Evidence Outline

I. Introduction to Evidence A. Analysis: 1. Is it relevant? a) b) 2. No, inadmissible Yes, admissible

Hearsay? a) b) No, kicked out by another rule? Yes, hearsay exceptions? (1) (2) Admission? Confrontation Clause?

3.

Character evidence? a) Yes, (1) (2) 404(a) exclude? 404(b) exclude? (a) No, is it in the right form? i) ii) Reputation or opinion always okay Specific acts

4.

Unfairly prejudicial? a) Discretionary - should be last argument

B.

Rules of Evidence 1. Purpose of Rules a) b) To promote an even playing field To provide advance notice of the rules of the adversarial process (1) Other Goals (a) (b) (c) (d) (e) (f) (g) (h) 2. Truth finding Terminating disputes Economizing resources Inspiring public confidence in the judicial system Supporting independent social policies Permitting ease in prediction and application of the rules Adding to the efficiency of the entire legal system Tranquilizing disputants

Functions of Rules a) b) c) Traffic rules - concerning the smooth operation of the trial Accuracy rules - promoting truthful verdicts Policy rules - advancing external policies larger than the individual lawsuit

C.

Meanings of Evidence 1. Proof

Evidence Outline
a) Refers to the stuff offered by the parties at trial to meet the legal requirements for showing the elements of a claim, cause of action, or defense 2. The rules a) 3. Procedures and judicial findings that are prerequisites to the admissibility of evidence at trial

In evidence a) Such evidence has met the requirements of the rules and may be taken back to the jury room by the jury and considered during deliberations

D.

Types of Evidence 1. First Distinction a) Real (1) Physical, tangible evidence; the thing itself (a) b) EX: The Walther PPK gun

Representative (1) Evidence which represents another thing; a diagram, chart, photograph, x-ray (a) EX: A map of Dr. Nos island

c)

Testimonial (1) Comes from witnesses viva voce, meaning by voice (a) EX: I saw Bond shoot Dr. No.

2.

Second Distinction (applies to all three) a) Circumstantial (1) Requires an inference to be drawn for the evidence to be relevant (a) b) Direct (1) It proves a fact - generally a material fact - without requiring any deductions Does another explanation exist?

E.

Relevant FRE 1. Rule 101 a) These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in Rule 1101. (1) (2) The language of the rules generally receives great deference because the rules represent a positive legislative enactment They are generally not applicable in administrative hearings (a) Rule 1101(d) i) FRE are inapplicable: (1) Proceedings relating to the determination of preliminary questions of facts respecting the admissibility of proffered evidence when the issue is to be determined by the court under Rule 104 (2) (3) (4) (5) Proceedings before grand juries Proceedings for extradition or rendition Preliminary examinations in criminal cases Criminal sentence proceedings

Evidence Outline
(6) (7) (8) 2. Rule 102 a) These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. (1) (2) 3. Rule 106 a) When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. II. The Roles of Judge, Jury, and Attorneys at Trial A. Relevant FRE 1. Rule 103 a) Effect of erroneous ruling (1) An error by the trial court admitting or excluding evidence may be the basis for a reversal on appeal only if the error affected a substantial right of the party. Is there a substantial likelihood that the error affected the outcome of the case? Flexibility is the basic principle underlying the guidelines for construing and interpreting the FRE May operate as an escape route from evidentiary rules that have their foundation outside the FRE Proceedings for granting or revoking probation Proceedings for the issuance of arrest warrants, criminal summonses, or search warrants Proceedings respecting release on bail or otherwise

(a)

(1) Objection i) Error in the admission of evidence cannot be predicated on a ruling admitting evidence unless a timely objection or motion to strike appears of record stating the specific ground of objection (1) (2) By failing to object to evidence at trial, a party waives the right to raise admissibility issues on appeal An objection or motion to strike in timely if it is made as soon as the opponent knows, or should know, that the objection is applicable (3) The objecting party must state all grounds for objection other than lack of relevance with specificity

(b)

(2) Offer of proof i) Error may not be predicated on a ruling excluding evidence unless the judge was informed of the substance of the evidence by an offer of proof, or could ascertain the substance from the context of the questions asked (1) Four traditional ways to make an offer of proof: (a) (b) (c) (d) (2) Examining the witness on the record in the absence of the jury Counsels oral statement about the proposed testimony Counsels written statement describing the proposed testimony in detail The witnesss signed, written statement describing the proposed testimony

The proffering partys disclosure of the necessary information to the trial courts ruling excluding the evidence must appear of record

b)

Record of offer and ruling

Evidence Outline
(1) Permits the trial court to add to the record, beyond what the parties provide in their presentations concerning the admissibility of evidence, any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. c) Hearing of Jury (1) Requires the trial court to conduct its proceedings in such a manner as to minimize the potential that the jury will hear inadmissible evidence during offers of potentially objectionable evidence or during offers of proof. d) Plain error (1) An appellate court is not precluded from noticing plain error affecting substantial rights even though the error was not brought to the attention of the trial court or when the objecting party objected at trial on one specific ground and attempts to assert another specific ground on appeal (a) An erroneous ruling is plain if: i) The error that is obvious, and substantial, and seriously affects the fairness, integrity, or public reputation of judicial proceedings ii) The error is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection 2. Rule 104 a) Questions of admissibility generally (1) In ruling on relevancy, the judge can consider any evidence except those privileged (a) (2) Court can consider even inadmissible evidence when deciding whether piece of evidence is admissible

Specifies two instances of preliminary fact-finding that must be left to the court (a) The qualifications of a witness i) Only if no reasonable person could give any credence to the witness, so that the probative weight of the testimony is at or close to zero, can the testimony be excluded (b) The existence of a privilege i) Numerous preliminary factual questions may have to be decided in ruling on the validity of a claim of privilege

b)

Relevancy conditioned on fact (1) (2) Judge must decide the evidence is enough for jury to reach the conclusion that the two items are connected The court should only consider whether the jury could reasonably find the fact based on all the evidence or record (a) (b) If yes, the jury must then determine whether the preliminary fact has been established If yes, it may consider the evidence

c)

Hearing of jury (1) Vests broad discretion in the trial court to decide whether preliminary hearings should be conducted outside the presence of the jury (2) The court has no discretion when determining the admissibility of confessions or admissions of a defendant (a) The jury may not be present if there is a preliminary hearing on such a matter

d)

Testimony by accused (1) An accused who testifies upon a a preliminary matter is not subject to cross-examination as to other issues in the case

e)

Weight and credibility

Evidence Outline

(1)
B.

This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility

The Trial Judges Role 1. A judge makes admissibility determinations about whether: a) b) c) d) Evidence is hearsay A witness is properly qualified to testify A sufficient foundation has been laid for an exhibit A privilege applies to certain evidence (1) Rule foundation admissibility questions, meaning whether the requirements of the Rules are met, are governed by Rule 104(a) (a) (b) (c) (2) The burden of supplying supporting evidence is generally on the party offering the evidence Requires a preponderance of the evidence A judge must resolve credibility questions should they arise

Conditional relevance admissibility determinations, asking whether there is enough evidence to support a partys claim about what the facts are, are governed by Rule 104(b) (a) The judge generally assumes the truthfulness of the proponents foundational witnesses

2.

An appellate judge usually does not retry a case on appeal a) Standards of review include abuse of discretion, de novo, and plain error

C.

The Jurys Role 1. Determination of the facts is perhaps the jurys most important responsibility a) Create a story that makes sense (prosecutors opening statement) (1) (2) (3) Weigh the evidence Reach a decision about what the facts are Decide how the law applies to those facts

D.

The Attorneys Role 1. Counsel must keep one eye on strategy in an attempt to win the case at hand and the other eye on creating a record for potential appeal a) b) c) Objection - Rule 103(a)(1) Proffer - Rule 103(a)(2) Plain error - Rule 103(d)

III.

Relevance A. Importance of Relevance 1. Relevancy is the first step to admissibility (proponents burden) a) b) The law favors the admission of evidence Relevant evidence assists in creating the story (1) 2. Irrelevant = inadmissable

Describes how one thing relates to another thing a) b) A relationship indicates that there is some connection between the evidence and something else Relevance depends on the connections that can reasonably be drawn between the evidence and the fact sought to be proved

Evidence Outline
(1) Ask yourself: What do I need to believe in order to make the chain of reasoning from the item of evidence to the conclusion in order for the syllogism to make sense? 3. B. The trial courts relevance determinations are reviewed on appeal under an abuse of discretion standard

Relevant FRE

1.

Rule 401 (raised by proponent)

a)
b)

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence Probative of (1) If it makes a fact more or less likely (a) (2) Jury uses ordinary experiences

A chain of inferences can be constructed that connects the evidence to the case

c)

A fact of consequence to the determination of the action (1) A fact helpful to resolving the suit (a) (b) (c) An element of the cause of action, claim, or defense The credibility of the witnesses Background facts

d)

Relevant evidence includes:

(1)
(2) (3) (4)

Relevancy of such accidents depends on whether the conditions operating to produce the prior failures were substantially similar to the occurrence in question and whether there was close proximity in time of the accidents to each other Evidence which links the defendant to the weapon actually used in committing a crime Evidence that the defendant possessed weapons or other paraphernalia that may have been used in committing a crime On a consciousness-of-guilt theory evidence of such behavior as flight, attempted suicide, furtive conduct, false exculpatory statements, threats directed at witnesses, spoliation of evidence or failure to produce witnesses who could exculpate the defendant, the refusal of a person suspected of driving while intoxicated to submit to a blood-alcohol test, or the use of false passports and identities

(5) (6) (7) (8) (9) 2. Rule 402 a)

Evidence of sudden acquisition of large amounts of cash Evidence of substantial indebtedness Estimates of future earnings Governmental, professional and industry codes, regulations, and standards Market value of real property evidence must be of reasonably recent sales of property substantially comparable

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

C.

Knapp v. State 1. There must be an open and visible connection between the fact under inquiry and the evidence by which it is sought to be established, yet the connection this required is in the logical processes only 6

Evidence Outline
D. Hypothetical 1. Issue: Is the tattoo La Dolce Vita relevant? Rule: Evidence is relevant if it has any tendency of making a fact of consequence more likely or less likely than it would be without it Analysis: Moms who care that their kid is missing do not get that particular tattoo Defendant is now happy that the child is missing More likely she killed her child 4. 5. 6. Conclusion: The tattoo is relevant because it makes it more likely that defendant killed her child Issue: Should that tattoo now be excluded under Rule 403? Rule: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence 7. 8. IV. Analysis: The probative value is substantially outweighed by the danger of unfair prejudice because... Conclusion: The photograph itself does not add force to the relevance

2.
3.

Unfair Prejudice A. Relevant FRE

1.

Rule 403 (raised by opponent) a) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of: (1) unfair prejudice (a) (b) (2) (3) b) An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one The risk that the jury may not be able to properly assess or evaluate the evidence (emotional)

confusion of the issues or misleading the jury considerations of undue delay, waste of time, or needless presentation or cumulative evidence

Exclusion should only occur after the judge has determined that a limiting instruction to the jury will not be sufficient to offset any prejudice

c)

When presented with a 403 issue, the court can: (1) (2) (3) (4) Admit the evidence Exclude the evidence Exclude the evidence in part, or

d) e) B.

Lack of persuasiveness of the evidence is not a ground for exclusion under FRE 403 If the prejudice is going to be suffered due to other admissible evidence of the same fact, FRE 403 may not justify exclusion

Special dangers of unfair prejudice 1. Probability evidence a) Specifically offered to show the unlikelihood that another person with the same characteristics as the defendant committed the crime charged 2. Evidence depicting violence in a manner that is physically revolting a) 3. The evidence cannot be so violent in appearance that a reasonable jury will lose its lunch as a result of viewing it

Novel scientific evidence a) Experimental scientific evidence may be excluded as unfairly prejudicial if it is not substantially similar to what it intends to recreate

Evidence Outline
(1) Daubert (a) (b) (c) (d) (e) whether the subject matter was scientific knowledge whether the theory or technique can be or has been tested whether the theory or technique has been subjected to peer review and publication whether the technique has a known or potential rate of error whether standards controlling the techniques operation exist and are maintained the Frye test i) whether the evidence was sufficiently established to have gained general acceptance in the particular field in which it belongs (2) Kumho

(f)

(a)
(3) Joiner (a) b)

The Daubert test also applies to testimony by technical or other non-scientific experts

Courts of appeals must use an abuse of discretion standard when reviewing reliability findings by the district court

People v. Collins (1) If the assumptions are not validated, misleading the jury is probable (a) (b) First assumption: that what the witnesses say they saw really happened Second assumption: mathematical analysis is usually accurate

4.

Similar events, happenings, or occurrences a) Evidence of similar occurrences, happenings, and events is often excluded at trial (1) Except: (a) (b) (c) (d) (e) (f) to show causation to show a dangerous condition existed to show the mental state of a party when it is at issue to rebut a partys claim of impossibility to show the sales of other real property to show the meaning of a contract, contract provision, or document i) ii) b) by offering prior dealings between parties by the custom or usage in the industry

Old Chief v. United States (1) (2) Prior Felony: Assault causing serious bodily injury Two Charges: Felon possessing a gun, Assault with deadly weapon (a) Evidence: Judgment i) Rule 104 - Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than without it ii) Rule 403 - Relevant evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice... (1) Defendant does not want evidence to come in because it is similar to his previous assault conviction

Evidence Outline
(a) (b) (c) High probative value because the judgment is the document sending him to jail High unfair prejudice because the jury draw an inference that he committed the assault When the same = admissible because probative value doesnt substantially outweigh the unfair prejudice (2) Defendant stipulates judgment (agreement of prior felony) (a) iii) Removes unfair prejudice because the judgment loses its probative value (no longer best evidence)

Rule 801 - Out of court statement made by a declarant offered for the truth of the matter asserted (1) (2) (3) (4) Declarant because court officer prepared document Out of court because it occurred at previously Statement because it asserts he committed assault Offered for the truth of the matter asserted because the judgment confirms that the felony conviction is true

V.

Hearsay and the Right to Confront Witnesses; Non-Hearsay; Consistent and Prior Inconsistent Statements; Identifications A. The Hearsay Rule and the Adversary System 1. Rationale a) Witnesses ought to tell their stories in court, where judges and jurors can observe and evaluate them and adverse parties can crossexamine them 2. Testimonial inferences/Hearsay risks a) Sincerity (1) b) Does a hearsay declarants out-of-court statement actually reflect the declarants belief?

Perception (1) Did the declarant have an adequate opportunity to observe the events to which the hearsay statement refers?

c)

Memory (1) How well did the declarant recall those events at the time the hearsay statement was made?

d)

Narration/Communication (1) How accurately does a declarants choice of words describe those events?

B.

Relevant FRE 1. Rule 801 a) b) c) Statement - words or conduct intended to be an assertion Declarant - a person who makes a statement Hearsay (1) (2) A statement, other than one made declarant while testifying, offered for the truth of the matter asserted Declarant (a) (b) Declarant - the speaker who makes the statement Witness - testifies in court i) Hearsay only becomes an issue when a person is on the stand (1) (3) Out-of-court Animals are not declarants

Evidence Outline
(a) Whenever a witness seeks to testify to words that were spoken by anyone (including himself or herself) at any time other than while testifying during the current trial (4) Statement (a) An oral or written assertion i) Supported by intent (1) (b) United States v. Zenni

Nonverbal conduct intended as an assertion (proponent of hearsay has the burden of proving the conduct was intended as assertion) i) Hidden statement (1) If they appear to be an assertion of fact, they constitute a statement (a) Unless unusual circumstances clearly indicate that the declarant did not intend them to be an assertion of fact ii) Assertive conduct (1) Whats the most probable reason the actor did what he or she did? (a) (b) (c) iii) If the answer is to communicate or assert information, then the conduct is considered assertive If the answer is anything else, the conduct is considered nonassertive In doubtful and ambiguous situations, the law assumes that no intent to assert exists

Implied assertions (1) If the words look like an assertion, thats how the judge should rule (a) Unless the party arguing that the utterance is not hearsay can convince the judge that no assertion was intended (2) If the utterance does no look like an assertion, then it isnt (a) Unless the party arguing that the utterance is hearsay can convince the judge that the declarant intended his utterance to be an assertion

(c)

Statements which are not hearsay i) A photograph, movie, videotape, etc. is not a statement (1) Unless the actions or scenes portrayed were posed or staged with the primary purpose of demonstrating or communicating something ii) A persons silence cannot be considered hearsay (1) Unless we conclude that by remaining silent, she intended to assert something

(5)

Offered to prove the truth of the matter asserted (a) (b) Does the assertion itself need to be true to support the conclusion? Do we care whether it is true? i) ii) Yes, hearsay No, not hearsay (1) Complete relevance syllogism (a) (b) If it is relevant, it is being offered for the truth of the matter asserted If it is not relevant, it is not being offered for the truth of the matter asserted

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Evidence Outline
(c) Not offered for the truth of the matter asserted: i) State of mind (1) ii) Circumstantial evidence of a declarants subjective belief

Effect on listener (1) Words that had an effect

iii)

Impeachment (1) Offer a prior inconsistent statement; I dont remember is not enough

iv)

Res gestae (1) Circumstances / sequence of events (a) EX: search warrant

v)

Verbal acts (1) Words that have independent legal significance; legal ramifications attached words (a) EX: oral contract, libel or slander, will

d)

A statement is not hearsay if (1) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (a) Prior inconsistent statement i) ii) The declarant is testifying at the trial or hearing The declarant is subject to cross-examine concerning the prior statement (1) iii) Never creates a problem with confrontation clause

The prior statement is inconsistent (1) (2) Evasive answers, silence, changes in memory as to some important details, claims of forgetfulness If the witness indicates they are changing testimony: (a) (b) Majority rule - the court asks: Is the witness essential to your case? Minority rule - witness may not be introduced

iv)

The prior statement was under oath by declarant (1) If someone other than declarant makes the statement: (a) Objection: improper impeachment

v)

The prior statement was made at a trial, hearing, or other proceeding, or deposition (1) (2) Prior trials, depositions, preliminary hearings, grand jury proceedings, legislative hearings NOT station house interrogations or affidavits (a) (b) Admissible as substantive evidence (for the truth of the statement) Not offered for the truth prior inconsistent statement (to show declarant is not credible)

(b)

Prior consistent statement i) ii) iii) The declarant testifies at the trial or hearing The declarant is subject to cross-examination concerning the statement The prior statement is consistent with declarants testimony

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Evidence Outline
(1) The prior statement must have been made before the improper influence or motive arose / before reason to fabricate arose (a) (2) (3) iv) (c) Tome v. United States

Absolute consistency is not required Need not have been made under oath and need not have been made in a formal setting

Offered to rebut an express or implied charge of recent fabrication or improper influence or motive

Pretrial identification i) ii) The declarant testifies at the trial or hearing The declarant is subject to cross-examination concerning the statement (1) Subject to cross: (a) (b) (c) (2) take the stand under oath willingly answer questions

Even if at trial declarant can no longer identify defendant as the perpetrator (a) United States v. Owens

iii)

Statement is one of prior identification of a person (1) In person, on the street or in the station house, or picked out defendants photograph

iv)

Made after perceiving the person (1) Smell, sound, etc.

(2)

Admission by party opponent. The statement is offered by the opponent of a party and is (a partys statement offered against that party)

(a)

Straight admission. The partys own statement, in either an individual or representative capacity i) A partys statement offered against that party (1) Party opponent - parties are on opposite sides of the versus (a) (2) Not applicable in criminal cases - because the state is plaintiff

Proving the party made the statement (a) (b) (c) Call a witness who heard him or her say it Authenticate the document - handwriting Tape recording - voice

(b)

Adoptive admission. A statement of which the party has manifested an adoption or belief in its truth i) A statement adopted by the party (1) Must show: (a) (b) (c) (d) The circumstances must show that the party heard the statement The party must have understood the statement Under the circumstances, a reasonable person would have denied the statement had it not been true The subject matter of the statement must have been within the partys personal knowledge (implicit in elements)

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Evidence Outline
ii) iii) Applies to written as well as oral statements, so long as the partys adoption of it is clear and unambiguous Can apply even if the party does not know what the declarant actually said

(c)

Authorized admission. A statement by a person authorized to make a statement concerning the subject, ... The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under subparagraph (C) i) EX: lawyer, press secretary, agent (1) (2) Within the scope of authority? Authorized the admission? (a) The party seeking to admit the statement has the burden of convincing the judge by a preponderance of the evidence that the declarant was his party-opponents authorized spokesperson

(d)

Employee admission. A statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship ... The contents of the statement shall be considered but are not alone sufficient to establish ... the agency or employment relationship and scope thereof under subparagraph (D) i) The party offering the statement need only show the following: (1) (2) (3) ii) The declarant was the adversarys agent or servant The statement concerns a matter within the scope of the agency or employment The statement was made during the existence of the relationship (after their hired, before their fired)

Definitely includes master-servant relationship and employee-employer relationship, but independent contractors and outside experts are questionable

iii)

Government agent statements (1) Civil litigation (a) (2) A statement by a government agent is admissible against the government

Criminal cases (a) (b) Statements by a government attorney, in pleadings and other formal documents, come with the rule Statements by law enforcement officers in a formal document, such as affidavit for a search or arrest warrant, are admissible against the government (c) An informant is not considered a government agent for purposes of the rule

(e)

Co-conspirator admission. A statement by a coconspirator of a party during the course and in furtherance of the conspiracy ... The contents of the statement shall be considered but are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E) i) The offering party must satisfy the judge that these conditions existed when the statement was made: (1) (2) The declarant is a co-conspirator of the party against whom it is offered The statement was made during the course of the conspiracy (a) (3) Must be established by evidence, including evidence independent of the statement

The statement was made in furtherance of the conspiracy

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Evidence Outline
(a) (b) (c) ii) iii) help carry it out help accomplish goal deceiving others to help the conspiracy

The question of whether it is a statement of a co-conspirator - 104(a) - judge decides The statement itself cannot be the only evidence of a conspiracy - need independent evidence also (1) Bourjaily v. United States

iv) 2. Rule 802 a)

Can never be Confrontation Clause issue - statements are not testimonial

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.

3.

Rule 803 a) b) Does not matter if the declarant is unavailable to testify The following are not excluded by the hearsay rule, even though the declarant is available to testify as a witness: (1) Present sense impression (a) (b) Statement Describes or explains condition i) ii) (c) Any event or condition will suffice There is no need to show that it had any particular effect on the declarant

Made while perceiving event or condition or immediately thereafter i) Contemporaneous

(d)

Other: i) ii) Personal knowledge is an implicit requirement Consider Confrontation Clause

(2)

Excited utterance (a) (b) Statement Relating to startling event of condition i) The rule requires that the event or condition be startling and caused the declarant stress or excitement (1) (c) Subjective and objective

Made while under stress of excitement caused by that startling event or condition i) The statement need not have been made during or immediately after the event (1) Factors considered: (a) (b) (c) ii) the nature of the event its physical impact on the declarant the declarants age and health

It suffices that, at the time declarant made the statement, he or she was under the stress of excitement caused by the event or condition

(d)

Other: i) Personal knowledge is an implicit requirement

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Evidence Outline
ii) (3) Consider Confrontation Clause Then existing mental, emotional, or physical condition (a) Statement i) Admits only statements by a declarant concerning his or her own state of mind (1) Accepts that a person knows what he thinks, feels, wants, intends, fears, etc. (a) (b) Consider relevancy

Of declarants then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) i) Relevance of declarants state of mind (1) (2) State of mind is often an element of a crime, cause of action, or defense A statement by the declarant as to pain, mental feeling or bodily health is often relevant in personal injury or similar actions

(3)

Hillmon Doctrine (a) A statement by the declarant as to his then-existing intent is a basis from which we infer the declarants subsequent conduct (b) A statement by the declarant as to his then-existing intent to do something with another person is a basis from which we can infer that other persons subsequent conduct

(4)

BUT 803(3) renders statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person (majority position)

(a)
(c)

Feaster does not follow this rule (minority position)

BUT NOT memory or belief to prove fact remembered or believed i) Covers only statements by the declarant about her state of mind at the time she is speaking, not statements about what she felt or thought at some time in the past (1) ii) Except relating to wills

When statement is present and backward-looking, the court will assess the statement in conjunction with 403

(d)

Other: i) ii) iii) Personal knowledge is an implicit requirement Consider Confrontation Clause Hearsay within hearsay (1) Its not hearsay if each statement fits within a hearsay exception

(4)

Statements for purposes of medical diagnosis or treatment (a) (b) Statement Made for purpose of medical diagnosis or treatment i) ii) The statement need not have been made to a physician Statements to psychiatrists, psychologists, hospital attendants, ambulance drivers, or even members of the family might be included so long as they were made for purposes of diagnosis or treatment iii) Statements made to litigation experts are admissible under this rule

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Evidence Outline
(1) Statements are admissible even if the declarant is speaking about a second party, not herself (a) (c) (d) Declarants statements when seeking help on behalf of the patient = admissible

Describing medical history, past or present symptoms, or cause of symptoms Reasonably pertinent to diagnosis or treatment i) Statements attributing fault or blame (identity of perpetrator) are not included within the rule (1) Except: (a) When an abuser resides in the home with the victim (because the patient cannot be treated, unless the abuser is removed from the home) (b) (c) More remote - less pertinent Consider prejudice

(5)

Past Recollection Recorded (a) Witness once knew the information but cannot recall now i) The offering party must call a witness who (1) (2) ii) had first hand knowledge of the facts in question, and made or adopted the memorandum or record

Insufficient information (1) Need not show that the witness lacks all recollection of the event of condition described in the memorandum (2) Enough that the witness lacks sufficient recollection to testify fully and completely

(b)

Memo or record sets forth the info i) The information must be recorded in some way

(c)

Made by or adopted by witness at a time when info was fresh in his mind i) The offering party must elicit testimony from the declarant/witness that establishes either: (1) that declarant/witness herself made the memorandum or record while the events in question were still fresh in her memory, or (2) that declarant/witness adopted someone elses memorandum or record while the events in question were still fresh in her memory

(d)

Accurately reflects the info i) Foundational testimony of some kind is a prerequisite

(e)

Other: i) Can be read into evidence (1) (2) ii) The witness reads it aloud to the jury Cannot offer the document as an exhibit for the jury to examine in the courtroom or in the jury room

Sixth Amendment Confrontation Clause

(6)

Records of Regularly Conducted Activity (a) Memorandum, report, record, or data compilation (expansive) i) Business (1) Almost anything qualifies: drug dealers, non-profit, church organization

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Evidence Outline
(2) Any calling, profession, organization (a) (b) (c) (d) NOT an individuals personal household records

Of acts, events, conditions, opinions, and diagnoses Made at or near the time By (or from info from) a person with knowledge i) Personal knowledge (1) Require that a person who provides the information that is recorded in the business record must: (a) (b) have first-hand knowledge of the information, and must have a regular business duty to acquire and report the information

(e) (f) (g)

Info must relate to a regularly conducted business activity Business practice to keep the records Other: i) ii) Information outside of the business contained in the businesss record is not covered by the exception Multiple hearsay (1) If everyone in the chain of communication has a business duty to acquire, pass on, or record the information, they are treated as one declarant iii) Procedure for admission - MUST HAVE (1) Provides two ways that a party can establish that a record qualifies as a business record: (a) (b) by the testimony of the custodian or other qualified witness by the offering party to authenticate the record by a certification that satisfies FRE 902(11) or FRE(12) iv) Trustworthiness clause (1) The party offering the document must call a qualified witness to give testimony, or offer certification, that establishes the foundation

(7)

Absence of Entry in Business Records (a) A party presumably could prove the non-existence of a particular record the same way he or she could prove that such a record does exist

(8)

Public Records and Reports (a) Activities of the office or agency i) Covers records of: (1) (2) the internal functioning of the agency, and the routine, non-judgmental actions of the agency or its agents (a) (b) EX: charter, mission statement, purpose

Matters observed and reported pursuant to duty imposed by law as to which matters there is a duty to report i) BUT NOT matters observed by law enforcement in criminal cases (i.e. police reports) (1) To qualify under this provision: (a) the report must be based upon information obtained first-hand by a government agent or employee

17

Evidence Outline
(b) the agent must have had an official duty to observe and report on the event or condition in questions, and (c) (c) the agency must have an official duty or purpose to observe and report on such matters

Civil cases and/or against government in criminal case (i.e. not against defendant in criminal case), then fact findings from an investigation made pursuant to legal authority i) If a government expert or agency has investigated a matter, a report setting out his, her, or its conclusions is admissible over a hearsay objection (1) (2) (3) ii) diagnoses opinions reports that state conclusions as to cause, fault, and blame

Opinions are admissible if there is a reasonable chain of inference (1) Beech Aircraft Corp. v. Rainey

(d)

Other: i) Confrontation Clause (1) Report without testimony = violation

(9)

Records of Vital Statistics (a) To secure admissibility of a properly authenticated record, the offering party need show only that: i) ii) a state or local law required someone to report the birth, death, or marriage to a public office, and the report was made in a way that complied with that law

(10)

Absence of Public Record or Entry (a) A party must: i) establish that a particular public agency regularly made and preserved records of the kind of fact or event in question, and ii) prove that the records of the public agency in question contain no mention or reference to the occurrence of the event or existence of the fact in question (b) The nonexistence of a record can be proved in either of two ways: i) ii) An official in the agency can testify that a diligent search failed to locate such a record or entry An official in that office can submit a written certification in accordance with FRE 902 that a diligent search of the offices files failed to locate such a record

(11) (12) (13)

Records of Religious Organizations Marriage, Baptismal, and Similar Certificates Family Records (a) Admits statements of fact concerning person or family history written in family Bibles, inscribed on rings, engraved on urns, crypts, or tombstones, or found in other similar locations

(14) (15)

Records of Documents Affecting an Interest in Property Statements in Documents Affecting an Interest in Property (a) Admits statements in property-affecting documents such as deeds, mortgages, wills, and security agreements

(16)

Statements in Ancient Documents

18

Evidence Outline
(a) (17) Admits statements in documents that are more than 20 years old Market Reports, Commercial Publications (a) Admits statements in commercially-prepared publications in general use by the public and people in various occupations (18) Learned Treatises (a) Must be established as a reliable authority by the testimony or admission of the witness or by the other expert testimony or by judicial notice (19) (20) (21) Reputation Concerning Personal or Family History Reputation Concerning Boundaries or General History Reputation as to Character

(22) Judgment of Previous Conviction ***609***

(23) 4. Rule 612 a) Refreshed Recollection (1) Witness once knew - witness cannot remember (a) Can show any writing to witness to trigger their memory i) ii) (b) (c) (2) Cannot read document into evidence Does not get to the jury Judgment as to Personal, Family, or General History, or Boundaries

There is no need to authenticate the writing There is no need to show that it is accurate

An adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness (a) Must disclose the document to the other side i) Waives privilege

5.

Rule 804 a) Definition of Unavailability (altogether or partially) (1) Privilege

(a)
(2)

Witness exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the statement

Refusal to testify (a) Persists in refusing to testify despite court order

(3)

Lack of memory (a) Testifies to lack of memory of the subject of the statement

(4)

Death, illness, infirmity (a) Is unable to be present because of death/infirmity (get doctor or expert to provide foundational evidence)

(5)

Absent from the hearing (a) Is absent and the proponent of the statement has been unable to procure declarants attendance [or, if (b)(2), (b)(3), (b) (4), declarants attendance, or testimony] by process or other reasonable means 19

Evidence Outline
i) (6) Subpeona all witnesses (except corporate employees) EXCEPT if the unavailability is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying (a) Grand jury testimony usually cannot come in because the defendant did not have an opportunity to cross-examine i) b) May or may not be used against the government - depends on motive

Hearsay Exceptions - declarant must be unavailable as defined in 804(a) (1) Former testimony (a) (b) Testimony given as a witness at another hearing..., or in a deposition... If the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination i) in a case, a predecessor in interest (1) Objections (a) (b) (2) Dying declarations (a) (b) (c) The declarant is unavailable In a prosecution for homicide or in a civil action or proceeding (NOT other criminal cases) A statement made by declarant, while believing that the declarants death was imminent i) (d) personal knowledge Substantive = okay to raise if not raised before Procedural okay to raise if not raised before (helps both sides)

Concerning the cause or circumstances of what the declarant believed to be impending death i) declarants subjective belief & objective physical condition (1) non-testimonial statement Confrontation Clause problem

(3)

Statement against interest (a) A reasonable person in the declarants position would not have made the statement unless believing it to be true because at the time the statement was made the statement: i) ii) iii) (b) was contrary to the declarants pecuniary or proprietary interest, or tended to subject the declarant to civil or criminal liability, or tended to render invalid a claim or defense by the declarant against another

In criminal cases, a statement tending to incriminate the declarant and exculpate the accused is not admissible i) UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement

(c)

Makes admissible only those declarations or remarks within the confession that are individually self-inculpatory i) It does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory (1) Also inculpates someone else - think about squabbles among children (a) Williamson v. United States

(4)

Statement of personal or family history

20

Evidence Outline
(a) Statement concerning declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, marriage, ancestry or family history, even though declarant had no means of acquiring personal knowledge of the matter stated, OR (b) A statement concerning foregoing and death of another person if the declarant was related to the other person by blood, adoption, or marriage, or so intimately associated with the other s family as to be likely to have accurate information concerning the matter declared (5) Forfeiture by wrongdoing (a) A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness i) ii) 6. Rule 807 a) Residual Hearsay Exception (1) Gives judges the discretion to admit hearsay that they consider trustworthy and more probative than other evidence that might reasonably be procured, even if the statement doesnt qualify for admission under any other hearsay exceptions (2) foundational elements: (a) (b) (c) (d) (3) Equivalent guarantees of trustworthiness (compared to Rules 803 and 804) The statement is offered to prove a material fact The statement is more probative than any other evidence proponent can get Best serves the interest of justice to admit Federal rules require intent - showing of a purpose Irrelevant if statement is testimonial - the defendant has forfeited his right to confront

Near miss rule (a) Minority i) If it barely misses Rule 803 and 804, the statement cannot be admitted as residual exception (1) Designed to pick up other statements

(4)

A statement may not be admitted under this exception unless the offeror notifies the adversary before trial of the offerors intent to offer hearsay under Rule 807, the contents of the statement, and the declarants name and address

C.

Confrontation Clause (Sixth Amendment) 1. Analysis: a) b) c) d) Criminal case? Offered against defendant? Are the words testimonial? Did/does the defendant have opportunity to cross the declarant? (1) 2. Only when offered for the truth of the matter asserted (hearsay)

Testimonial statements made by non-testifying declarants can be admitted against a criminal defendant only if the defendant has had a previous opportunity to cross-examine the declarant a) Testimonial statements: (1) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial

21

Evidence Outline
(2) (3) (4) (5) (6) formal testimony depositions affidavits confessions statements given to police officers in the course of custodial interrogations (a) The circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution i) ii) b) Crawford v. Washington Davis v. Washington

Non-testimonial statements: (1) (2) (3) coconspirator statements business records casual remark to an acquaintance (a) Made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency

3. 4.

Experts can rely on otherwise inadmissible statements to form his opinion If a statement is testimonial, there are three ways to get it admitted over a Confrontation Clause objection: a) b) Call the declarant as a witness so the defendant can confront and cross-examine him or her Demonstrate that the declarant in unavailable, and that the defendant had a prior adequate opportunity to confront the declarant and cross-examine him or her about the statement c) Demonstrate that the defendants wrongdoing is responsible for the declarants unavailability

5.

Common Examples a) b) Witness is deceased Domestic violence

VI.

Character Evidence A. General 1. Character trait - refers to a particular aspect of our character, a) 2. EX: punctual, quick-tempered, fastidious, honesty, law-abiding, peaceful

Cannot be offered to establish propensity a) Use the relevance analysis to determine

B.

Relevant FRE 1. Rule 404

a)

Character evidence generally. Cannot take a character trait in order to prove that someone acted in conformance with that character trait (1) Character of accused (only criminal case)

(a)

The accused may offer evidence of his or her own pertinent character trait in defense against the crimes charged mercy rule he ought to be able to defend himself because his libertys at stake

22

Evidence Outline
(b) The prosecution may offer evidence of a pertinent character trait of the accused to rebut defense evidence about the accuseds own character (2) Character of alleged victim (only criminal case)

(a)
(b)

The accused may offer evidence of a pertinent character trait of the alleged victim of the charged crime in defense against the crime charged or in support of a defense If the accused has presented evidence about a character trait of the alleged victim of the crime, the prosecution may offer: i) ii) rebuttal evidence about the character of the alleged victim evidence of the same character trait in the accused

(c)

If the accused in a homicide case has presented ANY evidence that the alleged victim was the first aggressor in the altercation, the prosecution may offer evidence of the alleged victims peaceable character i) Does not have to wait for CHARACTER evidence to be introduced by the defense

(3)

Character of witness (a) When Rule 607, 608, or 609 permits, character evidence may be used to impeach a witness

b)

Other crimes, wrongs, or acts. Cannot take an act and use it to prove character in order to prove that someone acted in conformance with that character trait (1) UNLESS offered for other purposes: (a) motive i) reason why a specific offender acted with a mental state required by the definition of a charge, crime, claim, of defense (b) opportunity i) access to or presence at the scene of a crime, or having distinctive or unusual skills or abilities employed in the commission of the crime charged (c) intent / knowledge i) evidence of other similar acts may help to establish that a defendant did not act mistakenly or accidentally but rather with the intent or knowledge required by the elements of the applicable tort or crime (d) plan i) to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part...Each crime should be an integral part of an over-arching plan explicitly conceived and executed by the defendant or his confederates (e) identity i) modus operandi (1) (f) (g) preparation absence of mistake or accident the pattern and characteristics of the crimes are so unusual and distinctive as to be like a signature

c)

Analysis: (1) Character / Trait of character OR specific act

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Evidence Outline
(a) violent, honest/dishonest, peaceful, loyal, devout, promiscuous, chaste, greedy, bad tempered, kind, evil, law abiding, lazy, diligent, tardy (2) (3) Offered to prove that Person acted in accordance with that character / trait of character ( mental) (a) Character evidence = inadmissible i) Except: (1) In a criminal case, pertinent trait of character of defendant or victim (a) (b) (2) offered by accused or by prosecution to rebut same, or in case of victims character, same trait of character of accused

Evidence of pertinent trait of character of victim (a) (b) (c) offered by accused or by prosecution to rebut same or offered by prosecution as evidence of victims peaceful character in homicide case to rebut evidence that victim was first aggressor

(b)

If character is admissible, i) Form must be (1) (2) Reputation / opinion Specific acts ONLY (a) (b) on cross if character is an essential element of claim/charge/defense

2.

Rule 405 a) Reputation or opinion (1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct (a) If character is allowed, reputation and opinion will always be acceptable i) Reputation (1) reputation in the community in which he resides, his workplace, or where he spends a substantial amount of time ii) b) Opinion

Specific instances of conduct (1) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct (a) Self-defense - the victims character is not an essential element of the defense i) circumstantial evidence supports

3.

Rule 412 - Trumps 404

a)

Evidence Generally Inadmissible. The following evidence is not admissible in any civil or criminal proceeding:

(1)

Evidence offered to prove that any alleged victim engaged in other sexual behavior 24

Evidence Outline
(a) evidence of the use of contraceptives, of the birth of an out-of-wedlock child, of the presence of venereal disease, of sexual fantasies or dreams, and virginity at the time of the incident i) NOT false accusations of sexual behavior (i.e. rape)

(2)

Evidence offered to prove any alleged victims sexual predisposition (a) mode of dress, speech, or life-style

b)

Exceptions. (1) In a criminal case (a) The following evidence is admissible, if otherwise admissible under these rules: [specific instance (not reputation or opinion)] i) Specific sexual behavior of victim to prove someone else was the source of the semen or injury to the victim (1) ii) May not be relevant if consent claimed as defense

Specific sexual behavior between victim and accused to prove consent if defendant is claiming consent, or if prosecution offers (1) includes statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specified accused

iii) (2)

Constitution requires admission

In a civil case (a) Evidence is admissible if: i) Admissible otherwise AND Probative value substantially outweighs the danger of harm to ANY victim and unfair prejudice to ANY party (1) Favors exclusion - burden is on person seeking to get evidence in (a) Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim

ii)

c)

Procedure to Determine Admissibility. (1) A party intending to offer evidence under subdivision (b) must (a) make a written motion at least fourteen days in advance of trial of an intention to offer evidence, describing the evidence and purpose for which it was offered (b) (2) all parties must be served, and the victim must be notified

Before admitting evidence, the court must conduct a hearing in chambers and afford all parties a right to be heard

d) 4.

*** start with 412, then go to admissibility of 404, then go to exceptions of 412

Rule 413, Rule 414, Rule 415 a) Evidence of a defendants past commission of sexual offenses is admissible in: (1) criminal sexual assault cases (a) (b) Any conduct proscribed by Chapter 109A of Title 18, United States Code Contact, without consent, between any part of the defendants body or an object, and the genitals or anus of another person (c) Contact, without consent, between the genitals or anus of the defendant and any part of another persons body

25

Evidence Outline
(d) (e) (2) (3) Deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person An attempt or conspiracy to engage in conduct described in paragraphs (1)-(4)

criminal child molestation cases (attempts or conspiracy) civil sexual assault or child molestation cases (a) (b) the evidence may be considered for its bearing on any matter to which it is relevant Evidence of offenses for which the defendant has not previously been prosecuted or convicted will be admissible, as well as evidence of prior convictions

b)

Requires the prosecution to notify the defense of the substance of the evidence at least fifteen days prior to trial, although later notification may be permitted for good cause (1) (2) preponderance of the evidence no time limit

c) 5.

Consider Rule 104(b) issues

Rule 608 Evidence of Character and Conduct of Witness a) Opinion and reputation evidence of character (1) Permits the admission of opinion or reputation evidence of character for the purpose of attacking or supporting the credibility of a witness (a) BUT i) ii) the evidence may refer only to character for truthfulness or untruthfulness evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise (1) Prior inconsistent statements, contradiction, bias, interest, or coercion constitute sufficient attacks on character to trigger the right to response of evidence of truthful character b) Specific instances of conduct (1) Prohibits the use of extrinsic evidence of specific incidents of the witnesss conduct for the purpose of attacking or supporting the witnesss credibility (a) Except: i) evidence of criminal convictions may be used in accordance with the provisions of Rule 609 in the trial courts discretion, if the specific acts of evidence is probative of truthfulness or untruthfulness, it may be used on cross-examination of a witness concerning: (1) (2) that witnesss character for truthfulness or untruthfulness the character for truthfulness or untruthfulness of another witness as to which character the witness subject to cross-examination has testified c) In a nutshell: (1) (2) (3) Can attack witness character for truthfulness by reputation or opinion testimony Once attacked, opponent can introduce evidence of truthfulness character in form or reputation or opinion BUT can ask about specific instances of truthfulness or untruthfulness on cross-examination (a) (b) of witness on stand of another witness 26

ii)

Evidence Outline
(4) 6. If the witness denies the specific instance of conduct, CANNOT prove the instance of conduct using extrinsic evidence Rule 609 Impeachment by Evidence of Conviction of Crime a) General rule - For the purpose of attacking the character for untruthfulness of a witness, (if broke law, then more likely to lie) (1) General Rule (a) If the crime does not involve dishonesty or false statement i) If a witness other than the accused (witness who testifies, plaintiff or defendant in civil case who testifies), conviction is admissible if: (1) (2) Felony (i.e. punishable by more than one year / death) AND passes 403 balancing (i.e. court may exclude if, probative value is substantially outweighed by danger of unfair prejudice) (a) (b) Favors admissibility The more similar the previous crime to the issue in the lawsuit, the higher the danger of unfair prejudice ii) If witness is accused (criminal defendant who testifies in his defense), conviction is admissible if: (1) (2) Felony Court determines probative value (how old is the prior conviction?) outweighs prejudicial effect (how similar to the current conviction?) of accused (a) (b) Favors exclusion - this makes sense because the defendants liberty is at stake

If the evidence is of a conviction of a crime involving dishonesty or false statement i) It is automatically admissible against any witness (1) (2) Regardless whether the crime was a misdemeanor or a felony Regardless of the amount of prejudice the admission of the evidence may cause any party (a) Bribery, perjury, subordination or perjury, false statement, embezzlement, false pretenses, crimes involving fraud (b) (c) NOT larceny The proponent of the evidence must have ready proof that the elements of the crime underlying the conviction required the proof or admission of an act of dishonesty or false statement by the witness

(c)

Other: i) ii) iii) No bar to bring in extrinsic evidence for proof Does not matter if the defendant served jail time, probation, or community service Defendant must testify (take the stand) to use 609

b)

Time limit (1) If more than ten years has elapsed from the date of conviction, or of the witnesss release, whichever is later, the conviction is ordinarily not usable for impeachment (2) Presumptively excluded, UNLESS court finds in the interest of justice, the probative value, supported by specific facts and circumstances, substantially outweighs prejudicial effect

c)

Effect of pardon, annulment, or certificate of rehabilitation

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Evidence Outline
(1) Evidence of a conviction is not admissible if the pardon, annulment, certificate of rehabilitation, or other equivalent procedure either: (a) (b) d) was based on innocence, or required a showing of rehabilitation and the witness has not subsequently been convicted of a felony

Juvenile adjudications (1) (2) Evidence of juvenile adjudication is generally not admissible The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence

e)

Pendency of appeal (1) (2) Pendency of an appeal does not bar use of the conviction Evidence of the appeals pendency may be admitted to reduce the impact of the conviction

7.

Rule 406 a) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice (1) Habit (a) (b) (c) (d) (2) Something one invariably does without thinking Reflexive response Regular practice Organizational routine

Used to show that on particular occasions, someone behaved in a certain manner (a) Exception to propensity

VII.

Quasi-Privileges A. Subsequent Remedial Measures 1. Rule 407 a) b) Measure taken after an injury or harm Measure that would have made injury or harm less likely had it been done before the event (1) SRM inadmissible to prove: (a) (b) (c) (d) Negligence Culpable conduct A defect in a products design A need for a warning or instruction i) ii) (2) EX: subsequent repairs, installation of safety devices, changes in company rules, discharge of employees NOT: post-event tests or reports

SRM admissible to prove: (a) Controverted issues i) Ownership

28

Evidence Outline
ii) iii) Control Feasibility of precautionary measures (1) (b) B. i.e. calling a design the best or safest can open the door to the subsequent remedial measure

Impeachment

Inadmissibility of Pleas, Offers of Pleas, Plea Discussions, and Related Statements 1. Rule 410 a) The following are inadmissible against defendant who made plea or participated in plea discussion, in any civil or criminal proceeding: (1) (2) (3) A plea of guilty which was later withdrawn A plea or nolo contendere Any statement made in the course of any proceeding under: (a) (b) (c) Rule 11 of the Federal Rules of Criminal Procedure State plea proceedings Plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or result in guilty plea later withdrawn i) b) not cops

BUT such a statement is admissible: (1) If a defendant introduces statements made during plea discussions, then other relevant statements made in the same plea discussions are admissible (rule of completeness) (2) Statements made by a defendant in connection with a plea or an offer to plead may be used in a criminal proceeding for perjury or false statement if the defendant made the statements under oath, on the record, and in the presence of counsel

c)

Intended for benefit of defendant, and he may waive his right (1) United States v. Mezzanatto

C.

Compromise and Offers to Compromise 1. Rule 408 a) Prohibited Uses (1) Offers in compromise and conduct or statements made in compromise negotiations are not admissible on behalf of any party to:

(a)
(b)

Prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount (civil or criminal) Impeach through a prior inconsistent statement or contradiction: i) Except: (1) Conduct or statements made in compromise negotiations (a) (b) When offered in a criminal case AND negotiations related to a claim by a public office/agency in exercise of regulatory, investigative, or enforcement authority

(2) b)

Cannot be waived unilaterally protects both parties from having the fact of negotiation disclosed to the jury

Permitted Uses (1) Proving a witnesss bias or prejudice 29

Evidence Outline
(2) (3) D. Negating a contention of undue delay Proving an effort to obstruct a criminal investigation or prosecution

Payment of Medical and Similar Expenses 1. Rule 409 a) Evidence furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury (1) Other: (a) (b) The offer need not have been made directly to the injured party; it can be made to anyone who can accept payment Furnishing, offering, or promising to pay medical expenses can be used for any other purpose, such as showing control or identity

E.

Liability Insurance 1. Rule 411 a) Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully b) This rule does not require exclusion of evidence of insurance against liability when offered for another purpose, such as: (1) (2) Proof of agency, ownership, or control Bias or prejudice of a witness

VIII.

Opinion Evidence A. Opinion Testimony by Lay Witness 1. Rule 701 a) If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

(1)

rationally based on the perception of the witness AND (a) first-hand, personal knowledge

(2)

helpful to a clear understanding of the witness testimony or the determination of a fact in issue AND (a) helpful to the factfinder

(3)

not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 (a) some lay opinion is permitted when the lay witness has experience or information not common to all laypersons but falling short of the specialized knowledge required of experts

b)

A witness can be a lay witness and an expert witness (1) They must be disclosed as both kinds

c)

Conditional relevance (1) Lay testimony is not considered relevant within the meaning of Rule 401, and is thus inadmissible under Rule 402, unless the proponent offers a foundation showing of sufficient evidence for a reasonable jury to find by a preponderance of the evidence that the witness had personal knowledge of the events he or she relates

B.

Testimony by Experts 1. Rule 702 30

Evidence Outline

a)

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion, or otherwise, if:

(1) (2) (3)

b) c)

the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case

Expert opinions must be relevant and reliable! Other: (1) A lawyer seeking to establish, or challenge, an experts qualifications must explore issues such as the following: (a) (b) (c) (d) (e) (2) the experts formal education and degrees received the experts specialized training in his or her field of expertise the time the expert has spent practicing in the field the experts professional licenses, teaching experience, publications, and membership in professional organizations previous testimony given by the expert

There are four potential sources of data on which an expert may base an opinion: (a) (b) (c) (d) Firsthand observations made by the expert out of court Information provided to an expert in the courtroom that the expert is asked to assume is accurate An experts observation of in-court testimony by one or several witnesses Facts or data made known to the expert out of court

C.

Bases of Opinion Testimony by Experts 1. Rule 703

a)
b)

The facts or data in the particular case upon which an expert bases his opinion or inference may be those perceived by or made known to the expert at or before the hearing If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence, in order for the opinion or inference to be admitted (1) Expert opinions can rely on inadmissible evidence (a) (2) So long as other experts in the field would rely on the same info

Courts differ: (a) It is reasonable to rely on data that i) ii) most experts in a given field would rely upon the trial judge independently considers trustworthy

c)

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect (1) (2) Not admitted into evidence for their truth Confrontation Clause is satisfied if the expert witness is available for cross-examination 31

Evidence Outline
2. Daubert a) b) Court has gatekeeping responsibility Often discussed as a means of finding and rejecting junk science (1) Generally conveys a pejorative connotation that the advocate is driven by political, ideological, financial, and other unscientific motives c) d) Lawyer must help explain the science to judge What does scientific knowledge mean? (1) Grounded in the methods and procedures of science (a) e) Knowledge connotes more than subjective belief or unsupported speculation

Experts opinion must be relevant and reliable. To decide, four factors discussed to aid district courts: (1) (2) whether the theory or technique has been or can be reliably tested whether the theory or technique has been or can be subjected to peer review and publication, as such review increases the likelihood that substantive flaws in the methodology will be detected (3) (4) the known or potential rate or error in the case of a particular technique whether the theory of technique enjoys general acceptance within the relevant scientific community

3.

Joiner

a)

The district courts admission or exclusion of an expert opinion on grounds of Daubert is reviewed for abuse of discretion (1) District court has broad latitude to examine both the experts methodology and the experts reasoning

4.

Kumbo Tire

a) b)
5. 6. D.

Daubert applies not only to scientific opinions but also to expert testimony based on technical or other specialized knowledge Because the Daubert factors may not work for all expert testimony, the district court need not mechanically apply them, so long as it examines the reliability of the experts proposed testimony

Steps to presenting an expert What do you want to know?

Opinion on Ultimate Issue 1. Rule 704 a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact (1) It generally is not appropriate for lay or expert witnesses: (a) (b) (c) b) to tell the finder of fact what conclusion to reach to testify to opinions respecting issues reserved exclusively for the jury, such as the credibility of other witnesses to testify to opinions embracing legal conclusions, which are reserved exclusively for the court

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such issues are for the trier of fact alone.

E.

Disclosure of Facts or Data Underlying Expert Opinion 1. Rule 705 32

Evidence Outline
a) The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise (1) (2) b) 2. Permits an opinion to be stated before its bases are revealed Hypothetical questions are no longer required

The expert may in any event be required to disclose the underlying facts or data on cross-examination

Procedures a) Reliability determinations are necessary only if the opponent objects to the admissibility of the expert testimony (1) Courts discretion (a) Evidentiary hearing i) ii) (b) Before trial? During trial?

Conducted on the record i) Appellate review (1) Abuse of discretion

IX.

The Attorney-Client Privilege A. The purpose of the attorney-client privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice 1. Covers: a) Communications (1) Protects the confidential communications between client and lawyer so long as the communication was made to facilitate professional services (2) (3) Confidential communication means that the client intended it to be confidential Presence of third person reasonably necessary to the lawyers services does not defeat the privilege (a) 2. Does not cover: a) b) c) d) e) B. Things Identity of the client or the lawyer Date the lawyer was retained; fact of consulting a lawyer Fee arrangements Facts (although the document communicating the facts may be privileged) i.e. paralegal, secretary, interpreter

Client owns the privilege 1. 2. Attorney cannot waive the privilege without clients consent The privilege survives the clients death

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