Evidence Outline

I. Evidence Law and the System [p. 1-49]

a. Purpose and Construction [102]
i. Secure fairness in administration ii. Elimination of unjustifiable expense and delay iii. Promotion of growth and development of the law of evidence iv. Truth may be ascertained and proceedings justly determined

b. Rulings on Evidence [103] - Objections

i.Effect of Erroneous Ruling A substantial right must be affected. Evidentiary error cannot be harmless. 1.Objection Must be timely and specific 2.Offer of Proof When evidence has been excluded by the trial court ruling, offer of proof must be done to preserve the issue on appeal. ii.Record of Offer and Ruling 1. Court may add any other further statement which shows the character of the evidence. It is counsels duty to make sure that all objections and offer of proofs are recorded. iii. Hearing of a Jury 1.Discussions involving the admissibility of evidence should be held outside the hearing of the jury whenever practicable. iv. Plain Error 1. Appellate court may consider an evidentiary error despite a partys failure to make an objection or any other plain error.

c. Preliminary Questions of Admissibility [104]

i. [a] Questions of Admissibility 1. When ruling on admissibility, the court is not bound by the rules of evidence except those with respect to privileges. Therefore, the court may hear inadmissible evidence [preponderance standard applies]. Judge determines preliminary question of admissibility. ii.[b] Relevancy Conditioned on Fact 1. Court can consider inadmissible evidence if it is reliable to determine if other evidence is admissible. Jury decides by the preponderance standard. iii. [c] Hearing of Jury 1. Requires judge to hold a hearing outside the presence of the jury when ruling on admissibility of a confession. iv. [d] Testimony of Accused 1. Limits the scope of cross-examination when a criminal testifies on a preliminary matter. Example Attempt to get evidence suppressed. v. [e] Weight and Credibility 1. Trial judge decides issues of admissibility and the jury decides questions of weight or credibility.

d. Limited Admissibility [105]

i.Recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly. Raises 403 issues. If you dont know what it coming in for, you cant determine its admissibility. is

e. Rule of Completeness [106]

i.If a party extracts part of a written or recorded statement, the opposing party may immediately introduce any other part or any other writing or recorded statement which ought to be considered contemporaneously with it. [Does not apply to oral conversations unless they are taped]

II. Relevance [p. 49-102]

a. Relevant Evidence [401] [judge decides admission]
i. Evidence (direct or circumstantial) having any tendency to make the existence of any fact more or less probable than it would be without the brick is not a wall. 1. Rule favors admissibility absent rule of exclusion. It is a relaxed standard. [402] i. Pretty Darn Clear If you can show it belongs to either one it will come in. ii. Pleadings The way parties have framed the case. iii. Defenses Why the case should not stand iv. Credibility Any time a witness takes the stand evidence. A

b. Exclusion of Relevant Evidence [403] [high standard that favors admissibility]

i. Relevant evidence may be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice such as - favors inclusion a.Unfair prejudice (purely emotional), i. Examples: Graphic photos, evidence of other crimes or of guilt b. Confusion or misleading of the issues, or ii. District the jury from the fact that there is only weak evidence c. Waste of time i. Evidence that is cumulative ii. Balancing Test: A little DAB will do. a. Danger of unfair prejudice b. Alternative ways to prove the point c. Balance and needs

Character Evidence [p. 403]

Definition Generalized description of persons disposition or propensity to engage or not engage in a certain types of conduct. Character evidence relevant, but is not admissible for the purpose of propensity. Policy: Propensity (circumstantial) evidence is improper as a basis for conviction because the inferences are too strong and there is the danger prejudice and misuse by the jury [403]. Civil Cases: Character evidence may not be used as an evidentiary fact in civil cases! Methods of Proving Character [405(a) & (b)] Reputation and opinion (preferred) are always admissible for evidence of character or a trait of character when 404(a) (1) & (2) exceptions apply. [a] Reputation* [have you heard . . .] Proper Foundation: No personal knowledge required. Must have heard the reputation discussed in a recent and relevant community (school, work, church . . .). On Cross Relevant specific instances of conduct allowed to rebut the basis of reputation, but if witness denies, than not allowed to prove it up with extrinsic evidence. [a] Opinion* [do you know . . .] Proper Foundation: Must know the victim. Requires good faith basis of personal knowledge. On Cross Relevant specific instances of conduct allowed to rebut the basis of opinion, but if witness denies, than not allowed to prove it up with extrinsic evidence.

[b] Specific Instances* Only in limited circumstances: Only use specific instances of conduct if character trait of a or victim is an essential issue or element of a charge, claim, or a defense. All three are available for civil cases or when character is in issue. Defamation case [character of the party bringing] Child custody case [character of either party] Negligent hiring or entrustment [character of employee] Wrongful death [character of the deceased calculation of damages] Character Evidence Generally [404(a)] I. As a general rule, evidence of a persons character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except, under a few special circumstances. [character is never directly an issue in criminal cases]: A.Character of Accused [only criminal cases] Mercy Rule/Opening the Door The accused may offer evidence of a pertinent character trait [in the form of opinion or reputation only]. However, then the prosecution may then cross-examine the witnesses on specific acts to test their qualifications. Hypo: On cross examination, did you know/have you heard about this act of violence [specific act]. This does not come in to prove that the person is predisposed for violence. Asked in good faith it comes in to test the basis and challenge character witnesss opinion or knowledge of reputation. Also, they may introduce substantive rebuttal evidence with reputation or opinion witness testimony as to the s bad character. Specific instances allowed only where it is essential to the character of the crime. B. Character of Alleged Victim [only criminal cases] [favors prosecution] Subject to limitations from 412, the accused may introduces pertinent character trait of a victim [opinion/reputation]. Example: claims self-defense & that the victim was the first aggressor Example: Honesty and law abiding citizen However, then the prosecution may rebut this with character evidence about the victim (peacefulness) or about the s aggressive nature. It also allows the prosecutor in rebuttal to introduce character evidence about the relevant to that same trait of character and also their violent character. [victim = rubber, = glue] Evidence of Character of Witness [Civil or Criminal] [impeachment] 607, 608, 609 Other crimes, wrongs, or acts [applies to civil/criminal] [most litigated rule] [advanced notice] Evidence of other crimes, wrongs, or acts, although not admissible to prove character, may be admissible for some other purposes (list is not an exclusive list) provided there is timely notice: Non-propensity acts! Always consider 403 [unfair prejudice?!]. Prior or subsequent. Motive Opportunity [access or present at the scene of the crime] Intent [similarity between charged crime and the other crimes]

Preparation Plan or scheme Knowledge Identity / modus operandi / signature [particularly unique to this ] Absence of mistake or accident Standard of Proof - Strong enough that the jury could reasonably find that the other crime was committed by [less than preponderance of the evidence]. Character in Sex Offense Cases Rape Shield Rule [412] [criminal and civil] Generally Prior sexual history or predisposition (character) of alleged victim in a sex assault case (criminal or civil) is not admissible for propensity as matter of public policy (regardless if relevant or not). This rule qualifies 404(a) (2). Never through reputation or opinion, only specific acts from exceptions. Public Policy So the victim will not be put on trial. However, prior false accusations are not excluded from the jury hearing. But you still must show that this person lied. Exceptions [provide 15 day notice and in camera hearings required] Criminal Case Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence. Prior sexual conduct between accused and the victim on issue of consent. Evidence the exclusion of which would violate the constitutional rights of the . 6th Amendment right to confront. Civil Case Employs 403 balancing test rather than the specific exceptions stated. Compares probative value of any kind of sexual conduct proof with the dangers of unfair prejudice & harm to the alleged victim. Prior Offenses by s in Sex Crime Trials [413] Where a is accused of sexual assault, evidence of other sexual assault offenses is admissible, and may be considered on any matter to which it is relevant [subject to rule 403]. The rule rejects the anti-propensity stance of 404(a). 414 Child Molestation Cases 415 Civil Cases Concerning Sexual Assault of Child Molestation

Habit and Routine Practice [406] [p. 434]

Definition A persons regular (more than twice), specific routine response to a repeated particular situation. Its done reflexively without thinking. A habit must be virtually automatic and unreflective. \ Rule - Habit or routine-practice evidence may be admitted to prove that a person or organization acted in conformity with that habit or routine practice on a particular occasion, regardless of the presence of eyewitnesses.

Subsequent Remedial Measures [407] [p. 439]

Rule Excludes evidence of subsequent remedial measures when offered to prove negligence or defective product liability cases. It rejects the suggested inference that fault is admitted. Definitions: Remedial Any attempt to make something better or safer; fixed it voluntarily. Subsequent *After the complaint for injury. Measures Any step to make a product or place safe. Public Policy We do not want to penalize for making a place or thing safer. Exception: Rule does not apply when the evidence is offered for another purpose: FICO

Feasibility claims that there was no safer way to handle the situation and then implemented a safer way following the accident. Unless expert speaks in absolute terms, it cannot come in. Tuer v. McDonald, MD, 1997, p. 440 [doctors judgment not absolute] Reasonably safe. No. At the time to be more practicable or safer. No. Impeach or Contradict Use to rebut claim of there was no hazard. Ownership or Control Ownership or control of the property that caused the accident.

Settlement Negotiations [p. 449]

Civil Settlements [408] Evidence of an offer to compromise or negotiate a claim is not receivable in evidence as an admission of the validity or invalidity of the claim. Collateral statements and admissions made in connection with settlement offers are also excluded. This is to promote candor & free exchange between the parties to settle. Two Requirements [both sides] Claim [was a lawsuit filed or letter sent claiming damages?] Genuine dispute [as to the validity of the claim or the amount?] Exception: The rule does not apply if the evidence is offered for some other purpose. Examples Proving a witnesss bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. Criminal Settlement - Plea Bargaining [410] [must deal with the prosecutor (not police)] Excludes evidence for guilt or innocence of: Withdrawn guilty pleas Nolo contendere plea [no contest] Statements made in the course of any proceedings under Criminal Rule 11 Any statements made in plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. Exceptions Rule of completeness For perjury and false statement prosecutions

Proof of Payment of Medical Expenses [409] [p. 455]

The actual offer to pay medical expenses is not admissible to prove negligence/liability for the injury Exception Statements accompanying an offer to pay med. expenses may not be excludable, although such statements would be excludable if the context suggests that the parties were trying to settle the case under 408. Any companion admissions of fault will come in!

Proof of Insurance Coverage [411] [p. 456]

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. Only excludes evidence on the issue of insurance. Any companion statements of fault are fair game. Exception If the evidence is offered for another purpose, such as proof of agency, ownership or control, or bias of a witness, the rule does not apply, but 403 still does. Policy If jury hears the issue of insurance coverage, the jury will just give them money.

The evidence is of relatively little probative value, because most people agree that whether one has insurance coverage reveals little about the likelihood that he will act carelessly.

Competency of Witness [p. 460] [slight standard]

General Rule [601] Witness presumed to be competent to testify except otherwise provided in the rules. Elements: Personal knowledge about the facts of the case to identify the witness. [602] Witness may not testify to matter unless evidence is introduced sufficient to support a finding that witness has personal knowledge on the matter. Able to swear or take an oath or affirm. [603] Appreciate the solemnity Understand the consequences => can be prosecuted for perjury Has the ability to communicate [it can be written, sign language . . .]. Case: U.S. v. Lightly, p. 461, 1982 [criminally insane] Witness could recall the events and understood that he was under oath! Its a legal call for the judge. At least the initial threshold that the witness has sufficient knowledge, ability to appreciate and communicate. Jury doesnt have to believe, but can bring it out. The Child Witness FRE 603 is designed to afford flexibility in dealing with children. Elements to Qualify a Child Witness: Can child understand the difference btw right and wrong and a truth and a lie? Give the child an example. Illustrate with the child witness. Understand the consequences? People who dont tell the truth get spanked. Child has personal knowledge? Child can communicate? Cases: Ricketts v. Delaware, p. 464, 1985 [Do you know what heaven is?] The age of reason is 7! The idea is that in criminal law under 7 you have the defense of infancy. After 7-11 we will take any criminals after that! Jurors as Witnesses Pre-verdict Testimony by Jurors [606(a)] Jury cannot give testimony before the jury panel on which he serves. If called, the opposing party shall be afforded an opportunity to object out of the presence of the jury. Post-verdict Testimony by Jurors Rule What goes on in the jury room stays in the jury room. Tanner v. U.S., p. 478, 1987 [crazy jury] 606(b). Policy We want to give them some privacy to allow candor and open discussion. If the jurors bring in their own problems and issues, thats their internal action. But external influences [giving outside influences] are different. Exceptions Jurors can testify on the question of whether (1) extraneous prejudicial info or (2) outside influence was improperly brought to the jurys attention. Does not qualify unless it would affect the jurors decision? Examples: Bribes, newspaper of high profile case Bring them in and ask them questions and remind about an oath - - I read, would that affect your decision? You are not entitled to a good trial, just a fair

Direct and Cross Examination [p. 487-509]

Control by Court [611(a)] The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: Make the interrogation and presentation effective for the ascertainment of the truth, Avoid needless consumption of time, and Protect witnesses from harassment or undue embarrassment. Direct Examination Definition Witness is on the stand telling the story (spotlight on witness). Have the witness testify. Enhances credibility. Open-Ended Questions Only Leading Questions Leading questions are not permitted during direct examination. 611(c). A leading question is one that suggests its answer. Exceptions: Foundational Points When necessary to develop testimony 611(c) Usually questioner is permitted to lead a witness who is: Very young, hence apprehensive, uncomprehending, or confused Timid, reticent, reluctant, or frightened Ignorant, uncomprehending, or unresponsive, or Infirm When the witness is uncooperative Adverse parties and their agents or associates are likely to be in this category. When memory seems exhausted Baker v. State, p. 489, 1977 [FRE 612] Lawyer is generally permitted to attempt to refresh his recollection. Contrast to Past Recollection Recorded [803(5)]. Anything may in fact revive a memory: a song, a donut, a photograph, even a past statement known to be false. Witness does not need to be the author of something to be used to refresh their memory. Exhibit is not admitted into evidence, unless opposing party puts it in. No need for authentication. Applicable Situations: During deposition Tell me all the documents you reviewed to prepare for testimony. In trial What are all the things that you looked at to refresh your recollection. Adversarys Right Inspect the document Cross-examine the witness based on the document; and Introduce into evidence the portions of the document that relate to the testimony of the witness [satisfy hearsay exceptions]. Cross Examination Definition Legal entitlement in which the lawyer is telling the story and the witness agrees/disagrees Dont ask any questions. You just make statements. Leading questions are permitted. You do not introduce exhibits during cross examination. Scope [611(b)] Topics involved in the subject matter of the witnesss direct examination Topics concerning the witnesss credibility Case James Julian v. Raytheon Co., p. 494, 1982 [attorney work privilege] Once you give something to the witness for purposes of preparation it must be unveiled. If used to prepare or

refresh a witness no longer privileged under attorney work-product. Anything you show to a witness, you should anticipate that will be produced in court! It argues for caution in that area. Excluding Victims from Courtroom [615] Fact witnesses are not permitted to be in court while other fact witnesses are testifying so that it wont shape their testimony. Susanna and the Elders, p. 502, 1978. Exceptions: A party member, or An officer or employee of a party which is not a natural person designated as its representative by its attorney, or A person whose presence is shown by a party to be essential to the presentation of the partys cause [experts advice], or A person authorized by statute to be present.

Impeachment [p. 511]

Purpose We are trying to discredit the witness and that they should not be believed for some reason. Definite but Nonspecific Methods Bias or Interest Rule Witnesses have some relationship, positive or negative to the witness or some party in the case. [It is almost always bias in favor]. Relevant evidence - 401. Always use extrinsic proof [witness or exhibit birth certificate]. Never collateral! The cross-examiner is not required to take his answer. Despite absence of explicit mention of bias in federal rules, bias is permissible and established basis of impeachment. Examples Friends, family member, membership in organizations, investment, and a business partner. Case U.S. v. Abel, p. 513, 1984 [Aryan Brotherhood] If a witness b/c of association (Aryan Brotherhood) or friendship will lie, the jury is entitled to hear about the relationship. Even w/o proof that witness adopted the tenets of that association the mere membership is probative of bias. The Hired Gun, p. 520 [cross-examination of expert] One party can cross-examine an expert on fees paid by the other side. The fact that a witness is on retainer bears directly on bias. Show that an expert is paid ask him what % of his salary comes from testifying in this case. Show interest in outcome of case. Shows a pattern of always agreeing with GM no matter what. It shows the jury can weigh his credibility. Sensory Defect Rule Anything that affects your ability to perceive or recall or communicate may be used to attack the witness. Must show this! Extrinsic evidence is allowed. Never collateral. If a witness is drunk or insane, is it affecting their ability to perceive, recall, or communicate? Has to relate to the events in question or the time testifying at trial. Examples

Cant hear, blind, Tanner Jury [drunk, high], wearing headphones, mental health issues. Limitation You cannot harass or embarrass the witness [611(a)]. Showing that he is by Disposition Untruthful **Once a witness takes the stand she puts her credibility at issue** 607

Impeachment by Opinion and Reputation Regarding Character [608(a)]

Credibility of witness can be supported or attacked with opinion or reputation testimony, but only pertaining to the (1) truthfulness of the witness and (2) only after the character of witness for truthfulness has been attacked by opinion or reputation evidence or otherwise [rehabilitation]. Never collateral! Extrinsic proof is allowed. Its the only way to do it! To call an outside witness and say! Must establish foundation

Good faith [611(a)] cross-examining the target witness about specific instances of non-conviction misconduct casting doubt on his veracity [608(b)]. [Rare instance to allow impeachment by propensity].
Rule No extrinsic proof allowed! At the discretion of the court, uncharged behavior where the person has not been convicted that speaks to the witnesss credibility if probative of truthfulness or untruthfulness. You have to take the witnesses answer through cross examination! Policy Policy of judicial convenience decision that if you have allowed this you will be side-tracked. Examples Forgery, fraud, deceit, perjury, counterfeiting, embezzlement. Case U.S. v. Manske, p. 526, 1999 -appellant was charged with conspiracy to distribute cocaine. Prior to trial, government made a motion in limine to bar from questioning a witness, who was also a co-, regarding threats that the witness had made and potential bias. Proof of bias may properly show the following . . . fear by the witness for his personal safety or the safety of friends or family, relating to the parties or issues in suit.

Cross-examining him about certain kinds of convictions [609].

Prior Felony 609(a)(1) [Extrinsic proof is allowed!] Public Policy If you have been convicted of a felony, you have shown disrespect for the rules of society and the jury should consider that for a regular felon. Ask Yourself Two Questions! Who is on the stand? Accused Does the probative value of admitting the evidence outweigh its prejudicial effect to ? Rule favors exclusion. Not 403.

Risk that a juror might well use the information about the prior conviction not to test the credibility of the s particular testimony. Non-Accused Is the probative value of admitting the evidence substantially outweighed by unfair prejudice? 403! What Kind of Conviction? If the accused - Garden-variety Conviction [Gordon Factors] Gordon factors met then you let it in. No appellate right on that issue unless D decides to testify and does not bring it up. Nature of the offence Crime of dishonesty? Recent/remote 10 years or less? Whether it is similar to the charged offense Same offense Danger is that it can come in as propensity evidence. s record is otherwise clean No other felony convictions? 10 years? The idea that you can rehabilitate yourself. The importance of credibility issues Favors the prosecution! It means the jury in weighing the credibility should hear that this guy is a convicted felon. The importance of getting the s own testimony. Is it the whole case? Crime of Dishonesty [609(a)(2)] Any witness convicted of a crime [felony or misdemeanor] involving elements of a false statement or dishonesty is admitted. If you can show that a witness has been convicted of a crime of dishonesty, there is no 403 balancing test. It will come in! Fraud, perjury, embezzlement, tax evasion. Crimes of violence, theft crimes, and crimes of stealth are not crimes of dishonesty but look at underlying circumstances. United States v. Lipscomb, p. 539, 1983 [possession of heroin] The court has discretion to determine when to inquire into the facts & circumstances underlying a prior conviction & how extensive an inquiry to conduct. Luce v. United States, p. 552, 1984 [ does not testify] To perform the balancing test, the court must know the precise nature of the s testimony, which is unknowable when, as here, the does not testify. The client gets to choose when to testify. To raise and preserve for review the claim of improper impeachment with a prior conviction, a must testify. Put your client on and you may not bring it out yourself since you cant complain! Its an absurd result, if you got something bad about your witness you bring it out so that you dont look like you are hiding it. Time [609(b)] Not admissible if it has been more than 10 years from date of release or date of conviction (whichever is more recent), unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.

If more than 10 years, not admissible unless proponent gives advanced written notice of intent with opportunity by other party to contest. Effect of Pardon, Annulment, or Certificate of Rehabilitation [609(c)] Disallows use of convictions to impeach where formal procedures indicate that the witness has been rehabilitated (pardoned, annulled, certification) or witness is innocent. Juvenile Adjudication [609(d)] Juvenile convictions are never admissible. But it may it necessary be admissible to impeach someone other than the accused. Like a state witness that they are biased. Any other witness besides the accused. Pendency of Appeal [609(e)] The fact that the prior conviction is being appealed does not make the conviction inadmissible. The pendency of the appeal is a fact that can be disclosed to the jury. Specific but Indefinite Methods Prior Inconsistent Statement [613] Rule Examining Witness Concerning Prior Statement [613(a)] A cross-examiner may ask a witness about a prior statement without showing it to the witness, if the statement was written, and without saying in advance what the details of that prior statement might have been. No foundation needed. However, on request it shall be shown or disclosed to opposing counsel. Extrinsic Evidence of Prior Inconsistent Statement of Witness [613(b)] If a prior inconsistency is proved by extrinsic evidence - document, generally the witness must have an opportunity at some point to explain or deny it [foundation]. The adverse party [usually the one who called the witness] must also have a chance to interrogate her, or the interests of justice otherwise require. Exception Admission by a party opponent do not need an opportunity to explain. 801(d) (2). Prior inconsistent statement made under oath at a proceeding is not hearsay. Can you use extrinsic evidence? Depends on what the statement is and whether you need it for impeachment. Cases United States v. Webster, p. 561, 1984 [aiding and abetting a robbery] The credibility of a witness may be attacked by any party, including the party calling the witness [607]. If you have a good faith basis, that you want to get before the jury, separate admissible purpose, we may allow you to impeach that witness. However, not solely to impeach that witness with otherwise inadmissible evidence! Harris v. New York, p. 565, 1971 [Miranda impeachment] Generally, if police violated s 5th amend right by questioning after custody, but before he was given his Miranda rights (not coercive statement though) - s statements cannot be used in prosecutions case in chief. However, if testifies inconsistently with this otherwise inadmissible evidence, then his prior inconsistent statements can be used by prosecution to impeach only. You cant use Fifth

Amendment as a license to perjury. Same thing with 4th Amendment Cannot come in to prove, but elects to take the stand and contradicts they do so at their own peril. Jenkins v. Anderson, p. 571, 1980 [pre-arrest silence to impeach] While the Fifth Amendment guaranteed the right to remain silent, an accused who chose to testify was subject to cross and could be impeached like any other witness. Every criminal is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. Pre-arrest silence under circumstances (murder/self-defense), if a reasonable person would have complained to the authorities, your failure to complain is an omission. Weir v. Fletcher, p. 575, 1980 [where was the knife?] Questioning about post-arrest but pre-warning silence did not violate the Fifth Amendment if had an opportunity to explain to the police as to why he was acting in self-defense (a reasonable person would have said something at that time). Contradicting the Witness [p. 576] Definition When you have outside (extrinsic) evidence (not the witnesss prior statements) that contradicts the witnesss statements on the stand. Rule Outside (extrinsic) evidence must come in for another purpose than just contradiction in order to be used for impeachment purposes. Is it material or collateral? Extrinsic evidence is OK if it proves a substantive part in the case. Extrinsic evidence is OK if it proves some other purposes other than just contradiction: bias (never collateral), ability to perceive, recall, for merits of case. Evidence that will only show a mistake or false statement in something a witness has said about a collateral topic is prohibited from being introduced extrinsically. Public Policy Rule of judicial economy; we do not want to let in extrinsic evidence just for one purpose of showing contradiction. Case United States v. Havens, p. 581, 1980 [cocaine in sewn shirt] 4th amendment cant seize and search someones property without proper warrant.

Rehabilitation
Rule
Only rehabilitate on the matter that is being impeached on. You cannot rehabilitate until something is broken. Must meet the attack! But party can anticipate attack and can bring out on direct certain pts (e.g. past convictions, plea bargain of witness, expert testimony fees, witness connection with party). US v. Medical Therapy Services Science, p. 593, 1978 [Medicare]

Methods
Evidence of Good Character for Truthfulness Call witness to show good character for truth and veracity by reputation or opinion. 608(a) (2). Remember

proper foundation. Danger - Can ask character witness if he knows about specific bad conducts of (must have reasonable basis), if no then character witness lacks important info to form an opinion, if he does, then doesnt seem credible. Prior Consistent Statements with Trial Testimony [Substantive Use] 801(d) (1) (B): defines as not hearsay a prior consistent statement to rebut a charge that witness testimony is a recent fabrication or the product of undue influence or motive. permits use of prior statement to prove what it asserts. Start with Tome make determinations of whether pre-motive (if it is to rebut a charge of recent fabrication or undue influence, no matter for substantive or rehabilitative use, must be pre-motive) Must be pre-motive: the prior consistent statement must have been made before motive or influence came into play.

Exception
Can bolster even before being impeached if evidence of prior identification

Opinion and Expert Testimony; Scientific Evidence [p. 605-653]

Opinion (Conclusion) Testimony by Lay Witness [701]
Lay witness can testify in the form of opinions or inferences that are: Based on the first hand perception of the witness (prefer facts), & Helpful to the trier of fact in understanding of witnesss testimony or the determination of a specific fact in the case, & Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. [To ensure that expert testimony cannot come in the back door] Examples Identity, handwriting, value, weight, measure, time, distance, velocity, size, age, strength, anger, fear, excitement, intoxication, general character, and excitement. Not veracity. Cases It was My Impression, p. 608 Opinion does not affect the trier of fact. This is a blurry line. Whats the fact and what does she base her impression on? Emotional impression? Her impression does not help the trier of fact.

Expert Witnesses [702-706]

Who is an expert? [702] Definition Someone with specialized knowledge based on experience, education or training that will assist the trier of fact. The expert does not have to have a certain level of education, as long as they have a suitable training. Basis of Expert Testimony [703] Experts can base their testimony on three sorts of facts/data First-hand knowledge before the trial Question is whether he has sufficient data to support an opinion. Facts learned during trial Information perceived or made known to expert at trial [testimony] based on what other expert say and hypos. An attorney may ask an expert to assume certain facts as true and then ask the expert if she has an opinion based on those assumed facts. Outside information (facts on which others in the field reasonably rely) Allowed to rely on facts or data reasonably relied upon other experts in the field (narrow rule). Inadmissible Data Blocked from disclosing to the jury otherwise inadmissible facts or data underlying the expert testimony unless it passes a test - probative value substantially outweighs their prejudicial effect. If the sole basis of the evidence is otherwise inadmissible evidence . . . this violates 703. Because you are using an expert witness as a conduit and thats the sole basis of the doctors opinion. Confrontation clause issue. When Can Experts Testify [GREAT! Should the jury Hear it?]

Gatekeeper Trial Court is gatekeeper before jury hears expert testimony, qualified? Reliable [Daubert/Kumho] [non-exclusive] Whether theory/ method has been tested Has it been subjected to peer review and published Whether methodology has a high error rate Known standards controlling its operation Is it generally accepted by scientific community Novel ideas Can come in (strict standard) Daubert favors exclusion. Do not favor new methodology unless you can demonstrate reliability. Methodology is generally accepted. Relevant Must fit to the facts of the case Evidence that will Assist the Trier of fact Something that the trier of fact cant arrive on its own otherwise we dont need an expert for that. No picking sides since that does not assist the trier of fact. Opinion on Ultimate Issue [704] An expert is permitted to state an opinion on an ultimate issue in a case with the exception of issues of mental state in criminal cases. Exception A witness will generally not be permitted to give an opinion that amounts to how the case should be decided. In a criminal case, no opinion on a mental state if that is the ultimate issue in the state. Example An expert on mental health can testify about definitions of mental states, symptoms, and methodologies for making diagnoses and describe facts. However, in the criminal prosecution, the testimony is improper if it makes a specific conclusion about the crucial mental state of the that is at issue. [704(b)] That is a Q about her mental state that the jury has to decide. Presentation of Expert Testimony Establish that the matter at hand could benefit from expertise. Foundation Educational background, including degree . . . Experience, such as employment or practice Familiarity with the subject in suit. Qualifying the Witness Calling party asks the court to request to qualify witness as an expert. Bringing out Expert Opinion 705 allow calling to ask directly for the opinion or inference of the expert w/ prior disclosure of the basis. [Disclosure of Facts or Data Underlying Expert Opinion]. Cross Examination Expert may in any event be required to disclose the underlying facts or data on cross-examination. Court Appointed Experts [706] Permits courts to appoint independent experts that will advise parties rarely used. Reliability Standard for Scientific and Other Technical Evidence Old Test Frye v. United States, 1923 [primitive lie detector test] Such evidence must be generally accepted in the pertinent scientific community. New Test Daubert v. Merrell, p. 631, 1993 [Bendectin & Birth defects]

Kumho Tire Company v. Carmichael, p. 642, 1998 [tire blowout] Daubert test applies to any expert testimony not just scientific expert.

Burdens of Proof and Presumptions [p. 675-695]

Burden of Production Burden of going forward to establish all of the essential elements (prima facie). The state or has the burden of production, which is some positive proof (direct or circumstantial) of each essential element prima facie evidence. can make a motion for directed verdict if the party does not meet their burden of production, in which no reasonable jury viewing the evidence in the light most favorable to the non-moving party, could find for that party. Burden of Persuasion (Proof) This is to say that she can win only if the evidence persuades the trier of fact that the proposition has been established by the preponderance of evidence or some other applicable standard. If party bearing the persuasion burden fails to produce evidence that could support a jury verdict on the issue, the opponent will be entitled to a directed verdict. Party with the burden of production usually also has the burden of persuasion. Three Standards Preponderance of evidence (more likely than not) Civil cases where the issue is money Clear and convincing Civil fraud Child custody case Immigration and naturalization Involuntary civil commitment Beyond a reasonable doubt (highest burden) Criminal cases loss of life or liberty Shortcut Technique for Establishing Facts Presumptions [301] Definition: A legal device that requires the trier to draw a particular conclusion when the basic facts are established, in the absence of evidence tending to disprove the fact presumed (counterproof). If there is counterproof, the presumption disappears [bursting bubble - Thayer]. Otherwise the burden of production, not the burden of persuasion, shifts to the other party. Different Types of Presumptions Apply the CL rule unless Congress or a statute tells you something differently. Common Law Presumptions Presumption of innocence Mailbox Rule when you place something in the mailbox w/ appropriate postage, presume that it will be delivered Presumed that when you gave something to a bailee and it was returned damage, then the last bailee who had the it is one who is liable for the damages (now in the UCC) Presumption that if your spouse is missing for 7 years they are dead When a person dies b/c of an accident presumption AGAINST suicide Child that is born to married person both are his parents Statutory Presumptions Controls decision if unopposed Coal Mine If work in a coal mine and the doctor takes an x-ray of lung and finds black lung disease, it is presumed that the lung disease was a result of working in the coal mines Discrimination [Burdine] Title VII of the Civil Rights Act of 1964 created presumption that if you are a member of a protected class and you are eligible to a promotion and you are passed over, if you can show disparate treatment, there is an inference of unlawful discrimination. Prima Facie Case for Gender/Racial Discrimination [McDonnell Douglas]

Belongs to a racial minority, Applied and was qualified for a job for which the employer was seeking He was rejected despite being qualified The position remained open and the employer continued to seek applicants. Public Policy It would be too difficult to prove otherwise.

Authentication [p. 855-880]

Requirement of Authentication or Identification [901] General Provision Requirement of authentication or identification is a condition precedent to admissibility. It is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. It is one aspect of admissibility (best evidence & hearsay). Applies to real evidence, demonstrative evidence, writings, and intangible events (e.g., telephone conversations). No presumption of authenticity. Laying the Foundation Show May the record reflect that I am showing opposing counsel what I have marked as exhibit number 1? Approach May I approach the witness your honor? Do you recognize what I have marked as States exhibit # 1? Identify What do you recognize States exhibit number one it to be? Fair and Accurate Is this photograph a fair & accurate representation of __ the way it looked on __? [photograph] Is this __ in the same or substantially the same condition when __? [Thing]. At this Point may I enter this into Evidence? Traditional Methods of Authentication/Identification [901(b)] Witness with Knowledge A witness with personal knowledge may authenticate a document/exhibit. Sponsoring witness has personal knowledge that the item is what the witness claims it is. Sponsoring witness testifies as to the chain of custody for the object. To establish, must show: Continuous care Custody Control Non-expert Opinion on Handwriting The offering party must establish that the witness is sufficiently familiar (based upon familiarity before and not acquired for purposes of the litigation) with the handwriting of the purported author to offer a valid opinion concerning authenticity. Dont need to have been trained in handwriting analysis. Reply Letters and Telegrams A letter or telegram can sometimes be authenticated by the circumstantial fact that it appears to be a reply to a prior communication, and the prior communication is proved. Distinctive Characteristics and the Like Appearance, contents, substance, internal patterns, or other distinctive characteristics (manner of speech), taken in conjunction with circumstances. Any circumstantial method of proof may be used to authenticate e.g., postmark, letterhead, contents, and circumstances of discovery. Voice Identification Witness may authenticate a voice by testifying about familiarity with it if the witness has a reasonable basis for recognizing and identifying the speaker (prior experience). Need one of the people who were on one end of the

phone conversation. That type of familiarity may be obtained in circumstances that provided a connection between that voice and the identity of the person whose voice the witness testifies that it was. Telephone Conversations By evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, Person [Outgoing] Circumstances, including self-identification, voice identification to show that the person answering to be the one called, or Difference when it is an [incoming call] received. Self-authentication by the caller is not enough. Someone may impersonate the caller or the callee may fabricate the whole conversation. Methods Recognize the voice Call was in response to a communication between X and himself at an earlier time. Caller displays personal knowledge Phone company records. Business The call was made to a place of business and the conversation related to business reasonably transacted over the telephone. Three Elements: Every conversation requires this foundation. Basic question: Is it relevant to our theory of the case? WWW. Where When Who Else Public Records and Reports Public (government) records may be authenticated by showing they were retrieved from the correct place of custody Ancient Documents or Data Compilation Three Requirements: Is in such condition as to create no suspicion concerning its authenticity, Was in a place where it, if authentic, would likely be, and Has been in existence 20 years or more at the time it is offered. No guarantee of admissibility because it may be hearsay. Process or System Evidence describing a process or system used to produce an accurate result may suffice to authenticate evidence derived from that process or system e.g., computer-generated documents. Methods provided by Statute or Rule Any method of authentication or identification provided by statute or rule is permissible. Other Methods of Authentication Photographs as Exhibits A foundation for the admissibility of photographs is generally laid by establishing that the photograph is a fair and accurate representation of the scene or object depicted. Who made the photograph and how it was made is generally not important unless you have belief that there was alteration of the photograph. Videos as Exhibits Like photographs, videotapes are authenticated upon a showing that they accurately depict the scene which they purport to portray. Must have witness to say that the camera was properly working. Also, someone who was working that day in the video. Someone to identify the person. Tangible Object You must establish the chain of custody. It is a requirement motivated by a concern for fairness and prevention of official misconduct. To establish, must show: Continuous care

Custody Control Example: A blood sample, what must the chain of custody be? RN to the Hospital P.O. Hospital to the Crime Lab Clerk Received the blood sample Chemist must testify that he/she tested the blood under normal conditions. Have witness come in & testify that the item is either the same or substantially the same. Self-Authentication [902] Certain types of documents are self-authenticating. These documents are presumed to be genuine and therefore require no extrinsic evidence of authenticity e.g., an authenticating witness. Domestic public document bearing a seal of a governmental entity; Domestic public document with no seal but containing a signature of an official and accompanied by a document under seal attesting to the officials signature. Certain foreign public documents bearing certified signatures; Certified copies of public records Official publications [books, pamphlets, or other publications] Newspapers and periodicals Trade inscriptions and the like [labels, tags, signs, etc.] Commercial papers and related documents Certified Domestic Records of Regularly Conducted Activity (11) Made at or near the time of the occurrence or from a person with knowledge of those matters Kept in the course of regularly conducted business Was made by the regularly conducted activity as a regular practice Demonstrative Evidence Definition: Anything that appeals to the jurors senses. It is premised upon the theory that it is easier and much more effective simply to show the jurors what is being described rather than to waste time and to risk possible confusion by relying solely upon oral testimony. Bodily exhibitions and demonstrations generally are permissible. However, the court has discretion to prohibit prejudicial exhibitions [or does not fairly represent what it is supposed to illustrate]. Three Major Purposes To establish the liability of the . To illustrate the full extent and severity of the plaintiffs injuries. To complement the written transcript for use on appeal. Examples Maps, diagrams, models, summaries, photos, day in the life films, and other materials created especially for the litigation.

The Best Evidence (Original Document) Doctrine [p. 881-901]

Background If the witness is testifying, relying on a document, or the terms of a writing are being proven, the original document itself must be introduced if available. Definitions [1001] Writing & Recordings Consists of letters, words, or numbers, or their equivalent, set down by handwriting, typing, printing, photographing or other form of data compilation. Photographs Still photographs, X-ray films, video tapes, and motion pictures. Original [1001(3)] Any counterpart intended to have the same effect by a person executing or issuing it.

To consider which of several writings is original, one must consider: Elements of the charge, Claim, Defense, Intention of the parties, Surrounding circumstances, The use to which the writing in question was put, and The purposes of the offering party Duplicate Counterpart produced by the same impression as the original. Requirement of Original [1002] To prove the content (not identity) of a writing, recording (video and audio), or photograph, the original is required, except otherwise unavailable or provided by statute or rule. Central Questions to Ask: Are the contents central to the case? Examples: To prove defamation, you need original defamatory letter If sued for violation of lease, you need the original of lease Suit about whether stole my music (intellectual property), you need to be original recording of music If the contents are not central to the case? You may prove without original. Refer to 1003 [admissibility of duplicates]. Is the witnesss knowledge based solely on the content and not independent? If so, you must introduce the original. However, if the witnesss knowledge is independent of the document, you may use witnesss testimony instead of the document. Admissibility of Duplicates [1003] Generally, a duplicate is admissible (e.g., photocopy). FRE makes copies produced by any reliable modern method presumptively admissible. Two Escape Clauses A genuine dispute is raised as to the authenticity of the original, or Circumstances make it unfair to admit the duplicate in lieu of the original. Exception: Copies produced manually, whether typed or hand-written, are not duplicates. They are so prone to inadvertent error or fraud. Excuses for Non-Production [1004] Originals are not required and other secondary evidence of the contents of a writing, recording, or photograph is admissible (satisfactorily explained) if [judge decides], Originals lost or destroyed Show that he explored all reasonable avenues of search. Proponent cannot intentionally destroy the original [bad faith]. Original not obtainable or extreme inconvenience Original in possession of opponent The original is in the hands of his adversary or under the latters control; and The proponent has notified him to produce it at the trial, and the adversary has failed to do so. Writing/Recording/Photo is collateral (not a central issue) Dispenses with the need for the original writing if the writing, recording, or photograph is not closely related to a controlling issue. United States v. Duffy - Writing on the t-shirt was not material to case prove it by admission of police officers testimony of what he saw on the t-shirt. Writing on t-shirt = inscribed chattel. Not central. Can prove it in secondary proof. Public Records [1005] The originals of official documents need not be produced in court as long as either: A certified copy of the document is used; OR A person who compared the copy to the original so testifies. Summaries [1006]

Where the photographs, recordings, or writings in question are voluminous, the proponent of the evidence may summarize their contents. Testimony or Written Admission of Party [1007] Contents of writings, recordings, or photographs may be proved by the testimony or deposition, or admission of the party against whom offered. Nearly all courts will allow the opponent to prove the contents of the writing by use of the admission rather than by production of the original. Functions of Court and Jury [1008] Under most circumstances, the trial judge decides preliminary questions concerning the applicability of the BER pursuant to 104(a). Whether the particular item of evidence is an original; Whether a particular item is a duplicate under FRE 1001, and therefore presumptively admissible under FRE 1003; Whether the original has been lost or destroyed; Whether the evidence relates to a collateral matter or rather to a controlling issue. However, there are three circumstances where jury should play an expanded role (a) When there is a question whether a writing ever existed, (b) When another writing is claimed to be the original, and (b) Whether other evidence of contents correctly reflects the contents of the original should also be a jury issue. Test Focus If we see a K, or a lease, or a deed, or a photograph, or an x-ray or a video tape in a fact pattern, ask ourselves does this meet the requirements of an original document [1001(3)]?

Hearsay Definition [p. 107-183] [always analyze fairness as well]

General
Hearsay is not admissible excepted as provided by these rules. [802] We want to test the declarant perception, ability to communicate, memory, sincerity, ability to tell the truth at the time the statement was made.

Definition
Hearsay [801(c)] Hearsay is a statement made or occurred out of court, and is offered in court to prove the truth of the matter asserted. Out of court Where was the statement made? It does not matter that the declarant is on the stand, if the statement was made out of court, then it is hearsay. Even if declarant is here testifying. Repeating own out-of-court statement does not prevent it from being hearsay. As long as the out-of-court statement is being offered for the truth of the matter asserted, the fact that the in court witness and the out-ofcourt declarant are the same is irrelevant. Statement [declarant person who makes statement] Oral, written, and conduct intended as an assertion. Conduct Assertive conduct You have to show that the actor intended it as an assertion and it is the objecting partys burden! More likely than not [preponderance]. Examples: Nodding your head and pointing a finger. Running away is never assertive conduct. Flight can be used to show some proof of consciousness of guilt. Non-assertive Conduct Conduct meant to accomplish something but not to effect a communication or make an assertion. Not hearsay under FRE. Non-assertive conduct is less subject to fabrication than assertive conduct. Commands and questions are not assertions. Wright v. Tatham, p. 110, 1837 [estates will hearsay]. What could you gain by cross-examining the hearsay

declarant and you could gain a lot! Offered for the truth of the matter asserted [TOMA] Need to know what the matter is coming in for. If the statement is hearsay, it doesnt fit any exception to the hearsay rule and the other party objects to its admission, the statement must be excluded. 802. Examples of What Is Not Offered for the Truth of the Matter Asserted Verbal acts (or parts of acts) If it is the same as doing something it is a verbal act and not hearsay. Legally operative language. For something to be a verbal act, does it create, alter, or destroy a legal relationship. Examples: Defamation Words of company Transfer of property Offer of marriage Words of coercion or duress Armed robberies words Labels Words as labels or markers (logos) that are used to ID a person/agent/thing are non-hearsay, because it is being offered not principally to prove that the assertion on the physical document is correct, but to prove some further inference. Examples: License plate is not hearsay or the back of the car that says Buick. Eagles Restaurant Bar & Grill on matchbook offered to show that went to that restaurant. Verbal Marker We are not going to consider as hearsay the out of court statement of testifying witnesses if we need the two witnesses to testify together to mark it. They both have to be present and both need to come to court. Two types: Statement of identification where it complete the identification Statements to mark when an event occurs. Shorthand Rule: Two people testifying about when an event occurred or mark, consider it as a verbal mark. You cant have a verbal marker with one person. Example: 1st witness says: I saw this man with Nichols. 2nd witness identifies that the person the bar maid pointed to was the . Effect on Hearer or Reader A statement offered to show its effect on the person who heard the statement is not hearsay. Examples: Where the statement is offered to show that the party assumed some risk, was put on notice, had a certain emotion/reaction, behaved reasonably or unreasonably, acted under duress, coercion or harassment, to show lack of companionship. Classic example of what federal rule? Reference to 105 [limited admissibility]. Trigger 403 for misuse of the evidence and use it for an improper purpose. Evidence for a limited purpose, is there a danger that the jury can misuse it? That means you need to subject that analysis with 403 analyses. Circumstantial evidence of state of mind Offered for persons state of mind - NOT for the truth of the matter asserted. A persons mental state is often a material issue. If that person makes a statement that manifests her state of mind, the statement is relevant. Frequently, such statements are hearsay, but fall within the exception for presently existing state of mind. Rule 803(3). Example: Anna Sofers Will Will as proof (saying that her husband was no good) that her husband could not prove damages for a loss of

companionship action. Circumstantial evidence of special knowledge by a person Circumstantial evidence offered in to show the declarants special knowledge. Declarants knowledge of unique facts (w/ no other readily apparent source) to show that that declarant was at a certain event/place. Example: Paper Mache Man Girl had personal knowledge of a unique figure in a particular room. Not to prove that the figurine was in the room (hearsay), but proof that the girl had been in the room before. What are the requirements for this kind of statement to come in: Show that this girl had never been to this s room before. State v. Bridges. The trial court found that the child had not been coached. She volunteered this information. Absence of Complaint to Prove the Non-Occurrence of an Event Testimony that there was no complaint is not hearsay and admissible. But you must show that the noncomplaining individuals were similarly-situated as the complaining party, had motive and opportunity to complain. Silence by a person is not considered to be a statement made out of court. Example: Cain v. George, p. 117, 1969 [carbon monoxide from heater] Declarant Must be a Person Non-human sources have no motivation to lie. Animals are not hearsay. Machines are not hearsay. It is an issue of calibration and authentication. Proper foundation must be laid. Examples: Text Message Yes. Somebody typed it in. A text message would be hearsay if it is offered for what it says. It is a form of utterance. Looking at the Clock No. Issue of calibration and authentication. Non-Assertive Mix Statements & Conduct: Person Did not Intend the Assertion Non-Assertive conduct is not hearsay and therefore admissible. Prove the actors belief in a fact; hence the fact itself is not hearsay. Assertion = picking someone out of a line-up to prove that he is guilty. That conduct is an assertion and is hearsay not admissible. Example: US v. Singer, p. 136, 1983 When the landlord writes that letter, whats the underlying belief? That hes there? Landlord sent letter to s address starting the eviction process. When landlord wrote the letter, the intention was to end the tenancy, not to say that lived at that address. There are two phrases: (1) I think. (2) I believe. Then: What could we gain by cross-examining the witness? What the book says is that every time there is a hearsay statement, put those statements in quotations. Thats all that you are saying. Black letter law this letter is not hearsay. But can you flip it around? Written assertion but it could be characterized as conduct. Best answer is to analyze conduct or is it just for what is written? Offered for the Lie of the Matter Asserted Most courts consider lying to not be hearsay. Use the I think, I believe analysis. Example: My Husband Is in Denver The home run answer its not hearsay, but this statement poses serious prejudicial risk that the jury will misuse it. The only relevant purpose shows three potential risks. While it may have some non-hearsay use to show that she believed hes guilty. Grave prejudicial risk since the jury does not know why shes doing. The tricky thing is that there are a lot of ways to explain that! All of them you want to test by cross-examining the witness. Using Statements to Prove Matters Assumed First determine what the evidence is being offered for and then look to the intent of the declarant. If the declarant did not intend to express the belief for which the evidence is offered for, then not hearsay.

If declarant had the intention, then hearsay risk, particularly in a criminal case. Example: US v. Pacelli, p. 142, 1974 [criminal case] family gather and talk about getting rid of one the witnesses to prevent him for testifying against . Was gathering of family intended to show that Pacelli was guilty? Court held that this gathering of family and talking about getting rid of witness was an assertion and therefore, hearsay and inadmissible. Argue both ways on this!! When it doubt the 6th Amendment trumps the federal rules.

Hearsay Exceptions in FRE 801(d) [p. 153-220] [*substantive evidence]

Declarant Testifying [801(d)(1)]
Prior Inconsistent Statements [801(d)(1)(A)] A prior statement by a witness is not hearsay if three conditions are met: Witness must now be cross-examinable and under oath concerning the prior statement. Example: US v. Owens, p. 164, 1988 [assault on correctional officer] One may be subject to cross-examination under 801(d) (1) (C) even if lack of memory about the events makes him unavailable as a witness for purposes of the 804 exceptions. Statement must be inconsistent with his present testimony. Direct contradiction, omission or addition of a detail, or failure to recall what you should remember. Any change in the witnesss position that suggests she is mistaken or lying is inconsistent. It must have been made under oath in a prior proceeding or deposition. Example: State v. Smith, p. 157, 1982 [change identity of attacker] Station house declarations are not proceedings. Other proceedings may include: grand jury testimony, preliminary hearing, pre-trial testimony, prior-trial, deposition, previous trial, motion, administrative or arbitration hearing may satisfy if sworn. Prior Consistent Statements (Rehabilitate) [801(d)(1)(B)] Policy Use it only when the cross-examination suggests that the statement was recently made up! A prior statement by a witness is not hearsay if three conditions are met: The witness must be cross-examinable at trial concerning the prior statement. Prior statement does not have to be sworn. No limiting instruction needed. The statement must be consistent with his present testimony. It must be offered only to rebut a charge of recent fabrication or improper influence or motive. (When other side is trying to impeach your declarant witness, you show a prior consistent statement to rehabilitate your witness). Limitation: The rule applies only when the statements were made before the charged recent fabrication or improper influence or motive i.e., pre-motive. Tome v. US, p. 167, 1995 [sexual abuse]. Analysis: A consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive. Prior Statements of Identification [801(d)(1)(C)] Elements: Declarant testifies at trial and is subject to cross-examination concerning the subject matter of his statement; No need to be sworn; no need to be recent The statement is one of identification of a person made after perceiving (does not need to actually see) him. The witness need not make the same identification in the court and can in fact forget or misidentify something. In court ID is inherently suspect; therefore, pre-trial, out of court identification may be far more reliable comes in as substantive evidence. Example: State v. Motta, p. 177, 1983 [sketch identification of robber] Police artist sketch is admissible b/c it is a representation of what the declarant told the police to draw prior statement of identification.

If a person sees a crime, later tells the police that the crime was committed by X and testifies at Xs trial, the outof-court statement is admissible as substantive evidence that X committed the crime.

Admission by Party-Opponent [801(d)(2)]

Individual Admissions [801(d)(2)(A)] A partys own statement, in either an individual or a representative capacity can be held against you. Almost no limits. Admission by a party opponent and admissions do not require personal knowledge (contrast 602 lack of personal knowledge). They can state an opinion or a conclusion. Subsequent Case Statements made by a litigant in one case may be introduced against him in subsequent cases, under the admissions rationale. Guilty Pleas Prior Guilty Pleas Guilty pleas (statement) in a criminal suit are usually admitted in later civil damage suits arising from same incident. It is considered a statement by a party. Inadmissible FRE 410 flatly excludes, from any civil or criminal proceeding, a plea of guilty which is later withdrawn Withdrawn guilty pleas, pleas no contendere (no contest), and unaccepted offers to plead guilty to a lesser offense are also inadmissible (example speeding ticket). Convictions are a judicial statement, not a partys statement. Multi-Party Situations U.S. v. Burton, p. 187, 1968 1 makes statement incriminating himself and 2 and 1 does not testify. Can only allow the admission of 1 against himself, not against 2 because 2 cant confront the person who accused him [Confrontation clause]. Options Separate trials Separate juries Adoptive Admissions [801(d)(2)(B)] A statement of which the party has manifested an adoption or belief in its truth. There are all sorts of reasons why someone would remain silent. Emphasis on fact specific scenarios. The trick is to show HURT. Tacit Admissions U.S. v. Hoosier, p. 193, 1976 [GF statement about robbing a bank] A party may adopt the statement of a third person by failing to deny or correct under circumstances in which it would be natural to deny or correct the truth of the statement. It is not sufficient that the statement was merely made in the presence of a party. Heard the statement Understood it Reasonable person would Take exception to it Silence as Admission Doyle v. Ohio, p. 195, 1976 [convicted of selling drugs] Post-custodial silence is never an adopted admission [Mirandized]! Failure to complain to police can never go in for an admission of guilt. Jenkins v. Anderson, p. 198, 1980 Your right to remain silent occurs post-Miranda warning. The use for impeachment purposes of a 's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment. Admissions by Speaking Agents [801(d)(2)(C)] A statement by a person authorized by the party to make a statement concerning the subject (agency law). Need corroboration. Examples: attorneys, partners, and corporate officers. Test

Is this an admission by an authorized spokesperson? When a person hires another to speak for him, it is fair to allow the words of the latter to establish facts at trial against the former. Is it fair? Its a judgment call. Admissions in Judicial Proceeding Pleadings from prior lawsuits, written interrogatories, admissions filed in request to admit. Example: Couldnt He See the Boys, p. 201 Attorney speaking on behalf of client. Is this the right result that the jury gets to hear this? You can always plead in the alternative! Admissions by Employees and Agents [801(d)(2)(D)] A statement by a partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. No personal knowledge is required. Requires corroboration! [801(d)(2) Last Sentence] Examples: Truck driver of Best Buy gets into a crash, admits his brakes failed. It can be used against Best Buy. Internal company email messages speaking about matters within the scope of her duties. Exception: Statements by public employees have not been admissible against the government. Independent contractors are not covered because the principal exercises less control over what they do. Mahlandt v. Wild Canid, p. 203, 1978 [child bitten by wolf] A statement is admissible, once it is established that the declarant is an agent and the statement in question was made within the scope. An express requirement of personal knowledge on the part of the declarant of the facts underlying his statement is not written into 801. Co-conspirator Statements [801(d)(2)(E)] (civil or criminal) Statement made by one co-conspirator is admissible against other co-conspirator, so long as the statement was made during the course of the conspiracy and in furtherance of it. Conspiracy need not be charged. Elements: Conspiracy existed (preponderance of the evidence) The court will exclude the statement if the only evidence that the statement satisfies comes from the statements contents. Declarant was part of the conspiracy During the course of the venture (pendency requirement) and Does not reach statements made before or after a conspiracy. In furtherance of the aims (furtherance requirement) Promote the ends of the conspiracy. Example: Bourjaily v. US, p. 212, 1987 [conspiracy to distribute cocaine] A judge cannot allow the jury to hear a coconspirators declaration until he has determined admissibility by a preponderance of the evidence [104(a)]. Contents of the declarants statement do not alone suffice to establish a conspiracy in which the declarant and the participated. You can use the statement itself, but you need some other proof.

Hearsay Exceptions in FRE 803 [p. 220 -] [availability of declarant is immaterial]

Present Sense Impressions [803(1)]
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter [no need to be a participant]. Notes Play by play, virtually simultaneous description of the events as they occur without opportunity to reflect. High reliability and no requirement that there be corroboration of the statement.

Example: Nuttal v. Reading Co., p. 221, 1956 [sick engineman goes to work] Court held that appellant's husband's statements during and immediately following the telephone conversation should have been admitted into evidence to prove that he was being compelled to come to work.

Excited Utterances [803(2)]

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. Depending on the circumstances and the statement itself is sufficient without corroboration. Lapse of time alone is never enough. Elements: There must be an event startling enough to cause nervous excitement. If you renew the startling event (see a picture of assaulter), what you say after that is admissible. The statement made before there is time to contrive or misrepresent. Timing is a big deal in excited utterance! The more time to cool down, the more time to make up a story. [Example: Coma and waking up to see the picture] The statement was made while the person is still startled about being startled Guarantee of reliability is that there is no chance to reflect! No opportunity to fabricate. [Contrast: Without being able to fix the time, where is the guarantee of reliability?] Sufficient evidence that it is too attenuated? Fact based inquiry. Example: US v. Arnold, p. 223, 2007 [testimony to 911]

Then Existing Mental, Emotional, or Physical Condition (State of Mind) [803(3)]

Different from the non-hearsay use of state of mind of the speaker because here this is direct proof what is in issue. This exception has four distinct uses: To prove Declarants then-existing physical condition (pain and bodily health) Regularly invoked for statements describing aches and pains. His then-existing state of mind (motive, mental, or emotional condition) When present mental state of a party is in issue, the exception paves the way for use of his out-of-court statement. Example: I hate my husband, Norman. Mental state existing at the time of the statement. Policy: More trustworthy because they are probably spontaneous and because the declarant usually has no motive for insincerity. It may also be the only way to prove a partys own state of mind. His later conduct (intent, plan, design) Considerations: Relevance [403] must always be satisfied, as with any other declaration of mental state. Statements are fact laden. Courts have concluded that such statements of intent are sufficiently reliable indicators of whether the intended act took place that the hearsay exception should be applied to them. Examples: Mutual Life Insurance v. Hillman, p. 242, 1892 [cheat insurance Co.] RULE: When the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. RULE: From that intention, the trier of fact may draw the inference that the person carried out his intention and performed the act. Availability of declarant does not matter. U.S. v. Pheaster, p. 245, 1979 [kidnapping by Angelo] FACTS: I am going to meet Angelo in the parking lot to get a pound of grass. Statement that contains both what the declarant and third party are going to do. RULE: Statements of intent by a declarant are admissible only to prove his future conduct, not the future conduct

of another. RULE: You cannot separate the two! But with independent, corroborating evidence then you can! Fact laden! Shepard v. US, p. 240, 1933 [Dr. Shepard has poisoned me] FACTS: Charged with murder by poison of his wife. Not a dying declaration. Statement of memory or belief. RULE: Exception does not apply to statements of memory or belief about past actions or events. RULE: Statements that look backwards raise all the hearsay dangers: perception, memory, narration, and sincerity Intent Coupled with Recital of Past Acts Where the main thrust of the statement is the future-looking part, most courts will allow the entire statement to come in. If you see a statement predominantly looking in the future, but contains some memory or belief to explain that future conduct we wont keep it out. Facts about Declarants Will 803(3) creates an exception for statements about declarants will. The language generally bars use of the exception to prove a fact remembered or believed, but this restriction does not apply to statements relating to the execution, revocation, identification, or terms of declarants will. It can include a statement of memory or belief.

Statements for Purposes of Medical Diagnosis or Treatment [803(4)]

Statements of past or present physical condition in the medical chain. The declarant is either the patient or anyone standing in for the patient! [Examples: Parent, babysitter, school teacher] Public Policy The guaranteed reliability is that you wont lie to your doctor. The doctor is the filter that gives these statements reliability. They determine what is relevant and important *see 703 opinion testimony by experts. Exception: Statements of blame/ fault are excluded. Why you are lame, not whos to blame! Be aware of where a litigant talks to a doctor for the purpose of preparing testimony. Blake v. State, p. 253, 1997 [sexual assault by step father] The court held that hearsay statements made by a child victim to a treating physician that identified the perpetrator were admissible pursuant to Wyo. R. Evid. 803(4), provided that: (1) the victim's motive in making the statement was consistent with the purposes of promoting treatment or diagnosis; and, (2) the content of the statement was reasonably relied on by the doctor in her treatment or diagnosis.

Past Recollection Recorded [803(5)]

Admit a record or memo concerning a matter about which a witness once had knowledge, but has insufficient recollection to enable the witness to testify fully and accurately. *Declarant must be available!* Otherwise, no way to prove foundation. Must be properly authenticated. Elements: The witness lacks present recollection of the matter, The statement accurately reflects first-hand knowledge he once had, Example: Writes down the details of an inventory. Not that the information was supplied to him by his assistant. W is an insurance company accident investigator, who investigates a car accident and writes down the information about the damage, location of the vehicles, etc. He did so while the matter was fresh in his mind Example: A record made several days after the events in question would still have a reasonable chance of being found to meet this requirement. He made or adopted the statement, and Approved or adopted the record after it was made, as being an accurate reflection of his knowledge. Admissible as evidence If admitted, the memorandum or record may be read into evidence but not itself be received as an exhibit unless

offered by an adverse party. Notes: Some types of documents might be alternatively admissible under the business records exception.

Business Records [803(6)] [biggest hearsay exception] [look into habit]

Policy: The complexity of business [calling of every kind, whether or not conducted for profit] transactions means that an enterprises records, kept in the ordinary course of business, are often the best evidence of events that happen during the course of business. Elements: Regular business; regularly kept record Each statement involved in the record must be made and kept in ordinary course. Examples: Memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses. Any form of entry. Personal knowledge of source Creator of record is someone with *first-hand knowledge of events described and the declarant must *works for the business organization. Rule of convenience. Contemporaneity It suffices that the record is made close to the time of the event. *Foundation testimony Must be testimony by the custodian of the records or other qualified witness and they must testify the manner in which the records are prepared and kept. The person with knowledge does not need to be identified and produced at trial or even identified. May produce an affidavit. Only applies to the employees or members of that business. There must be some other exception if declarant does not work for the business. Exception If author of business record can anticipate that she may be hauled into court as a , then the reliability of the record is not good and inherently suspect. Self-serving motive. Palmer v. Hoffman, p. 277, 1943 [rail-road grade crossing accident]. Example: Petrocelli v. Gallison, p. 268, 1982 [ilioinguinal nerve severed] It was not possible to tell if the statements were actually the opinions or diagnoses of the reporting physicians because the records themselves were inconclusive as to whether the reports reflected medical judgments rather than statements made by the patient in relaying his medical history. Norcon, Inc. v. Kotowski, p. 273, 1999 [Exxon Valdez oil spill] Business record for the security investigators. What appears to be hearsay is actually an admission by a party opponent concerning a matter within the scope of the agency of employment, was thus admissible against under 801(d)(2)(D).

Multiple Hearsay [805]

When each of the out of court declarations is offered to prove the truth of the matter asserted. Elements: Identify each statement in a multiple hearsay problem Typically occurs in business record or public record issues. Ask yourself is it admissible for each one! Must be all. If all are covered by an exception, the entire document can get in. The evidence will be inadmissible if any of the declarations are hearsay that does not fall within an exception. However, confer 106 [limited]. Structure of single and double hearsay: Single hearsay: witness testifies declarant said matter asserted Double hearsay: witness testifies declarant 1 said that declarant 2 said matter asserted. Structure of single and double hearsay with documents:

Single hearsay: declarant (document) says matter asserted. Double hearsay: declarant 1 (document) says declarant 2 said matter asserted. If you explicitly quote someone in the document, you have double hearsay

Absence Regularly Kept Business Record to Prove Nonoccurrence of an Event [803(7)]

Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence. Unless the source of info or other circumstances indicate lack of trustworthiness. Elements: You need to show that they keep records Someone has conducted a diligent search and failed to find that record And some proof that the transaction did not occur.

Public Records [803(8), (9), (10)]

Three kinds of records and reports. Guarantee of reliability since public agency has a duty to keep these records. Own activities! [803(8)(A)-(C)] Activities of office or agency Examples: Records of the Treasury Department Disbursements (currency) Issuing boating permits Recording of a deed Matters observed pursuant to legal duty (excluding matters observed by police in a criminal case) Examples: Reports by building inspectors indicating code violations. IRS auditor Exception: Matters observed by police officers and other law enforcement personnel cannot be used against the criminal . However, the factual conclusions of the public agency (police) can come in if they help . Factual findings resulting from official investigations, unless the sources of information indicate lack of trustworthiness Rule: The agency in arriving at a conclusion can rely on this otherwise inadmissible hearsay that does not come in for the truth of the matter asserted but rather to show that the expert or public agency relied on it for a conclusion. Really about effect on the listener. Criminal Exceptions: Is the public record an adversarial public record? As a general rule, police reports are inadmissible against a criminal . Admissible in a civil case! Accused can in a criminal case. The policy behind excluding police reports is by their very nature adversarial. With that focus it is going to be unfair. Examples: Employment discrimination based on race/gender prepared by the EEOC Studies on toxic shock syndrome by the CDC If you have a lab report from a criminal case [someone does DNA testing from a crime scene] you need to bring in that technician that did that testing. U.S. v. Oates, p. 285, 1977. Case: Baker v. Elcona Homes Corp., p. 279, 1979 [crash at intersection] Judge is allowed to exclude a report that would otherwise be admissible if the sources of information or other circumstances indicate lack of trustworthiness. Civil investigative findings of a Gov. Agency can be admitted for & against in a civil case determining who is at fault. Trustworthiness Factors Examined: Timeliness of investigation, Special skill or experience of official,

Hearing held, and Motivation issues

Other Public Records that Fit the Hearsay Exception

Records of Vital Statistics [803(9)] Births, fetal deaths, deaths, or marriages Absence of Public Record or Entry [803(10)] After diligent search Records of Religious Organizations [803(11)] Marriage, baptismal and similar certificates [803(12)] Family Records [803(13)]

Statements in Ancient Documents [803(16)]

Ancient documents can come in if more than 20 years old and found in the normal place where they should be and dont appear to be altered.

Market Reports, Commercial Publications [803(17)]

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. [business people]

Learned Treatises [803(18)]

Permits the authoritativeness of the treatise to be admissible as substantive evidence. Only in the examination of experts. Statements in learned treatises can be read into evidence, but not admitted as an exhibit. They dont go back to the jury! Only published by being read to the jury!* Uses Requirements Expert Must be on Stand At the time the treatise is read into evidence, an expert must be on the stand. The experts presence is needed to interpret it before the lay jury relies on it. Direct Examination Expert who will testify that the treatise is authoritative. Cross Examination Refuses to recognize its authoritativeness or to discredit expert. Four Ways to Establish: The expert on the stand says Have the court recognize it. Judicial notice that this is a learned treatise. Witness on the stand can agree that it is You can get the other party to agree or stipulate

Reputation Statements
Personal or Family History [803(19)] Reputation within his family, associates, in the community, regarding some aspect of his birth, marriage, blood relationship, etc. Reputation for Character [803(21)] Reputation among associates or in a community is pure hearsay, but we let it in. The fact that so many different hearsay statements all concur makes them, in theory, more reliable than a single hearsay statement. This exception merely removes the hearsay problem. There remain some important restrictions on the use of character evidence generally. 404(a).

Judgments of Previous Criminal Convictions [803(22)] [no civil judgments or acquittals]

Only prior felony convictions (punishable by death or imprisonment in excess of one year) are generally admissible to prove any fact essential to the conviction. Certificated copy of previous conviction. Cant be offered by the government in criminal case for purposes other than to impeach. One of the ways to discredit a witness is to show that they have been convicted of a certain category. Disrespect

for societys laws. 609(a) (1). Cant be conviction against other persons other than accused. It would be unconstitutional for the government to use a third persons convictions as part of its case in chief.

Hearsay Exceptions in FRE 804 [p. 294] [Declarant Unavailable to Testify]

Unavailability Requirement [804(a)] [PRISM] * Must meet!
Situations in which Declarant is Unavailable Privilege asserted by declarant 5th amendment Spousal Mental health privilege Attorney client. Refuses to testify despite an order by the court Held in contempt. Jail is better than dead. Ill or incapacitated or dead Subpoena is ineffective or cant procure declarants attendance Memory on the subject is not available Not unavailable if due to the wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 804(b)(5)

Unavailability and the Constitution

U.S. v. Barber, p. 299, 1968 [absence from state not sufficient] To show unavailable for purposes of testifying, you have to show that you made diligent effort to locate witness. You have to take fairly extraordinary efforts to show that the declarant is unavailable. You better show super service! Not just service. 6th amendment right to confront in a criminal case.

Five Main Exceptions [804(b)]

Former Testimony [804(b)(1)] Elements: Declarant must be unavailable. Former testimony must have been made in a proceeding under oath either in: A hearing [trial, preliminary hearing, grand jury proceeding]; or A deposition The party against whom the prior testimony is now offered must have had an opportunity to examine the declarant in the prior proceeding or deposition. The party against whom the prior testimony is now offered must have had a similar motive [same issues, same stakes, and same parties*] to develop the testimony in the prior proceeding by direct, cross, or redirect examination. *Civil Case The requirement of opportunity and motive to cross-examine can be satisfied by the presence in the earlier proceeding of a predecessor or successor in interest [like motive to develop the same testimony about the same material facts] to the party against whom the testimony is offered in the current trial. Case: Lloyd v. American Export Lines, Inc., p. 304, 1978 If you dont have these 3 things, the courts wont let in the testimony. Is declarant unavailable? Is there identity of issues and parties? Was there a prior opportunity to cross? Dying Declaration [804(b)(2)] Elements [CUBA] Cause of Death is subject of the statement Must be about the declarants belief about the cause of what the declarant believed to be his or her impending

death. First-hand knowledge required! Not someone elses. Unavailable relating to the cause of the injury. Belief that death is imminent [does not actually need to die] Admissible in all civil cases and in homicide/murder prosecutions. Public Policy There is no motive to lie! Preliminary Fact Questions The judge makes a preliminary factual determination: if he decides that there is enough evidence that the requisite awareness of death existed that a jury could reasonably find that there was such awareness, he will let the jury hear the declaration.

Statement against Interest [804(b)(3)] [not firmly rooted hearsay exception] Statements against Financial (Civil) Interest Rule: At the time the statement was made, this statement is so against the declarants interest that she wouldnt have made it, unless it was true. Unavailable declarant which assumes: Debt Relinquishes some financial right Case: Demasi v. Whitney, p. 315, 1937 [$70.17] Statements against Criminal Interests Rule - Statements against interest by an unavailable declarant that incriminate the declarant, it has to be precustodial. Bruton! Criminal Cases Statements Implicating the Accused Pre-Custodial A and I robbed the bankunder these circumstances, this statement may come in because there is no motivation to lie. Post-Custodial Considered inherently unreliable because people in custody are motivated to shift blame. (Ask yourself, when the statement was made!) Williamson v. United States, p. 318, 1994 804 (b) (3) does not reach associated (collateral) comments, only those that reach to against-interest statements. Example: I did it part allowed, but not the part with Johnny. One of the most effective ways to lie is to mix falsehood with truth. Criminal Cases Statements Exonerating the Accused *Corroboration Requirement* For statements offered to exonerate the accused, not implicate, 804(b) (3) requires corroboration [independent evidence that directly or circumstantially tends to prove the same points on which the statement is offered]. Forfeiture by Wrongdoing [804(b)(5)] Rule Admits statements against a party who engaged or acquiesced in wrongdoing that was intended to, and did, make the speaker unavailable as a witness by killing, threatening, or bribing the . You cannot claim a 6th amendment right. As a result, anything the declarant said automatically becomes admissible against the when the was the one who made the declarant unavailable. Standard The State must prove that the made the declarant unavailable by a preponderance of the evidencemore likely than not that the made the declarant or one of the agents unavailable.

The Catchall Exception FRE 807 [p. 345]

Rule Authorizes courts to admit hearsay [regardless of the availability or unavailability of the declarant] that does not fit any of the other categorical exceptions if it is nevertheless trustworthy and necessary. It is not excluded if the court determines that: The statement is offered as evidence of an important, material, probative fact; There must be no other way to prove this point; The greater the need for evidence, the more the court will stretch to allow it in. Theres no other way to get this before the jury. There is sufficient guarantee of reliability. It must be in the interest in justice that the jury should hear this evidence. [Trial court has discretion in deciding this] Must provide notice to the other side if you are going to use catchall hearsay exception Case State v. Weaver, p. 347, 1996 [baby with brain injuries] Caretaker is on trial for causing death of infant trial. Caretaker wants to introduce evidence that the mom told the customer at Harleys that she dropped her child. [Was that a statement against interest? No b/c she said the baby hit her head] [Was declarant unavailable? NO]

Constitutional Limits of Hearsay [p. 357] [*Criminal Prosecution]

Test
Whenever the question involves a criminal prosecution and evidence is being introduced against the , check for the possibility of a Confrontation Clause problem. [Decide whether the use of hearsay presents a Confrontation Clause problem.

Sixth Amendment Rule

A criminal shall enjoy the right to be confronted with the witness against him. Testimonial Definition Ask the question if a reasonable person would believe that the statement would be used in a future court proceeding? If a statement is non-testimonial, the statement can be admitted without any Confrontation Clause review at all. If it is testimonial, go to Crawford rule. Examples of Testimonial: Preliminary hearing testimony Grand jury testimony Former trial testimony Statements made in police interrogations.

Situations
Hearsay being offered against criminal under an exception Ohio v. Roberts, p. 360, 1980 [checks and credit cards] Hearsay against criminal must be firmly rooted. If not, then court can only look to circumstances surrounding the making of the statement itself to determine its reliability. Still good law for non-testimonial statements! Crawford v. Washington, p. 363, 2004 [convicted of assault] Testimonial hearsay statements must be excluded in the absence of the declarants presence and availability for cross-examination at trial unless: The declarant is available at the trial for cross-examination, or The declarant is unavailable and the defendant against whom the statement is sought to be introduced had an earlier opportunity to cross-examine the declarant. Post-Ohio v. Roberts Idaho v. Writing, p. 362, 1990 - If it is not a firmly rooted exception [Ex. Catchall exception, statement

against interest], and it is a brand new hearsay exception, you can only look to the circumstances around the making of the statement itself to determine its trustworthiness and reliability. Examples: Spontaneity and consistent repetition, mental state of the declarant, and use of terminology unexpected of a child of similar age.

The Emergency Doctrine [*criminal cases*] Davis v. Washington, p. 379, 2006 [911 operator call] Non-Testimonial Statements made in a 911 call are non-testimonial when the objective circumstances indicate that the primary purpose of the questioning was to enable the police to respond to an emergency. True emergency. Example: Speaking about events as they were actually happening, rather than describing past events. Testimonial Statements to the police will be testimonial when the objective circumstance shows that there was no emergency and the primary purpose of the questioning was to establish past events potentially relevant to criminal prosecution. 911 to 411. Example: Part of an investigation into possible criminal past conduct. Limited Circumstances Due process may require admissibility of hearsay in limited circumstances. Chambers v. Mississippi, 1973 [death penalty] Rule If you are seeking the death penalty, otherwise inadmissible hearsay may be admissible against government it its the only way for the to cross (i.e. confront) the prosecutions proof. [This has only been applied in death penalty cases]. Facts Exclusion, under state hearsay rules, of exculpatory testimony that another party had committed the crime, which under the circumstances was likely to be trustworthy and within the rationale of the exception for declarations against penal interest, coupled with the State's refusal to allow to cross-examine a key witness because of a common-law rule that a party may not impeach his own witness, denied him a trial in accord with fundamental standards of due process. Child Abuse Victim Case Hypo: A child accuses X of sexual abuse; the child is interviewed by Victims rights advocate and child protective services, and tells them what happened to her. This testimony is recorded. Option A: If child is unavailable (b/c they rule that the child would be traumatized by testifying again so shes unavailable)---Will the court let it in? Arguably, NO, because the purpose of the child going to the victim rights

advocate group IS to preserve her testimony for court, w/ the purpose for prosecuting. (is it reasonable to infer that the statement would be used in court) Option B: The second scenario is to look at the circumstances surrounding the statement. Under the circumstances, is the information being gathered for testimony in court? Consider the fact that the declarant is a child. Look at the circumstances. Its a tough call b/c you want to protect children.

Privilege [p. 759] [*narrowly construed]

Attorney Client
Policy Promotes faith in legal system, allows open/candid discussions so lawyer can be a zealous advocate. Not a shield to ongoing criminal acts. Rule Any communication, made in confidence, between the attorney and her client, or representative of either for purposes of legal advice or consultation. Confidence With reasonable expectation of privacy. Waive it by being in a public place where there is no anticipation of privacy. Attorney-Client You need not accept them as a client. It is any sort of communication. If communication is made for the purpose of legal representation, than privileged. You can have a paralegal or an accountant for seeking advice. Whats said to the assistant is privilege as well. Communications Only to communications, not physical observations/manifestations. Giving car keys is not privileged. Exception: If client tells attorney that he plans to commit a crime in the future/engage in fraud, not privileged communications lawyer cant engage or promote crimes/fraud. Legal Advice If primary purpose of communication is about giving legal advice, than it is privileged. Scope of attorney services telling your client the date of their trial is NOT providing professional services and therefore NOT privileged.

Psycho-Therapist and Patient

Rule Any confidential communication [conversations, conversations that were written down during the therapy session, initial intake interview, medical records] to a psychotherapist psychologist, licensed clinical social worker. For the purposes of treatment cannot be disclosed. Exceptions If you put your mental state at issue [by pleading insanity of duress], what you have said to a psychotherapist for purposes of mental health counseling can be disclosed since you put your mental state at issue. Subject to the courts review. The patients statement poses a threat of death or imminent harm to the patient or someone else, the psychotherapist can disclose it. Psychotherapist reasonable believes. Only way to prevent it is to disclose the statement.

Spousal
Adverse Spousal Privilege [criminal cases] Rule Government cannot compel one spouse to be a witness against her spouse in a criminal case. Only adverse testimony. Predates marriage, but it must be a valid marriage at the time of trial. It is a blanket privilege.

Belongs to Testifying Spouse Only [Trammel v. US] must be married at the time of the testimony. If they get divorced, than there is no privilege to info said after the marriage was over. Ex-spouse can testify regarding info after the divorce. Example If husband and wife communicate about husbands illegal activity. Govt calls wife to testify and that testifying wife can say she does not want to testify at all. Confidential Communication between Spouses [criminal & civil cases] Rule Any confidential [things said between the spouses in confidence] communication between spouses during a valid marriage may not be disclosed by either side. It survives the marriage even if it ended. If child is present, then not privileged if parents are aware the child is present and the child can communicate (old enough to). Belongs to both spouses* Only covers what they said during their marriage. Nothing before marriage. Exception Crime against other spouse Suites by one spouse against the other [divorce]

Downloaded From OutlineDepot.com

PAGE \* MERGEFORMAT 38

Admit

No

Yes

Firmly rooted exception?

Not allowed (Crawford)

Admit

No

Yes

Prior opp to cross-exam if declarant is unavailable now?

Yes

No

Is it testimonial?

court can only consider circumstances surrounding the making of the statement itself to determine its reliability