You are on page 1of 24

Michael Mroczka

Unit I: Relevance Chapter 1: General Principles of Relevance A. Probativeness and Materiality: Focus on 401 & 402 Relevance Three Rules: FRE 401, 402, and 403 o Rule 401: Relevant evidence means having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 1) Evidence must be material Evidence is material if it bears on a fact that is of consequence to the determination of the action. 2) Evidence must be probative of a material fact. The evidence must have a tendency to make the existence of [that fact] more probable or less probable than it would be without the evidence. No need to provejust make more or less probable o Rule 402: Evidence is not admissible if not relevant, but typically admissible if relevant. o Rule 403: Relevant evidence may be excluded if it poses problems that substantially outweigh its probative value.

1. Probativeness If the proposition itself is one provable in the case at bar, or if it in turn forms a further link in a chain of proof, the final proposition of which is provable in the case at bar, then the offered item of evidence has probative value in the case. o Whether the immediate or ultimate proposition sought to be proved is provable in the case at bar is determined by substantive law governing the case May be excluded as irrelevant for either of these two reasons: o 1) It is not probative of the proposition at which it is directed o 2) That proposition is not provable in the case * Mens fixed designs are probably carried out. 2. Materiality United States v. James Ernestine Jamess (Defendant-Appellants) boyfriend, David Ogden (decedent) was killed by Defendant-Appellants daughter, Jeffries. Defendant-Appellant was convicted by a Federal District Court of the crime of aiding and abetting manslaughter. At trial, Defendant-Appellant raised the defense of self-defense in the original action.

Where a Defendant raises self-defense as a defense to a charge of manslaughter, it is improper to exclude extrinsic evidence of the decedents violen nature that would have corroborated the Defendants testimony. It was probative of the defendants state of mind. It was necessary for the jury to know that D was telling the truth about the stories.

B. Conditional Relevance: Focus on FRE 104(b) Cox v. State Patrick E. Cox (Appellant) was convicted of murder by a jury following a shooting that left James Leonard (Victim) dead.

The testimony of the deputy prosecutor is admissible under Rule 104(b), which provides that, [w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the Court shal admit it upon . . . the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Since here the relevance of the prosecutors testimony depends on a condition of fact (whether Appellant knew of the events at the bond reduction hearing), and because other evidence was present that would support a finding that the condition was fulfilled, the testimony is relevant and admissible.

C. Probativeness Versus the Risk of Unfair Prejudice: Focus on FRE 403 FRE 403 (restyled) Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time o The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. 1. Photos and Other Inflammatory Evidence State v. Bocharski The Trial court allowed six photographs into evidence over the objection that they were gruesome, highly inflammatory, and unduly prejudicial.

Evidence that is relevant should nevertheless be excluded when the risk of prejudice outweighs the probative value of the evidence, and the photographs should have been excluded accordingly; however, because the viewing of the

Michael Mroczka

United States v. James

photographs by the jury did not contribute to or affect the jurys verdict, the error was harmless. Dissent: Rule 403 does not limit unfair prejudice to one side. The dissenting opinion is based on the discretion afforded the trial judge; the dissent argues that the instant court must defer to the trial judges discretion, when the trial judge had a sensible reason for exercising his discretion as he did. D was accused of robbing a bank and made several pretrial motions. At issue here are Ds motions to exclude evidence of his use of false name after being arrested. D was arrested. D was charged with various crimes including violating 18 U.S.C. Section: 922(g)(1) which makes it a crime for anyone who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce, any firearm.

4. Effect of Stipulations United States v. Jackson

Old Chief v. United States

The evidence relating to Ds arrest in Georgia will be inadmissible at trial provided that D enter into a stipulation to the effect that he was in Georgia shortly after the robbery and that while there he used a false name. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.

Discounted Probative value approach o Court is to evaluate whether a particular item of evidence raised a danger of unfair prejudice. If it did, it would evaluate substitutes. If the alternative had substantially the same or greater probative value but lower the danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk. Narrative Integrity o Substitution of evidence might have the effect to rob the evidence of much of its fair and legitimate weight. Can tell a colorful story. Chapter 2: The Specialized Relevance Rules A. Subsequent Remedial Measures: Focus on FRE 407 FRE 407 (restyled) Subsequent Remedial Measures o When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. o But the court may admit this evidence for another purpose, such as impeachment or if disputed proving ownership, control, or the feasibility of precautionary measures. Subsequent Remedial Measures- Something done after an accident to prevent more accidents (or for a different reason?) o P would like to get it in b/c it is like an admission that something was wrong NO. o Inadmissible for the purpose of proving culpable conduct, product defect or the need for a warning. Why? If admissible, D wouldnt make post accident repairs Public safety policy. o Two Exceptions: D must raise issue first! May be admissible to show ownership or control, if D puts it in controversy. Allowed if D controverts or disputes the feasibility of a safer condition. B. Compromise Offers and Payment of Medical Expenses: Focus on FRE 408 & 409 FRE 408 (restyled) Compromise and Offers to Compromise o (a) Prohibited Uses. Evidence of the following is not admissible on behalf of any party either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering or accepting, promising to accept, or offering to accept a valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claim except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. o (b) Exceptions. The court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Michael Mroczka
Settlement Evidence: Compromise- an offer to settle as an implied admission o An offer of a settlement or an offer to settle a claim that is disputed (liability or amount of damages) is not allowed on the issue of liability. Why? To encourage settlement. o Statements of fact made during settlement talks are also inadmissible. Exception: Witness impeachment on the ground of bias. Limited to Bias! No exception based on inconsistent statements. o Rule of exclusion for settlement evidence does not apply unless the plaintiff has asserted a claim, and the defendant has disputed that claim, either as to the liability or the amount of damages at the time of settlement discussion. Claim- assertion of rights Third Party Repairs- Most courts admit evidence of third party repairs. o ReasoningMost third parties will not be dissuaded from making repairs just because evidence of those repairs might be offered against someone else. Although there may be little probative force to get past 403. Criminal Cases: o Except in one fairly narrow circumstance, statements made during the compromise negotiations of disputed civil claims are not admissible in subsequent criminal litigation, when offered to prove liability for, invalidity of, or amount of those claims. One circumstance: FRE 408(a)(2) Rule 408 poses not bar to admission at criminal trials of conduct or statements made in civil compromise negotiationswhen those negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. o When an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected. The individual can seek to protect against subsequent disclosure through negotiation and agreement with the civil regulator or an attorney for the government. FRE 409 (restyled) Payment of Medical and Similar Expenses o Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Offer to Pay Hospital or Medical Expenseso Evidence that a party has paid or offered to pay hospital or medical expenses is inadmissible to prove liability. PolicyTo encourage charity or generosity. o Only excludes the offer to pay to the payment itself. Does not exclude statements of fact made in connection with the offer.

C. Liability Insurance: Focus on FRE 411 FRE 411 (restyled) Liability Insurance o Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witnesss bias or prejudice or proving agency, ownership, or control. Liability Insuranceo P wants to show that D has liability insurance D has insurance so he expected to act negligently. o NOT Admissible to show fault or absence of fault. Two Exceptions: May be admissible for some other relevant purpose: Where Ds ownership or control is controverted o D must specifically dispute ownership To impeach witness on the ground of bias.

D. Pleas in Criminal Cases: Focus on FRE 410 FRE 410 (restyled) Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related Statements o (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority (or agent of) if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. o (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) (i) in any proceeding in which another statement made during the same plea or plea discussions has been

Michael Mroczka

introduced, if in fairness the statements ought to be considered together; or (2) (ii) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. Evidence is always barred except where specifically permitted. Criminal defendant may knowingly and voluntarily waive this. o Prosecutor may as a precondition to any plea negotiations, demand that any statements they make during negotiations may be used to impeach any contradictory testimony they give at trial. Some courts believe that D must be talking with prosecutor or agent of. For example, talking to a police officer who merely appears to have the authority to give a deal may not be protected. o However, some courts believe that Rule 410 should exclude Ds statements if she exhibited an actual subjective expectation to negotiate a plea, and that expectation was reasonable given the totality of the objective circumstances. Evidence offered against the prosecutoro Rule 410 bars evidence of pleas and plea discussions only when offered against the defendant. By its terms, the rule does not prevent the defendant from presenting evidence that the prosecutor offered to drop a charge during plea discussions. o But since admitting such evidence would thereby frustrate the purpose of the rule, some courts have ignored the strict language of the rule and have barred the evidence.

Chapter 3: Character Evidence A. The Character-Propensity Rule: Focus on FRE 404 FRE 404 (restyled) Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes o (a) Character Evidence. (1) Prohibited Uses. Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (action in conformity therewith) (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendants pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may: o (i) offer evidence to rebut it; and o (ii) offer evidence of the defendants same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Exceptions for a Witness. Evidence of a witnesss character may be admitted under Rules 607, 608, and 609. o (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial or during trial if the court, for good cause, excuses lack of pretrial notice. People v. Zackowitz Mr. Zackowitz (Defendant) shot and killed Frank Coppola (Victim) after Victim allegedly made crude comments to Defendants wife. Defendant was subsequently arrested and charged with the crime of murder, and convicted in the lower court. Defendant appeals here; the sole issue of the appeal is the state of mind of Defendant, which determines the degree of homicide of which Defendant is guilty. Held. Error was committed by the lower court in allowing the prosecution to present the evidence to the jury, as the introduction of such evidence resulted in the jury being unfairly prejudiced against Defendant. (Because he had weapons he was dangerous, and because he was dangerous) Dissent. Defendant was presented to the jury as a man having dangerous weapons in his possession, making a selection therefrom, and going forth to put into execution his threats to kill; not as a man of a dangerous disposition in general, but as one who, having an opportunity to select a weapon to carry out his threats, proceeded to do so.

Propensity Boxo Evidence that a person has a particular character trait generally is not admissible to show that a person acted in conformity with that trait at a particular time. Zackowitzs weaponry was used to prove him a man of dangerous propensities, who because of those propensities

Michael Mroczka
was more likely to kill with deliberate and premeditated design than a man of irreproachable life and amiable manners. Can be used to justify condemning a man of bad character

B. Routes Around The Box 1. Proof of Knowledge Hacker Problem o One shipment happened o Another the same way to a different place, where D was caught. o D said he didnt do the first one. o P wants to introduce the second theft in the trial for the first. For what reason? Knowledge of how to hack the company and commit the crime. o Is there any other way? D could admit that he has the knowledge to do it to keep out the second theft.

2. Proof of Motive US v. Peltier I Problem o Agents were shot, D was charged. o P want to introduce that D had plead not guilty to attempted murder in another state and didnt show for trial. And was aware of a warrant for his arrest. o Why would it be allowed? Motive. He was on the run and didnt want to be caught. o Arguments against admission? They dont need to show the reason he was supposed to be on trial. 3. Proof of Identity US v. Peltier II Problem o D was pulled over and police found in the vehicle the agents gun with Ds fingerprint, a gun that matched the weapon that killed the agents, and many other guns, tools and shells etc. o Should the judge allow admission? Yes to the agents gun, finger print, and the gun that matched the weapon that killed the agents. Maybe keep other stuff out? United States v. Trenkler There was a bombing. Evidence was introduced of a previous bomb built by D to show Identity by M.O. Evidence is admissible when there exists some special relevance, independent of its tendency to show criminal propensity, on a material issue and when the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice; here, there was such a special relevance with respect to the evidence and a reasonable jury could have determined that the same person was responsible for both bombs

Proof of Modus Operandi: o If we know D committed a particular crime in the past, and the present offence matches that crime idiosyncratic ways, we may infer the defendant committed the present offense as well. o The idea is that this could not be anyone elses crime. o The similarities between the two crimes must be so distinctive that the inference that nobody else could have committed this crime overcomes the jurys temptation to engage in propensity reasoning. o Test: from TrenklerIn resolving whether the evidence supports an inference that the two incidents are sufficiently idiosyncratic, an exact match is not necessary. The Test must focus on the totality of the comparison, demanding not a facsimile or exact replica but rather the conjunction of several identifying characteristics or the presence of some highly distinctive quality.

4. Narrative Integrity (Res Gestae) Russian Roulette Problem D was charged with possession of a revolver P called W to testify that D played Russian roulette with her (mainly that D pointed a revolver at her head and pulled the trigger). Judge allowed description of the game but did not allow the words Russian roulette. o Theory the judge admitted the evidence?

Michael Mroczka
Ownership or possession or knowledge by W that D owned or possessed. Why forbid references to Russian roulette? Prejudicial? Why not just say D showed W the gun? It was a while since she would have seen the gun and seeing it that way would make her remember it. Any other way might hurt her credibility.

o o

5. Absence of Accident Cleaning His Gun Problem o D charged with shooting wife, says it was accidentally discharged while cleaning. o P wants to introduce that he shot and killed a previous wife, which he claimed was an accident while cleaning gun. o What other reason than propensity? That he should have and did know how to clean a gun now, or the chances of the accident happening again is slim. o Could the judge have given instructions? Maybe allow to show a previous accident but withhold that former wife was killed. However that might hurt narrative integrity.

D. Propensity Evidence in Sexual Assault Cases: Focus on FRE 413, 414, & 415 FRE 413 (restyled) Evidence of Similar Crimes in Sexual Assault Cases o (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. o (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. o (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. o (d) Definition of Sexual Assault. In this rule and Rule 415, sexual assault means a crime under federal law or under state law (as state is defined in 18 U.S.C. 513) involving: (1) any conduct prohibited by 18 U.S.C. chapter 109A; (2) contact, without consent, between any part of the defendants body or an object and another persons genitals or anus; (3) contact, without consent, between the defendants genitals or anus and any part of another persons body; (4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)(4). FRE 414 (restyled) Evidence of Similar Crimes in Child Molestation Cases o (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. o (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. o (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. o (d) Definition of Child and Child Molestation. In this rule and Rule 415: (1) child means a person below the age of 14; and (2) child molestation means a crime under federal law or under state law (as state is defined in 18 U.S.C. 513) involving: (A) any conduct prohibited by 18 U.S.C. chapter 109A and committed with a child; (B) any conduct prohibited by 18 U.S.C. chapter 110; (C) contact between any part of the defendants body or an object and a childs genitals or anus; (D) contact between the defendants genitals or anus and any part of a childs body; (E) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on a child; or (F) an attempt or conspiracy to engage in conduct described in subparagraphs (A)(E).

FRE 415 (restyled) Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation o (a) Permitted Uses. In a civil case involving a claim for relief based on a partys alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. o (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses statements or a summary of the expected testimony. The party must do so at least 15

Michael Mroczka
days before trial or at a later time that the court allows for good cause. (c) Effect on Other Rules. This rule does not limit the admission or consideration of evidence under any other rule. D was indicted for two counts of criminal sexual penetration and two counts of battery; the indictment was based on D's alleged behaviors while he was practicing as a gyno. P offered into evidence the testimony of various women who claimed to have been abused by D, and D moved to have the evidence excluded based on the standard of FRE 403. The lower court granted Ds motion, and this appeal followed.

United States v. Guardia

In order for evidence to be admissible under Federal Rule of Evidence 413, a defendant must be on trial for, an offense of sexual assault, the evidence must be of and concerning, another offense of . . . sexual assault, the lower court must determine that the evidence is relevant, and the potential prejudicial value of the evidence must not substantially outweigh its probative value (FRE 403). The court did not abuse its discretion by withholding the evidence. Use of Bad Act Evidence Against a Defendant in a Sexual Assault Case or a Child Molestation Case: o In a case alleging sexual assault or child molestation, prior specific acts of sexual misconduct or of child molestation is admissible as part of the prosecutions case-in-chief to show the defendants propensity. Specific instances of conduct, not reputation or opinion.

E. Proof of the Defendants and the Victims Character: Focus on FRE 404(a)(1), 404 (a)(2), & 405 FRE 405 (restyled) Methods of Proving Character o (a) By Reputation or Opinion. When evidence of a persons character or character trait is admissible, it may be proved by testimony about the persons reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct. o (b) By Specific Instances of Conduct. When a persons character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the persons conduct. Michelson v. United States Whether a party has the right to cross-examine another parties character witnesses and inquire about past bad acts such as arrests and/or convictions?

A party has the right to cross-examine another parties character witnesses and inquire about past bad acts such as arrests and/or convictions. Arrest without more does not impeach the integrity or impair the credibility of witness and hence only a conviction may be inquired about to undermine the trustworthiness of a witness. Before a character witness is cross-examined as to a prior arrest of the defendant, the prosecution should demonstrate privately to the court that it is not based on unsupported or untrue innuendo.

Character Evidence- Refers to a persons general propensity or disposition o Rules for the admissibility come from Rules 404(a) & 405 o Two variables that are most important in this area: 1) the purpose for which the evidence is offered 2) whether it is a criminal case or a civil case o Criminal CasesThe person whos character is of greatest interest is Defendant. The Rule with respect to defendants character basically requires us to focus on three things 1) Prosecutions case-in-chief What can P do? 2) Defendants Defense What can D do? *May be able to open the door. 3) If D opens the door, what can P do on cross-examination and what can P do during the rebuttal case? 1. Evidence of the criminal defendants character to prove his conduct in conformity therewith is not admissible during the Prosecutors case-in-chief. Not allowed to show general propensity for the commission of crim to raise the inference of guilt. 2. Defendant may introduce evidence of a relevant character trait. May do it with reputation or opinion testimony. Allow him to suggest that he has good character for the particular trait to raise an inference that he is not guilty (his conduct conformed to the trait). o The option to introduce evidence of good character as circumstantial evidence of good conduct. o Only Reputation and opinion testimony is allowed for this. o Cannot testify to specific instances of conduct. o Must testify to a relevant character trait (to the type of crime). 3. Prosecutions response to Defendants character evidence: If the Defendant opens the door, the prosecution can respond in two ways: o 1) Cross-examination of Ds character witness to ask the character witness whether he has

Michael Mroczka

heard or knows of specific instances of conduct (acts or convictions or arrests) if they reflect adversely on the character trait that D has introduced. For impeaching the character witnesss knowledge Must be a good faith basis. Must be relevant to the type of crime If denied, the prosecutor is not allowed to prove the prior instances of conduct, only allowed to ask. o 2) Rebuttal by separate character witness to show opposite character. Reputation and opinion testimony If the Defendant himself takes the stand: o He must open the door by introducing character. (Im an honest/peaceful person I wouldnt do that.) o Certain permissible ways to impeach the credibility of the defendant as a witness once he takes the stand without him opening the door about credibility. (Character of Truthfulness) Victims Character: Generally the victims character is irrelevant. Self Defense Cases: Character might be admissible o In a self defense case, D is allowed to introduce evidence about Vs violent character as circumstantial evidence that V was the first aggressor Door Opens and on rebuttal, P can offer evidence of Vs good character for peacefulness Specific instances, Rep and Opinion Can also introduce evidence of Ds Character for violence. Reputation and Opinion o Example: D testifies that A told him that V attacked A with a Knife. Or V told D that V had attacked A with a knife. Admissible to show Ds state of mind (reason to react the way he did). To show D was aware of Vs bad acts and rep. Civil casesInadmissible to prove a persons conduct in conformity with character. Across the board exclusion Ds liberty is not at stake There may be situations (few) where a persons character in an essential element of a claim or defense in which character evidence must be allowed. Tort case for defamation, Tort of negligent hiring/entrustment Defendants other crimes, wrongs or acts General Rule- Ds other crimes or bad acts are not admissible to prove the general character or suggest Ds criminal propensity. If other bad acts show something specific about the crime currently charged (separate from just general character) then the other bad acts may be admissible as evidence bearing on guilt. o To dismiss an alibi (closeness in time and place tends to identify D as the person who committed the crime) (opportunity & means). Five most common non-character grounds for admissibility: o M- Motive o I- Intent o M- Mistake/accident, the absence thereof o I- Identity (modus operandi) o C- Common scheme or plan ProcedureP has to prove that these other crimes happened o Conviction o Introduce evidence that the other crimes happened Standard of proofSufficient evidence standard Sufficient evidence from which a reasonable juror could conclude that D committed the other crime. Court must weigh the probative value against unfair prejudice If allowed, there must be a limiting instruction to the jury Pretrial notice, criminal case- Upon Ds request, P must give notice of intent to introduce 404(b) evidence. May be used in civil cases

When does 405(b) apply? o Only when the existence of a character traitand not any conduct done in conformity with that trait is the thing to be proved Examples:

Michael Mroczka
Rebutting and Entrapment Defense: o When alleging entrapment, a D claims he was induced to commit a crime that he would not otherwise commit. o The prosecutor may rebut by showing that D was predisposed to commit the crime in question (may show that D had a thievish [corrupt or drug-dealing] disposition. No need to prove acting in conformity with the predisposition, only existence of it. Rebutting a Defense of Truth in a Libel or Slander Action: o D publicly accuses P as a thief (bully or liar), which gives rise to a slander or libel action. o If D claims the accusation was truthful, the trial will focus on whether P is indeed a thief bully or liar, making existence of a character trait a critical thing. Resolving a Parental Custody Dispute: o Must decide which is the better parent, character is critical.

F. Evidence of Habit: Focus on FRE 406 FRE 406 (restyled) Habit; Routine Practice o Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Halloran v. Virginia Chemicals Inc. P frequently serviced air conditioners as part of his job as an auto mechanic. The plaintiff was filling the new compressor with Freon and heated one of the cans to increase the flow of the Freon, at which point the can exploded and injured him.

Issue: Whether evidence that the plaintiff used an immersion-heating coil to heat the can of refrigerant should be admitted to show his negligence, and that he failed to follow the warning labels? Evidence of habit or regular usage should be admissible to prove the plaintiff followed the same procedure the day he was injured.

HabitA repetitive response to a particular set of circumstances. o The habit of a person or the routine of a business organization is admissible as circumstantial evidence of how the person or the business acted on the occasion at issue. Two Principle Factors: 1) The frequency of the conduct, and 2) Particularity o *hint words: Always, automatically, habitually.

Chapter 4: Impeachment and Character for Truthfulness A. Modes of Impeachment Non-Character ImpeachmentSuggestion that witness is lying now may say little about the witnesss general tendency to tell the truth. Exposes one lie at a time. Youre Lying! o Contradiction by Conflicting Evidence Can impeach a claim by a witness by calling another that says otherwise. Can contrast a claim with the common experiences of life, which in light of other facts might render the testimony implausible. Such contradiction can expose not only lies, but also mistakes of perception, memory, or narration. o Contradiction by Past Inconsistent Statement Witness has said different things at different times, and therefore shouldnt be believed on this point. Not only for lying, also for misperception, etc. May invite suspicion that witness intended to deceive. o Evidence of Bias Describes the relationship between a party and a witness which might lead the witness to slant his testimony in favor or against a party. Like, dislike, or fear of a party Self interest in preferring one outcome over another o Rules 402 and 403 constrain such evidence, as may rules governing hearsay, expert testimony, and privileges.

Character-Based ImpeachmentCasting doubt on a witnesss words by showing that he is, by trait, a liar and lied in conformity with that trait. Lying Liar! o 404(a)(3) specifically permits propensity evidence concerning the character of a witness, as provided in Rules 607, 608, and 609. o FRE 607: Either party may attack a witnesss credibility, including the party that sponsored the witness. o FRE 608(a):

Michael Mroczka
Either party may offer evidence of a witnesss character for untruthfulness. The opponent may then rebut with evidence of the witnesss character for truthfulness. InferenceThe witness has good or bad character for truthfulness and therefore is more or less likely to have lied in this case. Both must take form of reputation or opinion. FRE 608(b): On cross-examination a party may ask a witness about specific instances of the conduct of a witness to attack or support the witnesss character for truthfulness. Permits inquiry about the specific instance; o During cross-examination of the witness who did the specific conduct o During cross-examination of a character witness who has offered testimony about the substantive witnesss character. InferenceThe persons past lies (or similar conduct) are evidence of her general bad character for truthfulness and she, acting in conformity with that trait, is lying now. Limitations: o Must be probative of truthfulness or untruthfulness o May not be proved by extrinsic evidence o Must survive 403 o Good faith/reasonable basis needed o Covered by 609 but excluded by 609, not allowed here. FRE 609: Either party may seek to impeach a witness by showing her past conviction of a sufficiently serious or deceptive crime. InferenceThe past crime is evidence of general immorality or lawlessness and acting in conformity with that trait, the witness is lying now. 609(a)(2); Only applies if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. o The statutory element of a charged crime; o The face of the trial courts judgment; o The indictment; o A statement of admitted facts (if any); or o Jury instructions (if any). Unless the judge can find a requirement of proof of dishonesty or false statement on the surface of the paper record, the conviction is inadmissible under 609(a)(2) even if the witness exhibited dishonesty or made a false statement in the process of the commission of the crime. Then must be weighed under 609(b), (c), and (d).

B. Impeachment by Opinion, Reputation, and Cross-Examination About Past Lies: Focus on FRE 404(a)(3) & 608 FRE 608 (restyled) Evidence of Character and Conduct of Witness o (a) Reputation or Opinion Evidence. A witnesss credibility may be attacked or supported by testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. o (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. o By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witnesss character for truthfulness. C. Impeachment with Past Convictions: Focus on FRE 609 2. Rule 609 in Force

FRE 609 (restyled) Impeachment by Evidence of Conviction of Crime o (a) In General. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

Michael Mroczka

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving or the witnesss admitting a dishonest act or false statement. (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witnesss conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adults conviction for that offense would be admissible to attack the adults credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. Under FRE 609, evidence of past criminal convictions are allowed when used to attack the credibility of a witness, but only when the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

United States v. Brewer

After being charged with kidnapping, D filed a motion to suppress the Ps introduction of past criminal convictions, which would be used to impeach D if he takes the stand at trial. Four total convictions, and the admissibility of each into evidence, are at issue here. Brewers Probative value Test: Whether the probative value of admitting evidence outweighs its prejudicial effect. p. 276 o The court points to five factors to be examined: (1) the nature of the crime; (2) the time of conviction and the witness subsequent history; (3) similarity between the past crime and the charged crime; (4) importance of defendants testimony; and (5) the centrality of the credibility issue.

-Motion to suppress denied as to three of the four past convictions and granted as to the prior kidnapping conviction. -No as to the past kidnapping conviction, as the probative value of the past conviction on Ds truthfulness does not outweigh the prejudicial effect should the jury hear of it. (when past crime is same=very prejudicial) -Yes as to the remaining three past convictions, as methods to impeach the credibility of D should he take the stand.

D. Rehabilitation RehabilitationRepairing a witnesss credibility only after it is attacked. 608 & 609 are attacks on character for truthfulness Evidence that attacks a witnesss specific testimony may call in question the witnesss general character for truthfulness. Depends upon the circumstances. o If can be explained as mistake of perception, memory, or narration, it might not be a lie at all and would not qualify as an attack. o If the contradicting evidence suggests the witness has lied intentionally, then it may qualify as an attack. o Ways to do it: Explain the impeaching fact Show the witnesss good character for truthfulness by reputation or opinion testimony of a character witness. If impeachment clearly suggested that the witness was lying as opposed to merely being mistaken. Prior Consistent Statement to rebut a charge of recent fabrication. FRE 801(d)(1). If PCS was made before the motive to fabricate arose

Michael Mroczka
o Bonusgets admitted into evidence Evidence that the witness was telling the truth as Example: W-traffic signal was red. Can introduce evidence that the signal was indeed red (offered to prove color of light not truthfulness, therefore not constrained by character evidence rules). o Need not wait until attacked o Subject to 403 as cumulative evidence

E. Use of Extrinsic Evidence Use of Extrinsic Evidence Not Available: Litigant must take the answer of the witness to the question posed on cross-examination. o Rule 405(a)the litigant may ask a character witness on cross-examination whether that witness has heard of a specific act committed by the person about whose character the witness is testifying. Regardless of the witnesss answer, the lawyer may present no other evidence regarding the fact o Rule 608(b)The litigant may cross-examine a witness about specific instances of conduct that bear on character for truthfulness. The rule explicitly states that such conduct, other than conviction of a crime as provided by Rule 609, may not be proved by extrinsic evidence. If a witness denies having done or heard of the specific act, the lawyer may not present further evidence about it. Use of Extrinsic Evidence Available: o Evidence tending to show bias, prejudice, or motive to lie. o Conviction of a crime as provided in rule 609. o Evidence to contradict/corroborate specific testimony (light was red. Evidence to show it was or wasnt.) o Prior Inconsistent statement, 613(b): Only if the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. Chapter 5: The Rape Shield Law C. The Law in Force FRE 412 (restyled) Sex Offense Cases; Relevance of Alleged Victims Past Sexual Behavior or Alleged Sexual Predisposition o (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victims sexual predisposition. o (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victims sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victims sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendants constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victims sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victims reputation only if the victim has placed it in controversy. o (c) Procedure to Determine Admissibility. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victims guardian or representative. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. o (d) Definition of Victim. In this rule, victim includes an alleged victim. 2. Explaining the Source of Physical Evidence 3. Past Allegedly False Accusations State v. Smith D was convicted of attempted indecent behavior with a juvenile, and appeals that conviction here. The allegations were made by a juvenile. When D attempted, on cross-examination, to inquire into whether V had ever made similar accusations

The state rape shield law prohibits evidence of a victims past sexual behavior, here the evidence disallowed was not concerning the victims past sexual behavior, history or reputation for chastity but rather was offered for impeachment purposes.

Michael Mroczka
against others, the lower court did not allow it, citing the state rape shield statute.

Past allegedly false accusations can be used for impeachment purposes.

4. 404(b)Style Uses of Evidence of Past Sexual Behavior a. Proof of Bias Olden v. Kentucky D was convicted of forcible sodomy of V. D D wanted to prove that V was living with W at the maintained the sex was consensual, and V gave time, therefore giving her motive to lie to W and to several different accounts of the alleged sexual the court. Should have been allowed to crossassault. V testified that she was living with her examine, pursuant to the 6th amendment right to mother at the time of the trial, and D sought to confront. It would have been used to impeach the introduce evidence that she was living with the credibility based on motive to lie in this case. only witness who corroborated her story (now her husband). Unit II: Reliability Chapter 7: The Rule Against Hearsay B. Defining Hearsay 1. The Basic Rule: Focus on FRE 801(a)-(c) & 802 FRE 801 (restyled) Definitions; Exclusions From Hearsay The following definitions apply under this article: o (a) Statement. Statement means a persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. o (b) Declarant. Declarant means the person who made the statement. o (c) Hearsay. Hearsay means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. o (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (1) A Declarant-Witnesss Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (B) is consistent with the declarants testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or (C) identifies a person as someone the declarant perceived earlier. (2) An Opposing Partys Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the partys agent or employee on a matter within the scope of that relationship and while it existed; or (E) was made by the partys coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarants authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

FRE 802 (restyled) Hearsay Rule o Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court. Hearsay: The Problem with HearsayThe inability of the opponent to cross-examine the declarant in the presence of the fact finder at the time it was made. o If not being offered to show truth, not hearsay. Three Principle Categories of Non-Hearsay Statements: o 1) The Verbal Act or Legally Operative Words: A situation were the substantive law attaches legal significance to certain words simply because those words were spoken. (I offer/accept.) Words of defamation in a tort act for defamation Misrepresentation in fraud Bribery

Michael Mroczka
Making a gift 2) Words that are used to show an effect on the person who heard or read the statement: Not hearsay if used for something other than to show truth Shows effect on the person who heard the words Words that give a person motive to do something 3) Using the words as circumstantial evidence of the speakers state of mind. I am Elvis and its good to be back. Relevant on insanity, not that he is Elvis.

2. Defining Assertions Words Most oral and written expressions are manifestly assertive o Declarative sentences-This ship is safe. Implied Assertions o Commands dont run that stop sign- telling there is a stop sign ahead. Close the door. More ambiguous. If the person at whom the command is directed can see that the door is open. o If offered to prove the door is open, probably not hearsay. o If offered to prove that the declarant wants the door closed, probably hearsay. o Questions does sarah sell drugs? How do you think she afforded that car? hearsay if offered to prove that sarah sells drugs and bought her car from the proceeds. What is your name? If offered to prove that the speaker did not know name. o DeclarativeLaura ought to give that dog a bath. = that dog is dirty Indirect Assertions o I just spent all morning with the architect planning my retirement home. Declarant dies of overdose; Prosecutor offers to show she was not mulling suicide. The immediate fact (planning her retirement home) is a necessary link in the chain of inferences leading to the intermediate fact (she was planning for the long term), which leads to the ultimate fact (she probably was not mulling suicide). Therefore the statement is being offered to prove what it asserts and is hearsay.

Non-hearsay Uses of Out-of-Court Statements o Nonassertive words: Ouch. Involuntary expressionNot intending to communicate pain, would not be hearsay if offered to prove you were in pain. o Words Offered to Prove Something Other Than What They Assert Letters to written to someone who had known him well, Offered to prove competency. The letters said nothingtheir authors intended to communicate nothingabout the testators competence. Not hearsay No assertion of competence, no evidence to show they implied that he was competent. Offered to prove that the writers believed he was competent. o Assertions offered as Circumstantial Proof of Knowledge Sexually assaulted little girl described where defendant took her. Wanted to introduce it at trial to show knowledge of the appearance of the mans residence. Not hearsay.

C. Statements of Party-Opponents 1. The Partys Own Words: Focus on FRE 801(d)(2)(A) Party Admission801(d)(2): Defined as non-hearsay o Admission by a party-opponent Any statement made by a party is admissible if offered against the party. Does not allow a party to use her own prior self serving statement in support of her own case. 2. Adoptive Admissions: Focus on FRE 801(d)(2)(B) 3. Statements of Agents: Focus on FRE 801(d)(2)(C) & (D) Vicarious Party Admissions: o A statement made by an agent or employee is admissible against the principle if; the statement concerns a matter within the scope of the agency or employment; and the statement was made during the existence of the agency or employment relationship. 4. Coconspirators Statements: Focus on FRE 801(d)(2)(E) & 104(a)

Michael Mroczka

Preconditions for the coconspirator exception o That a conspiracy existed at the time the out of court statement was made; o That the conspiracy included both the declarant and the party against whom the statement is offered; and o That the declarant spoke during the course of and in furtherance of the conspiracy. Application of the coconspirator exception does not depend on whether the government has formally charged conspiracy. Almost never applies to a confession made knowingly to the police and implicating ones associates. o Must be made in furtherance; confession may well terminate the conspiracy and almost never furthers it. Petitioner, Bourjaily (friend), was charged with conspiring to distribute cocaine and possession of cocaine after he attempted to buy cocaine from an FBI informant through his co-conspirator Angelo Lenardo. Petitioner objected to the admission of taped conversations between Lenardo and the informant.

Bourjaily v. United States

The standard of review for the initial determination of whether a co-conspiracy exists for the purposes of applying Rule 801 (d)(2)(E) is a preponderance of the evidence, and the evidence available met that threshold. The court is allowed to look at the hearsay statements in making that determination, however did not decide if it could look at the statement alone to make the determination.

D. Past Statements of Witnesses and Past Testimony 2. Inconsistent Statements Offered to Impeach: Focus on FRE 613 FRE 613 (restyled) Prior Statements of Witnesses o (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witnesss prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse partys attorney. o (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witnesss prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing partys statement under Rule 801(d)(2). United States v. Barrett Wanted to introduce prior inconsistent statement of a witness.

United States v. Ince

Under Federal Rule of Evidence 607, a witnesss credibility may be attacked through impeachment testimony, but when testimony lacks any probative value and carries a high risk of prejudice, the evidence must be excluded, even when it meets the technical requirements of Rule 607.

613(b) does not absolutely require that a foundation be laid to introduce a prior inconsistent statement, only that an opportunity be given to the declarant to explain or deny that statement. Excluding the statement constituted reversible error, as its introduction might have raised a reasonable doubt in the minds of the jurors. Stevens testimony was offered to impeach the prior inconsistent statement of Neumann, but the lower court nonetheless committed error in admitting the evidence because the testimony carried a high risk of prejudice and was lacking in any probative value. The governments only apparent purpose for impeaching on of its own witnesses was to circumvent the hearsay rule.

3. Inconsistent Statements Offered Substantially: Focus on FRE 801(d)(1)(A) 4. Past Consistent Statements: Focus on FRE 801(d)(1)(B) Tome v. United States 5. Statements of Identification: Focus on FRE 801(d)(1)(C) United States v. Owens Witness testified at trial but was unable to remember identifying D or explain the basis of his ID because of brain damage.

Statements were made after the motive to lie arose. Prior identification is not inadmissible due to memory loss of the witness when he is at trial to testify. Easy to cross-examine someone with memory loss.

E. Hearsay Exceptions Under Rule 804: Declarant Unavailable FRE 804 (restyled) Hearsay Exceptions; Declarant Unavailable o (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: (1) is exempted from testifying about the subject matter of the declarants statement because the court rules that a privilege applies; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or (5) is absent from the trial or hearing and the statements proponent has not been able, by process or other

Michael Mroczka

o o

reasonable means, to procure: (A) the declarants attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarants attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in order to prevent the declarant from attending or testifying. (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony. Testimony that: (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and (B) is now offered against a party who had or, in a civil case, whose predecessor in interest had an opportunity and similar motive to develop it by direct, cross-, or redirect examination. (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarants death to be imminent, made about its cause or circumstances. (3) Statement Against Interest. A statement that: (A) a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. (4) Statement of Personal or Family History. A statement about: (A) the declarants own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the persons family that the declarants information is likely to be accurate. (5) [Other Exceptions .] [Transferred to Rule 807.] (6) Forfeiture by wrongdoing. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing the declarants unavailability as a witness, and did so intending that result.

1. Past Testimony: Focus on FRE 804(a) & 804 (b)(1) United States v. DiNapoli At trial, when the prosecution attempted to introduce evidence of grand jury testimony under Federal Rule of Evidence 804(b)(1), the lower court held that the similar motive requirement was not met and disallowed the testimony. In determining whether the similar motive requirement of Rule 804(b)(1) is met, the court must consider: o whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. o The nature of the two proceedings both what is at stake and the applicable burden of proof and, to a lesser extent, the crossexamination at the prior proceeding both what was undertaken and what was available but forgone will be relevant though not conclusive on the ultimate issue of similarity of motive. Lloyd v. American Export Lines, D wanted to introduce evidence from a coast guard Testimony was admissible under Rule 804(b)(1), as Inc. hearing that Alvarez started the fight. Lloyds the Coast Guard and Alvarez shared a community testimony refuted Alvarezs. Culpability was the of interest, which meets the Rules predecessor in interest. interest requirement, and because both the Coast Guard and Alvarez had a similar motive to develop Plaintiffs prior testimony. Former Testimony Exception o The former testimony of a now unavailable witness if gen at a former proceeding or deposition is admissible against a party who on the prior occasion had an opportunity and a motive to cross-examine or develop the testimony of that witness. How to make sure the motive was there: If the issue in both proceedings are essentially the same Grand jury proceedings dont give opportunity to cross. 2. Statements Against Interest: Focus on FRE 804(b)(3) Williamson v. United States Harris was pulled over by the police for erratic driving, and a subsequent search revealed several kilos of cocaine. He gave one version of how he got the drugs during his first interview with the police, but subsequently changed his story.

Rule 804(b)(3) does not allow admission of nonself-inculpatory statements, even if they are made within a broader narrative that is generally selfinculpatory. Especially true when the statements implicate someone else.

Michael Mroczka

4. Dying Declarations: focus on FRE 804(b)(2) Shepard v. United States part 1 D was convicted of poisoning his wife, allegedly In order for a statement to be admitted as a dying because he was in love with another woman and declaration, there must be sufficient proof that the wanted to marry her. At trial, the prosecution statement was made in the shadow of impending attempted to admit evidence of a conversation that death and that the declarant had no hope of the dying woman had with her nurse, in which she recovery whatsoever. had implicated D. Focus on FRE 806: Attacking and Supporting Credibility of Declarant FRE 806 (restyled) Attacking and Supporting Credibility of Declarant o When a hearsay statement or a statement described in Rule 801(d)(2)(C), (D), or (E) has been admitted in evidence, the declarants credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. 4. Forfeiture by Wrongdoing: Focus on 804(b)(6) United States v. Gray D contends that she did not intend to procure Declarants unavailability as a witness at this trial.

A defendant who wrongfully and intentionally renders a declarant unavailable as a witness in any proceeding forfeits the right to exclude, on hearsay grounds, the declarant's statements at that proceeding and any subsequent proceeding. Intent to render unavailable as a witness in some trial still applies.

F. Hearsay Exceptions Under Rule 803: Availability of Declarant Immaterial FRE 803 (restyled) Hearsay Exceptions; Availability of Declarant Immaterial o The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: o (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. o (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. o (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarants then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarants will. o (4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made for and is reasonably pertinent to medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. o (5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witnesss memory; and (C) accurately reflects the witnesss knowledge. o If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. o (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by or from information transmitted by someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. o (7) Absence of a Record of a Regularly Conducted Activity. Evidence that a matter is not included in a record described in paragraph (6) if: (A) the evidence is admitted to prove that the matter did not occur or exist; (B) a record was regularly kept for a matter of that kind; and (C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness. o (8) Public Records. A record or statement of a public office if: (A) it sets out: (i) the offices activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter

Michael Mroczka

o o

observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness. (9) Public Records of Vital Statistics. A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty. (10) Absence of a Public Record. Testimony or a certification under Rule 902 that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: (A) the record or statement does not exist; or (B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

1. Present Sense Impressions and Excited Utterances: Focus on FRE 803(1) & (2) Present Sense ImpressionA description of an event made while the event is still occurring or immediately thereafter.

Excited UtteranceA statement concerning a startling event and the statement was made while the declarant is still under the stress of the excitement caused by the event o Three Factors: 1) The nature of the event 2) the passage of time: theoretically up to an hour, or more. 3) Visual clues Exclamatory phrase Excitement oriented verb (shouted, screamed, exclaimed) Exclamation points

2. Statements of Then-Existing Condition: Focus on FRE 803(3) Mutual Life Insurance Co. v. Mrs. Sallie Hillmon (Mrs. Hillmon), upon the Hillmon death of her husband, sought to collect on three insurance policies insuring his life. The insurance company defended on the grounds that Mr. Hillmon was not actually dead.

The letters were the natural proof of Mr. Waters intention to travel from Wichita to Crooked Creek with Mr. Hillmon on a certain day. The letters were admissible as evidence of the fact that he had the intention of going from Wichita and of going with Mr. Hillmon. These things are not provable by any other testimony, as Mr. Waters himself is unavailable to testify at trial. Can only be showed for intent, not that he did in fact go with him. Shepard v. United States part 2 A statement that looks backward in time may not be admitted as evidence going to the state of mind of the unavailable declarant. State of mind evidence may only look forward into the future with statements of feeling or intent. Declarants Present State of MindHow he feels about something or someone (feelings emotions)Trying to prove state of mind. Declarants declaration of intentDeclarants intent to do something in the future, including the intent to engage in conduct with another person Present Physical ConditionA statement made by the declarant to anyone describing the declarants current physical condition.

3. Statements for Medical Diagnosis: Focus on FRE 803(4) United States v. Iron Shell D was convicted by a jury of assault with intent to The elements of the exception provided for by Rule commit rape on V. At trial, various out-of-court 803(4) were present, and the statements were statements, made by V to a police officer and a therefore properly admitted. Statements must be physician, were admitted under two exceptions to reasonably pertinent to diagnosis or treatment. the hearsay rule. Based on the admission of the out-of-court statements by the lower court, D appeals his conviction. A Statement made for the purpose of receiving medical treatment or diagnosisA statement made to anyone concerning any of the following things: o Present symptoms o Past symptoms o The general cause of the declarants condition, if the purpose of the statement is to receive medical treatment or diagnosis. 4. Refreshing Memory and Recorded Recollections: Focus on FRE 803(5) & 612 FRE 612 (restyled) Writing Used to Refresh Memory

Michael Mroczka
o o (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. (b) Adverse Partys Options; Deleting Unrelated Matter. Unless 18 U.S.C. 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witnesss testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. (c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witnesss testimony or if justice so requires declare a mistrial. A prosecution witnesss previously recorded statement was read into evidence, despite the witnesss indication that he had no recollection of the events to which his statement referred.

Johnson v. State

Federal Rule of Evidence 803(5) when there is no evidence that a witness had firsthand knowledge of an event and there is no testimony given that the witnesss memory was correctly transcribed or that the factual assertions contained in the statement were true, not admissible.

803(5) requires that four requirements be met; o 1) The witness must have had firsthand knowledge of the event; o 2) The written statement must be a memorandum made at or near the time of the event while the witness had a clear and accurate memory of it; o 3) the witness must lack a present recollection of the event; and o 4) the witness must vouch for the accuracy of the written memorandum. To meet the fourth element, the witness may testify that she presently remembers recording the fact correctly or remembers recognizing the writing as accurate when she read it at an earlier time. But if her present memory is less effective, it is sufficient if the witness testifies that she knows the memorandum is correct because of a habit or practice to record matters accurately or check them for accuracy. It may even be sufficient if the individual testifies to recognizing her signature on the statement and believes the statement correct because she would not have signed it if she had not believed it true at the time. However, the witness must acknowledge at trial the accuracy of the statement

5. Business Records: Focus on FRE 803(6) & (7) Palmer v. Hoffman The petitioner attempted to admit statements from Business records admissible under the hearsay the train engineer made in an interview two days exception rules do not include accident reports after the accident. The engineer died before the prepared for litigation even if the reports are trial. The petitioner attempted to admit the prepared in a routine, systematic process. The engineers statements as a business record, Supreme Court reasoned that the statements were arguing that they were made in the course of a not in a record inherent for a railroad company. routine accident report. United States v. Vigneau Western Union money transfers for drugs. The Western Union forms were filled out in part by someone not affiliated with the business, and then admitted for all purposes, including the identity of the person that filled out the sender information on the form. Might have been admissible if WU had used a procedure for verifying the identity of the sender, but at the time of this trial, WU had no such procedure, making it impossible to prove that the person who filled out the sender information on the forms was who he said he was. Business RecordsFive elements: o 1) The records of any type of business o 2) The records were made in the regular course of the business o 3) The business regularly keeps this type of record o 4) The record was made at or about the time of the event recorded o 5) The contents of the record consist of either of two things: information observed by employees of this business a statement that falls within an independent hearsay exception o General Rule: If statements of outsiders are contained in a business record, they must be redacted. Except: when outsider statement falls within an independent hearsay exception. 6. Public Records and Reports: Focus on 803(8) & (10) Beech Aircraft Corp. v. Rainey The spouses of the Ps died during flight training when their plane was unable to recover from an evasive maneuver. D attempted to admit an investigative report that concluded the accident

Federal Rules of Evidence (F.R.E.) Rule 803(8)(c) should be construed broadly to ensure reports that contain opinions or conclusions are not automatically excluded from evidence. As long as

Michael Mroczka
was caused by pilot error.

the conclusion is based on a factual investigation and satisfies the Rules trustworthiness requirement, it should be admissible. Public Recordsrecords of a public office or agency setting forth any of the following three things: o 1) The activities of the office or agency itself ex: its own internal payroll records o 2) matters observed pursuant to a duty imposed by law o 3) A government report containing findings of fact or opinions resulting from an investigation authorized by law Different in criminal cases: police reports prepared for prosecutorial purposes and government investigatory findings are not admissible against the defendant in a criminal case.

G. Residual Exception: Focus on FRE 807 FRE 807 (restyled) Residual Exception o (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice. o (b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarants name and address, so that the party has a fair opportunity to meet it. United States v. Laster

D were convicted of drug offenses after the Although Federal Rule of Evidence 807 is a company for which D worked reported that an residual hearsay exception and should not be employee had ordered an ingredient used to make a relied on if a statement is admissible under another drug from a supplier. At trial, the records showing hearsay exception, in the absence of any other the orders from the supplier of the ingredient were applicable exceptions, Rule 807 may be properly offered and admitted into evidence. relied on. Chapter 8: Confrontation and Compulsory Process A. Confrontation Clause and Hearsay Crawford v. Washington In a criminal case, the sixth amendment requires that the defendant be confronted with the witnesses against himBe afforded an opportunity to cross-examine the witness. o The prosecution may not introduce testimonial hearsay in violation of the defendants right to cross-examine the declarant. o Even if you satisfy a hearsay exception under the law of evidence, the 6th Amendmen trumps the hearsay law.

The right to cross examine is satisfied if the defendant; o 1) had a chance to cross-examine the declarant before trial. (former testimony exception) o 2) has the opportunity to cross-examine the declarant at trial (prior statement of the witness) o 3) Forfeited his confrontation right through witness tampering. (forfeiture by wrongdoing)

Testimonial Hearsay: o Statement that qualify as testimonial: 1) Grand Jury testimony 2) Prior testimony at a preliminary hearing 3) testimony at a former trial 4) Statements made in response to police interrogation may be testimonial. a) if the primary purpose of the police questioning is to establish or prove past events that are potentially relevant to a later criminal prosecution o Statements made to the police are not testimonial if the primary purpose of the police questioning is to enable the police assistance to meet an ongoing emergency. 5) Documentary Evidence: a) AffidavitsWritten statement made under oath o if prepared for use at a criminal trial, it is testimonial Sworn certificates by forensic laboratory analysts describing the narcotic content of a tested substance. b) Police reports prepared for prosecutorial purposes--Testimonial

Michael Mroczka
Michigan v. Bryant c) business recordsNot testimonial Man was shot through the door of Ds home. Man drove a distance away, got out of his car and fell to the ground. Police arrived and began asking questions. D on trial for DWI. Lab report was done regarding Ds BA concentration. The witness was not the person who analyzed the blood sample.

Bullcoming v. New Mexico

The surrogate testimony was not enough to meet the constitutional requirement.

B. The Bruton Doctrine Concerns the problem of an out-of-court admission made by an accomplice who is tried jointly with the defendant. o The confessing accomplices words are admitted against her as the statement of a party opponent. o If offered against the defendant, however, they will most likely fail the Confrontation Clause scrutiny. o An accomplices confession to law-enforcement authorities almost never will qualify as a coconspirators statementTherefore are not directly admissible against the defendant. In a joint trial, coconspirators confession was Violates confrontation clause and prejudices admitted against her as admission by party Defendant. opponent. The problem was, the confession also incriminated D and coconspirator was unavailable. Chapter 9: Lay Opinions and Expert Testimony A. Lay Opinions: Focus on FRE 701 FRE 701 (restyled) Opinion Testimony by Lay Witnesses o If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witnesss perception; (b) helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Bruton v. United States B. Expert Testimony: Focus on FRE 702 FRE 702 (restyled) Testimony by Experts o A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Evaluating Reliability o Testinghas there been testing of the principle or methods? o Rate of ErrorIs there a high rate of error? o Acceptance by other experts in the fieldWhat level? o Peer Review and PublicationsIf others have written it up its more likely to be reliable. 1. Who Qualifies as an Expert? Jinro America, Inc v. Secure Expert to testify about Korean business practices. Stereotyped Korean business. Did not have Investments. Inc. sufficient experience in the field nor base it on reliable principles etc. 2. (Im)proper Topics of Expert Testimony: Focus on FRE 702 & 704 FRE 704 (restyled) Opinion on Ultimate Issue o (a) In General Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. o (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. a. Matters of Common Knowledge b. Opinions on Law and Opinions on Ultimate Issues Hygh v. Jacobs Expert testified that, in his opinion, D had used deadly physical force when such a level was not o

Can not tell the jury what result to reach. Expert crossed the line with some of his conclusions (not

Michael Mroczka

warranted under the circumstances. warranted under the circumstances). 3. Proper bases of Opinion Testimony: Focus on FRE 703 & FRE 705 FRE 703 (restyled) Bases of Opinion Testimony By Experts o An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

FRE 705 (restyled) Disclosure of Facts or Data Underlying Expert Opinion o Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination.

5. Assessing the Reliability of Non-Scientific Evidence a. The Doctrine Kumho Tire Co. v. Carmichael Expert intended to testify that in his expert opinion a defect in the tires manufacture or design caused the blow out. b. A Focus on Syndrome Evidence State v. Kinney

Federal Rules of Evidence (F.R.E.) Rule 702 gives a district judge discretion to determine reliability of evidence in regards the circumstances and facts of a particular case.

Expert testimony concerning rape trauma syndrome is admissible, to assist the jury in evaluating the evidence, and . . . to respond to defense claims that the victims behavior after the alleged rape was inconsistent with the claim that the rape occurred. Expert testimony concerning the rate of false rape reporting, however, when offered as an explanation of the typical behavior of rape victims and tantamount to an expert opinion that the victim was telling the truth, is inadmissible.

Unit III: Privileges Chapter 11: Privileges: General Principles A. Rule 501s Origins and Application: Focus on FRE 501 FRE 501 (restyled) General Rule o The common law as interpreted by United States courts in the light of reason and experience governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. o But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. Jaffee v. Redmond During discovery, the Petitioner learned that the Respondent participated in 50 counseling sessions with a clinical social worker. The Petitioner sought access to the notes taken by the social worker during those sessions and the Respondent resisted their discovery arguing that disclosure should be prevented because of a psychotherapist-patient privilege.

The federal courts should recognize a psychotherapist privilege. Further, the privilege should extend to confidential communications made by licensed social workers in the course of psychotherapy. The conversation between the Respondent and his therapist, and the notes taken during the counseling sessions, are protected from compelled disclosure under F.R.E. Rule 501.

Chapter 13: Familial Privileges A. The Marital Privileges 1. The Spousal Testimonial Privilege Trammel v. United States Petitioner was convicted of importing heroin into The witness-spouse alone has a privilege to refuse the United States and conspiracy to import, based to testify adversely; the witness may be neither upon the testimony of his wife. Petitioner appealed, compelled to testify nor foreclosed from testifying claiming that the admission of the adverse to evidence that does not consist of confidential testimony of his wife, over his objection marital communications. Spousal Testimonial PrivilegeAvailable in criminal cases only o A spouse cannot be compelled to testify about anything against the defendant spouse To protect marital harmony at time of trial o This privilege belongs to the witness spouse, not the defendant. The witness spouse may voluntarily testify against the defendant.

Michael Mroczka

2. The Marital Confidences Privilege Marital Confidences PrivilegeApplies in any case o A spouse is not required and is not allowed in the absence of consent to disclose a confidential communication that was made by on to the other during the marriage. Both spouses hold this privilege ExceptionsApplies to both testimonial and confidences o No privilege for communications or acts in furtherance of a future crime or fraud o Communications and acts that are destructive of the family unit (spousal and child abuse etc.) Chapter 10: Authentication, Identification, and the Best Evidence Rule Authentication: o General rule: A writing is not admissible until it has been authenticated Preliminary proof has to be presented to prove that it really is what it purports to beLaying a foundation o Methods of Authentication: FRE 901 Direct evidence Personal knowledge of a witness Proof of a persons hanwriting o Lay witnessOpinion o Comparison by Expert o Jury Comparison Circumstantial Evidence Ancient Document rule o 20 years or more old o regular on its faceno whiteouts or erasers o found in a place of natural custody Solicited Reply DoctrineComes back to you in response to a prior solicitaton o Self authenticating Documents Official PublicationsGovt Docs Certified copies of public or private records that are on file in a public officeDeed Newspapers or periodicals Trade encryption and labels Acknowledged documentnotarized Commercial Paperpromissory notes

Best Evidence RuleFRE 1001-1006 o Requires that a party who is seeking to prove the contents of a writing must either produce the original of the writing or provide an acceptable excuse for its absence. If there is an acceptable excuse, the foundation is laid to prove the contents of secondary evidence Copy or oral testimony o BE Rule applies when: When a party is seeking to prove the contents of a writing. 1) Were the writing is a legally operative document creates or destroys legal rights or obligations (deed, will, etc.) 2) Where a witness is testifying about facts that she learned solely from reading about them in a writing o Does not apply when: A witness with personal knowledge testifies to a fact that exists independently of a writing which records the fact. When the BE rule applies; o Must produce original Whatever the parties intended as the original can be more than one DuplicatesAny counterpart produced by any mechanical means that accurately reproduced the original o In general, admissible to the same extent as an original. o Except: If a genuine question is raised as to the authenticity of the original Where it would be unfair o Handwritten Copy is NOT an original or duplicate Satisfactory Excuses: o Original cannot be obtained with legal process o Original is lost or cannot be found with due diligence o Original has been destroyed without bad faith

Michael Mroczka

Escapes from BE Rule: o Voluminous RecordsSummary or chart provided originals are available for inspection o Certified copies of public records o Collateral documentsdoesnt go to anything really important

Good Sufficient Preponderance Beyond a reasonable Faith Evidence doubt basis |--------------------------------|-------------------------------------------|------------------------------------------------| Impeachment 104(b) Judge 104(a) other wrongs 404(b) 104(b) jury Crim case verdict