencies. a. Rule 613 imposes the latter requirement when a party impeaches a witness with prior inconsistent statements. 5. It allows any party to impeach a hearsay declarant, just as 607 permits any party to impeach a witness. 6. Recognizes that parties sometimes use a hearsay exception to avoid cross-examination of a witness. a. The opposing party may call the declarant as a witness and cross-examine the declarant about the statement. b. This overrides 611s provision that the party who calls a witness usually must ask non-leading questions on direct examination. c. In the Courtroom: i. Statements that are not Hearsay 1. Only allowed it the statement was a. Hearsay, or 107

XX.

XXI.

b. An assertion by the party-opponents agent, spokesperson, or coconspirator. ii. Evidence of Specific Acts 1. One federal court has said that you can bring in extrinsic evidence to prove dishonesty or whatever because the declarant is not there to cross-examine and there is no other way to prove it. a. 608(b) would otherwise prevent it. 2. Other courts have rejected this approach so the issue remains unsettled. a. In the example: The person who recounted the declarants statement can be cross examined about the character of the declarant. You can also bring in character witnesses for attack his credibility. The Sixth Amendment and Hearsay a. Guarantees a criminal defendant the right to be confronted with the witnesses against him. b. The Supreme Court: i. The Confrontation Clause is satisfied if the out of court statement has sufficient indicia of reliability. ii. A statement has indicia of reliability if it falls under a firmly rooted hearsay exception or has some other guarantees of trustworthiness. c. Crawford v. Washington: i. The Confrontation Clause guarantees a procedural right- the criminal defendants right to confront witnesses against him. ii. It guarantees not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. iii. There are only seven hearsay exceptions affected by the decision 1. And it only affects when the prosecutor can use against the defendant. The Sixth Amendment and the Crawford case a. Amendment VI. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him b. Witnesses: people who provide testimonial statements against a criminal defendant. i. This is how Crawford narrowed the reading of the Sixth Amendment which would otherwise prevent ANY hearsay from being admitted. ii. Only some out of court statements are testimonial and those are the ones the Sixth Amendment affects. c. The Sixth Amendment constraints follow three simple rules: i. The prosecutor may introduce non-testimonial hearsay as long as those statements comply with the hearsay rules. The Sixth Amendment does not limit the admission of non-testimonial hearsay. ii. The prosecutor may introduce testimonial hearsay if the statements comply with the hearsay rules, and the declarant is available as a witness. Under those circumstances, the defendant 108

has a change to cross-examine the declarant about the testimonial statement and any other matters. iii. If the hearsay statement is testimonial and the declarant is unavailable at trial, the prosecutor may offer the statement only if the defendant had a prior opportunity to cross-examine the declarant. d. In the Courtroom: i. Testimonial statements: 1. Not spelled out, but suggested that it is a solemn declaration or affirmation made for the purpose of establishing or proving some fact. 2. Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. 3. There are three factors to determine whether a reasonable person would expect his statement to be used prosecutorially a. Statements utter solemnly or under formal circumstances are more likely than casual statements to be testimonial. b. Statements to law enforcement agents or other government employees are more likely than those to private parties to be testimonial. c. Statements made to prove a fact are more likely than those made for some other purpose (such as gaining help) to be testimonial. 4. We can divide out of court statements into four categories a. Formal Statements During Litigation i. Testimonial statements include all testimony at trials, grand jury proceedings, and other hearings, as well as statements made in depositions and affidavits b. Statements to Law Enforcement i. Most statements about a crime to law enforcement are testimonial. ii. Problems: 1. 911 calls 2. Statements made to police when they first arrive at the scene of a crime. iii. Davis v. Washington: 1. The purpose of statements made to law enforcement agents may determine whether they are testimonial 2. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are 109

testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. iv. Be careful, the purpose of the questioning might change over the course of the conversation. 1. Example: The 911 call where the woman is telling the operator what is happening. 2. Then, the guy leaves, the threat is over and the 911 operator continues to ask questions. v. You must be speaking to gain protection from ongoing violence, not to establish the facts of a past crime. vi. However, if officers seek information to protect a victim, the preserve their own safety, or otherwise end a threatening situation, then they will not be testimonials. c. Statements to Private Parties i. The Supreme Court has not decided whether statements to private parties are ever testimonial. 1. It is suggested that testimonial statements require some government involvement. ii. Dictum: 1. Statements to friend and neighbors and statements to physicians in the course of receiving treatment are not testimonial. iii. Courts have held that statements to undercover cops they believed to be friends are not testimonial. d. Statements Admitted to Prove a Point Other Than the Truth of the Matter Asserted i. The 6th does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. ii. Unavailability and prior opportunity to cross examine 1. Even if a statement is testimonial, however, the prosecutor may admit the statement if the declarant is available at trial or the prosecutor shows a. The declarant is unavailable, and b. The defendant had a prior opportunity to crossexamine the declarant about the statement. 110

2. This is the 804(b)(1) exemption 3. Key points that affect the admissibility of testimonial statements include: a. Witnesses who claim privileges or refuse to testify are unavailable. This type of unavailability arises frequently in criminal cases. b. Witnesses who assert a lack of memory, whether real or feigned, are also unavailable. c. Criminal defendants have no opportunity to crossexamine grand jury witnesses, so the Sixth Amendment often blocks prosecutors from using these statements. d. Similarly, defendants have no opportunity to crossexamine individuals who give confessions or other statements to the police. The Sixth Amendment often bars admission of these statements as well. 4. Question: Whether a prior opportunity to cross-examine was sufficient to satisfy the defendants rights? a. The defendant must have had a similar motive to cross-examine the witness at the prior proceeding. iii. Statements by the Defendant and Coconspirators 1. A criminal defendant has no right to confront his own statements or those made by individuals speaking on his behalf. iv. Two Exceptions 1. These come from the 18th century. a. Dying declarations b. Statements satisfying the forfeiture exception. i. A drug dealer who kills the informant scheduled to testify against him is good for this exception. ii. However, a drug dealer who kills another drug dealer in a turf war is not ok, because this was for competition, not courtroom testimony. XXII. The Confrontation Clause and the Hearsay Rule: a. First look to see whether you should apply the evidentiary rules and then consider the Confrontation Clause. b. There are three categories of evidence i. Those that never raise Confrontation Clause issues because the exception itself satisfies the clause 1. 801(d)(1): Prior Statements by Witness- admissible if declarant is on the stand. 2. 801(d)(2)- Party-Opponent Admissions 3. 803(5): Past Recollection Recorded- admissible only if the declarant is on the stand and subject to cross- satisfies 4. 803(7) and (10): Absence of Entries in Business and Public Records a. Not a statement, not a testimonial. But this is ok if the person comes in to testify.

111

b. There will be a problem however, if there is a certificate certifying that these things are missing. i. After Melendez 5. 804(b)(1): Prior Testimony 6. 804(b)(2)- Dying Declarations 7. 804(b)(6): Forfeiture ii. Those that rarely generate Confrontation Clause issues but might admit evidence violating the clause in unusual cases 1. 803(4) Statements made for medical treatment or diagnosis: a. Only when trying to find the identity of the person or getting treatment for litigation might it violate. 2. 803(6): Business records: a. Papers prepared for litigation might be testimonials. 3. 803(17): Market Reports and Commercial Publications a. Law enforcement agencies might publish some lists that include testimonials 4. 803(18): Learned Treatises a. A law enforcement agency might publish a book documenting the crimes of a notorious criminal. iii. Those that often raise Confrontation Clause issues when a prosecutor relies upon the exception to admit evidence against a defendant. 1. 803(1) and (2): Present Sense Impressions and Excited Utterances a. When made to private parties, it is probably fine. b. When they are made to law enforcement agents for the purpose of creating evidence for trial, they trigger the defendants confrontation rights. 2. 803(3): Statements of Mental or Physical Condition. a. When made to law enforcement gathering evidence its bad. 3. 803(8): Public Records: a. Might still admit ministerial law enforcement records. 4. 803(16): Ancient Documents: a. Confessions, police reports, and other testimonial statements do not lose their testimonial character with time. 5. 804(b)(3): Statement against Interest: a. Those made to government agents are probably testimonial. 6. 807: Residual Exception: a. Many statements admitted under this could raise issues.

ARTICLE II
I. Judicial Notice a. Some facts are so well accepted that it seems unnecessary to prove them in court. 112

i. Example: You wouldnt have to prove that Chicago and San Francisco are in different states. b. Rule 201 allows judges to take notice of facts to ease litigation for parties and recognize facts that are not subject to reasonable dispute. c. Rule 201: Judicial Notice of Adjudicative Facts. i. (a) Scope of the Rule. This rule governs only judicial notice of adjudicative facts. ii. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. iii. (c) When Discretionary. A court may take judicial notice, whether requested or not. iv. (d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. v. (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. vi. (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding. vii. (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. d. Explanations: i. (a): An adjudicative fact is one that helps prove the elements of a specific case. 1. Another type of fact is a legislative fact, which a court may ALWAYS take judicial notice of without following any of the procedures in rule 201. 2. So this rule applies only to adjudicative facts. ii. (b): There is a two part test, and this is the heart of the rule 1. First, a fact must not be subject to reasonable dispute. 2. The fact must also be either generally known within the courts jurisdiction or it must be capable of accurate and ready determination by reference to reliable sources. iii. (c): The judge can do it himself. iv. (d) A judge must take judicial notice when asked. The party must: a. Request judicial notice b. Proffer information supporting that request. 2. However, a judge can still refuse to take judicial notice if: a. The fact is subject to reasonable dispute, OR

113

b. The fact is neither generally known within the territorial jurisdiction of the court, nor readily verifiable from reliable sources. v. (e): The opportunity to be heard is limited 1. The judge has discretion to take judicial notice without giving any prior notice to parties, so you dont have a right to be heard before notice. 2. A party can contest the notice and a judge will hear the partys argument. vi. (f) The judge may take notice at any time during the proceeding. vii. (g): judicially noticed facts bind the jury in civil cases, but not in criminal ones. 1. In criminal cases, the jury is the final arbiter of all facts in criminal cases. e. Courtroom: i. Subject to Reasonable Dispute. 1. Facts that have been judicially noticed include: a. The fact that credit cards play a vital role in American society. b. The fact that bingo is a senior citizen pastime. c. The fact that the Ku Klux Klan has a history of violence against African Americans. ii. Generally Known. 1. It has to be generally known in the courts jurisdiction. 2. Commonly known facts among certain groups of people are not generally known. iii. Capable of Determination. 1. This relieves parties from proving a large number of facts that are easy to verify but cumbersome to prove. 2. Some things that court have taken notice of: a. Prices b. Interest rates c. Distances between cities 3. This also allows parties to prove facts that are well known only within a particular occupation or other subgroup, because a reliable source often documents them. a. One court took judicial notice of the history and beliefs of the Mennonite church. iv. Other Situations. 1. Sometimes a fact seems indisputable although it is not generally known nor readily verifiable from accurate sources. a. Example: A dude brought action against the 10th circuit saying that the clerks wrote the opinions and everything. The district court made judicial notice that the judges first review and approve and sign all orders and rulings. This was well known to the district court, but not generally known or verifiable. v. Judicial and Agency Decisions

114

vi.

vii.

viii. ix.

1. Court and agency decisions easily fit within Rule 201, and courts will take judicial notice of these judgments. 2. This only extends to the terms of the judgment, not to fact underlying the decision. Supporting Sources. 1. The Source does not have to be admissible. It can be hearsay, as long as it is reliable. 2. A judge determines the reliability and it is only subject to appellate review for abuse of discretion. Instructing the Jury. 1. When the judge takes judicial notice of a fact in a civil trial, the judge will instruct the jury to accept that fact as conclusive. 2. In criminal trials, the jury MAY accept it, but does not have to. Judicial Notice on Appeal. 1. (f) allows the judge to take notice at any stage of the proceeding, including appeal. Judicial Notice and Stipulations. 1. If both parties agree on a fact, they can make a stipulation that the fact is true. 2. Judicially noticed facts are indisputable, while stipulated facts are simply undisputed. 3. There are some reasons why parties propose and agree to stipulations a. Judges press parties to save trial time by stipulating, especially civil cases. b. Contesting every element of a claim or crime may damage a partys credibility. c. Some stipulations avoid detailed proof of facts that will engender sympathy or create powerful emotions on the part of the jury. i. Might stipulate that there were injuries to avoid a description of them. ii. Might stipulate that the victim is dead in order to avoid a coroner coming to testify about the cause of death. d. Some facts honestly are beyond dispute and the parties realize that it would be a waste of time to contest those facts. i. Many attorneys seek stipulations before asking the judge to take notice of them.

Lay Opinions and Expert Testimony: Article VII

I. Lay Opinions a. 701-706 describe when opinion testimony is admissible. b. Divided between lay witnesses and expert witnesses c. The difference between fact and opinion is blurry at best. d. Rule 701: Opinion Testimony by Lay Witnesses 115

i. If the witness is not testifying as an expert, the witness testimony if the form of opinions or inferences is limited to those opinions or inferences which are 1. (a) rationally based on the perception of the witness, and 2. (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and 3. (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. ii. There are three requirements that lay witnesses must satisfy when offering an opinion 1. The opinion must be rationally based on the perception of the witness a. This is like personal knowledge. They must directly perceived it. 2. It must help the fact finder. 3. They must be non-technical e. In The Courtroom i. Helpfulness: 1. Three factors to determine; a. The additional information conveyed by the lay opinion b. The jurors inability to view the underlying facts and form their own opinions c. The opinion related to a central aspect of the case 2. Example: The person says something that adds nothing to the case, but pretty much decides the fact for the jury, then it is not helpful. ii. Lay Opinion and Expert Opinion 1. Judges allow witnesses to give opinions based upon their distinctive experiences, as long as those events dont reflect specialized training. 2. They cannot invoke a process of reasoning which can be mastered only be specialists. It must be rationally based on his perception. 3. Advocacy on how the witness gained her knowledge may persuade the judge that the knowledge is either specialized or merely unusual. iii. Laying a Foundation 1. Under 602, you must have personal knowledge. So if a person says that it smelled like marijuana, you would have to say that you had smelled marijuana before. iv. Experts Giving Lay Opinions: 1. If the experts testimony is sufficiently nontechnical, the party may choose to have the expert testify as a lay witness offering a lay opinion. 2. When an expert attempts to testify as a lay witness, judges may draw a stricter line between expert and lay opinions. II. What Subjects are Appropriate for Expert Testimony? 116

a. Expert witnesses give testimony based on their scientific, technical or other specialized knowledge. b. The judge must determine that both the field of expertise and the experts application of that knowledge are reliable. c. In Daubert v. Merrell Dow Pharmaceuticals, the judges must determine reliability based on some factors i. Whether the theory or technique has been tested ii. Whether it has been subject to peer review and publication iii. The techniques error rate iv. The existence of standards controlling the techniques application v. Whether the theory or technique has been generally accepted in the relevant scientific community. d. These factors are not exhaustive. e. The difference between Frye and Daubert i. Frye let the experts set the bounds of reliability. Daubert makes judges the gatekeepers f. Rule 702: Testimony by Experts i. 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. (1) the testimony is based upon sufficient facts or data, 2. (2) the testimony is the product of reliable principles and methods, and 3. (3) the witness has applied the principles and methods reliably to the facts of the case. ii. There are six principles governing the testimony 1. An expert is a witness who offers scientific, technical, or other specialized knowledge. 2. Expert testimony must assist the trier of fact. a. You cannot offer the opinion unless it fits the facts of the case. b. A defendant could not present detailed testimony about lunar phases in order to argue that he acted irrationally when the moon was full. 3. The courts must agree that the witness qualifies as an expert before the witness offers an opinion on technical or scientific matters. 4. The experts testimony must rest on sufficient facts or data 5. Two reliability hurdles: a. The testimony must stem from reliable principles and methods b. The witness must have applied the principles and methods reliably to the facts of the case g. The Courtroom: i. Reliable Principles

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1. A party must be able to point to the principles and methods underlying an experts testimony and must satisfy Daubert ii. Reliable Application 1. If a pathologist, for example, fails to follow the established protocols for testing a sample, the trial judge may reject his testimony as unreliable. iii. Supplementing the Daubert factors 1. One factor cited by many courts is whether the expert developed an idiosyncratic approach specifically for the litigated controversy or as part of a broader program of research. 2. Another was the fact that the expert had testified about the risk in a public hearing without any connection to the litigation. iv. Does the Expert Evidence Fit? 1. It must assist the trier of fact or fit 2. A jury might have difficulty understanding that an expert opinion is relevant only if they first find that a predicate fact exists. v. Rule 403 1. You must ask a. Even if the evidence satisfies these requirements, does the danger of unfair prejudice, confusion, or misleading the jury substantially outweigh the probative value? vi. Technical and other specialized knowledge 1. Sometimes people have technical knowledge without ever being published. 2. The Daubert factors might not always be relevant in these situations, so the judge has considerable discretion in determining the reliability of the expert. vii. Daubert Hearings 1. Typically judges will determine the reliability of the expert in a pre-trial hearing called a Daubert hearing. 2. Sometimes these hearings determine the case. viii. Revolution? 1. Some think that Daubert still limits the admissibility of more controversial techniques because many judges are conservative and dont want to approve new techniques. III. Qualifying Experts i. A party must still find a witness to bring the information to court. A witness presenting the expert evidence must be qualified as an expert in the field. b. Rule 702: Testimony by Experts i. 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 118

ii. Two points: 1. The witness must in fact be qualified before offering evidence about scientific, technical, or other specialized knowledge. 2. The witness may establish her qualifications by pointing to a number of different factors: a. Her knowledge b. Skill c. Experience d. Training e. Education c. The Courtroom: i. How to qualify an expert 1. Three stages a. The attorney who called the expert lays a foundation for the witnesss expertise by asking questions about the witnesss credentials and qualifications b. After certification, the judge will allow opposing counsel to voir dire the witness i. This is the second stage where opposing counsel has a chance to ask the witness questions in order to test his credentials. c. In the third stage, the judge rules on the motion to certify the witness i. Usually he will grant it because the jury can determine how reliable and how much he really is an expert. 2. You can shorten the process by stipulating that the person is an expert. a. However, sometimes even the party bringing forth the expert will reject the stipulation so that he can show how knowledgeable that person is. b. This is important in a battle of the experts. ii. Expertise includes Experience or Informal training IV. Bases of Expert Opinion a. For some controversies, expert testimony is essential to establish the elements of the case. b. The rules confer four powers on expert witnesses that lay witnesses do not have. i. An expert may remain in the courtroom even when the judge excludes other witnesses under Rule 615. ii. Experts are the only witnesses who can certify documents as learned treatises under Rule 803(18). iii. Experts may do more than give commonsense opinions; they may draw inferences from the evidence and state conclusions based on their special training or experience. iv. Experts do not have to base their opinions exclusively on personal observations. c. Rules i. Rule 703: Bases of Opinion Testimony by Experts 119

ii.

iii.

iv.

v.

1. 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 2. 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. 3. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect. What 703 does. Three types of data 1. The expert may rely upon facts that he personally perceived 2. The expert may base his opinion on data learned during he trial itself 3. The expert may draw upon facts brought to his attention before the trial, even if those facts were not personally perceived. a. An expert witness may offer an opinion based on inadmissible evidence, but only if experts in that field reasonably rely upon that type of information. 4. However, 703 does not allow an expert to disclose inadmissible information to the jury a. The court may allow if the probative value substantially outweighs its prejudicial effect. (The reverse 403). Rule 705: Disclosure of Facts or Date Underlying Expert Opinion 1. The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. 2. The expert may in any event be required to disclose the underlying facts or data on cross-examination. What 705 does. 1. An expert may give an opinion without first recounting all of the underlying data. 2. The rules work together: a. Rule 703 allows experts to base their opinions on inadmissible evidence b. Rule 705 allows experts to testify as to those opinions without having to state the basis for them. 3. 705 also allows cross-examination to reveal otherwise inadmissible data. The Rules answer two questions: 120

1. What kind of information experts may rely upon to support their decisions 2. When an expert may disclose supporting data that would not otherwise be admissible. d. The Courtroom: i. Attendance at Trial 1. An expert can base their opinions on facts made known to the expert at the hearing. Sometimes trial attendance is the only way for the expert to obtain critical information. However, it can be expensive, especially if they charge an hourly fee. 2. If the expert does base an opinion on trial testimony, the expert must clarify what parts of the testimony support her opinion. ii. Hypothetical Questions 1. The attorney can just give a hypothetical to the expert with facts identical to the case in order to cut down on trial time and the hourly fee. 2. There are two forms of abuse which a hypothetical might be subject to a. Attorneys sometimes insert facts into the hypothetical that have not been proven. i. Hypos may not assume facts that are not in evidence. b. Attorneys sometimes use a long hypothetical as an opportunity to sum up the case; rather than presenting facts to an expert, these advocates are previewing their closing argument i. Judges may preclude these questions iii. Reasonably Relied Upon by Experts in the Field 1. If data are good enough for experts to rely upon, then courts should not second-guess that judgment. 2. Qualifications a. Experts in the witnesss field must in fact rely upon the type of evidence that the expert used b. That reliance must be reasonable. i. This reasonableness gives judges another gate to watch over. iv. Admitting Underlying Facts that are Otherwise Inadmissible 1. There are two ways in which the parties may introduce otherwise inadmissible facts supporting an expert opinion a. The party opposing an expert always has the right to ask the expert to divulge the basis of her opinion during cross. b. More commonly, the party sponsoring the expert will argue that knowledge of the underlying facts is essential for the jury to understand and evaluate the experts opinion. v. V. Limits on Opinion and Expert Testimony 121

a. In the past, a witness could not declare an ultimate issue b. Judges still reject testimony that threatens to supplant the judges power to declare the law, the jurys authority to apply the law to the facts, or the jurys task of resolving credibility. c. Rule 704: Opinion on Ultimate Issue 1. (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. 2. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal cases may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. ii. Explanation 1. (a) a. Incorporates all the language of Rules 701-703 and 705. b. They are admissible only to the extent that they help or assist the fact finder. c. Judges can invoke Rule 403 if it goes too far. 2. (b) a. The courts have read this narrowly. It just restricts the type of words experts use rather than the content of their opinions. d. The Courtroom i. Legal Conclusions: 1. Most judges prefer to avoid legal terms like negligent or guilty beyond a reasonable doubt. 2. Sometimes one can get close to saying the ultimate conclusion, or even say it, but if they describe why they believe that to be so, then the judge is more willing to allow the statements. ii. Rule 704(b) and Mental States: 1. Courts restrain experts from testifying explicitly that the defendant possessed a particular mental state, but allow experts to testify that circumstances were consistent with that state. 2. As long as the testimony does not express an opinion of the mental state at the time of the act, it should be ok. iii. Probabilities: 1. Sometimes witnesses may quantify the likelihood of an occurrence by citing probabilities. Some of these cross the line 2. Example: The eyewitnesses had trouble identifying the suspects, but could identify some of their traits. They called a statistician to find the probability of all of these 122

characteristics occurring at once. The California Supreme Court found 4 separate defects in the testimony: a. The experts calculation lacked a proper factual foundation. b. The calculation was technically flawed. i. There were problems of independence in the factors that the mathematician looked to. c. The calculation distracted the jury from assessing conflicts in the eyewitnesss testimony. d. The prosecutors use of the testimony confused the rarity of an event with the probability of the defendants guilt. 3. DNA a. It is easy to rule out a suspect because if certain things dont match, it is unlikely that the tissue belongs to the accused. b. However, it is harder to LINK a suspect to a crime scene. Scientists can come up with a probability of the match. c. The science it hard to understand and it is hard to comprehend the probabilities. 4. Polygraphs a. Measure a subjects physiological reactions to questions b. Courts are reluctant to use them. i. It intrudes into the jurys right to assess the witnesss credibility. 5. Testimony about Eyewitnesses a. It is increasingly unreliable. b. Sometimes you will call an expert to talk about the unreliability of eyewitness testimony. However, the court will limit it in two ways i. The expert may only describe general findings about eyewitness testimony; the expert may not offer an opinion about whether a particular eyewitness is reliable. ii. Most courts allow expert testimony about eyewitness reliability only when circumstances suggest that an eyewitness identification is less reliable than usual. VI. Court-Appointed Experts a. Once, people hoped that these experts would get rid of the battle of the experts. b. However, even experts disagree so there is no neutral point. c. Rule 706: Court Appointed Experts 1. (a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. 123

The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness findings, if any; the witness deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 2. (b) Compensation. Expert witnesses so appointed are entitled to reasonable compensation in whatever sum the court may allow. The compensation thus fixed is payable from funds which may be provided by law in criminal cases and civil actions and proceedings involving just compensation under the fifth amendment. In other civil actions and proceedings the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs. 3. (c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. 4. (d) Parties experts of own selection. Nothing in this rule limits the parties calling expert witnesses of their own selection. ii. Explanation 1. (a) Process: a. One of the parties may petition the judge to appoint or the judge may decide to on his own. b. Having decided, the judge may ask for nominations, urge the parties to agree on an expert, or simply find his own expert. c. Once decided, the expert will report all findings to the parties. He can be deposed and even called to testify. The judge can call the expert himself. 2. (b) a. The trial judge decides what compensation is reasonable for the expert. 3. (c) a. Judges usually reveal the experts status unless it would influence the jurys decision TOO MUCH. 4. (d) Parties can still call their own. 124

d. The Courtroom i. The court sometimes uses experts to determine international law.

Article V: Privileges
I. Introduction to Privileges a. Privileged information is usually extremely probative, but it is excluded to further a social policy. b. Utilitarian: privileges are essential to protect certain socially beneficial relationships, and must meet three criteria i. The relationship must be one that society wants to foster ii. Confidential communications must be essential to maintaining the relationship iii. The injury to the relationship from disclosure must be greater than the benefit to the truth-seeking process from that disclosure c. The inherent value of privacy: protect privacy as an end in itself, not just as a means for promoting a relationship. i. Like the privilege against self-incrimination. d. The Rule: i. Rule 501: General Rule. 1. 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, States, 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. 2. 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, States, or political subdivision thereof shall be determined in accordance with State law. ii. Explanation 1. The Federal Rules of Evidence leave privileges to commonlaw development in courts. 2. The FRE also address privileges in diversity actions in the second part of the rule. e. Overview of Privileges i. Federal Privileges. 1. The right against self-incrimination- Guaranteed by the 5th Amendment. a. Applies in civil and criminal cases. It applies only to testimony that might subject the individual to criminal liability. 2. The attorney client privilege a. Protects all confidential communications between a client and her attorney that are made for the purpose of legal advice or representation. 125

b. Work-product privilege complements the traditional attorney-client privilege. 3. The spousal privilege a. There are two types 4. Psychotherapist-patient privilege 5. Executive privilege 6. Clergy-communicant privilege. ii. Privileges not recognized under Federal law 1. Physician-patient privilege 2. Journalist privilege 3. Intra-family privileges 4. Civil Union privileges f. Common Privilege Issues i. Who holds the privilege? ii. When does the privilege apply? iii. What does the privilege cover? iv. How strong is the privilege? 1. Absolute or qualified? II. The Attorney-Client Privilege a. It is the oldest of all privileges. b. Attorneys honor two overlapping commitments to maintain the confidences of their clients i. Professional obligation to keep client information confidential ii. Evidentiary privilege, prevents an attorney from offering testimony or other evidence about confidential client communications. c. The Rule i. Congress has not codified the Rule. ii. Rule 503 (Not Enacted): Lawyer-Client Privilege. 1. (b)General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client. 2. (c) Who may claim the privilege. The privilege may be claimed by the client. The person who was the lawyer at the time of the communication may claim the privilege but only on behalf of the client. His authority to do so is presumed in the absence of evidence to the contrary. 3. (d) Exceptions. There is no privilege under this rule: a. (1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or b. (3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to his client or by the client to his lawyer; or 126

c. (5)Joint Clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients. iii. Explanation: 1. The privilege is to protect the client. However, the lawyer can claim the privilege on behalf of the client. 2. It prevents disclosure in any context and at any stage of a proceeding. Of course, there are a lot of documents in that the lawyer has, so FRE has Rule 502, guarding against inadvertent disclosure. a. If a client or attorney inadvertently discloses information covered by the attorney-client privilege during a federal proceeding, the disclosure does not waive the privilege if: i. the holder of the privilege took reasonable steps to prevent disclosure, and ii. the holder took reasonable steps to rectify the error b. If an attorney or client intentionally discloses some privileged information in a federal proceeding, other privileged communications remain protected unless i. They concern the same subject matter, and ii. The communications ought in fairness to be considered together. 3. Existence of the attorney client privilege depends on five factors: a. A client or his representative b. An attorney or her representative c. A communication between those two parties d. Confidentiality of the communication, and e. A purpose of facilitating professional legal services to the client 4. The privilege is absolute. There are some exceptions outlined in the rule however. d. In the Courtroom i. Who is a client? 1. A client is any individual or entity who obtains legal services from a lawyer or consults a lawyer about obtaining those services. 2. In the corporate setting, the court uses a multi-factor test in order to determine which employees are the clients. This comes from Upjohn a. The managers provided information directly to the companys counsel to help the company secure legal advice

127

ii.

iii.

iv.

v.

vi.

b. The managers knew this was the purpose of supplying the information c. They provided this information in response to a superiors request. d. The communications related to matters within the scope of the managers duties e. Other employees could not provide this information to counsel f. All parties treated the communications as highly confidential. 3. A key factor is that the employees speak about matters within the scope of her duties. Who is an attorney? 1. A lawyer is any person who is authorized to practice law or who the client reasonably believes is authorized to practice law. 2. The attorneys staff also counts and do not need to be permanent employees. What is a communication? 1. They may be written or oral and include verbal acts. 2. It does not, however, protect the underlying information in the communications. If a third party discovers the underlying information without relying on the attorneyclient communication, the privilege imposes no bar on admitting that information in court. 3. Any writings which came into existence independent of the attorney-client representations are not privileged. 4. A lawyer still has an affirmative duty as officers of the court to disclose any contraband or physical evidence of a crime that comes into their possession, but they do not have to disclose how they obtained it. When is a communication confidential? 1. They lose the privilege if the communications are made in the presence of someone outside the confidential relationship. 2. If an eavesdropper overhears a communication, existence of the privilege depends on whether the client took reasonable precautions to ensure confidentiality. 3. Identity is not confidential unless it would implicate the client in the very matter for which legal advice had been sought in the first case. Purpose 1. Only protects communications that a lawyer or client makes for the purpose of receiving legal services. It does not cover other advice such as business or accounting advice. Crime-Fraud Exception. 1. Prior crimes can be discussed, but if the person seeks legal help for carrying out a crime, the attorney-client privilege does not protect those communications. 128

2. The lawyer does not need to know that his client is asking for the advice in order to perpetuate a crime. vii. Waiver: 1. An attorney may not waive the privilege without his clients permission. 2. Sometimes a client will inadvertently waive the privilege to a third party which makes it fair game. 3. To waive the privilege, however, a client must reveal the content of her communications with a lawyer, not merely the same facts she told the lawyer. 4. Corporations as a whole decide whether to waive, members of the control group. a. The lawyer then must make clear that the employee will have no say over whether the corporation releases the information to others. e. Work Product i. An attorney creates many types of documents for trial. To protect this, the work product privilege protects all work that either the attorney or client does independently to prepare for trial. 1. It is in FRCP 26(b)(3) and FRCrimPro 16. ii. It is broader than the attorney-client privilege because it protects any documents prepared for trial, not just communications between the two. iii. Two limitations 1. The privilege only protects documents or objects prepared in anticipation of litigation. But this could be before litigation actually happens, it is just documents in case of litigation. 2. When work product consists solely of facts about the dispute, the privilege is QUALIFIED. a. An opposing party may obtain access to this type of work product by demonstrating that he has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. 3. When the product consists of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation, the privilege is nearly absolute. III. Other Privileges a. There are other privileges besides the attorney-client one. Two spousal, a psychotherapist-patient, an executive privilege, and a clergycommunicant privilege. i. The Supreme Court has recognized these. b. There is also the Fifth Amendment privilege. c. Finally, there are more privileges under state law that are applied under rule 501. IV. Spousal Privileges a. The Spousal Testimonial Privilege. 129

i. This privilege arises only when a spouse is a criminal defendant or the target of a grand jury investigation. ii. It applies to testimony iii. It applies only during the life of the marriage. iv. It promotes marriage. v. It applies to information that one of the spouses obtained before the marriage. vi. The witness spouse controls the privilege and may waive it. b. The Marital Communications Privilege i. This protects confidential communications between two spouses. It creates a zone of privacy for marriage. ii. It applies to all stages of the judicial proceedings, regardless of whether either spouse is a party to the litigation. iii. The marital communications privilege protects marital confidences even after the marriage ends. iv. Both spouses control the communication privilege. Neither may waive without the others consent. v. Narrower: 1. Protects only communications that occur during the life of the marriage. 2. Only protects communications that one spouse makes to the other in confidence. a. The presence of a third party defeats it. Unless it is a small child. 3. It only protects communications between spouses. vi. Exceptions: 1. Neither may assert if on spouse commits a crime against the other spouse or against a child that is in their custody or 2. The spouses jointly commit a crime. V. Psychotherapist-Patient Privilege. a. 1996- found it in federal common law. b. There is a need for full and frank disclosure in treatment so that it is necessary privilege. c. Broad i. Applies to licensed social workers as well ii. Applies only to communications that a patient makes to a licensed therapist for the purpose of diagnosis or treatment of a mental or emotional problem. iii. There may be a duty to warn, but this does not waive the privilege. iv. However, a patient waives the privilege if he puts his mental condition in issue during trial. VI. Executive Privilege. a. Absolute privilege in military, diplomatic, and national security secrets. i. The President must specifically claim the existence of a national security interest and must point to circumstances suggesting the presence of such concerns. b. Qualified Privilege in communications with top advisors.

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VII.

VIII.

i. This probably requires the party seeking disclosure to show a significant need. Clergy-Communicant Privilege. a. It covers i. Communications ii. Made in confidence iii. By a person seeking spiritual counseling iv. To a member of the clergy b. In order to qualify, the communicant must reasonable believe that her statement to a clergy member will remain confidential. c. Factors include: i. The nature of the communicants relationship with each other ii. The pastoral counseling practices at this particular church iii. Whether the four parties shared a commonality of interest at the time of the communication iv. Whether all the members of the group reasonable expected that their counseling session with Reverend Knoche would remain confidential. Right against Self-Incrimination a. An individual can invoke the Fifth Amendment privilege at any stage during a civil or criminal proceeding if she believes her answer could be used against her in a criminal trial. b. Immunity: this is a guarantee that information learned from the testimony will not be used against the witness in any future criminal proceeding. i. USE IMMUNITY: guarantees the witness that the prosecutor will not use anything she says, or any information derived from those statements, in any future prosecution. ii. TRANSACTIONAL IMMUNITY: the prosecutor guarantees that he will not prosecute the witness for any wrongdoing that she mentions in her testimony, even if the prosecutor obtains independent evidence of that wrongdoing. c. It only applies to testimony. d. Four points: i. It is available to any witness in any proceeding. You can raise it in civil depositions if you want. ii. It protects people, not organizations. iii. Applies only to criminal liability. You can only claim it if it would indicate you are liable for a crime. iv. Applies only to testimony

Other Rules
I. Authentication a. Before introducing evidence other than live testimony, parties must establish the identity of the evidence. b. Three important functions i. Necessary to establish relevance. ii. Assurance that it is genuine. iii. Places it in proper context. 131

c. Two objectives they do not serve i. Does not guarantee the identity or genuineness of any evidence ii. Does not establish compliance with other evidentiary rules. d. The Rules i. Rule 901: Requirement of Authentication and Identification 1. (a) General Provision: The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 2. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule. . ii. Rule 902: Self Authentication. 1. Extrinsic Evidence of authenticity as a condition precedent to admissibility is not require with respect to the following a. Twelve Categories iii. Rule 903: Subscribing Witness Testimony Unnecessary 1. The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing. e. Explanations i. 901(a): 1. Three important concepts a. Authentication is a condition precedent to admitting any document or object b. The threshold for establishing identity or authenticity is very low. i. The party only needs to introduce evidence sufficient to support a finding of authenticity. c. The rule requires a party to show that an object or document is what its proponent claims. ii. Then there are two categories of evidence. 1. Evidence that requires some kind of extrinsic information to be authenticated 2. Evidence that is self-authenticating. iii. 901(b): 1. Offers 10 ways to authenticate but it is not exhaustive. 2. The most common type of extrinsic evidence for authentication is testimony. iv. 902: 1. Lists twelve categories of documents, and this list is comprehensive so that nothing outside of the list falls within this rule. v. 903: This situation almost never arises. f. The Courtroom 132

i. Distinctive Features: 1. Rule 901(b)(1) allows identification if it is testimony of a witness with knowledge that a matter is what it is claimed to be. The item must have characteristics that are identifiable by a person. 2. You should identify as many distinctive features as possible to authenticate not only to admit but to persuade as well. ii. Chain of Custody 1. Parties often rely upon a chain of custody for nondistinctive things like drugs. The party will call a series of witnesses, each of whom describes how they obtained the item and passed it to the next person in the chain. 2. Chain of custody can be contended and will not prove that the evidence is what its proponent claims. iii. Handwriting: 1. There are five avenues for authenticating handwriting a. The person who authored the note or sig nature may identify the writing as her own b. Someone who saw the act of writing may identify the person who wrote or signed the document. c. An expert witness may identify handwriting by comparing the disputed writing with a sample that has been verified by other means. i. The plaintiff may even compel the defendant to provide a handwriting sample before trial. d. The trier of fact may compare signatures in this manner. e. Allows a lay person who is familiar with another persons handwriting to identify that handwriting in court. , i. This familiarity must happen outside of the litigation. iv. Voice Identification 1. Any witness who is familiar with a persons voice may identify that voice in court. a. This familiarity can be developed at any time, even in the course of litigation. v. Photographs and Videos 1. The witness who is familiar with the photographed scene or the videotaped events may authenticate them. 2. The person testified that, based on his personal knowledge, the photo or video offers a fair and accurate representation of the scene. vi. Public Records 1. This is a category of self-authenticating documents. 2. 902(1): allows a party to introduce an original public document from any federal, state, or local government unit if that document bears both a signature attesting to the documents authenticity and the official seal of the government unit. 133

vii. viii.

ix.

x. xi.

xii.

3. 902(2): offers a similar avenue for authenticating public record produced by government units that lack their own seals. 4. 902(4): allows a party to introduce a certified copy of any official record or report or entry therein. The certificate must provide the same information given by the signature and seal, or it must comply with other federal rules. 5. 902(3) foreign documents must carry both a. The signature of a foreign official responsible for verifying the document and b. A diplomatic or consular certification. 6. 902(5): recognizes all books, pamphlets, or other publications purporting to be issued by public authority as self-authenticating. Newspapers and periodicals 1. Self authenticating. However, they are often inadmissible hearsay. Business Records: 1. Self-authentication 2. 902(11) domestic records 3. 902(12) foreign records a. Only in civil cases 4. However, under 18 USC Section 3505, the government can readily authenticate records of illegal business dealings even when those transactions cross national borders. Circumstantial Evidence 1. 901(b)(4): parties may identify evidence through appearance, contents, substance, internal patterns, or other distinctive characteristics taken in conjunction with circumstances. Evidence to support a finding 1. The party does not have to provide absolute proof of identity to authenticate evidence. Admissions and stipulations 1. In civil trials, parties authenticate most pieces of evidence before trial. 2. Must disclose evidence they plan to use at least 30 days before trial. Objections are within 14 days of trial. 3. Pre-trial authentication is less common in criminal trials. Emails 1. You just have to show evidence that it is sent to the person it is supposed to be sent to. 2. What can it be authenticated as? a. You dont know who sent it, so you cant send it as a letter from that person. b. However, you can authenticate from showing the email address as the persons and whether it corresponds to other information you know about them.

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3. You only have to given enough evidence that some reasonable jury might believe the email is from that person. II. Best Evidence a. When a party relies upon a writing, recording, or photograph to prove the content of that document, Article X requires the party to introduce the original document. b. Three policies i. The content of a writing, recording, or photograph is more detailed and difficult to describe than most events or objects that witnesses relate in the courtroom. ii. Writings, recordings, and photographs are relatively easy to produce, especially since modern rules allow for liberal use of duplicates. iii. The rule reduces opportunities for fraud and distortion. c. Its an easy rule to satisfy because it is easier to duplicate now as well. d. The Rules i. There are 8 ii. Rule 1001: Definitions: 1. For purposes of this article the following definitions are applicable: a. (1) Writings and Recordings. Writings and recordings consist of i. Letters, words, or numbers, or their equivalent, ii. Set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. b. (2) Photographs. photographs include still photographs, X-Ray films, video tapes, and motion pictures. iii. Rule 1002: Requirement of Original. 1. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress 2. Explanation: a. Two categories of cases in which parties prove the content of a writing, recording, or photograph i. The writing, recording, or photograph has independent legal significant. 1. It controls some facet of the litigation, such as the words in a contract. ii. The party chooses an item falling in one of those categories as a convenient option for proving some fact. 1. They could have found another way to prove it, just chose this way. 135

iv. Rule 1001: Definitions 1. For purposes of this article the following definitions are applicable: a. (3) Original. An original of a writing or recording is i. The writing or recording itself or ii. Any counterpart intended to have the same effect by a person executing or issuing it. iii. An original of a photograph includes the negative or any print therefrom. iv. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. 2. Explanation: a. Every DVD at a video store can be an original. b. Each part of a triplicate is an original. v. Rule 1001: Definitions. 1. For purposes of this article the following definitions are applicable: a. (4) Duplicate. A duplicate is a counterpart i. Produce by the same impression as the original, or ii. From the same matrix, or iii. By means of photography, including enlargements and miniatures, or iv. By mechanical or electronic re-recording, or v. By chemical reproduction, or vi. By other equivalent techniques Which accurately reproduces the original. b. To satisfy the latter provision, a technique must use physical, chemical, electronic, or mechanical processes, as each of the enumerated categories does. c. This precludes handwritten or other personally crafted copies vi. Rule 1003: Admissibility of Duplicates. 1. A duplicate is admissible to the same extent as an original unless a. (1) a genuine question is raised as to the authenticity of the original or b. (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. 2. These provisions then allow the parties to enhance certain documents by enlarging and such as long as it is done mechanically. vii. Rule 1004: Admissibility of Other Evidence of Contents. 136

1. The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if a. (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith, or b. (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or c. (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or d. (4) Collateral matters. The writing, recording, or photographs is not closely related to a controlling issue. viii. Rule 1007: Testimony or Written Admission of Party. 1. Contents of writings, recordings, or photographs may be proved a. By the testimony or deposition of the party against whom offered or b. By the partys written admission, Without accounting for the nonproduction of the original. ix. Rule 1005: Public Records. 1. The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by a. Copy, certified as correct in accordance with rule 902 or b. Testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. x. Rule 1006: Summaries. 1. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. 137

xi. Rule 1008: Functions of Court and Jury. 1. When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. However, when an issue is raised a. (a) whether the asserted writing ever existed, or b. (b) whether another writing, recording or photography produced at the trial is the original, or c. (c) whether other evidence of contents correctly reflects the contents, The issue is for the trier of fact to determine as in the case of other issues of fact. e. The Courtroom i. If a party tries to prove the content of a writing, recording, or photograph, then the best evidence rule applies. But if the party tries to prove a fact that could be shown with multiple types of evidence, then the party has not obligation to use the best evidence rule. ii. Payment may be proved without a written receipt. But when it goes into greater business detail, a written record might be necessary. iii. Text Messages: 1. Yes, they are writings as defined by Rule 1001(1) 2. But court may allow oral testimony if the originals have been lost: Rule 1004(1). I. The Role of the Jury a. Jurors give the judicial process legitimacy. We want society to accept our determinations. b. The Rule protect juries. We protect finality and legitimacy in Rule 606(b) II. Rule 606: Competency of Juror as Witness. a. (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to i. Any matter or statement occurring during the course of the jurys deliberations or ii. To the effect of anything upon that or any other jurors mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or iii. Concerning the jurors mental processes in connection therewith. But a juror may testify about (1)Whether extraneous prejudicial information was improperly brought to the jurys attention, 138

(2)Whether any outside influence was improperly brought to bear upon any juror, or (3)Whether there was a mistake in entering the verdict onto the verdict form. A jurors affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying. iv. Explanation: 1. Jurors can talk about anything, just not be used against them in a legal sense. 2. Limits: a. The rule does not come into play until after the jury reaches a verdict. b. It allows a juror to testify about extraneous prejudicial information that was improperly brought to the jurys attention. i. Can talk about attempts to bribe, coerce, or otherwise influence a jury improperly. c. It allows jurors to testify about whether they made a clerical error when transferring the verdict onto the verdict form. b. In the Courtroom: i. Extraneous Information and Outside Influences 1. Internal matters are blocked. Even if jurors are doing drugs, they cant talk about it. 2. The jurors intoxicated nature was analogous to testimony about whether a juror was asleep or mentally incompetent. 3. External things: a. Juror conduction outside research b. Jurors reading media accounts about the case c. One of the jurors possessing prior knowledge about a party or a witness d. Jurors reviewing documents or items that had not been admitted into evidence ii. Testimony by Non-Jurors 1. The judge can consider evidence of juror intoxication if it comes from sources other than jurors. a. This is like a marshall who watches over things. iii. Mental Processes of Jurors 1. The judge need not ask how the external information subjectively affected a particular juror. Instead, the question is whether the probable effect of the information on a hypothetical average juror would have created substantial prejudice.

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