Evidence Outline Mich. 10 A. What is Evidence a.

. Evidence: Refers to witness testimony and physical items presented by a party and admitted during trial to prove or to refute and element of an that case b. Unless evidence is legally admissible under the rules it may as well not exist i. Judges and juries cannot consider what is not properly admitted c. FRE are a body of rules that regulate the admissibility and exclusion of the evidence i. The judge is the arbiter of the rules ii. FRE grants the judge a fair amount of discretion in doing so General Provisions Article I A. Scope a.

b.

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FRE 101. Scope i. The FRE applies to proceeding in the courts of the US, Bankruptcy, and States magistrate judges FRE 102. Purpose i. These rules are in place to secure fair administration, eliminate expense and delay while promoting growth of law in order that truth may be ascertained in a just fashion FRE -103 Rules on Evidence i. Effect of Erroneous Ruling.--Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and 1. Objection a. Objections (and motions to strike) are used to contest the admission of evidence b. Must be timely and specific 2. Offer of Proof. a. Offer of proof are used to contest the exclusion of evidence b. Substance of the evidence was made know to the court or c. Was apparent from the questions asked 3. Key Notes: a. To offer proof includes i. A presentation or description of the evidence ii. A statement of the fact one wants to prove with the evidence b. Offers of proof are made outside the hearing the jury ii. 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. FRE 104. Judicial Determinacy/Preliminary Questions i. FRE 104 (a). Generally provides that the judge, not the jury, makes preliminary legal decisions about the admissibility of proposed evidence 1. Such as the qualifications of a witness to testify or the existence of a privilege not to testify. 2. This is typically done outside the presence of the jury.

The judge needs only to believe that it has been show that the government has proved the conditional fact by a preponderance of the evidence. ii. Huddleston v US ( argued that prosecution hasnt proven that the TVs were actually stolen) 1. The court will simply look at all the evidence in the case and decide whether the jury could reasonably find the conditional fact (in this case that the TVs were actually stolen) by a preponderance of the evidence e. FRE 105. Limited Admissibility i. Provides that evidence may be admissible for one purpose, but no another and requires the judge to direct the jury to only consider the specific evidence for a particular purpose and no other. ii. Key notes 1. Used for impeachment 2. Grounds for limiting instructions B. Types of Evidence a. Testimonial evidence - Testimony of live witnesses answering question under oath before the fact finder i. Witness testimony the fact finder must depend on the witness to find the truth ii. 4 Testimonial Capacities 1. Sensory Perception - how well could she see/hear/smell 2. Memory it usually takes a year or so before the case gets to trial 3. Communication - the logic and clarity of the witnesss story 4. Truthfulness do they have a reason to lie Role of the judge A. The judge controls the trial process by settling limitation on lawyers in order to achieve justice and efficiency. B. Process of Proof and the Structure of Trial a. Overview of rules that give judges the power to secure fairness i. FRE. 102 Gives judges the power to use FRE to secure fairness and eliminate undue expense and delay ii. FRE. 403 Recognizes the power and duty of judge to use their discretion to exclude relevant evidence that is otherwise admissible balance test iii. FRE. 611 commands the court to exercise reasonable control over mode and order of interrogating witnesses and presenting evidence iv. FRE. 614 Gives judges the right to call and question witnesses to clear up confusion and manage trials whenever necessary b. US v Reaves (1986-Atorney wants to present multiple tax returns) i. Rule: the court can halt the presentation of cumulative and time wasting evidence by placing time limits on various states of trial 1. FRE 403 and 611 gives them this authority c. Stone v Peacock (1992 order of witnesses) i. Rule: FRE 611 Allows the court to control the order and presentation of witnesses d. Comments on the Evidence i. Federal judges are allowed to comment on the evidence presented at trial 1. They typically do this during the reading of the jury instructions.

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They do this to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence 3. The judge is not allowed to add to or distort the evidence ii. United States v Yates (1977 Bank robbery appeal didnt know what he signed) 1. Trial judge's comment, during colloquy as to whether defendant's confession should be read to jury, that it was clear that defendant admitted his participation in the bank robbery exceeded the scope of proper judicial comment on the evidence and, as the comment went to the heart of the defense, reversal was required even though defense failed to object to the statement at the time or to request any curative instruction then or later 2. It was an improper comment upon the evidence Questioning Witnesses i. FRE-614 Expressly grants judges the right to call and question witnesses, even repeatedly and aggressively, to clear up confusion and manage trials whenever necessary 1. This authority is limited judges may not ask questions that signal their belief or disbelief of witnesses ii. Crandell v US (1983 Child with Spinal Meningitis Judge predetermined case) 1. A trial judge must not predetermine a case and any conduct before or during a trial which indicates this must be condoned The order of Proceeding i. Pretrial Conference ii. Pretrial Motions iii. Selection of the Jury Voir dire checking for jury bias iv. Opening Statements v. Presentation of the evidence (s/Prosecutions Case in Chief) 1. Direct examination The goal is to question the witness so as to elicit facts favorable to the party who has called the witness a. The questions are short, open ended and non leading 2. Cross examination 3. Redirect examination 4. Objections (FRE 103) 5. Offers of proof (FRE 103) vi. Motions for Judgment as a Matter of Law (by the ) vii. s Case in Chief viii. Rebuttal (by and ) ix. Closing argument x. Jury Instructions xi. Deliberations xii. Post trial

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Relevancy and Its Limits Article IV A. Relevance a. Relevance this is the threshold question of admissibility of all evidence i. There is an interplay of rules - 401 is very broad, 402 operational rule that gives effect to 401, and 403 limits the broadness of 401. 3

Primary Relevance Rules i. FRE 401 defines Relevant Evidence as evidence having any tendency to make any fact of consequence more or less probative (i.e., likely) than without the evidence. ii. FRE 402 Puts the definition to work, providing that all relevant evidence is presumptively admissible. iii. FRE 403 Provides a discretionary balancing test (i.e., limitation) that allows a judge to exclude even relevant evidence under certain circumstances that weigh against admissibility. (U C Me U Wave Creep) 1. Unfairly Prejudicial 2. Confusing the issue 3. Misleading the jury 4. Undue Delay 5. Waste of Time 6. Cumulative Evidence B. Primary Relevancy Rules a. FRE-401 Definition of Relevant i. Evidence that has any tendency to make more or less probable the existence of any fact of consequence b. Two Concepts of FRE-401 i. Fact that is of consequence 1. Whether a fact is of consequence turns on the requirements of the underlying substantive law a. Does this fact relate to an element of the case (substantive law) b. i.e., if it is a statutory rape case the consent of the underage victim is not relevant ii. Probative evidence (low standard) 1. The evidence has a tendency to make the existence of a fact more or less probable then it would be w/out the evidence (AKA logical relevance) c. People v Adamson (1947 Black guy with stockings in his draw) i. Rule: 401 says that demonstrative evidence, tending to prove material issue or clarify circumstances of crime charged, is admissible, despite its prejudicial tendency, except in rare cases of abuse. d. FRE 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible i. All relevant evidence is admissible, unless it violates some other law. Evidence which is not relevant is not admissible e. FRE 403. Exclusion of Relevant Evidence (this is a balancing test) This rule provides that relevant evidence may be excluded (at the judges discretion) if its probative value is substantially outweighed by: i. 6 counter weights (U C Me U Wave Creep) f. Carter v Hewitt (1980 Beating by guards or not with a letter) i. Letter is admitted as it is not unfairly prejudicial g. Old Chief (I will stipulate to the felony no need to name it) i. The court held that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction and it was an abuse of discretion to admit the record when and 105 limiting instructions was available h. Stipulation v limitations i. Stipulations 1. Lawyers often use offers to stipulate strategically. 4

b.

ii. Limiting Instructions (FRE 105) 1. FRE 105 provides that evidence may be admissible for one purpose, but no another and requires the judge to direct the jury to only consider the specific evidence for a particular purpose and no other. Relevancy Character Evidence A. GR: Character evidence is not admissible to prove conduct conformity on a particular occasion a. FRE 404. Character Evidence Not Admissible to Prove Conduct; Exception; Other Crimes i. NOTE: 404 Must be read with 405 b. FRE 405. Methods of Proving Character c. FRE 406. Habit Evidence d. 4 Questions to Ask i. Purpose (is it to show)? 1. Character offered to infer conduct in conformity (FRE 404(a))-GR not allowed 2. Character is directly at issue GR Allowed a. When a persons character is a material element in the case as either an element of the cause or action, crime, or a defense b. Defamation, fraud, perjury, negligent entrustment, custody 3. Impeachment (FRE 608 and 609(b)) GR not allowed ii. What Character Trait is at Issue? 1. It must be the specific pertinent character trait which is substantively at issue in the case. iii. Type of Case? 1. Criminal or Civil? (404 EXCEPTIONS apply only to criminal cases) iv. Method (Form FRE 405)? 1. Reputation 2. Opinion 3. Specific Acts of Conduct B. FRE 404(a)(1). Character evidence of a defendant (AKA Mercy Rule) a. GR: Character evidence is not admissible to prove conduct conformity b. Exception: The accused CAN offer evidence (via witness testimony) of his pertinent good character to prove conduct in conformity [purpose #1] but ONLY by the following methods: i. FRE 405(a)Methods: 1. Reputation and/or 2. Opinion 3. The witness can NOT testify to specific good acts c. The prosecution cannot offer bad character evidence in any of the 3 forms in his/her case in chief, IF the sole purpose is to show criminal disposition to infer guilt i. Unless the opens the door under FRE 404(a)(1) this is the mercy rule d. Prosecution options in response to Mercy Rule witnesses i. The prosecution has two options: 1. Specific Acts - They can cross examine the defense witness by asking whether he has heard about specific bad acts of the that rebut the positive character testimony on direct a. This is limited to i. Have you heard? or 5

ii. Did you know? b. The prosecution is stuck with the answer given 2. The prosecution can present its own witness to testify that the has a bad reputation for the character trait in question ii. The prosecution may only ask its question in good faith C. FRE 404(a)(2). Character evidence of an alleged Victim a. Typically involves victim character in Self Defense case and is offered by the accused () b. GR: Character evidence is not admissible to prove conduct conformity c. Basic Rule: (FRE 404(a)(2)): i. In a criminal case, where a claims self defense, evidence of a pertinent character trait of the victim is admissible only after; 1. The opens the door by taking the initiative to show the character of the victim as being violent as circumstantial evidence to infer that the alleged victim was actually the first aggressor in the situation. ii. Method of proof: (the same method for presenting opinion and reputation evidence as under the Mercy Rule) (read with FRE 405) 1. Defendant can ONLY show the victims violent character by a. Reputation b. Opinion c. NO specific acts of misconduct are allowed d. Prosecution options in response to character attack i. The prosecution can present its own witness to testify that the has a violent reputation ii. The prosecution can present its own witness to testify that the victim has a peaceful reputation iii. Limited to 1. Reputation 2. Opinion 3. NO specific acts of misconduct are allowed e. Special Rule that ONLY applies to HOMICIDE cases: (FRE 404(a)(2)): i. Specific Acts - On cross if the defense has introduced any kind of evidence showing the victim was the first aggressor (not limited to character evidence) the prosecutor can rebut with specific acts showing victims peaceful character. 1. This is limited to a. Have you heard? or b. Did you know? 2. The prosecution is stuck with the answer given ii. AND Prosecution can then rehabilitate the character of the victim for peacefulness when its been attacked, but only with: 1. Reputation 2. Opinion D. Rule 404b Character Evidence Not Admissible to Prove Conduct; exceptions; other Crimes a. FRE 404(b) sets forth situations where specific acts are admissible when being offered for some other non-character purpose other than to prove character in conformity, including: b. Mnemonic: MIAMI KOPP i. Motive ii. Intent iii. Absence of Mistake or accident 6

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iv. Identity v. Knowledge vi. Opportunity vii. Preparation viii. Plan Applies to BOTH civil and criminal trials i. BUT typically used in criminal trials b/c they deal with fact questions relating to intent, identity, opportunity, plan, motive, etc., more so than civil trials 1. Limited by 403 if it gets passed 403 then limiting instructions are given 2. Not limited to convictions a. It can be arrests, fights, or other prior acts of misconduct that are pertinent MIAMI KOPP evidence is admissible when; i. When the misconduct is relevant to prove a material fact, OTHER than criminal disposition (i.e., to prove some relevant issue separate and apart from bad character) 404(b) 3 Requirements i. In order for the evidence to be admissible under FRE 404(b), the party offering character evidence for a non-character purpose must satisfy 3 requirements: 1. Fact at issue - Identify a fact at issue to which the specific act is relevant 2. Pass FRE 403 - If the opponent objects under FRE 403, s/he must convince the court that the counterweights listed do not substantially outweigh the probative value of the evidence 3. Proof - Prove (by evidence) that the person whose specific act is in question did actually commit the act Factors judge considers in FRE 403 balancing test: i. Probative value (party wants it in): 1. Similarity to other act evidence 2. Reliability 3. Need for the Evidence (i.e., the extent to which the factual issue can be established by other evidence in the case) ii. Unfair Prejudice (Party wants it out): 1. Degree to which the evidence is of a shocking nature 2. Remoteness of the act 3. Strength of unfair prejudice (degree to which the evidence will be misused or misunderstood by the jury). Notice Requirement i. In a criminal case, 1. Upon request by the defense, the prosecution is required to give reasonable notice of its plan to offer any 404(b) evidence at trial. Intent i. Other act evidence that is relevant to show intent is typically certain repeated occurrences of specific unusual events make it unlikely that any of those prior acts happened by mistake or accident ii. Sometimes intent is referred to the persons state of mind which proves up the intent element Us v Hearst ()

j.

k.

i. Similarity of other crimes was not necessary under these circumstances b/c raised the duress defense and the other crimes, although different from bank robbery, showed that she did all of them with the same group of people and that showed her state of mind Plan or Identity i. Other act evidence that is relevant to show a same or similar common scheme as the crime charged. 1. 3 typical situations: a. Prior acts shows theres a broader plan or scheme to the charged offense, which are admissible under 404(b) if they survive the 403 balancing test i. Criminal steals a car to use in a robbery b. Prior acts are proof of the charged crime that includes a plan or scheme element i. If the prior act evidence is merely shows the full context of the crime, its called intrinsic evidence and not governed by 404(b) ii. If its offered as direct proof of a charged crime (i.e., conspiracy), 404(b) allows its admissibility to prove the plan or scheme element c. Sometimes this plan evidence can be used to also establish the identity of the defendant b/c the prior acts and the crime in question were committed by such unique and similar methods. i. Identity typically becomes at issue when the defendant claims, It wasnt me ii. If so, then anything connecting him to the crime that shows he did do it is admissible (subject to 403) Modus Opernadi: this is the name sometimes used to prove identity when the prior acts and the current charge crime were so unique (i.e., signature) it identifies the defendant i. Ex: prior 2 murders were committed by stabbing with a pitch fork through the stomach and the victims were laid out with their hands crossed over them. Same as current charge

Relevancy Limitations A. Relevancy Limitation Based on Policy a. The following rules are exclude relevant evidence for policy reasons, such as preventing unjust results or encouraging parties to settle disputes and remedy harmful or dangerous conditions i. FRE 407 - Subsequent Remedial Measures ii. FRE 408 - Compromise and Offers to Compromise iii. FRE 409 - Payment of Medical and Similar Expenses iv. FRE 410 - Inadmissibility of Pleas, Plea Discussions, and Related Statements v. FRE 411 - Liability Insurance vi. On the EXAM Mention 1. ALL of this policy based limitations to relevance are subject to FRE 403, giving the judge the discretion to exclude such evidence if s/he thinks it is too unfairly prejudicial or there is other evidence that may show it. 8

B. FRE 407 - Subsequent Remedial Measures a. GR: Subsequent remedial measures are NOT admissible b. When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: i. Negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. c. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose (these things must be in controversy or at issue) i. Such as proving ownership, control, or feasibility (capable of taking additional) of precautionary measures, if controverted, or impeachment. d. Key Notes: i. The underlying policy is that the admitting evidence of subsequent remedial measures would discourage potential defendants from taking precaution that are in the public interest ii. This rule only applies to parties 1. So if the measure is taken by a non-defendant, FRE doesnt apply and it may be admissible e. Anderson v Malloy (1983 Woman raped in hotel were additional safety measure were feasible) f. FRE 407 The impeachment exception i. Subsequent remedial measure are admissible to impeach a testifying witness 1. This is generally narrowly construed to prevent the exception from taking over the rule at judges discretion 2. A subsequent remedial measure is not admissible for impeachment if it is offered for simple contradiction of a defense witnesss testimony a. If the witness testifies that this is the safest product on the market, and then there is a subsequent change this will be seen as more than a simple contraction ii. Harrison v Sears (1992 that machine cut fingers off but it couldnt have happened the way he said. We changed the design just because) 1. Here the simple fact that the testified that the product was safe, the subsequent remedial measure does contradict the testimony, but not a lot as there could be other reasons for the change other than safety concerns C. FRE 408 Compromise and Offers to Compromise a. General Rule: Evidence of settlement negotiations in civil cases are NOT admissible to prove fault, liability, or amount of damage, or to impeach through prior inconsistent statements or contradictions, including: i. Settlement agreements, Settlement offers or counter-offers, or any statements or conduct made during the course of settlement negotiations b. Permitted uses - Exceptions (FRE 408(b)): Settlement talk may be admissible for any other purpose not prohibited by the rule i. Bias or prejudice ii. Negating a contention of undue delay iii. Proving an effort to obstruct a criminal investigation or prosecution. c. Key Notes: i. FRE 408 only applies if liability or amount of the claim is in disputed. 1. If there is no dispute, FRE 408 doesnt apply!

If a party admits that s/he is BOTH liable (i.e., at fault) AND doesnt dispute the amount, then it doesnt fall under FRE 408, and the statement may be admissible unless its excluded under a different rule. a. You need a Claim and a Claim in dispute 3. FRE 408 specifically excludes using prior inconsistent statements or conduct as another purpose a. This means that you cant use prior inconsistent statements to impeach, even though you can use bias. d. Pierce v FR Tripler (1992 age discrimination case where the lawyer called prior to filing the claim to see if a settlement could be had) i. Holding: Where counsel, threatens litigation and has initiated first administrative steps in litigation, any offer made between attorneys will be presumed to be offer within scope of FRE 408 e. There is no immunizing otherwise admissible evidence under 408 i. A party may not keep- otherwise admissible evidence from being admitted by talking about it in settlement negotiations ii. Only matters prepared solely for settlement purposes are excluded under FRE 408 f. John McShain inc v Cessna Aircraft (1977 The landing gear failed twice I am going to call the parts person as my expert witness) i. Rule: FRE 408 admits evidence of compromise offers, acceptances or negotiations to prove the witness bias or prejudice ii. Reasoning: the fact that the sister corporation of Harmons employer had been release form liability in exchange for Harmons testimony cast doubt upon Harmons impartiality D. FRE 409. Payment of Medical and Similar Expenses a. FRE 409. Payment of medical and Similar Expenses i. General Rule: Evidence of payments, offers to pay, or attempts to pay medical, hospital, or other similar expenses are NOT admissible to prove liability for an injury, even though is NOT really a settlement offer b. Exception: i. If an admission of fact (liability) accompanies an offer to pay hospital or medical expenses, the admission may be admissible. c. Key Notes: i. Under FRE 409 the claim does not have to precede the offer; Unlike FRE 408 1. Thus if two people are in an automobile accident and one immediately offers to pay the others medical bills, FRE 409 would keep this offer out of evidence where as 408 would not 2. There is no disputed claim ii. Generally statements or fault are admissible where as offers to pay medical expense are not, unless the admission cannot be disclose without also disclosing the offer 1. i.e., dont worry. Because the accident was my fault, Ill pay your medical bills. E. FRE 410. Plea Bargain Agreement in Criminal Cases a. FRE 410. Inadmissibility of Pleas, Plea Discussions and Related Statements i. FRE 410 excludes the following plea bargain agreements from being used against the in both civil and criminal proceedings: 1. Withdrawn pleas of guilty 2. Pleas of nolo contendere (a.k.a. no contest) 10

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Statements made by the defendant during plea negotiations in the course of discussions with the prosecutor or trial judge ii. Exceptions: 1. Perjury and false Statement prosecutions 2. introduce excluded 410 evidence a. If the introduces evidence of a statement excluded under 410 then his opponent can introduce evidence of any related statement made in the course of the same plea discussion b. Key Notes: i. FRE 410 apples only to negotiations in criminal cases ii. The s statement must be made to a prosecuting attorney to obtain the protection of rule 410 c. United States v Mezzanatto (1995 I didnt know it was meth lets make a deal) i. Holding: Absent some affirmative indication to that the agreement was entered into unknowingly or involuntarily, an express agreement to waive the exclusionary provision of the plea-statement rules is valid and enforceable F. FRE 411. Liability Insurance a. FRE 411. Liability Insurance - Elements 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; 1. Such as proof of agency, ownership, or control, or bias or prejudice of a witness. b. Charter v Chleborad (1977 Flag worker sustained leg injuries, the was his physician, complications occurred and leg had to be amputated) i. Rule: Evidence that a person was insured against liability is not excluded if such evidence is being offered to show proof of agency, ownership, or control, or bias or prejudice of a witness G. Relevancy Limitation Based on Policy Sexual Misconduct a. FRE 412. Victims Character in Sex Offense Cases b. FRE 413-415 - Defendants Character in Sexual Assault and Child Molestation Cases i. These rules allow admission of a s prior sexual acts to prove character in conformity (that he is the sort of person that due to his past, would engage in future sexual misconduct merely being accused is enough) c. Basic Rule: In civil or criminal cases, prior similar acts of s misconduct are admissible to show propensity in: i. Sexual Assault Cases 1. FRE 413 addresses use in criminal cases 2. FRE 415 addresses use in civil cases ii. Child Molestation Cases 1. FRE 414 addresses use criminal cases 2. FRE 415 addresses use in civil cases d. What about FRE 403? i. Most circuits require a 403 balancing test before sexual misconduct is admitted based on the notion that admitting any character evidence to show propensity is generally frowned upon b/c it almost certainly guarantees a conviction, which is unfairly prejudicial. e. FRE 413. Evidence of Similar Crimes in Sexual Assault Cases 11

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i. In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant. f. FRE 414. Evidence of Similar Crimes in Child Molestation Cases i. In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant. g. FRE 415. Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation i. In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's 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. H. FRE 412 Victims Character in Sex Offense Cases (Rap Shield Law) a. General Rule: (FRE 412(a)): i. Evidence of past sexual behavior and predisposition of a victim is NOT admissible in a criminal or civil proceeding involving sexual misconduct (an alleged sexual assault or child molestation) b. Exceptions: (FRE 412(b)) i. In Criminal Cases, it is allowed as follows: 1. Alternative source of Semen/injury - Specific Acts (but NOT reputation or opinion) of sexual behavior are allowed to prove that SOMEONE ELSE was the source of semen, injury, or other physical evidence 2. Consent - Specific Acts (but NOT reputation or opinion) of sexual behavior to prove consent b/n the defendant and alleged victim 3. Constitutional Rights - If the exclusion would violate the CONSTITUTIONAL RIGHTS of the accused (i.e., Confrontation Clause) a. Sometimes happens with Impeachment challenges where the credibility of the victim is at issue b. Defendant can argue admissibility of the victims past sexual conduct is required or his 6th Am right to confront his witness is violated. ii. US v Begay, (1991), held that the defendants Confrontation Clause rights were violated when the court refused to allow the defendant to cross-examine a child victim about a prior rape by another man in order to challenge the credibility of the Drs testimony, and to challenge the memory of the victim. c. In Civil Cases, alleging sexual misconduct, is allowed, ONLY if its probative value substantially outweighs the danger of harm to the victim AND unfair prejudice to any party. i. Note: This is really a specific extension of 403, but it only applies to civil cases. 1. Since the victim filed the lawsuit, the drafters didnt think it was necessary b/c the victim wouldnt be deterred from testifying as in a criminal case ii. The victims reputation is admissible in a sexual misconduct case 1. BUT only in CIVIL cases and ONLY if the alleged victim first opens the door by placing his/her reputation in controversy Witnesses Article VI 12

A. Qualification of the Fact Witness a. FRE 601. General Rule of Competency i. Every person is competent to be a witness except as otherwise provided in these rules. ii. 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 competency of a witness shall be determined in accordance with State law. b. FRE 602. Lack of Personal Knowledge i. 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. c. FRE 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. These rules work together as follows: i. Presumption of Competency (FRE 601) when a witness is: ii. Oath (FRE 603) Requires all witnesses to be under oath iii. Perception (FRE 602) - requires that the witness has personal knowledge and PERCEIVED something relevant 1. Competency (Memory ) witness can recollect/remember what was perceived 2. Capacity (Communication) witness is able to communicate what was perceived 3. Credibility (Veracity) witness can demonstrate his/her appreciation to understand the duty to tell the truth iv. FRE 601 Exceptions 1. FRE 605 - Presiding judges cannot testify in that trial 2. FRE 606(a) - Jurors cannot testify as a witness in a trial in which they are sitting on 3. FRE 606(b)- Jurors cannot testify as to any matter or statements made during jury deliberations- three exclusions: a. Extraneous prejudicial info was improperly brought to the jurys attention b. Clerical Mistakes - Whether there was a mistake in entering the verdict onto the verdict form. B. FRE 608(a). Bad Reputation or Opinion for Truth & Veracity a. Opinion and reputation character evidence can be used to attack or support a witnesss credibility b. 2 limitations i. Opinion/Reputation can only be about truthfulness or untruthfulness ii. Rehabilitation with truthfulness ONLY comes in AFTER the witnesss character has first been attacked! (otherwise it would be bolstering, which isnt allowed!) 1. rehabilitation is limited to opinion and reputation c. Foundation Requirement! FRE 608(a) requires that a foundation be laid in order to keep unreliable evidence from being heard by the jury. C. FRE 608(b). Specific Acts of Deceit or Lying (may be inquired into on Cross) a. Requirements: i. Specific Acts (instances) must be probative of truthfulness or untruthfulness ii. Can only be done on CROSS which must concern: 1. Witnesss character for truthfulness OR 13

The character for truthfulness of another witness as to whom the witness testified. 3. Extrinsic Evidence NOT allowed (stuck w/ answer) 4. Good Faith & reasonable basis for asking is required cant just make it up! D. FRE 609. Impeachment by evidence of Conviction of a Crime a. Any felony not involving dishonesty, subject to 403 b. Any felony or misdemeanor involving dishonesty or false statement (no discretion) c. Subject to 10 year limitation, subject to 403 E. FRE 609(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation a. If any of these occur, the evidence of the conviction is not admissible if it occurred based on a finding of innocence. b. If any of these occur, even if no finding of innocence, the conviction will still not be admissible, as long as there havent been any subsequent felonies. F. FRE 610. Religious Beliefs or Opinions a. 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. i. Exception: to show bias b. Firemens Fund Insurance v Thien (1995 Plane crashes and he brings in two witnesses that are members of Thien church) G. FRE 611. Mode and Order of Interrogation and Presentation a. (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. b. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. H. FRE 612. Writing to Refresh Memory a. GR: Witness usually cannot read testimony from previously prepared document as this is hearsay. i. There are two exceptions (FRE 612 AND FRE 803(5)) b. When a witnesss memory fails (either prior to testifying at trial or at trial) any writing can be used to jug the memory, but it is only shown to the witness; it is not submitted as substantive evidence. i. This writing does not have to be reliable as its only purpose is to refresh the memory ii. It is not be offered as truth of the matter c. Mandatory and Permissive Provision of FRE 612. i. If a writing is used to refresh prior to trial the opponent has an absolute right to have a copy of the writing, cross-examine the witness regarding it, and introduce portions of it into evidence for impeachment ii. If the witness uses the writing to refresh her memory during questioning at trial, disclosure is discretionary with the judge d. FRE 613. Impeaching Witness w/ Prior Inconsistent statements i. One of the most common ways to impeach the credibility of a witness is by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witnesss present in court testimony ii. Limitations: 14

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1.

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Generally admissible ONLY to impeach, not for its truth as substantive evidence b/c its hearsay, unless it falls into a hearsay exclusion or exception (i.e., typically as a prior inconsistent statement made under oath at a trial, hearing, or other proceeding, or party admission) Extrinsic Evidence is NOT allowed to prove the prior inconsistent statement, UNLESS a foundation has occurred.

State Dead Mans Statues

A. State Dead Mans Statutes (State Law Driven) a. These are state laws, that vary by state, prohibiting testimony from an interested witness in respect to conversations or transactions with the deceased b. When does this apply? i. In a diversity case in federal court with a state substantive issue (Diversity of Citizenship + $75,000+) c. 5 Elements of a Dead Mans Statute: (if all elements are met the testimony of the living person is excluded) i. Witness on stand must be an interested witness with a direct stake in outcome. ii. Interested witness must be testifying for their own interest. iii. Interested witness must be testifying against decedents interest. iv. Subject matter of testimony is important. (only as to transactions/communications w/ decedent.) v. ONLY applies to civil matters; never applies to criminal. e. EXCEPTION to statute is a Waiver Hearsay Article VIII A. Hearsay a. Statements that are made outside of a courtroom generally used to describe what one person hears another person say. i. Inherent in this doctrine is the possibility that what is ultimately testified to in a court of law may be untrustworthy ii. Areas of hearsay risk 1. Perception (or misperception) 2. Recollection (or faulty memory) 3. Narration (or ambiguity in the statements) 4. Sincerity (or insincerity on the part of the speaker) b. NOTE: to be admitted, evidence which is hearsay must meet an exception or exemption B. Utterances/Conduct that are Not Hearsay a. Effect on Listener i. What effect did the statement have on the listener, not whether the statements were true ii. A persons state of mind e.g., her knowledge, belief, good faith, and reasonableness are an important issue 1. To prove reasonableness or lack of reasonableness (manslaughter case) 2. To prove notice (tort) 3. To prove good or bad faith b. Verbal Acts

15

C.

i. Statements that itself shifts or creates a legal relationship or the fact that the words were spoken is at issue (not for their truth of assertion) 1. Words of a contract, slander, and threats a. In a contract the words I accept has legal value 2. Words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission, consent, etc. ii. Here the court is only interested in if the words were said and not if the words are true iii. The words satisfy the actI.e., I am going to kill you. The words are the act of a threat. The verbal act. c. Verbal Parts of Acts (subcategory concerning actual physical acts) i. Statements are offered in evidence to show only that the statements were made and to explain an otherwise ambiguous act 1. They explain an otherwise ambiguous actthe verbal expression explain the witnesss ambiguous acts 2. E.g., statements made in connection with handing over a bag of money as a bribe 3. Or words of donative intent accompanied by the transfer of diamonds d. Impeachment of a witness i. Prior inconsistent statement (do not need to made under oath) ii. the validity or truth of the statement is not at issued the fact that they were inconsistent is iii. A witness may be impeached though silence. 1. If witness remained silent under circumstances in which a reasonable person would likely respond e. Circumstantial evidence of a state of mind i. A person one day says, I really hate my husband he is so cruel later the husband contest the will as he is not in it. This statement can be use to circumstantially show the wifes state of mind in writing the will f. Circumstantial evidence of memory or belief g. McClure v State (1978 My wife was sleeping with 3 other men, I wasnt thinking straight) i. Rule: When an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, the utterance is admissible so far as the hearsay rule h. Hanson v Johnson(1924 conversion of corn Verbal Acts) i. Rule: testimony that tenant pointed to the crib and told plaintiff that corn therein was his share held not objectionable as hearsay, the language of the tenant being a verbal act. ii. Here just the fact that the words were spoken have independent significance whether or not the words constitute a contract will be evaluated later Hearsay Analysis under the rules a. Path of hearsay i. FRE 801 (a-c) Define hearsay ii. FRE 801(d) Exclusion (the hearsay rule is exclusionary) Hearsay will not be admitted into evidence iii. FRE 803 Exceptions availability of declarant not an issue iv. FRE 804 Exceptions Declarant must be unavailable 1. See if Crawford Applies 16

b.

c.

FRE 802. Hearsay rule (an exclusionary rule) i. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the supreme court pursuant to statutory authority or by act of congress Assertions i. Direct assertion the words used directly state the meaning that the speaker intended to convey ii. Hidden Assertions the literal word so not always express what the speaker intends to assert 1. i.e., the car is really hot (is she talking temp, stolen, or looks) iii. Hyperbolic assertions a statement that is expressed as a hyperbole (A figure of speech in which exaggeration is used for emphasis or effect,) 1. i.e., I am so hungry I can eat a horse iv. Assertions by conduct pick up the umbrella and go home= your umbrella v. Nonverbal conduct such as the act of pointing to identify a suspect in a line up vi. Indirect assertions an assertion that is intended with the words spoken but is not reflected in the words spoken 1. The bank was robbed at 6 pm. Hmm I saw X walking outside the bank at 6. vii. Linked assertions these require additional information to determine what is being asserted by the declarant 1. Yes means nothing without the question. He said yes. viii. Vicarious assertions is an assertion by a declarant treated as thought it had been made by another person 1. i.e., John saw the green car run the red light. The statement is attributed to John even though John didnt speak them ix. Implied an assertion which is not directly reflected in the words spoken

Hearsay Article VIII - Exclusions A. FRE 801. Hearsay Definition and Exclusions a. An out of court statement made by the declarant offered for the truth of the matter asserted b. Exclusions. A statement is not hearsay if-i. (1) Prior statement by witness - The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is 1. (A) Prior statement inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or 2. (B) Prior statement consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or 3. (C) Prior statement of identification of a person made after perceiving the person; or ii. (2) Admission by party-opponent - The statement is offered against a party and is 1. The party's own statement, in either an individual or a representative capacity or 2. A statement of which the party has manifested an adoption or belief in its truth, or

17

A statement by a person authorized by the party to make a statement concerning the subject, or 4. A statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or 5. A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. iii. Hearsay Exclusions Pneumonic: 1. CAPPP (CAP are tested the most heavily) a. Co-Conspirator Statements. b. Admission by a party opponent. c. Prior inconsistent statement UNDER OATH!!! d. Prior Consistent statement. e. Prior ID c. Interplay i. FRE 801 must be read with rule 401 and rule 403 as the statement may be unfairly prejudicial B. Hearsay 801(d) Statements which are not hearsay exclusions a. These are statements that do fall within the definition of hearsay and are being offered for their truth BUT the Federal Rules EXCLUDE them from the definition of hearsay due to their inherent reliability by nature. C. FRE 801 (d)(1)(A) Prior Inconsistent Statements a. Prior inconsistent statements by witness made under oath during the trial or deposition b. The prior in court statement must be inconsistent with the testimony given by the witness testifying in court c. Judge determines if inconsistency exists d. US v Barrett (1976 The 2 people at the dinner heard him say something different then his testimony) i. This was a statement of impeachment against the 1st witness and is hearsay. It can be admitted to impeach the witness it cannot be admitted to the truth of the matter D. FRE 801(d)(1)(B). Prior Consistent Statement to Rebut. a. Prior consistent statements offered to rebut a charge of fabrication. b. When a cross examiner directly or by implication charges that a witnesss testimony is a resent fabrication or the product of improper influence a prior consistent statement may rebut this charge i. These statements are admissible for both its truth and to prove a fact ii. This rule has a temporal requirement - the statement must predates the improper influence or motive to fabricate to be allowed in c. Tome v US (1995 Daughter want to live w/mom dad is charge with sex abuse ) i. the introduction of the consistent out of court statements to rebut a charge only when those statements were made before the charged recent fabrication or improper influence or motive 1. The statements must be pre-motive to lie. All of these statements came after the motive to lie was established E. FRE 801(d)(1)(C) Prior ID a. An out of court statement by witness of identification of a person made after perceiving the person is not hearsay

3.

18

Instead of the victim testifying to the lineup identification, can the cop who was present at the line up testify that the victim picked the defendant as the mugger? i. YES! Anyone who was there could testify to the victims prior statement of identification under the FRE. c. US v Lewis (1977 Photo identification v in court identification witness didnt remember what he looked like on the stand but did recall by looking at pics and picking him out) i. Prior out of court statements by witness of identification of a person made after perceiving the person is not hearsay F. FRE 801(d)(2) deals with admissions by a party-opponent a. This section excludes admissions of a party opponent from the hearsay rule by defining them as not hearsay and they are offered against a party to the suit b. These rules are not treated as hearsay for two reasons i. The main object to hearsay is that the party against whom the statement is offered is denied the opportunity to cross the speaker dont need to cross ones self ii. Trustworthiness is assumed as on would not make statement contrary to interest c. Firsthand knowledge and Opinion Rules i. The firsthand knowledge and Opinion rules do not apply to admissions of a party opponent G. FRE 801(d)(2)(A) Partys Own Statement of Admission a. The individual own admissions are offered by the partys opponent is not hearsay b. This is a statement made that amounts to a prior acknowledgment by one of the parties to the action of one of the relevant facts. c. The statement need not be against the partys interest at the time it was made d. Elements i. Out of court admission ii. Made by one of the parties to the case iii. The admission can only be offered by that partys opponent (can only be use against the opposing party) e. Jewel v CSX (1998 6yr old with brain injury said trains coming or did she) i. Rule: FRE 801(d)(2)(A) provides that a statement is not hearsay if the statement is offered against a party and is the party's own statement in either an individual or representative capacity. H. FRE 801(d)(2)(B) Adoptive Admission a. A statement of which the party has manifested an adoption or belief in its truth. b. The evidence should be considered when it is clear that the party adopting the statement has made up his mind about the statements truth. c. Adoptive Admission - the speakers statement becomes that of the declarant i. By Use 1. Use of a document made by a third party may amount to an approval that its statements are correct ii. Express 1. The party orally express her agreement with the statement, repeats the statement or reads and signs a statement prepared by a third party iii. Silence if a party (1) hears the statement, (2) understands the statement (3) has knowledge of the matter stated; and (4) the circumstances were such that she would have likely replied had she disagreed with it. d. US v Morgan (1978 Gov informant said x, based on this a warrant was given)

b.

19

i. Rule: FRE 801(d)(2)(B) provides that statements made by an agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship shall be treated as admissions by his principal. ii. Where a government has indicated in a sworn affidavit to a judicial officer that it believes particular statements are trustworthy, it may not sustain an objection to the subsequent introduction of those statements on the grounds that they are hearsay. I. FRE 801(d)(2)(C) Authorized Admissions a. Statements made by a person who is authorized by a party to make those statements are admission and not exempt from hearsay i. The authority of the person to make the statement is established at trial b. Kirk v Raymark (1995 He was authorized then but not now) i. Testimony of an expert employed by a party in a previous trial cannot be used in future litigation against that party as an authorized admission. 1. As they were only authorized to speak for them at that time ii. Experts that are hired to investigate an issue are agents iii. Experts that are hired to give their opinion are not agents J. FRE 801(d)(2)(D)- Partys Agent Admission a. A statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship b. Mahlandt v Wild Research Center (1978 Wolf bit the boy and the employee left a note) i. Rule: A statement made by ones agent concerning a mater within the scope of his employment during the time of employment is admissible and not hearsay K. Distinction between FRE 801(d)(2)(C) and FRE 801(d)(2)(D) a. Authority The authority was given to this person to speak for that other person b. Agent They actually works for you at the time of the statement and the statements are within the scope of the employment L. FRE 801(d)(2)(E)- Statements by a Coconspirator a. A statement made by a coconspirator during the course of and in furtherance of the conspiracy is admissible against other co-conspirators b. Three conditions i. There must have been a conspiracy in which the and declarant participated ii. The statement must have been made during the course of or in furtherance of the conspiracy; and 1. Note once the crime has been committed the acts are complete. Statements made after are not admissible iii. The statement was part of the initial agreement c. This rule only applies if the offering party establishes the existence of a conspiracy

Hearsay Article VIII Exceptions A. FRE 803. Hearsay Exceptions a. FRE 803. Hearsay Exceptions; the availability of the declarant is immaterial i. Spontaneous Statements FRE 803(1-4) (PETS) 1. (1) Present sense impression. 2. (2) Excited utterance. 3. (3) Then existing mental, emotional, or physical condition. 4. (4) Statements for purposes of medical diagnosis or treatment. 20

ii. Records FRE 803(5-8) (RRAP) 1. (5) Recorded recollection. 2. (6) Records of Regularly Conducted Activity. 3. (7) Absence of entry in records kept in accordance with the provisions of number 6 4. (8) Public records and reports B. FRE 803. (1) Present Sense impression. a. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. b. Elements i. A statement ii. Describing an event or condition made iii. Made while the declarant was perceiving the event or condition or immediately there after c. Note: i. Timeliness is a critical element for this rule no more than a slight lapse of time based on the circumstances ii. These statements are admissible because they are made spontaneously and are free from memory defects - They lack calculated narration iii. Speaker must have perceived the event d. Schindler v Seiler (2007 You said I was a bad doctor X told me so and that is defamation ) i. FRE 803(1) does not apply as the speaker did not make the statement while perceiving the event or immediately there after ii. Defamation Verbal acts proof that the words were spoken C. FRE 803. (2) Excited Utterance. a. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. b. Note: i. Excited utterance has a lesser time limit you just need to not have a cooling off period and time to think 1. A few mins later good 2. A couple of hours latter maybe not so much (argue this) ii. It must be made while the declarant was under the stress of excitement caused by the event or condition 1. Look for the exclamation point 2. Words like the person shouted, exclaimed or yelled c. City of Dallas v Donovan (I heard an old woman excitedly say that the city had notice) i. Unlike present sense impression, here, the statement only needs to relate to the startling event or condition, which grants a broader scope of subject matter coverage D. Difference between Present Sense Impression (1) and Excited Utterance (2) a. Nature of the Event or Condition: An excited utterance requires a startling event or some kind of excitement. i. But a present sense impression does not. Virtually any event or condition may suffice. b. Time Lapse: The event for an excited utterance does not have a time limit. i. There is an immediacy requirement for present sense impression (there cant be any appreciable time lapse here) c. Scope of Subject Matter of Statement: An excited utterance has a broader scope of subject matter coverage than a present sense impression b/c the statement only needs to relate to the startling event or condition. i. Under present sense impression, the scope is limited to a description or explanation of the actual event or condition E. FRE 803. (3) Then Existing State of Mental, Emotional, or Physical condition.

21

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. (SEPS) i. State of Mind ii. Emotion iii. Physical Condition iv. Sensation b. These are hearsay statements of the declarants own then existing (at the time the statement was made) thoughts of physical condition: i. These are statements similar to present sense impressions, but instead of describing external situations as they happen, they describe internal situations the declarant is actually thinking or feeling. ii. Anyone who heard it can testify to it. iii. It does NOT include statements which refer to past matters of memory (to prove the fact remembered) or belief (to prove the fact believed) iv. EXCEPTION: Statements which refer to past matters ARE admissible if they relate to statements about the declarants will (relating to the execution, revocation, identification, or terms of the declarants will) v. This exception does not need to be made to a medical professional c. Hillman Doctrine i. Can be use to prove future conduct 1. the statement of present state of mind are admissible o prove that the declarant subsequently acted in accordance with that state of mind ii. Mutual Life v Hillmon (1892 my husband said in a letter he was going fishing over where the body was found) d. Casualty Insurance v Salinas (1960 A bolt fell on my shoulder and I have complained about the pain) i. Holding: A verbal and articulate statement of complaint comes within the exception to the hearsay rule F. FRE 803. (4) Statements for purposes of medical diagnosis or treatment. a. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. i. Elements 1. Purpose is medical diagnosis - Statements were made for the purpose of medical diagnosis or treatment and 2. Describes Medical history - It describes any of the following: a. Medical history or b. Past or present symptoms, pain or sensations or c. The general character of the cause or external source of the symptoms 3. Pertinent to Diagnosis this is a limitation as the statements must be reasonably pertinent to the diagnosis or treatment (two part test) a. Motive of the speaker b. Contents of the statement b. State v Moen (1990 I diagnosed my patient with depression based on her comments about her son-in-law; which later murdered her) G. FRE 803. (5) Recorded Recollection. a. A Rule: If a witness is unable to remember all or part of the details of a transaction about which s/he once had personal knowledge of, his/her own writing that is shown to be reliable may be admitted in place of her testimony

a.

22

Witness must take the stand to testify to lack of present memory for this exception to be available c. Elements i. Personal Knowledge - The witness once had personal knowledge of the matter ii. Refreshing doesnt help - The witness now has insufficient recollection to enable the witness to testify fully and accurately iii. Adopted by Witness - The memo/record is shown to have been made or adopted by the witness when the matter was fresh in her memory iv. The memo/record is shown to reflect that knowledge correctly d. Fundamental difference b/t refreshing (FRE612) and recorded is, the writing substitutes for the witness testimony, while with refreshing recollection, it simply jogs the witnesss memory who then testifies to what he remembered. i. Limitation: Whole writing is READ into evidence. 1. It is not submitted to the jury 2. Unless adverse party offers it e. State v Moen i. Holding: witness's prior statement recorded before purported memory loss was not admissible as recorded recollection as she never adopted the statement as her own H. FRE 803 (6) Records of Regularly Conducted Activity a. Elements i. Evidence may be a memo, report, record, or data compilation in any form ii. Evidence must be offered by a witness who is the custodian or other qualified witness iii. The record must have been made by a person with knowledge of the facts or was made from info transmitted by a person with knowledge of the facts; iv. The record must have been made at or near the time of the acts, events, conditions, opinions, or diagnoses appearing on it. v. The record must have been made as part of the regular practice of that business activity, AND 1. This means the record must be one that is kept as a regular practice of that particular business 2. Ex: Medical Records are regularly kept in the business of a hospital or Dr.s office. b. Keogh v Commissioner of Internal Rev i. Holding: the diary was a record kept in the course of the dealer's own business and occupation. I. FRE 803(8). Public Records a. Public records refers to governmental records or official records b. Requirements: i. Public official who is under an official duty to furnish and record information re: ii. The activities of the office or agency OR iii. Matters observed pursuant to the duty, OR c. Exception: In criminal cases, matters observed by cops and other law enforcement personnel are excluded i. E.g., Adversarial police reports regarding what the cop saw at the scene of the crime or made during apprehension d. In civil cases AND in criminal cases against the Government, factual findings resulting from an investigation made pursuant to authority granted by the law i. In civil cases, this allows public officials charged with making findings of fact to include their conclusions in the report. e. Trustworthiness Limitation: The Record is admissible UNLESS the sources of information or other circumstance indicate lack of trustworthiness. J. FRE 803 (10) Ancient Documents

b.

23

Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established. i. This exception presumes reliability of a document that is: 1. At least 20 years old 2. Regular on its face 3. Is found in a place of natural custody. ii. If these requirements are met, it is not only admissible for its truth, but it is also presumed to be authentic without any foundation b. Rationale: i. Statements were likely made prior to the controversy in question, so they are presumed to be reliable. ii. Unlikely there is a witness who is available with first-hand knowledge of the contents within the ancient document who can testify live today. K. FRE 803 (18) Learned Treatises a. This allows the contents of a learned text, treatise, or article concerning a relevant discipline to be admissible for its truth as an exception to hearsay IF it is established to be a reliable authority by: i. Relying on an expert testimony on direct, OR ii. An admission on cross by an opposing expert, OR iii. Testimony of any other expert in that field, OR iv. Judicial Notice b. LIMITATION: The relevant part is ONLY READ to the jury. The text itself is not received into evidence. c. Statements are only READ to the jury by the expert witness d. Impeachments i. The text may be used to impeach any contrary opinion by a defense expert ii. A learned treatise can always be used to contradict what your opponents expert is testifying to. e. Note: i. You can use a learned treatise to support your own experts opinion 1. Although typically, you are not allowed to bolster your own witness under the FRE, you can do so under this particular exception without first waiting for your opponent to attack. ii. It is an exception to hearsay, so it can be used for its truth and to impeach! L. FRE. 805 Hearsay Within Hearsay a. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. b. Hearsay within Hearsay i. Statements that contain more than one hearsay statement (i.e., there is more than one layer or level of hearsay) ii. Such statements MAY still be admissible, but only if each hearsay statement independently meets an exception of exclusion to the hearsay rule. c. Example: A cops note book inside he wrote down a witnesses statement i. Both the book and the statement must meet an exception d. FRE 803(22) Prior Convictions i. Just know that this is DIFFERENT than using prior convictions to impeach. ii. This rule allows for the admissibility of previous felony convictions (crimes punishable by death or imprisonment exceeding one year), after a final judgment 24

a.

entered after a trial, OR upon a plea of guilty, but does NOT include a plea of nolo contendere, to be used to prove a fact essential to sustain the judgment. 1. Civil Cases: can be used to prove an essential fact in present case, regardless of who was convicted (one of the parties, a witness, or anyone else) 2. Criminal Case: a. By Defense: to prove an essential fact, regardless of who was convicted b. By Prosecution: to prove an essential fact ONLY if the person convicted is also a defendant in the current case. iii. Pendency of Appeal: Its still allowed, but the party adversely affected by the evidence may inform the jury of the pendency of appeal. A. Hearsay Residual Exception a. FRE 807 Residual Exception i. 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: 1. (A) The statement is offered as evidence of a material fact; and 2. (B) The statement is more probative on the point for which it is offered than any other evidence (best evidence) which the proponent can procure through reasonable efforts; and 3. (C) The general purposes of these rules (FRE) and the interests of justice will best be served by admission of the statement into evidence. 4. 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 proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant. ii. Note: 1. The criteria here is that the evidence must be reliable, material, probative and serve the interest of justice 2. The evidence has an equivalent guarantee of trustworthiness as the other exceptions in 803 and 804 3. This is a way for inadmissible evidence to be admitted without meeting a specific hearsay rule 4. This rule is useful when the dangers inherent in hearsay evidence, such as lack of memory, faulty narration, intent to influence the court proceeding, and plain lack of truthfulness are not present b. Dallas County v Commercial Union (1961 there was a fire way back in 1901 the newspaper says so) i. Holding: The newspaper article is admissible because it is necessary and trustworthy, relevant and material, and its admissions is within the trial judges discretion in holding the hearing within reasonable bounds

Hearsay Article VIII Exceptions Witness Unavailable

25

B. Hearsay Exceptions: Declarant Unavailable a. 804(a) Definition of hearsay. Unavailable as a witness includes situations in which the declarant (PRISM) i. Privilege ii. Refusal to testify iii. Incapacity iv. Service of process (upon reasonable effort they could not be served) v. Memory (lacks memory) b. 804(b) the following statements by the unavailable declarant are allowed in SFFPD i. Statement Against Interest ii. Former Testimony iii. Pedigree iv. Dying Declaration v. Forfeiture by wrong doing D. 804(b)(1) Former Testimony a. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. i. Note: the whole thing comes in not just a piece of it c. Elements: i. The declarant must have been a witness at another trial, hearing or deposition. 1. The testimony in the prior proceeding or deposition is the same as the present testimony ii. If the party against whom the testimony is now offered had a meaningful opportunity and similar motive to develop the testimony d. Opportunity and Motive Test Did the party against whom the former testimony is being offered against have a meaningful chance to challenge its truthfulness at the first proceeding e. Key Point i. Most courts admit testimony taken during a preliminary hearing when offered by the government even thought the defense attorney ask few questions of the government witness at the preliminary hearing ii. Predecessor in Interest In a civil case - someone with a similar motive and opportunity to question the witness in the prior proceeding f. US v DiNapoli (1993 Two Grand Jury Witness were questioned by the prosecutor, the defense wants to use that testimony during the trial) i. FRE 804(b)(1) Testimony given by currently unavailable witness at a prior hearing is not excluded by the hearsay rule if the party against whom the testimony is now offeredhad an opportunity and similar motive to develop the testimony ii. The prosecutor (US) is the party against whom the testimony is now offered 1. His motives in the investigatory states of the case are different from the motive of a prosecutor conducting a trial so the similar motive requirement is not satisfied iii. Court reasoned that the test must not turn on whether the questioner is on the same side of the same issue at both proceedings but also if the questioner had substantially similar interest in asserting that side of the issue (similar degree of interest in prevailing on that issue) C. FRE 804(b)(2) Statement under belief of Impending death (dying declaration) 26

In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. b. Notes i. The rationale is that one is unlikely to lie as they are dying c. Subject this to CUBA i. Cause of Death ii. Unavailable iii. Belief of Impending death iv. Admissible - Only in murder cases and all Civil cases D. FRE 804(b)(3) Statement Against Interest a. Elements i. Declarant is unavailable; and ii. At the time the statement was made it was so contrary to the declarants pecuniary, penal, or proprietary interest that it would subject them to civil/criminal liability; or iii. The statement would have rendered a claim by the declarant invalid against another; and iv. A person in the declarant position would not have said it if they didnt think it were true b. Criminal Cases - If the statement arises in a criminal prosecution and is being used by the defense there are these additional requirements i. A statement tending to expose the declarant to criminal liability; and ii. The statement is offered to exculpate (free) the accused then iii. The statement must be corroborated (by other evidence) 1. Note: this is to show that the declarant is not trying to take the fall for someone else 2. Some evidence besides a 3rd party confession buttresses the trustworthiness of the statement c. Note: these statements require personal knowlege E. Statement Against interest v Admission of Party-Opponent a. They ARE similar, and sometimes may overlap, BUT here are the differences: i. Statement Against Interest must be against the interest at the time it was made 1. A party admission does not ii. Statement Against Interest may be made by ANY person, not necessarily the party. 1. A party admission can only be made by a party to the case iii. Statement Against Interest requires personal knowledge 1. A party admission does not 2. Ex: I hear my neighbor was bitten by a dog, and I say, It must be my dog that bit her, Im sorry! a. Ok for party admission, but not Statement Against Interest iv. Statement Against Interest requires UNAVAILABILITY of the witness 1. Obviously, this is a BIG difference, as with a party admission, the party is in court! v. Is it accurate to say that a party admission always qualifies as a statement against interest? 1. No! 2. You can have a any person make a statement against interest, but with a party admission, only the party can make it 27

a.

F.

FRE 804(b)(4) Pedigree a. A statement regarding the declarant own heritage b. A statement concerning the heritage of another c. If the declarant is related by marriage or blood or intimately associated with the other family G. FRE 804(b)(5) FORFEITURE by Wrong Doing a. The witness is unavailable and you made it happen or acquiesced in the wrong so you have no standing to complain if the statement comes in b. Elements i. The party engaged in some wrong doing ii. That was intended to prevent someone from being a witness iii. And that these wrong doings did prevent the witness from testifying c. US v Gray (2005 Shhh dont tell but I killed my two husbands and my co-conspirator ) i. is saying that 804(b)(6) should not apply as she did not to prevent her late husband from being an unavailable witness at the current trial 1. Court said that the rule requires only that the intend that the declarant be unavailable as a witness prevents the witness from being a witness against in any proceeding forfeits their right to exclude the testimony on hearsay grounds H. Hearsay and Constitutional Issues a. Both Constitutional and FRE requirements must be met in criminal cases i. 6A In all criminal prosecutions accused has a right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him b. Out-of-court statements that qualify as testimonial, are not admissible, under the Confrontation Clause, unless witness is unavailable and defendant had prior opportunity to cross examine witness, include at a minimum: i. Prior testimony at preliminary hearing, before a grand jury, or at a former trial, and ii. Statements elicited during police interrogation c. Crawford v Washington (2004 My wife said he raped her and I thought I saw a knife, it was self defense) i. Rule: The Confrontation Clause, providing that accused has right to confront and cross-examine witnesses against him, applies not only to in-court testimony, but also to out-of-court statements introduced at trial, regardless of admissibility of statements under law of evidence. ii. New Test 1. The Crawford test to determine reliability focuses on a. Cross examination (does the accuse have an opportunity to cross the declarant) b. Whether the statement was testimonial or not d. Davis v Washington/Hammond v Indiana (2006- Domestic abuse cases) i. Rule: Statements taken by police officers in the course of an interrogation are nontestimonial, and not subject to the Confrontation Clause, when they are made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. e. Primary Purpose of Testimonial i. Non-testimonial when made in the course of police interrogation objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency 1. If so, they are admissible b/c they dont violate the 6th Am 28

ii. Testimonial when circumstances objectively indicate there is no such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events that are potentially relevant to a later criminal prosecution. 1. If so, they are NOT admissible b/c they do violate the 6th Am 2. A hearsay statement is testimonial if the declarant makes the statement that s/he anticipates will be used in the prosecution or investigation of the crime. 3. This includes: a. Witness statements made to the police or other law enforcement in response to police questioning b. Any testimony given at a formal proceeding (preliminary hearing, grand jury, motion to suppress, etc.) c. Guilty plea allocutions of co-conspirators to prove that a conspiracy existed d. Forensic lab reports revealing drugs, fingerprints, firearm evidence, blood, DNA f. On the Exam look at: i. Likely motivation and intent of the declarant making the statement (to get help or provide evidence?) ii. Likely motivation of the interrogator (to safeguard a victim or secure a scene or to get evidence?) iii. Type of event (ongoing emergency or description of past events?) iv. Identity of person eliciting the statement (cops vs. acquaintance/relative of the declarant?) v. Degree, amount, circumstances, and location of the interrogation (preliminary onscene questions, or structured questioning?)

Article IX - Authentication
A. Authentication a. FRE 901 Requirements of Authentication or Identification i. 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. 1. Sufficient to support a finding of authentication low threshold (by the judge- per 104b) 2. Weight of the evidence goes to the jury ii. 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 (10 examples provided) b. Key Notes i. 901(a) deals with non testimonial evidence 1. Documents letters, contracts, photos, receipts, memos, emails, ect 2. Exhibits the murder weapon, keys, clothing, ect ii. Non testimonial or Physical evidence must be shown to be authentic by the offering party because one cannot cross an exhibit. Two Types 1. Real Evidence a. Real evidence goes back into the jury room 2. Illustrative Evidence iii. 901 three basic requirements 29

c.

Authentication is a condition precedent to admissibility The condition is satisfied by evidence which supports the finding and The finding must be that the matter in question is what the proponent claims it to be (this piece of evidence is what we say it is) iv. How the item is to be used in occur determines the foundation that must be laid US v Collado (1992 fleeing suspect drops bag it went into chain of custody) ii. (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be and (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. i. The trial court must be able to determine that it is reasonably probable that there was no material alteration of the evidence after it came into the custody of the proponent. ii. Presumption of Official Regularity a court is entitled to rely on a presumption of official regularity where prosecution established chain of custody of heroin either by official records or by testimony concerning normal police procedure

1. 2. 3.

and where appellant offered no evidence that the drugs had been altered d. Lockhart v McCotter (Armed robbery wallet stolen - bad chain of custody with the wallet attorney did not object to wallet as evidence authentication) i. Rule: Tangible objects involved in a crime are admissible in evidence only when identified and shown to be materially the same condition as the time of the crime ii. Failure to establish proper chain of custody will go only to the weight of the evidence rather than its admissibility iii. When the object is expressly identified at trial as the object involved in the crime, establishing chain of custody is not necessary for the object to be admissible e. US v Bagaric (That letter has not been authenticated) i. Rule: The requirement of authentication is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims, 1. This finding may be based entirely on circumstantial evidence, including appearance, contents, substance ... and other distinctive characteristics of the writing f. US v Espinoza (Transportation of child porn authentication of telephone conversation) i. Rule: Although witness has never met defendant and cannot identify him as person from whom he conspired, his testimony concerning telephone conversations with defendant was admissible where there was compelling circumstantial evidence tending to identify defendant as person with whom witness spoke in telephone conversations g. US v Hyles (You have a conspiracy to commit murder and a picture of a car the conspirators and some writing on the bake of it) i. Holding: evidence sufficient to support a finding that the matter in question is what its proponent claims. Under this standard, the party need only demonstrate a rational basis for its claim that the evidence is what the proponent asserts it to be h. US v Soto Beniquez () B. FRE 902 - Self Authentication a. Extrinsic Evidence of authentication as a condition precedent to admissibly is not required with respect to the following i. Domestic public documents under seal ii. Domestic public documents not under seal iii. Foreign public documents iv. Certified copies of public records v. Official publications vi. Newspapers and periodicals vii. Trade inscriptions and the like 30

viii. Acknowledged documents ix. Commercial paper related documents x. Presumption under acts of Congress xi. Certified domestic records of Regularly conducted activity xii. Certified Foreign Records of Regularly conductive activities b. These are self authenticating because there is such a low probability of forgery existing in these instances i. So the foundation already exist within the document itself C. Judicial Notice means that they speak for themselves - six things were we can self authenticate (CONTAC) a. Certified copies of public records b. Official publications c. Newspapers and periodicals d. Trade inscriptions Greys anatomy e. Acknowledged document f. Commercial Paper D. Subscribing to Witness Testimony a. FRE 903 Subscribing Witness Testimony Unnecessary i. The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose law govern the validity of the writing b. SUBSCRIBING WITNESS. One who subscribes (signs) his name to writing in order to be able at a future time to prove its due execution; an attesting witness.

Article X Best Evidence Rules

A. Best Evidence Rule (FRE 1001 1008) a. Rules i. FRE 1001 Definition and Basic Rule ii. FRE 1002 Requirement of Original iii. FRE 1003 Admissibility of Duplicates 1. Duplicates are allowed unless a. A genuine question about the authenticity of the original is raised b. Fairness requires production of the original iv. FRE 1004 Admissibility of other Evidence Contents (I.e., Secondary Evidence) 1. Provided 4 exceptions to the rule a. Original lost or destroyed b. Original not obtainable c. Original in opponents possession d. Collateral Matters v. FRE 1006 Summaries 1. Instead of entering volumes of writing this rule permits the use of summaries in the form of charts, summary or calculations 2. Note if the original are in question the summaries of the original are not allowed b. Key Notes i. FRE 1002 - To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in 1. The best evidence rule requires that the original be introduced in evidence when trying to prove its contents unless an exception applies ii. Exceptions 1. FRE 1003 Duplicate 2. FRE 1004 (secondary evidence) a. Original lost or destroyed has a good faith element b. Original not obtainable 31

c.

d.

Original in opponents possession opponent does not provide requested info d. Collateral Matters matters which are not closely related to a controlling issue 3. FRE 1005 Public Records 4. FRE 1006 Summaries 5. Opponent Admissions iii. Judge and Jury function 1. Judge - In most circumstance the per 104 the judge decides whether a writing is an original or duplicate and whether a party attempting to prove the contents of a writing or recording 2. Jury plays an extended role in 3 circumstances a. Where there is a questions as to whether a writing ever existed b. When another writing is claimed to be the original and c. When the issue is whether other evidence correctly reflects the contents of the original iv. To guard against incomplete or fraudulent proof v. Only Drive It Monday Tuesday or Wednesday 1. OD - Original Document 2. M Material to the case (critical to the case) 3. T Terms are the writing are being proven 4. W Witness is relying on those terms Proving Contents i. These rules only apply to writing, recordings and photographs only when a party is trying to prove the contents of said writing, recording, or photograph 1. The event to be proved is a written transaction 2. A party chooses a written method of proof 3. Witness knowledge is derived solely from having read the document ii. Written Events; Independent Events 1. Written events such as wills, deeds, contracts, and judgment are written transactions and the original are required when offered to prove their contents 2. Independent Events Rule 1002 does not apply when the event sought to be proved existed independently of a writing, even is that event has been recorded a. E.g., if the prosecution is trying to prove that an oral confession did happen and not the confession itself b. Or Proof of the existence of a marriage, payment of a debt or purchase iii. Knowledge derived solely from the Writing 1. If the witnesses knowledge is gained solely from reading a document or viewing something (like a GPS device) the original must be submitted into evidence 2. It would apply to a witness who had read the confession and testifies to the contents of the written confession Originals, Duplicates, and Secondary Evidence i. Originals (FRE 1002) the document whose content is at issue. 1. May be more than one original, e.g., contracts. 2. Typically does not apply to chattel ii. Duplicates (FRE 1003) an exact reproduction of the original. 1. Treated as original unless genuine issue raised as to authenticity of original or it would be unfair to admit the duplicate rather than the original. iii. Secondary Evidence (FRE 1004) any evidence other than original or duplicate offered to establish the contents of a writing, recording, or photograph. 1. No levels of secondary evidence 32

c.

e.

Seiler v Lucasfilm (1986 - had a copyright in 1981 but the film was released in 1980) i. Holding: plaintiff's drawings constituted writings for purposes of best evidence rule. 1. The best evidence rule applied in plaintiff's copyright infringement case, so that plaintiff had to establish that originals were lost or destroyed through no fault of his own

Article VII Lay and Expert Testimony

A. Opinion testimony Lay and Expert a. General Information i. FRE 602. Says that a witness must have personal knowledge about something relevant in the case in order to testify about it 1. Firsthand knowledge includes all the senses 2. Knowledge is determined at the time of the trial not at the time of the incident 3. An witness expression of uncertainty affects the weight of the evidence, not the admissibility b. FRE 104 Prelimianry 1. Firsthand knowledge on the judges part is based on a prima facie standard a. There just me be sufficient evidence to support firsthand knowledge c. Rules i. FRE 701. Opinion Testimony by Lay Witnesses ii. FRE 702. Testimony by Experts iii. FRE 703. Bases of Opinion Testimony by Experts iv. FRE 704. Opinion on Ultimate Issue d. Lay Opinions i. FRE 701 Opinion Testimony by Lay Witnesses 1. Three Opinion elements under 701 a. Rationally based on perception of witness (firsthand knowledge) b. Helpful to understanding testimony or determining fact in issue i. Helpful to the jury c. Not based on specialized knowledge ii. Scope of a lay opinion these are just well founded guesses of the witness: 1. Speed and other measurements the car had to be going 90 mph 2. Physical states such as intoxication or injury looked drunk to me 3. Personal emotions of others the was mad and he went crazy 4. Sensory descriptions It was so hot I was sweating, it had to be at least 100 degrees 5. Sanity of the testator he was nuts, he wasnt all there iii. US v Yazzie (I thought she was at least 16 before I slept with her) 1. The issue was whether the held an opinion and if so was it reasonable 2. FRE 701 permits a lay witness to give opinion testimony as long as the opinion is rationally based on the perception of the witness and helpful to a clear understanding of the witness testimony or the determination of a fact in issue iv. Gorby v Schneider Tank (semi truck hit a witnesses opinion on actions of the truck driver held inadmissible) 1. Rule: A lay witness opinion are only admissible if they are based on firsthand knowledge or actual observation of the opponents actions v. Kostelecky v NL Acme Tool (injured hand while drilling oil) 1. Opinion testimony is not inadmissible solely because it embraces an ultimate issue to be decided by the trier of fact; however if the evidence 33

2.

simply tells the jury what result to reach is not sufficiently helpful to the trier of facts to be admissible In this case the opinion, particularly as to causation, simply told the jury what conclusion to reach.

B. Expert Opinions a. An expert who is qualified in a certain field of expertise is allowed to give their expert opinion on a particular issue in the case i. Unlike lay opinion personal knowledge of the incident by the testifying expert is not required and the rule b. FRE 702. Expert opinion testimony is allowed when scientific, technical or other specialized knowledge will assist the trier of fact in understanding the evidence or determining the fact in issue i. Elements 1. expert opinion testimony is allowed when scientific, technical or other specialized knowledge; 2. will assist the trier of fact in understanding the evidence; or 3. determining the fact in issue c. Frye v US (1923 - Deception detection test (aka lie detector)) i. Held: The test did not to have such a scientific recognition among psychological and physiological authorities as would justify the courts in admitting expert testimony on defendant's behalf, deduced from experiments thus far made ii. Frye Test General Acceptance test - the scientific principle or discovery upon which expert testimony is based must have gained general acceptance in the particular field to which it belongs. d. Dauber v Merrell Dow (1993 standard for admitting expert scientific testimony if federal court ) i. Scientific evidence must satisfy a reliability test this entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue ii. In assessing the reliability of scientific expert testimony consider the following factors (GASI PET) 1. General Acceptance - Whether the theory/technique has been generally accepted in the scientific community 2. Publication/peer review - Whether the technique or theory has been subject to peer review or publication 3. Error Rate - The know or potential rate of error of the technique/theory when applied 4. Testability - Whether the experts technique or theory can be or has been tested 5. Standards - The existence and maintenance of standards and controls 6. Independent of litigation was the research conduct independently of the litigation 7. Alternative Explanations did the expert account for alternative explanations iii. The judge under 104 is the gatekeeper regarding expert testimony and looks at the reliability and relevance of the technique/theory e. GE v Joiner (1997 Cancer causing agent mice got cancer at a much much greater dose) i. Holding: If the expert studies are to dissimilar to the facts presented in litigation a court may conclude that there is simply too great an analytical gap between the data and the opinion proffered ii. The rule of evidence do not require the court to admit opinion evidence which is connect to existing data only by the unsupported statements of the expert f. Kumho tire v Carmichael (1999 does Dauber apply to all expert testimony engineer on tire ware) 34

g.

h.

i.

j.

i. Daubert's gate keeping obligation, requiring an inquiry into both relevance and reliability, applies not only to scientific testimony, but to all expert testimony ii. Here the court conceded that the expert was an expert on tires, the issue was the method used to form his conclusion GR after Dauber i. The gate keeping role exercised by the court entail a preliminary assessment of whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue; this applies to all expert testimony Expert v Lay Opinions i. FRE 701 has been amended to eliminate the risk that reliability requirements set forth in FRE 702 will be avoided by labeling and expert witness as a lay witness 1. As any testimony that is expert in nature is regulated under FRE 702 a. The rule distinguishes between expert testimony and lay testimony not the witnesses ii. US v Freeman (2007 Police detective spoke as a lay witness and not as an expert) 1. The detective's dual role as both a lay witness and an expert witness on the interpretation of encoded drug jargon, since the distinction between lay and expert testimony in the context of the case was a fine one. 2. An expert witness is not permitted to offer a direct opinion on a criminal defendant's guilt or innocence Bases of Testimony i. FRE 703 - The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject 1. the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted ii. South Central Petroleum v Long Brothers Oil (1992 The expert used hearsay to form their conclusion) 1. FRE 703 allows experts to rely on inadmissible information in forming their opinion as long as the underlying information is of a type reasonably relied upon by experts in that filed 2. Here the court limited the admission of just the experts opinion and did not admit the information on which he based his opinion Opinion on the Ultimate Issue i. Pure legal conclusions by lay or expert witnesses are not admissible opinion testimony 1. E.g., in my opinion the was not negligent in this case = Inadmissible ii. FRE 704(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. iii. US v Lockett (1988 1,800 grams of cocaine set up in a assembly line for packaging) 1. A witness is not permitted to give a direct opinion about the guilt or innocence as this invaded the province of the jury, however, an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact. iv. FRE 704(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto v. US v Finly (2001 CA psychologist testifies about mens rea) 1. The rule precluding ultimate opinion testimony applies to any ultimate mental state of the defendant that is relevant to the legal conclusion sought 35

k.

to be proven, but expert testimony on a defendant's mental state is permitted so long as the expert does not draw the ultimate inference or conclusion for the jury Disclosure of Facts or Data Underlying Expert Opinion i. FRE 705 An expert opinion may be given, even thought the expert does not first disclose facts or data underlying his opinion 1. He may be required to do so by court order or on cross

Article V - Privileges
A. Privileges a. FRE 501. General Rule i. Except as otherwise required by the Constitution, congress or the supreme court the privilege shall be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience. However, in civil actions with respect to an element of a claim or defense as to which State law is applied, the privilege is determined by State law. 1. In civil or criminal cases involving a federal question, federal law dictates privileges 2. Note: if it is a federal case federal law applies and if there is a conflict because both a federal and state law are involved federal law wins 3. So in diversity suits state law if you are there based on state substantive issue state law will apply b. Exam Ask the following: i. Who are the proper parties? ii. What is a communication? iii. Was the communication incident to the professional relationship? iv. Was the communication intended to be confidential? v. What are the exceptions? vi. Who holds the privilege? B. Attorney Client Privilege a. This is a confidential communications between an attorney and client made during professional legal consultation are privileged from disclosure UNLESS waived by the client or representative of the deceased client b. The privilege is held by the client and only the client may invoke or waive the privilege i. It may be claimed on behalf of the client by the attorney or those representing him ii. The client is: 1. A living person 2. A legal entity public or private 3. Who consults with an attorney to get legal counseling iii. It protects a client against disclosure of facts revealed in non-litigious as well as litigious consultation even if the attorney decides not to take the client on iv. Also, the privilege may extend to confidential communications made to attorney representatives or agents 1. Person necessary to facilitate legal work v. A/C Privilege survives the death of the client C. Communications Defined a. Only the communication is covered and not the facts that are the subject of the communication i. The facts that are the subject of the communication are not covered 36

E.g., the client involved in a car accident may be required to testify to the facts of the accident but not about what the client told her attorney concerning the accident 2. So you are not required to answer regarding what you said to your attorney but you may not refuse to disclose information simply because you communicated that to your attorney ii. This includes documents or written communications between the attorney and client b. Upjohn v US (1981 Bribing official Up does an internal investigation at urging of it lawyers) i. The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney c. Former Employees and corporations i. Privilege protects communications as long as the former employees communicate information obtained in the scope of employment and the information is relevant and necessary to the attorney investigation d. Legal v Business Advice i. Corporate counsel often serves more than one role (could also be an officer) 1. Generally, the privilege only applies to legal advice, but if the communication is about dual purposes, then the privilege will extend if the primary goal is to facilitate legal services. e. Government i. Generally the privilege applies in a civil case to communications b/n a public agencys staff and its lawyers concerning agency business ii. It may also apply to communications b/n the President and the White House Counsel, but it may not apply in a criminal case iii. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), where court held the privilege didnt extend to prevent discovery of notes from meetings b/n the Presidents wife, her attorney, and the Whitehouse Counsel regarding her and the Presidents alleged participation in the Whitewater land development scheme that was sought by a grand jury in a criminal case. f. US v Kovel (1961 Firm hires accountant to go over complicated tax work for a client) i. Held: that the attorney-client privilege extends to communications made by a client to an accountant in attorney's employ incident to the client's obtaining legal advice from the attorney ii. The privilege attaches to client communications with attorneys agents such as those that have menial or ministerial responsibility that involves relating communications to the attorney g. US v Kendrick (1964- Attorney called to testify about the client demeanor at the time of his visit his competency) i. Such things as physical characteristics of client, which are observable by anyone who talked with client, are not within attorney-client privilege. 1. Excluded from the privilege are physical characteristics of the client, such as his complexion, his demeanor, his sobriety or dress D. A/C Privilege - Confidentiality a. A/C privilege covers only confidential communications (save the attorneys agents) i. Meaning that where the information communicated is intended to become public the privilege does not apply 37

1.

E.

F.

ii. Information regarding a obligation to appear at trial or sentencing does not apply Presence of a third Party i. The privilege wont apply when the clients actions are inconsistent with an intention of confidentiality 1. E.g., if the communication is made in front of a third party this would indicate that confidentiality was not intended 2. Exception; where spouse, parent or business associate is present c. Ease Droppers i. As long as the client does not know of the presence of an eavesdropper when communication and the client takes steps to preserve confidentiality the privilege will apply d. US v Evans (1997 I want my friend in the room while I talk to the attorney) i. A/C privilege shields only those communications by a client to attorney that were intended to be confidential, and thus generally does not shield from disclosure statements made by client to attorney in presence of third party who is not agent of either client or attorney e. Common Interest Rule i. The A/C privilege may apply in joint defenses situations, meaning those in which attorneys for different clients confer for the purpose of advancing the same defense ii. Client to client communications not in the presence of their attorneys are not covered Attorney Client Privilege Exceptions a. Waiver of the privilege i. The privilege may be expressly waived by the client or the client representative if she has the authority to do so ii. Failure to assert the privilege iii. Waiver by voluntary disclosure the client testifies or disclosed to another the contents of a confidential communication with his attorney iv. Waiver by putting the protected information at issue When a client sues an attorney or vice versa, the privilege is often impliedly waived by the client if assertion of the privilege would deny opposing party access to information important to his case b. Crime/Fraud Exception i. A/C does not apply to communications concerning future criminal or fraudulent acts 1. This applies when a client knowingly seeks legal counsel to further a continuing or future crime c. Joint Client Exception to Attorney/Client Privilege i. There is an attorney/client privilege between parties where 2 or more parties communicate with an attorney about a matter of common interest. 1. Even if they wind up hiring different lawyers ii. So the privilege would exist for the joint clients against other adverse parties 1. BUT this exception would not apply when the joint parties sue each other 2. Example: If a joint defendant ends up filing a cross claim against the other to indemnify him/her for damages in a joint and several liability claim, then the privilege would be waived b/n the two parties. Work product Doctrine v AC Privilege a. While they have a lot in common, they are distinct in several ways. b. Work Product Doctrine falls under the Federal Rules of Civil Procedure, 26(b)(3) b. 38

i. Allows a party to obtain discovery of documents and tangible things prepared in anticipation of litigation by an attorney, only upon a showing of substantial need AND that the party cannot, without undue hardship obtain the substantial equivalent from other sources. ii. Even if showing is made, an attorneys mental impressions, conclusions, opinions, or legal theories are still protected. c. Differences from Atty-Client Privilege: i. Work product only protects materials gathered in anticipation of litigation 1. No such limitation on atty-client privilege ii. Work product protects a much broader range of info 1. Atty-client privilege ONLY protects confidential communications iii. Work product is a qualified privilege that can be defeated by a showing of substantial need and undue hardship 1. Not true of atty-client privilege this a complete privilege iv. Work Product Doctrine is always governed by federal law, even in diversity cases involving a state substantive law claim G. Attorney Client Privilege Spousal Privileges a. There are two types i. Adverse Testimonial Privilege ii. Confidential Marital Communications b. Adverse Testimonial Privilege (ATP) i. Rule: In a criminal case, a spouse, if married at the time of trial, can, but is not required to testify against his/her spouse ii. Key Notes 1. This privilege allows a witness spouse to refuse to take the stand and testify against the other spouse as to any matters it applies only to criminal cases 2. The privilege is vested in the testifying spouse 3. Once the marriage cease so does the privilege 4. The privilege applies to all testimony including testimony concerning events that predated the marriage, however once the marriage ceases so does the privilege the spouse 5. The testimonial privilege is determined at the time of the trial a. If the and witness marry after the crime but before the trial the witnesss testimony becomes privilege 6. Confidentiality not necessary iii. Trammel v US (1980 accused want to invoke spousal privilege to prevent his wife from testifying) 1. Holding: Apart from confidential communications, witness spouse alone has privilege to refuse to testify adversely and may be neither compelled to testify nor foreclosed from testifying iv. Crimes against Spouse or Child 1. If the charges offense involves a crime against the other spouse or the child the privilege does not typically exist a. The decision to testify is not optional and the witness spouse can be compelled to testify c. Spousal Marital Communication Privilege

39

i. Rule: Confidential communications made during the marriage is privileged in both civil and criminal cases, even after the marriage ends, unless they are to commit a crime or fraud. ii. Key notes 1. This applies to both criminal and civil cases and either the testifying spouse or may invoke it 2. The privilege applies only to confidential communications made during the marriage a. Communication made prior to are not covered 3. The communications made after a divorce are not protected a. However the communications made during the marriage are protected even after divorce 4. The privilege is held between the husband and wife and may not be invoked by a third party 5. Communications over a jail phone do not satisfy the confidentiality requirement 6. The privilege applies only to communications that are intended to be confidential a. In absence of a third party confidentiality is presumed 7. The privilege can be defeated is the purpose of the spouses communications is to commit a crime or fraud iii. US v Marashi (1990 Husband cheated on wife they got a divorce wife then testifies at his civil trial regarding his tax evasion) 1. Holding: Marital communications privilege does not apply to statements made in furtherance of a joint criminal activity by spouses. H. Privileges Psychotherapist Patient a. Key Notes: i. There is no doctor patient privilege in federal practice however there is a psychotherapist-patient privilege ii. Holder of the privilege is the patient, NOT the physician only the patient can invoke it. iii. The communication to the therapist must be made while the patient seeks psychological treatment 1. Does not apply to a person being examined for purposes other than treatment a. E.g., court ordered psychological examinations or those required for workmens comp iv. Only confidential communications are covered thus if the information is intended to become public the privilege does not apply b. Exceptions i. Civil commitment proceedings ii. Court ordered examination Patient-litigant rule iii. Crime-fraud iv. Dangerous patient exception 1. A duty to warn exception once a therapist determines that a patient poses a serious danger of violence to other, he has a duty to exercise reasonable care to protect the foreseeable victim c. Jafee v Redmond () 40

I.

i. The court extended the federal privilege not only to psychiatrists and psychologist but also to clinical social workers ii. Under federal psychotherapist privilege, statements that defendant police officer made to licensed social worker in course of psychotherapy, and notes taken during their counseling sessions, were protected from compelled disclosure in federal civil action brought by family of suspect whom officer shot and killed 5th A Privilege Against Self Incrimination a. No person shall . . . be compelled in any criminal case to be a witness against himself. . . i. This actually applies to BOTH criminal and civil cases. b. This is a very narrow privilege and applies only as follows: i. Applies only to individuals, not corporations ii. Applies only to testimonial evidence, not any physical evidence iii. AND only extends to testimony that could lead to actual criminal exposure c. In a criminal case, a defendant does not have to testify at all i. In a civil case, the defendant can be called and must testify, but can plead the Fifth on the witness stand, if the witness would rather not answer. d. Applies to both oral testimony and written records and reports, especially if they are not private

Article II Judicial Notice

J. Judicial Notice FRE 201 a. Definition: Judicial Notice is a courts consideration of an uncontested matter as evidence without requiring formal proof, either at trial or upon appeal. i. It occurs when a fact or a proposition is so indisputable, no formal proof is required to admit it into evidence 1. Ex: Taking Judicial notice of the current date and that it fell on a certain day of the week. ii. Essentially, its an evidentiary short-cut that saves time b. Purpose: i. Policy reasons for judicial economy and the promotion of efficient trials c. Limitation: i. FRE 201 Judicial Notice of Adjudicative Facts ii. This rule specifically limits judicial notice to adjudicative facts, which should not be confused with legislative facts, evaluative facts, and notice of the law. 1. Therefore, it is imperative to initially determine the type of facts involved to see if FRE 201 applies. iii. If its anything other than adjudicative facts then its improper to take judicial notice of them K. Judicial Notice - Adjudicated Facts a. AF - facts that are decided by a jury in a jury case and judge in a bench trial, which normally would have to be proven by evidence if judicial notice werent taken. b. 2 circumstances: i. A matter of general knowledge in the jurisdiction, or ii. Capable of ready determination by sources whose accuracy cannot be reasonably questioned. 1. Ex: water freezes at 32 degrees Fahrenheit

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c.

d. e.

These are facts that relate to the parties, their activities, their properties, their businesses, etc., that are developed in the particular case i. Its the who did what, where, when, how, and with what motive or intent. FRE 201 only applies to adjudicative facts, not legislative, evaluative, or notice of the law Other types of Fact where JN is improper i. Legislative Facts 1. Background facts used by the court to arrive at a legal decision, such as social science propositions a. These facts typically do not concern the immediate parties. b. Instead, they are established truths, facts, or pronouncements that do not change from case to case, but apply universally. 2. Often times its a fine blurry line to differentiate b/n adjudicative and legislative facts. 3. US v Gould, p. 652 ii. Evaluative Facts 1. Common information, concepts, and understandings in society 2. Ex: People late for an appt are more likely to speed. iii. Notice of the Law 1. Laws or statutes, such as the holding of an applicable case precedent.

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