EVIDENCE A. RELEVANCE a. Overview of Trial I.

Purpose
a. What Info Let In i. To determine what info we are going to let jury consider when deciding outcome of case b. Evidence Rules i. Keeps out evidence that would lead jury astray

II. Trial
a. Obstacle Course i. Hurdles that a piece of evidence must get over before being admissible b. HEAR PA BROWN i. Hear = Hearsay ii. PA = Privileges & Authentication iii. Brown = Best Evidence Rule Relevance Opinion Testimony Witnesses

b. Conditions for Admitting Evidence I. Relevancy Rule 401

a. Definition 2 Parts i. Evidence having any tendency to make the existence of a Material or Consequential Fact more probable or less probable than it would be w/o the evidence b. Relevant i. Describes relationship between an item of evidence and proposition it is offered to prove (logical) 1. If an item of evidence tends to prove or disprove a fact that is of consequence to the case it is relevant to that proposition ii. Effect on Jury 1. Rationally lead a juror to think that it is more likely or less likely that is guilty then they thought before they heard that piece of evidence iii. A Brick 1. Offered evidence adds 1 brink to the wall of establishing the proposition c. Materiality Charge i. Describes the relationship between that proposition and the issues in Material the case Proposition 1. Elements of charge Relevant 2. Fact that the party is trying to prove must relate to the legal Offered Evidence issues in the case

II. Admissibility of Relevant Evidence

a. RELEVANT EVIDENCE ADMISSIBLE - RULE 402 i. Standard 1. Low ii. Admissible 1. All relevant evidence, if offered, is admissible UNLESS Excluded by a rule a. Judicial Discretion b. Public Policy Concerns c. Character Evidence d. Hearsay Evidence iii. Excluded 1. Evidence that is not relevant is not admissible 2. If evidence is not probative of proposition (relevancy) 3. Proposition is not provable in the case (materiality)
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4. Constitutional reasons a. Violation of privilege against self incrimination b. Right to counsel c. Due process d. Confrontation clause

III. Conditional Relevance

a. Huddleston Standard - RULE 104(b) i. Applies 1. Relevancy of evidence offered depends on the existence of another fact that hasnt been proven yet ii. Procedure 1. Judge will determine the admissibility screen offered evidence, considering all evidence in the case iii. Standard of Proof 1. Judge must be convinced that the evidence offered (foundation evidence), is strong enough that a reasonable jury could find by a preponderance of the evidence, that the conditional fact was true (other crime was committed) iv. Type applicable in 1. Personal Knowledge 2. Authentication 3. Character Evidence offered to prove other acts

c. EXCLUSION OF RELEVANT EVIDENCE JUDICIAL DISCRETION I. Overview - Rule 403

a. Rationale i. Accuracy 1. Even if evidence is probative, it may interfere w/jury fact finding mission b. Definition i. " its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time, needless presentation of cumulative evidence" c. Procedure i. Jude determines if the evidence Probative Value 1. Probative Value - Substantially Outweighs - Risks

II. Probative Value

a. If the proposition itself is one provable in the case OR Forms a further link in a chain of proof i. The final proposition of which is probable, then the offered evidence has probative value b. The value in aiding jury in their decision

Unfair Prejudice Mislead Jury Confusion Issue Waste Time Undue Delay Cumulative Evi

III. Identify Dangers

a. Affects integrity of fact finding process b. Rationale i. Exclude b/c concerned jury is incapable of properly evaluating evidence 1. Usually base their decision on sympathies or emotional basis c. Unfair Prejudice i. Photo, Video, Sound Recordings Evidence (p.78) 1. Cant offer Inflammatory evidence of human injuries, corpse, murder weapon, enlarged or colored pictures 2. Risk
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a. Jury may feel angry that this happened to victim so they will give more weight to photo than evidence and could convict even if not guilty ii. Past Crimes 1. Cant offer evidence to infer character (p.11) a. Can use to prove motive, opportunity, intent, preparation 2. Risk a. Jury will judge on his prior acts and not the one in question 3. Even w/limiting instruction evidence may be used improperly a. Risk that jury will use limiting instruction for prohibited hearsay inference rather than for non hearsay purpose that is offered as rationale for admissibility = excluded iii. Admissions by Conduct 1. Evidence that Intimated W, False Statement, Escape, Bribe W, Refusal to provide handwriting, Use of Alias, Flight a. If these rules didnt exclude them they too would be an admission by conduct i. Offer to Compromise (p.7) ii. Medical Payment (p.10) iii. Subsequent Remedial Act (p.5) 2. Consciousness of Guilt a. Adverse Inference is drawn i. s behavior to flight ii. From Flight to Consciousness of Guilt iii. From Consciousness of Guilt to Consciousness of Guilt about current charge iv. From Crime charged b. Reason to Exclude - Lacks Probative Value i. may not feel guilty about the crime charged, but feels guilty about an earlier crime ii. If a long time has passed between the crime and the flight, the evidence of guilty consciousness is weak 3. Risk a. Jury may infer that is guilty of this crime b/c they did a bad act iv. Similar Happenings 1. Probative value a. Needs to be substantially similarity between prior incident and current b. Can Offer i. Notice ii. Shows party knew or had reasonable opportunity to know about a dangerous condition iii. Dangerousness iv. Shows existence of dangerous condition v. Misrepresentations K Sale of Similar Property (to show value) v. Character Evidence (p.11) 1. Evidence of relevant character trait offered so jury will INFER that actor acted in conformity w/that trait in current change vi. Probabilities 1. A trial by mathematics 2. Reason to Exclude a. Lacks foundation for the probabilities b. No proof of independence among the characteristics c. These probabilities are really hard for a jury to resist d. This whole exercise assumes that these characteristics are those of perpetrators d. Confusion of Issues & Mislead Jury i. Past Crime - Similar Crime - Scientific - Polygraph - Statistics - Character Evidence (p.11) ii. If jury is confused it can be mislead
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1. Risk a. Need to have a trial w/in a trial b. Jury may confuse facts of one crime w/current charge c. Distract jury from main issue in question

IV. Identify Considerations

a. Affects efficiency of court b. Rationale i. Exclude to conserve judicial resources (time) c. Undue Delay Waste of Time Needless Presentation of Cumulative Evidence i. Risk 1. Evidence already presented, Trial w/in Trial a. Visits to bank, all jurors know what a bank looks like ii. Character Evidence (p.11) iii. Criminal Case 1. Constitutional issue has right to present case and need not bring in tons of W 2. Judge must be cautious in this area

V. Balance Test
a. General i. View evidence in favor of proponent for admissibility ii. Close call - offsets the probative value = excluded iii. Special rules govern certain types of circumstantial evidence which have been found over the years to be so misleading or so prejudicial that they should be categorically excluded without a case-by-case balancing of probative value against prejudice b. Probative Value Evidence Offered vs. Harms Identified i. Probative Value 1. How probative evidence is of material fact a. Chain of Inference 2. How seriously disputed material evidence is 3. Necessity (Probative Worth of Offered Evidence) 4. How clearly offered evidence has been proven 5. Is there any less prejudicial evidence available 6. Effectiveness of Limiting Instructions 7. Stipulations ii. Harm 1. How likely evidence will contribute to an improperly based jury verdict 2. Extent evidence will distract jury from central issue of trial 3. How time consuming is it prove prior conduct 4. Similarity of prior act to current charge 5. Closeness in time to current charge 6. Frequency of prior act 7. Presence or lack of intervening circumstances iii. Reduce Harms 1. Limiting Instructions a. Reduce unfair prejudice and confusion of issues b. Applies i. When evidence has limited admissibility 1. Offered for 1 purpose but not another c. Procedure i. Party opposing evidence will ask judge to give instruction 1. To instruct jury that they can only consider evidence as 1 kind ii. If opposing party fails to ask, jury can use evidence for anything they want!
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d. Balance Weight i. Give consideration to probable effectiveness or lack of effectiveness of limiting instruction e. Best way to use i. By incorporating it into jurys regular instruction package ii. Reduces possibility that jury will be inappropriately influenced from it 1. Especially in insurance suit 2. Stipulation (Old chief) a. Reduce unfair prejudice on Prior Crimes i. By eliminating need to introduce other evidence to prove prior crime, b/c will admit did prior crime BUT stipulate to say wont say what kind it was 1. Especially those not charged in b. Govnt can accept stipulation in whole or part c. Reasons to allow in evidence rather than stipulate i. Need to tell a colorful story with descriptive richness ii. Preventing gaps in the story which the jury will blame on the prosecution iii. Prior crime evidence may implicate the laws moral underpinnings and convince jurors that a guilty verdict would be morally reasonable (this is more convincing when the prior is murder rather than tax fraud) 3. Alternative Proof a. If 2 pieces of evidence available on same point, the one less prejudicial should come in

d. EXCLUSION OF RELEVANT EVIDENCE POLICY CONCERN (MEN R Guilty) I. Exclude Subsequent Remedial Measures Rule 407
a. Procedure
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i. Balance Test 403 1. Stipulation a. will case the issue stipulated to, to no longer be disputed b/c it is taken out of the picture of the case i. may cause other purpose to no longer be available 2. Limiting Instruction a. Limit use of repair evidence to purpose offered for ii. Rationale 4 Rule 1. Probative Value a. Not likely that repairing something is probative of element of case i. Like negligence or culpable conduct ii. Maybe person who made repair are humane do-gooders and dont want people hurt b. BUT Problems w/relevance alone will not cause exclusion 2. Public Policy a. Encourage people to take steps in furtherance of added safety i. Not discourage them from doing this b. If these subsequent remedies were admissible to prove their guilt then people wouldnt try to further safety b. Exclude i. Remedial measures made After accident, voluntarily by 1. Any measure that would have made accident less likely to occur if it had been in place before accident a. Installation of Safety Devices b. Modification in Product Design c. Drug Warnings d. Changes in Company Rules e. Discharge of Employees f. Disciplinary Action against Employee who Caused Injury i. NOT - Post accident Reviews & Studies ii. Offered to Prove 1. Negligence Culpable Conduct Product Defect Need for Warning a. Asserting that method used was somewhat preferable than alterative i. it is reasonably safe ii. not defective iii. method chosen at time seemed to be more practicable or safer iv. suggests that original design is acceptable v. Argues about tradeoffs involved in taking precautionary measures b. Change Mind i. If changes mind about safeness of something after accident the fact that testimony is different doesnt establish that was dishonest c. Due Care i. was using due care at time of accident 2. Strict Liability (Product Liability) a. Defective Product Suit i. COA: alleges design is unreasonably dangerous 1. Defect in a Product or Design 2. Need for a Warning or Instruction b. Rationale i. Public Policy 1. If evidence of subsequent repair admissible it may discourage company from voluntarily making repairs, improving a product 2. Reducing possible hazard to consumer should be encouraged ii. Relevant 1. Many other reasons why company will make subsequent changes
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a. Avoid another injury better way has been discovered implement idea or plan that was conceived before accident admission of error c. Harm i. Important in this type of case to keep jury attention on products condition or design at time of accident and not take into consideration subsequent changes c. Admissible i. Remedial measures 1. 3rd Party Repair a. If 3rd party does repair AFTER accident can be admissible b. Rationale i. Social Policy 1. Just b/c 3rd party does repair doesnt expose 3rd party to liability so encourage or discourage 3rd party from making repairs ii. Relevance 1. Admission by conduct (p. 3) a. 3rd parties repair does not create liability for b/c it isnt an admission of guilt so isnt relevant to s conduct ii. Offered to Prove, Other Purposes, if in Dispute 1. Proof Of Ownership or Control a. Control is disputed i. Meaning issue is who was responsible party b. Subsequent repair undercuts claim of non-responsibility 2. Feasibility of Precautionary Measures a. Raises - claims not negligent or culpable b/c i. There wasnt a safer way or impractical 1. The measure wouldnt have helped 2. nothing more could have been done 3. all reasonable precaution were taken 4. there is no safer way to handle the situation 3. Impeachment (not disputed) (p. 25) a. Rebut i. Evidence admissible that implemented a safer way following accident, that now says wouldnt have helped before 1. so if it was the safest design possible was it modified after the accident? b. How i. Cast Doubt on W Testimony Credibility 1. Show W prior testimony was dishonest ii. Impeachment by Contradiction 1. uses to rebut claim of there was no hazard a. Rationale i. Demonstrates an awareness by that there really was a hazard b. Overlap w/other Purposes i. impeach W testimony AND address feasibility of alternatives since feasibility was introduced by iii. Cant use to Establish Culpability

II. Exclude Negotiation Settlements - Rule 408 (Civil)

a. Procedure i. 403 Balance Test
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1. Policy of encouraging settlements vs. need for evaluating credibility of W ii. Limiting Instruction 1. If evidence admitted for another purpose iii. Evidence offer by or iv. Rationale 1. Public Policy a. w/o this rule then making an offer would be an admission of a party opponent or an authorized admission (Rule 801(d)(2)(A) b. Settlement of disputes w/o litigation is good c. Settlement discouraged if either side were deterred from making offers for fear that they would be admitted in evidence d. Allows complete candor between parties in negotiations 2. Probative Value a. Evidence of offers is irrelevant b/c offer bay be motivated by a desire for peace rather than from a concession of admission b. Validity of this will vary as amount of offer varies in relation to size of claim b. Exclude i. Evidence of Offer, Promise to or Acceptance to Settle- If Offered to Prove, if Disputed 1. Validity (Liability) or Invalidity a. NO Impeachment (p. 25) i. Prior Inconsistent Statement or Contradiction 1. Used to prove liability 2. Value of Claim or Amount of Damages of Claim a. Typically Settlement w/3rd Person b. EX i. sues A & B, settlement between and A is inadmissible at Bs trial if offered to prove liability of B c. Party Want to Offer Evidence of Own Settlement i. Can NOT admit evidence of your own settlement ii. Purpose 1. To show they recognize their potential liability but other party wasnt willing to settle iii. NOT Waive protection of rule ii. Evidence of Conduct or Statements made in Course of Negotiating Claim 1. Statements of Fact & Admission a. Even if made during negotiation but separate from settlement offer i. EX 1. I was drunk that night 2. my client ran the red light, we will offer you $2k c. Admissible i. Evidence if there is NO Dispute as to Above 1. and can agree that claim has merit and agree to amount owed and only discussing when can pay settlement amount ii. Evidence Offered for Other Purpose (than validity, invalidity, liability, amount) 1. Impeachment by Proving W Bias or Prejudice (p. 17) a. Typically Settlement w/3rd Person i. EX 1. sues A & B, A testifies as W for at Bs trial, evidence of settlement between and A admissible to show bias 2. Settlement may be trade off for W favorable testimony b. Doesnt undermine rationale of rule 2. Rebut Claim a. Negating a Undue Delay of 403 Balance i. Party dragged out settlement negotiations and then pulled out at last minute
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3. Pre-existing Info Offered During Negotiation a. Document i. If document given to other party during settlement negotiations and is or could be found another way: discovery or other technique separate from settlement negotiation b. Fact i. If fact revealed during settlement negotiations party can prove fact by other way separate from settlement admission 4. Enforce Terms of Settlement Agreement a. Parties come to settlement, both sign = enforceable like K b. Party doesnt pay, other sues again to enforce K

III. Exclude Guilty Pleas Rule 410 (Civil or Criminal)

a. Generally i. Guilty Plea = to Settlement ii. Evidence bared UNLESS specifically admitted b. Rationale i. Public Policy 1. In favor of encouraging plea bargains b/c of overcrowded prisons 2. s liberty is on the line ii. Relevance 1. Offer to plead guilty has little probative value on issue of guilt a. b/c that fears conviction may be willing to plead guilty to get lesser sentence even if innocent c. Exclude i. Evidence of 1. Plea of Nolo Contendere - No contest a. Civil suit arising out of same accident 2. Guilty Plea later Withdrawn a. is able to withdraw before judgment was entered b. Can NOT be used against in trial for charged crime 3. Statements made by in Guilty Plea a. When judge is determining if entered into plea of guilty voluntarily 4. Statements Made in Negotiating Pleas a. To Prosecutor and Dont result in guilty plea or one later withdrawn ii. NOT admissible in ANY subsequent criminal or civil litigation iii. Against who made plea 1. Offered Against Prosecutor a. Note: although rule doesnt say this, some courts have ignored string reading of this rule b. Not allowed to offer evidence that prosecutor offered to drop a charge during plea discussions against prosecutor iv. Offered To Prove 1. Culpability of Guilt or Consciousness of Guilt a. To Impeach (p. 25) i. Factual Admissions by & Fact of Guilty Plea ii. Rationale 1. If worried any statements made during plea negotiations might be used to impeach them at trial might not enter plea negotiations d. Admissible i. Guilty Plea NOT Withdrawn 1. Fact of it, not statements, can be used against in later litigation ii. Above Statements if
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1. Waive Protection (p. 71) a. Elements i. Knowingly and Voluntarily enters into agreement to waive b. Result i. Prosecutor can use statements made to impeach them (p. 25) 1. Tactic a. Often Prosecutor will ask to waive all constitutional rights before giving negotiation discussions so they can use statements against them at trial 2. Introduces Statement Made during Negotiations a. introduces statement believes will prove his innocence, made during plea bargain i. IF statements ought in fairness be considered together w/ b. Impeachment (p. 25) i. can later introduce other statements made during same discussion to impeach him c. Rationale i. Prevent from taking advantage of rule by introducing a statement that helps prove innocence when taken out of context 3. Perjury or False Statement Criminal Hearing a. Statements made by under oath, on record, in presence of counsel i. Can be used against when in separate perjury hearing 4. Statements Made in Negotiating Pleas NOT to Prosecutor a. Made to Police Officer - Correction Official - IRS Agent

IV. Exclude Payment of Medical Expenses Rule 409

a. Public Policy i. A good Samaritan payment or offer is made from humane impulses and not from an admission of liability, if allowed admission of these it could discourage assistance to injured person b. Exclude i. Evidence of Statements Furnishing Offering Promising to Pay 1. Voluntary offer of assistance made upon impulse of kindness or sympathy not an admission of culpable causation ii. Medical Hospital Similar Expenses 1. EX: Rehabilitation iii. Due to Injury iv. To Prove Liability for Injury c. Admission i. Evidence of Admissions of Liability 1. Made when Offering to Pay Medical Expenses a. Other than fact of payment 2. EX a. Im paying your medical expenses b/c if I hadnt been drunk that night, I wouldnt been driving on shoulder and hit you b. It was all my fault Ill pay your hospital bills i. All my fault = admissible 3. Rationale a. Communication is not essential for a payment or offer of payment to be made but expected for there to be factual statements made incidental to payment/offer

e. EXCLUDE RELEVANT EVIDENCE ACCURACY & FACT FINDING CONCERN I. Exclude Liability Insurance Rule 411 (Civil)
a. Procedure
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i. Offered by or ii. Limiting Instruction iii. Stipulate b. Rationale i. Very Little Probative Value 1. Whether someone has insurance coverage reveals little about whether they were acting negligently on a particular occasion ii. Unfair Prejudice 1. Jury may unfairly penalize insurance companies for their deep pockets a. Invites higher awards than justified 2. Jury may feel sympathy for who has to pay out of own pocket and interferes w/evaluation of evidence iii. COULD ARGUE 1. If party had insurance then they may be less likely to be worried about the consequences of her reckless driving since someone else would be paying for it, may tend to prove that she drove negligently 2. People who have insurance are more likely to be prudent and cautious than people who drive around uninsured, therefore evidence that party was insured can be offered to prove that party was driving safely on the date in question c. Exclude i. Evidence that a person Was or Was Not Insured Against Liability ii. Offered to Prove Person Acted w/ 1. Fault Negligently Wrongfully Contributory Negligence a. offers evidence to suggest that b/c was insured, was probably careless b. offers evidence to show that b/c did not have insurance had incentive to be careful iii. Offered to Prove Person Ability or Inability to Pay a Judgment d. Admissible i. Evidence that a person Was or Was Not Insured Against Liability ii. Offered to Prove Other Purpose, If Disputed 1. Proof of Agency a. Party had insurance that covered another person can be offered 2. Ownership & Control a. To prove party had ownership or control thus they had responsibility 3. Impeachment Prove Bias or Prejudice of W (p. 25) a. EX i. Insurance adjustor interviews and called by at trial to impeach w/prior inconsistent statement 1. Way for existence of insurance to come out at trial ii. can then cross examine adjustor 1. Inquire into and adjustor relationship, sources of possible bias 2. Adjustor is impeachable for bias or prejudice b/c an employee of company has a financial interest at stake 4. 2 statements made together a. If admission of liability is in same statement as admission of insurance and cant be taken apart w/o lessening value of admission of liability

f. EXCLUDE RELEVANT EVIDENCE CHARACTER ACCURACY & FACT FIND CONCERN I. Character Evidence Generally NOT Admissible Rule 404
a. Character describes ones disposition in respect to general traits and generally NOT admissible to prove party has predisposition
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i. EXCEPTION 1. Character when Character is In Issue (element of COA or defense) 2. & Victim Character MIAMI COP K Habit Credibility of W b. Rationale i. Character Directly In Issue 1. Necessity a. Admissible b/c this is only evidence available on essential element b. Unlike propensity evidence - there is other-better-more direct evidence of the crime ii. Propensity of How a Person Acted 1. Low Probative Value a. The likelihood that b/c a person has shown the existence of trait before, any act thereafter the person will likely act like it again b. To use prior behaviors (good or bad), similar crimes, for purpose of drawing inference that has criminal propensity, making it more likely committed act 2. Risk of Prejudice High a. Evidence of relevant character trait offered so jury will INFER that actor acted in conformity w/that trait in current change i. Jury will give excessive weight to record of crime and allow it to bear too strongly on present charge ii. Preventative Conviction 1. Jury will punish for bad acts that they arent on trial for b/c sort of person that would do something like that 2. Jury will convict b/c this type of offense deserves punishment even if isnt guilty c. Test Analysis i. Identify a Material Issue 401(p. 1) 1. Must be relationship between purpose and essential element of charge a. Relationship present b/c essential element i. Identity Intent Knowledge b. Establish relationship i. Motive Opportunity Plan ii. Determine Involvement - 104(b) Huddleston Standard (p. 2) 1. Degree of Certainty a. must with a degree of certainty offer some evidence to show was involved in prior acts 2. Court examines all evidence a. Standard (conditional relevance) i. Evidence of prior act must be strong enough that a jury could reasonably find committed prior act by a preponderance of the evidence iii. 403 Balance Test 1. Probative value of evidence vs. Risk jury will ignore Limiting, Stipulation and make prohibited character inference iv. PROTECTIONS Provided to 1. So jury wont misapply evidence and infer prior specific act actually did occur 2. Limiting Instruction a. b/c jury is unlikely to understand limiting instruction we give another protection 3. Good Faith Belief on Cross a. When cross s W (have you heard, do you know) i. can ONLY ask if they have good faith belief that the specific act actually occurred

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II. EXCEPTION - Character is Directly In Issue

a. Persons general character or trait is essential element of charge, claim, defense i. Peaceful character in crimes of violence ii. Honest character for theft iii. Truthful character for Perjury b. Offered by Either Party i. Civil Case 1. Negligent Entrustment or Hiring Tort a. entrusted an instrumentality to 3rd person injured b. was negligent in doing so knew or should have known that 3rd person had poor character for care 2. Defamation, Libel a. Rebuttal of truth defense in libel or slander case i. defense is statement about was truthful 3. Wrongful Death a. Check book to see if in there 4. Child Custody Dispute a. and show good or bad traits for parents 5. Mental Status for Will a. Mental competency to make a will b. Use defense of insanity ii. Criminal Case 1. Entrapment Defense a. claims it can use evidence to show existence of predisposed to commit current charge no entrapment c. Methods to Prove i. Reputation Opinion 1. Tends to prove what kind of person someone is ii. Specific Acts 1. Direct & Cross Examination iii. NO 403 Balance Test

III. EXCEPTION - Propensity of Persons Conduct

a. What?

i. Evidence offered as circumstantial evidence, since character isnt directly in issue 1. To prove persons conduct in particular situation
b. Character of (Criminal) i. offers evidence of own Good Character 1. Foundation for W 2. Direct of Reputation & Opinion W a. Attempts to create jury inference that wouldnt commit act and to rebut bad character trait that is implied from charge b. Why must offer 1st? i. could convince jury that is bad person and jury may convict regardless of guilt of current charge ii. NOW HAS PRICE TO PAY!!!! 1. had change to talk about good character and has OPENED the DOOR for to bring in specific instances iii. responds, bring in evidence on Bad Character on same trait 1. Rebuttal W on Direct
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a. To show s bad Reputation or Opinion 2. Cross Examination of W(CHARACTER W only) (very devastating!!!) a. Reputation & Opinion (p. 21) b. Specific Instances (p. 21) i. HAVE YOU HEARD?? DO YOU KNOW??? ii. About s prior bad acts relating to character trait 1. To infer acted conformity w/past behavior 2. To test W knowledge of character 3. Protection Provided to a. Limiting Instructions b. must have Good Faith Belief in asking specific instances iv. EXCEPTION Charged w/Sexual Assault - Rule 413 &414 (Criminal & Civil) 1. Admissible a. Specific Instances of similar offenses committed For ANY relevant purpose i. Remoteness 1. Remoteness of prior sexual assault diminishes its probative value a. Court allowed conduct admitted assault that happened 16-20 years earlier b. To Prove character, so jury will infer acted in conformity this time i. Type of cases 1. Sexual Assault or Child Molestation 2. Damages for either 2. Procedure - Notice a. must provide 15 day notice b. Statements of W or summary of expected testimony 3. offers, prior sexual assaults, even if never convicted for ANYTHING a. Specific Instances i. Direct of W ii. Cross Examination 4. responds a. Reputation & Opinion i. Direct W b. Confrontation Clause Right c. Character of Victim (Criminal) i. offers evidence of victim Bad Character 1. Direct of Reputation & Opinion W a. Relevant to s innocence i. Limitation Rape Shield 2. 2 Theories of Self Defense (Homicide & Assault) a. Victim 1st aggressor and only acted in response i. Attempts to infer that if victim acted in conformity w/character trait then victim would be at fault in current charge b. Victim 1st aggressor but had to take Preemptive Strike i. b/c reasonably feared for safety ii. Effect on listeners state of mind (see hearsay) ii. NOW HAS PRICE TO PAY!!!! 1. has OPENED the DOOR for to bring in specific instances iii. responds, brings in evidence of Victim Good Character or Bad Character 1. Cross Examination of W (CHARACTER W only) a. Specific Instances i. HAVE YOU HEARD?? DO YOU KNOW??
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ii. Showing Victim Good Character or has same trait as put on about Victim 1. Even though hasnt presented such evidence 2. Rebuttal W on Direct a. Reputation & Opinion i. To show Victims Good Character b. Homicide Case (NOT Assault Case) i. Offer evidence of peaceful character of victim ii. Policy 1. Victim isnt there to tell her side of story iv. Rape Case Rule 412 (p. 14) 1. Exclude a. Past Sexual Behavior i. Physical conduct of victim ii. General Reputation iii. Opinion Testimony of Victim past sexual conduct iv. Victim Habits b. Disposition of Victim i. Other peoples experience with victim promiscuity ii. Lifestyle or type of dress 2. Rationale a. Protect victim sexual privacy by discouraging tendency in rape cases to try the victim rather than b. Encourage reporting of rape c. Unreasonable for to base belief of consent on victims past sexual experiences w/3rd parties 3. Prejudice a. Aid in truth finding process by excluding unduly inflammatory evidence b. Evidence of past sexual behavior irrelevant 4. EXCEPTION - Reputation IF - Victim offers 5. EXCEPTION Criminal Admissible - Specific Instances a. Victim Past Sexual Activity w/Others i. offers - source of semen, pregnancy, disease, other physical injuries is by a 3rd party (p. 17) 1. Act must be very close to when incident occurred ii. Material 1. To show alternative explanation or 3rd party rather than committed physical consequences or rape b. Victim Past Sexual Activity w/ i. offer - sexual behavior between and victim to show Consent 1. Can NOT ask about other partners ii. offers For any reason iii. Material 1. Establish essential element of current charge or defense a. - Consent is element of crime for mental state b. - If claims doesnt know victim or never had sex w/ victim i. To show victim doesnt always claim rape c. Constitutionally Required i. If excluding victim sexual behavior or disposition would violate constitutional rights then evidence admissible 1. has 6th Amend. right, to be confronted w/W against him a. Avoids CC violation by allowing this exception (p. Error! Bookmark not defined.)
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ii. offer and cross examine 1. Victim past sexual behavior w/ and w/others, sexual disposition, false accusations iii. Material 1. Proof of Bias/Motive of victim 2. To prove essential element of current charge or defense a. Mental state of Consent 3. Reasonableness of s belief of consent 4. Alternate Source of Knowledge a. Victim child able to know about sexual acts due to prior rape not b/c of 6. EXCEPTION Civil Admissible Specific Instances a. Prior Sexual Behavior and Disposition of Victim IF i. Reverse Balance Test 1. Probative value must substantially outweigh a. Danger of unfair prejudice to ANY PARTY or b. HARM to ANY VICTIM i. Embarrassment ii. Note 1. Biased in favor of exclusion 2. High standard d. Impeach Witness (p. 25) i. See Impeachment

IV. Other Purposes (Criminal & Civil)

a. Generally i. Prior Crimes Bad Acts Uncharged Offense 1. Offered to Prove something other than character a. Relevant to Establish Elements of Current Charge MIAMI COP K i. offers evidence of Specific Instances - crime, bad acts OR 1. To prove these effect current charge of ii. offers evidence - Reverse Evidence 1. To prove a 3rd party committed prior acts so 3rd party not committed current charge 2. Rape Shield a. Origin of semen, pregnancy or disease iii. Opponent Rebuttal W 1. To Disprove element in question ii. Procedural 1. Notice (Criminal) a. must provide notice will admit prior acts 2. Doctrine of Chances (Rex v. Smith) a. What are the chances that an innocent person would be charged falsely so many times? if rarely it is then safe to infer that is not innocent i. Evidence of prior repeated, unusual acts that tend to show prior crime was committed my same person too 1. It shows the sheer improbability that s 3 wives could all die in their tubs w/o foul play b. Relevant i. points to rebut Accidental, establish Motive and Plan c. Dangers i. Reduces risk b/c jury doesnt focus on s subjective disposition, but rather compare situation w/statistical data or jurys knowledge of everyday human experience
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3. Relevance a. Similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the was the actor 4. Huddleston Standard 104(b) a. must introduce enough evidence so i. Judge must be convinced that evidence offered (foundation evidence), is strong enough that a reasonable jury could find by a preponderance of the evidence, that the conditional fact was true (other crime was committed) 5. 403 Balance Test a. Court still allowed to exclude! b. REMEMBER substantially similar acts usually have too high of danger! iii. Rationale 1. Dont have heavy dangers like character evidence 2. But Danger still exists that jury may take evidence and bear it against character b. Motive i. If some act by tends to show that had motive to commit current charge 1. - Helps establish s Conduct and Intent a. Material (probative) to i. Conduct 1. Shows had motive to commit act so more likely did act than if had no motive ii. Intent 1. Shows if did act, did so intentionally, purposefully, maliciously iii. Establishes essential element of current charge 2. - Deny committed prior acts or had no such motive 3. EX a. charged w/killing FBI agents, admit evidence previously charged w/murder and had outstanding warrant that knew about, had motive to fire at FBI b/c fearful of apprehension on warrant c. Identity i. To establish identity when identity of person who committed act is truly in issue ii. Evidence that committed similar crime using same distinctive method of committing crime as person who committed current charge 1. Material a. Motive, opportunity, preparation, knowledge b. Establishes essential element of charge c. Signature i. Justifies inference that if committed prior crimes then only could have done current iii. offer 1. Signature a. Prior act by are so similar in modus operandi (method of operation) to crime charged that bear signature b. Elements i. must deny participation in crime ii. Method of prior crime must be Substantially probative of identity c. EX i. Murder case, evidence of affair w/victim wife admissible to establish motive, motive is probative of identity ii. W testifies knew who was b/c sold W drugs before this instance and recognized face
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2. Modus Operandi a. Mode so similar in both crimes same person probably committed both b. Elements i. Determine precise method used in all crimes ii. Methods must be so similar and unusual (uniquely different) enough to indicate signature iii. Similarity so great extremely unlikely another person committed crime iv. Overcomes jurys temptation to engage in propensity reasoning iv. - Reverse Evidence 1. To prove a 3rd party committed prior acts and modus operandi so similar in prior and current that it was 3rd party who committed current charge and not a. Sexual Assault - Origin of Semen, Pregnancy or Disease 2. Harm a. No risk of unfair prejudice to 3. Relevant a. must show that evidence has a tendency to negate guilt d. Absence of Mistake or Accident i. To establish current charge was or was not a mistake or accident 1. Very close to propensity a. Material (probative) to Conduct i. Shows had or did not have state of mind to commit act so more probable did act ii. Defense - Infers lacked state of mind to commit current charge 1. Elements a. MUST Admit Current Charge iii. Rebut - had mental state of current charge so was not accident or mistake 1. Prior act must be unusual or very similar a. Prior conviction of same offense 2. Intent Knowledge Common Plan or Scheme e. Intent i. Offer evidence of prior similar act to show that had intent ( mental state) or negate, to repeat same crime 1. Material a. Essential element in crime - Intent and Knowledge similar i. knew what he was doing and intended to do so! 2. both crimes Substantially Similar to show s Guilty state of mind in current a. Guilty state of mind of prior crime suggests guilty state of mind in crime charged i. This looks like propensity fine line 3. Defense didnt have criminal intent a. Offer Innocent Explanation for current charge i. Must admit current charge 4. EX a. murder charge, claims self defense evidence of prior burglaries does not indicate untruthfulness of self defense does indicate untruthfulness if claims he was on victims window ledge b/c he was fleeing from muggers in the street f. Common Plan or Scheme i. To establish existence of a larger Continuing Plan, Scheme, Conspiracy that present charged is part of 1. Material a. Essential element of current charge Intent Motive - Identity
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b. Makes current charge more probable than w/o evidence 2. EX a. charged w/murder by insulin poisoning, evidence offered murdered 3 others like this for same motive of money, not charged for other murders, admissible under common plan b/c tended to show malice and knowledge of means used to commit crime charged in present case 3. offers evidence that a. committed another wrong as part of a plan or scheme to commit the charged act g. Opportunity i. To establish had access to or was present at scene of crime 1. EX a. charged w/stealing package from mailroom, proof was seen in mailroom admissible to show s opportunity to steal package h. Preparation i. To establish prior act was done in preparation and done to facilitate commission of current charged 1. offer prior act - Negate possibility act was accident or mistake 2. Material a. Essential element of current charge Intent Knowledge Plan - Motive b. Increases likelihood act actually took place 3. EX a. stole a car day before robbing bank - facilitate robbery i. Knowledge i. To establish knowledge, special knowledge/skill, capacity to commit current charge 1. Similar to intent 2. Material a. Essential element in crime - Intent - Knowledge similar b. Probative Value Increases i. Attorney can shrink size of pool of potential offenders by using evidence of knowledge, specific skill or means to commit crime 3. s Objection to Evidence a. Misleading, waste of time (mini trial), unfairly prejudicial, confuse issues ii. Mental State 1. Show that current charge was or was not performed w/awareness, accidently, involuntarily or w/o guilty knowledge a. EX - Knowingly receiving stolen goods iii. Specialized Knowledge/Skill 1. Prior acts will prove has specialized knowledge to commit current charge and others do not a. Makes prior acts more relevant 2. EX a. Computer hacker, hacked into computer company ordered computers for free, at same time police investigating similar incident evidence of prior incident admissible b/c shows had special knowledge and skill not everyone has rd iv. On Notice of 3 Party Behavior 1. Prove had knowledge of 3rd party prior acts and did nothing about knowledge 2. EX a. Evidence showed railroad had knowledge employee got drunk often used to show negligent behavior of railroad not do anything about employee behavior injure

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V. Habit Evidence Rule 406

a. Admissible i. To prove conduct of a person was in conformity w/this trait in this situation ii. To prove that organization acted in conformity w/routine practice in this situation 1. Can NOT use to establish another purpose like standard of care iii. Balance Test 1. Fairly Probative a. Evidence of habit or routine practice as proof of conduct is relevant 2. Not very prejudicial a. Person i. Introduction of multiple W testifying about habit may cause confusion to jury, misuse of time, unfair prejudice b. Organization i. No risk of improper character being admitted to jury ii. Should be readily admitted 3. Waste of Time a. Court will consider how many W will be needed to establish the habit b. Evidence of Habit i. Elements 1. Specificity a. The more specific behavior more likely a habit b. EX i. Habit - person stops car before railroad tracks and looks both ways every day ii. Character person drives carefully 2. Regularity a. The more regular the behavior more likely a habit b. How often the habit occurs in same situation and for how long this habit has been going on c. EX i. Habit person stops car once a day during their travel home from work on same route for 3 years 3. Semi Automatic Behavior a. Behavior that is semi automatic and done w/o thought is more likely a habit than volitional and requires conscious thought b. EX i. Habit breaking w/right foot and locking door of house when leaving ii. Person 1. Describes ones regular response to a specific situation that is repeated 2. W can reasonably testify to observing habitual behavior a. EX i. Having same thing for breakfast every day ii. Routinely failing to stop at same stop sign iii. Always going up same set of stairs 2 steps at a time b. Note: i. Character matter of opinion and describes a disposition or trait iii. Organization 1. Routine Business Practice Usage - Custom a. Large business use standard operating procedures that create routine procedure for receiving and mailing documents b. Hospital has routine procedure for operating room like instrument court before sewing up patient c. Method i. Opinion - Specific Instances 1. SI - No eye W required
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2. Organization a. By W who has knowledge of custom may testify to its existence

VI. Methods Rule 405

a. Reputation Testimony i. W testimony as to persons general reputation in community for possessing character trait 1. DO YOU KNOW?? a. Do you know of the reputation of xxx in the community for truth and veracity? i. Yes. What is it? b. W can NOT give reasons why reputation is good or bad 2. Is hearsay b/c it is what people say about someone a. Allowed b/c not prejudicial, not likely to mislead jury 3. Collection of opinions become reputation ii. Rationale 1. Least probative method iii. Witness Requirements 1. Qualifications a. Offering party must establish W qualifications to testify 2. Knowledge a. W must have sufficient familiarity w/ or victim reputation b. Need NOT know or victim personally 3. Community a. Testify to or victim reputation in any type of community that or victim has a substantial connection i. or victim lives, works, goes to school 4. Remoteness a. Reputation must date from time reasonably close to date when current charged occurred i. EX - 27 year old arrest was okay ONLY b/c 2 character W said they were acquainted w/ for 30 years b. Character at issue i. Reputation must be from before current charge was publicized b. Opinion Testimony i. W own opinion as to whether person has a particular character trait 1. DO YOU KNOW? a. Cant support opinion w/ specific facts ii. Witness Requirements 1. Qualifications a. Offering party must establish W qualifications to testify about opinion 2. Knowledge a. W must know or victim sufficiently well to have formed an opinion about that persons character b. Rationale i. Shows that W opinion is worth listening to c. Specific Instances of Prior Conduct i. Evidence of prior specific instances showing person has particular character trait ii. Rationale 1. Most probative but takes most time and carries potential for distraction 2. Unfair Prejudice a. If specific instance contended, trial w/in trial iii. Used on Cross Examination (p. 23) 1. Can ONLY be used against a Character W b. NOT cross of any other person, even person about who character W is testifying
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2. Rationale a. Inquiry tests accuracy of W hearing and reporting i. If W is unaware of s prior convictions would not appear to be very well informed of s reputation loose credibility 3. Reputation a. Ask s reputation W about specific instances of s prior conduct i. HAVE YOU HEARD??? 1. Of specific instances (mugged an old man) that would reflect poorly on s reputation? a. NOT proving actually mugged old man b. Only using to test how familiar W is w/s character in community 2. Unfounded Rumors a. If questioner believes rumor to be true then can ask W if heard of rumor that may discredit 4. Opinion a. Ask opinion W about specific instances of that bear on opinion i. DID YOU KNOW?? 1. mugged old man? 2. Would it change your opinion to know that got in bar room fights 3 times in past year? a. NOT asking to prove that actually did this b. ONLY to test how well W knows character 5. W Denies Knowledge of Specific Acts a. must take W answer as is b. Can NOT prove specific instances w/Extrinsic Evidence i. To show that prior act really did occur c. Can NOT ask W about Effect of current charge on opinion or reputation i. Policy 1. Asks W to make up a hypothetical assumption of s guilt 6. PROTECTIONS 4 a. So jury doesnt misapply evidence and infer that prior specific act actually did occur b. Limiting Instruction i. b/c jury unlikely to understand limiting instruction we give another protection c. Good Faith Belief i. must have a good faith belief that the specific act actually did occur ii. If based on a rumor that believes if untrue can NOT ask iv. Rebuttal of Proponent of W 1. Can NOT present new W or documents to show specific instances did NOT happen d. Takes the Stand to Testify i. Harm 1. Puts character into play now can use against 2. Puts credibility in jeopardy subject to impeachment

B. TESTIMONIAL EVIDENCE a. Witnesses I. Competency

a. Capacity i. Perception = See and Hear
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ii. Narration = Relate iii. Memory = Remember b. Personal Knowledge Rule 602 i. W must have knowledge of the subject about which W testifies 1. Base opinions on facts that W perceived by senses and not learned from someone else a. Knowledge at time of trial 2. EXCEPTION a. NOT required for Expert W Testimony ii. Laying Foundation of PK 1. W supplies proof of 1st hand knowledge a. Can come from testimony of W i. What W thinks he knows from personal perception b. Inference or opinion from testimony i. So long as grounded in personal observation and experience iii. Uncertainty 1. Doesnt affect admissibility a. W expression of uncertainty doesnt exclude evidence as long as W has opportunity of observation and gained some impression b. EX i. I think - I believe - Im not positive 2. Effect weight of evidence iv. Relationship to Hearsay Rule 1. Inadmissible 602 & 801 a. W learns of crime from another person i. Hearsay Rule 1. Basis for testimony is Ds statement ii. 602 1. W not present for crime, no PK 2. Admissible 602 & 801(d)(2)(A) a. W learns of crime from another person who is i. Hearsay Rule 1. b/c admission of party opponent ii. 602 1. b/c W has PK that statement was made BUT can NOT testify to subject matter of statement b/c no PK c. Oath Rule 603 i. To impress the Ws mind the duty to testify truthfully ii. Failing to do so = Perjury iii. Sincerity about Testimony

II. Examination of Witness

a. Cross Examination i. Scope 1. Questioner asks opposing parties W questions a. W Impeached on Cross 2. Topics a. Things that relate to subject matter of direct (relevant) b. Relate to Ws credibility ii. Questioner Requirements 1. Good Faith Basis a. Questioner must have good faith belief that the prior specific instances occurred by victim or before asking specific instance question 2. In Camera Hearing

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a. Questioner must demonstrate basis for question outside jury presence before asking it or put judge on notice asking such question b. Present Refreshing Recollection Rule 612 i. Elements 1. L to show W a writing or anything else that will help jog W memory , while W is on stand testifying or before testifying ii. How 1. Via document or any item that will help W iii. NO Hearsay problem 1. b/c W is testifying from own memory not from document iv. Procedure 1. Danger a. W hasnt really had memory jogged, but only remember the thing W just read 2. Protections a. NO introduction of Document i. Can NOT introduce document into evidence b/c document isnt evidence ii. ONLY used to jog Ws memory and W must testify from her own memory iii. UNLESS 1. Document can independently come in if it qualifies as admission of party opponent or a recorded recollection b. Opponent has Right (when done at trial) i. To Inspect the document ii. Cross Examine 1. W about document and introduce any relevant/pertinent portions of it a. Cross may reveal that W testimony is just word for word what document said and so casts doubt on Ws credibility iii. Introduction of Relevant parts of Document 1. Back up this cross or show discrepancy between letter and recollected testimony c. Opponent may (if done before trial) i. If recollection done day before trial and not at trial, then it is up to judicial discretion whether he will require that opposing party can inspect document c. Past Recorded Recollection Rule 803(5) (p. 45) i. HEARSAY EXCEPTION unavailability of D immaterial ii. What? 1. W having difficulty remembering details, L gives W document and W still doesnt remember the incident SO L will try to get statements from document admitted into evidence 2. NO HEARSAY Problem b/c Exception! iii. Purpose 1. Document is a substitute for Ws testimony at trial 2. Can ONLY be read to jury a. NOT admitted as an exhibit 3. Must meet Requirements to show that W vouched for reliability of document iv. 4 Requirements (to admit into evidence) 1. Personal Knowledge a. Eye witness must testify that she once had personal knowledge about what happened 2. Insufficient Recollection a. Must testify that W has insufficient recollection to testify fully and accurately about the event 3. Made When Fresh
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a. Must testify that W made the statement about the event when it was still fresh in her mind 4. Accurate Reflection a. Must testify that letter accurately reflects her knowledge at that time d. Judicial Control of Trial Rule 611(a) i. Judge has ability to ensure that W is being treated properly during questioning 1. Ensure questioning is effective to get out truth 2. Avoid consumption of time a. Continuances 3. Protect W from Harassment and undue embarrassment

III. Credibility of Witness

a. Bolstering i. Trying to support a W credibility BEFORE impeached/attacked ii. General Rule 1. You cant bolster (support) a W credibility w/evidence of a. Good Character for Truthfulness OR b. Prior Consistent Statements 2. UNLESS W credibility has been impeached/attacked iii. Rationale 1. We assume W credibility is good until they are attacked 2. Consumption of time and confusion of issues a. Unless credibility is called into question then we have NO need to bring up this evidence and saved everyone a lot of time iv. Examples 1. Offering several W that all say the same thing bolsters each 2. Offering an expert - The more impressive the qualifications the more persuasive 3. Calling a W doctor rather than Mr. b. Impeachment Rule 607 - (BICC) i. What? 1. How questioner can ATTACK CREDIBILITY of adverse or their own W a. Impeach own W i. b/c forced to call W whose testimony is unfavorable to your client or b/c W testifies in a different manner than you expect b. Criminal i. May have right to impeach own W 1. Constitutional Requirement - Confrontation Clause ii. Purpose 1. To show that W is lying or in error iii. Modes of Impeachment BICCC 1. Bias 2. Inconsistent Statements 3. Capacity 4. Character 5. Contradiction c. Rehabilitation i. AFTER W has been impeached, credibility attacked, want to put W back together again

b. IMPEACHMENT I. Bias You Are Lying

a. What i. Show W has some reason, independent of the case, to favor 1 side 1. Similar to Motive 404(b) non character reason 4 acting a certain way ii. Implies W has reason to lie in this specific case and NOT a general disposition to lie
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b. Purpose i. Bias is relevant/probative to W Sincerity in testifying c. NO Foundation Required i. But most L will ask W about why they are Biased so L doesnt have to call another W to prove the bias d. YES use Extrinsic Evidence i. Can prove Bias w/other Ws 1. Subject to 403 Balance Test ii. UNLESS W has already admitted Why Biased 1. No Extrinsic Evidence b/c Cumulative e. Source of Bias i. Animosity ii. Desire for Revenge iii. Intimidation iv. Personal or Business Relationship v. Membership in a Group vi. Self Interest 1. Financial Interest in Result a. Creditor, work for company 2. Seek liking of Prosecution a. W may have criminal charges pending willing to shade testimony to help prosecution and thereby help self 3. Paid by Party to testify

II. Prior Inconsistent Statement Rule 613 You Are Lying

a. What i. W has previously made a statement that is inconsistent w/trial testimony 1. L will uses W own prior statements against them b. Purpose i. Show W is choosing to lie at some point b/c said different things at different times about the same incident 1. Misperception - Poor Memory Poor Narrative Skills c. Offered i. ONLY statement - to show W is lying ii. For truth of matter asserted substance 1. Hearsay Exception - 801(d)(1)(A) a. b/c prior statement made out of court is hearsay BUT there is an exception to rule d. NO Foundation Required i. Written Statement 1. Prior written statement doesnt need to be shown to W before questioning them 2. BUT Opposing party has right to inspect statement upon request e. YES use Extrinsic Evidence i. Admissible even if W hasnt been asked about it ii. Requirements 1. Explain Away a. At some point W must be given opportunity to deny or explain statement 2. Opposing counsel must have opportunity to question W about statement a. May come after prior inconsistent statement has been proven by extrinsic evidence b. Impeaching party may decide to impeach W w/their prior inconsistent statement but rather call W2 that says that W had previously made statements inconsistent w/their trial testimony 3. Waived a. Requirements can be waived by court in interest of justice
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f.

b. If W has left jurisdiction Type of Statements i. Oral Taped Written Sworn - Unsworn 1. Prior statement does NOT have to directly contradict trial testimony a. Taken as a whole, must indicate that there was different testimony b. EX i. Prior boys were trying to beat the traffic ii. Trial boys crossed the street 2. Prior Omission a. W prior statement omits material facts that are included in trial testimony b. EX i. Prior I killed him (when arrested) ii. Trial I killed him in self-defense 3. Prior Lack of Knowledge a. In prior statement W states he has no knowledge about something, but in trial is not testifying about 4. Current Lack of Memory a. A contrived memory loss ii. NOT Inconsistent 1. Memory lapse 2. Inability to recall

III. Contradiction of Conflicting Evidence You Are Lying

a. What i. Try to get W to retract or contradict of actual physical evidence that W had earlier testified 1. Like prior inconsistent statement but use actual physical evidence to show b. Purpose i. Shows that W is lying but doesnt infer that W is generally a liar 1. Misperception - Poor Memory Poor Narration Skills 2. EX a. Call witness B to say light was green to impeach witness As claim it was red b. Offer surveillance photo showing it was green c. Contrast As claim w/common experiences of life which may render testimony implausible c. MAYBE use Extrinsic Evidence i. IF extrinsic evidence goes to a substantive issue in the case

IV. Capacity Thats an Error

a. Questioning party uses testimony to attack W 3 ways to show that W is mistaken i. Perception 1. Questions about W eyesight, hearing, lighting at crime scene, drug use ii. Memory 1. Questions about passage of time or W age or ability to recall iii. Narrative accuracy 1. Suggestions that W misspoke

V. Character You Are A Liar

a. Generally i. What 1. Show that Ws Character for truthfulness is Bad they are a liar a. Attack flaws in W and NOT their Testimony ii. Purpose

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1. Jury will infer W is now testifying untruthfully and acting in accordance w/untruthful character iii. Exception to Character Evidence - Rule 404(a)(3) 1. allows propensity evidence to impeach W iv. Steps for Admissibility 1. Pass Rule 404(a)(3) a. Evidence admissible if offered for rules 607, 608, 609 2. Determine if evidence is 608 a. In form of opinion or reputation or on cross only evidence of specific act 3. Determine if evidence is 609 a. Of certain past convictions 4. Determine if evidence offer to prove character untruthfulness a. Yes must Pass Rule 403 Balance Test b. No see next step 5. Determine if evidence offered to prove character for truthfulness after attack on same a. Yes must Pass Rule 403 Balance Test b. No NOT admissible b. Opinion or Reputation of W Untruthful Character Rule 608(a) i. YES Foundation 1. Must lay, like Character W Evidence ii. Procedure 1. ATTACK - Impeaching Party a. Calls Reputation or Opinion W2, to give testimony about W1 character for Untruthfulness i. Even IF lies not related to charge in case JUST to Truth/Untruth Character b. Limit i. NO specific instances backing up their testimony 2. REHABILITATE - Proponent of W1 a. AFTER W1, impeached by bad character for untruthfulness b. Call own W2 to show W1 character for TRUTHfulness 3. NOW PRICE TO PAY!!!!! a. ATTACK - Proponents W2 can be CROSS Examined i. w/specific instances via (608(b)) 1. HAVE YOU HEARD?? Reputation 2. DID YOU KNOW??? Opinion 3. See Limits below b. NO Extrinsic Evidence i. Cant prove the specific instance by extrinsic evidence c. Specific Instances of W Conduct Didnt Result in Conviction Rule 608(b) i. What 1. Ask W about specific prior acts to attack W character for Untruthfulness 2. Probative of Truth or Untruth a. Conduct must be probative of Deceit Fraud Dishonesty - Lying i. NO violent conduct b. Must ask about specific underlying Act i. Lie of past conviction ii. NOT arrest, charges filed, indictments 3. isnt it true you embezzled $ from ii. NO Extrinsic Evidence 1. Cross examiner is bound by the answer, 2. No extrinsic evidence to prove that W1 actually committed the act iii. Rationale for Limits
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1. A generalized attack on W and others who have simply answered subpoena to appear as W could have their reputations destroyed iv. Procedure 1. Good Faith a. Lawyer must have good faith basis for believing that specific instances took place i. L must have in possession info that reasonably leads him to believe specific instances have in fact been committed 2. 403 Balance Test 3. Judicial Reasonable Control Rule 611(a)(3) a. Judge must exercise reasonable control to protect W from harassment or undue embarrassment 4. Excluded by 609 a. If evidence is excluded by 609 then it cant be offered through the back door of specific instances cross examination v. Direct Examination 1. Pulling the Sting a. Strategic tactic if it is your W p.287 vi. NOTE - 405(a) vs. 608(b) Specific Instances for Cross Examination 1. This rule more liberal than 405(a) a. b/c allow specific instances to principal W b. 405 only allows to done on character W and NOT anyone else i. EX 1. If W testifies to reputation for peacefulness 2. Then takes stand 2. How can get in specific instances of a. NOT 405(a) i. b/c only allows cross of character W and wouldnt be on stand to give testimony of W character b. 404(b) i. could argue offering evidence of prior incident for other purpose c. 405(a) i. If vouches for his own character, then has made himself own character W d. 608(b) i. If testifies for his own character for truthfulness, made self own principal W d. Impeachment by Prior Convictions Rule 609 i. Crime of Dishonesty 1. Any W can be attacked 2. Crime must require prosecution to prove element of dishonesty in crime 3. Types (misdemeanor or felony) a. Perjury b. False Statement c. Criminal Fraud d. Embezzlement e. Taking property by False Pretense f. Counterfeiting g. Forgery h. Filing False Tax Returns 4. Procedure a. NO 403 BALANCE TEST!!! i. b/c these are so probative ii. judge has no discretion
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iii. Most probative of an untruthful character ii. Crime Punishable by Death or More Than 1 Year 1. Purpose a. Past crime is evidence of general immorality or lawlessness and acting in conformity w/that trait, W is lying now 2. W doesnt have to have been punished though 3. Types (felony) a. Violent i. Murder ii. Rape iii. Assault iv. Battery b. Non-Violent i. Drug Offense ii. DUI iii. Prostitution iv. Shoplifting v. Robbery vi. Receiving Stolen Goods 4. Manner of Proof a. Ask W about impeaching conviction OR b. Prove by means of public record 5. How Question a. Limited to basic fact of conviction i. Isnt it true you were convicted of aggravated assault in TX and you served 6 months in jail? b. Can NOT refer to any aggravating facts or details of crime i. Isnt it true you were convicted of aggravated assault for beating your wife and son w/base ball bat? 6. Time Factor a. Conviction less than 10 years since date of conviction or release i. Admissible 1. No discretion by judge to exclude this type of evidence 2. No 403 Balance Test b. Conviction more than 10 years since date of conviction or release i. Inadmissible UNLESS 1. Strict Reverse Balance Test a. Probative Value substantially outweighs its prejudicial effect 2. Notice a. Proponent gives adverse party advance written notice 7. Procedure a. BALANCE TEST 403 i. Type of balance depends on if W is the or someone else b. - Opposite Balance Test i. Evidence is INADMISSIBLE unless. 1. Probative Value of conviction for untruthfulness outweigh its prejudicial effect to ii. 5 Factors Weighed Brewer Test 1. Nature of Crime a. Violent crimes less likely to be admitted i. Less probative of truthfulness 2. Time of conviction and W history after release a. See Time Test above 3. Similarity between past crime and current charge
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a. More similar crimes are less likely to be admitted i. More tempting for jury to convict 4. Importance of testimony 5. The centrality of credibility issue iii. NOTE 1. Must be specific facts and circumstances supporting judges conclusion that probative value substantially outweighs prejudice iv. Rationale 1. Risk to Is very great a. Jury will be willing to convict once more b. Jury will use as evidence of propensity to commit crime c. Jury will use conviction of violent character rather than s untruthful character c. Someone Else Rule 403 Balance Test i. Evidence ADMISSIBLE unless 1. Probative value substantially outweighed by danger of unfair prejudice 8. Appeal for Misapplication of 609 a. 2 Factors i. must have testified at trial ii. Prosecutor must have introduced evidence of contested conviction b. No Appeal i. offers evidence of prior conviction 1. waives right to complain iii. Juvenile Adjudication 1. Prior Civil juvenile Convictions a. NOT admissible 2. Prior Criminal a. NOT admissible to impeach b. Admissible to impeach W other than accused i. To attack credibility of an adult ii. Court satisfied that admission is necessary for fair determination of issue of guilt or innocence

c. REHABILITATION I. Rehabilitation of Impeached Witness

a. Once W credibility has been attacked then we will want to put W back together again b. Methods i. Testimony of another eyewitness ii. Testimony of expert iii. Document 1. Photo etc 2. Excluded a. This evidence may be excluded per 403 Balance Test i. For cumulative, time wasting c. How - Must directly answer impeachment evidence i. Capacity 1. Impeach by Lack of Capacity Rehab show Capacity a. On cross you said you werent wearing your glasses, were you wearing contacts? 2. Use Any Way you Want ii. Bias 1. Impeached by Bias Rehab to show Lack of Bias
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2. Use Any Way you Want iii. Inconsistent Statement 1. 2 Ways to Rehabilitate a. Explain Away i. W explain away the inconsistency b. Prior Consistent Statement i. Generally NOT ADMISSIBLE 1. Once W has shown that they blow hot and cold, who tells various stories, fact that W has told the story 2 but only had an inconsistent statement 1, not to make W more credible 2. They still have told different stories at different times! ii. EXCEPTION 1. If Cross examiner purpose was express or implied that a. W changed story, or W recently lied about testimony b/c of an improper motive i. Improper influence or self serving motive 2. Requirements a. Offering party must show that W said consistent statement BEFORE W had motive (falsify or was influenced) b. As charged by cross examiner iii. Offered for 1. Rehabilitation to show that statement was made 2. Truth of matter asserted as substantive evidence Rule 801(d)(1)(B) iv. Character Bad 1. Attacked by a. Opinion or Reputation 608(a) b. Specific Instances 608(b) c. Prior Convictions 609 i. Suggests that W lied intentionally and pervasively 2. How to Rehabilitate Character of W a. Opinion or reputation b. Specific Instances

D. THE HEARSAY RULE I. Generally - Rule 801 (a-c)

a. Hearsay Excluded i. A statement or assertive conduct, made or occurred out of court, and not made by D at trial, offered into evidence to prove the truth of the facts of the statement and no exceptions apply ii. Exclusion 1. If evidence falls w/in the criteria not hearsay
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a. 801(d)(1) Prior Statement by Witness b. 801(d)(2) Admission by Party Opponent iii. Exceptions 1. If evidence falls w/in the criteria not hearsay a. 803 Declarants Availability insignificant b. 804 Declarant Unavailable c. 807 Catch All Exception iv. Hearsay w/in Hearsay Rule 805 1. 2 separate out of court statements offered for truth of matter asserted a. Not excluded if each part of the combined statement fits into an exception b. Types i. Business Record (p. 46) ii. Co-Conspirator Admission w/in Recorded Recollection iii. State of Mind Statement w/in Co-Conspirator Admission v. Impeachment of Hearsay Declarant Rule 806 1. Regulates who and when a hearsay declarant can be impeached and rehabilitated b. Rationale i. Rules exclude hearsay evidence b/c D is unable to be cross examined at the time the statement is made and a W to this statement is testifying in court ii. Thus judge and jury are unable to test and examine the credibility of D statement iii. Probative Value 1. Of Ds statement depends on the credibility of D iv. Dangers of Hearsay 1. Poor Memory a. Did W really remember the details as W states them 2. Poor Perception a. How well did D observe the event W claims D to describe 3. Narration a. Is D able to communicate what she intended to communicate 4. Sincerity a. Is D intentional lying c. Procedure Overview i. Trial Type 1. Criminal or Civil ii. Who 1. and can use iii. Exclusionary Rule 1. NO BALANCE TEST a. Judge MUST exclude it unless it fits in a known exception 2. UNLESS Fits into Exception and could be admitted a. 403 Balance Test i. then judge can exclude 3. Limiting Instruction a. If evidence has more than 1 use

II. Test Analysis

a. Identify Declarant & W b. 801 Determine if Statement is Hearsay i. Did D make a statement? ii. Was statement made outside of court? iii. Is statement assertive? iv. Is statement offered to prove truth of matter asserted? v. Do we care whether statement is true? 1. If D is Lying or Mistaken? c. If YES statement is Hearsay
33

i. Exclusion Required!! d. If NO statement is Not Hearsay i. Can be admitted to prove truth of matter asserted or ii. Or offered to prove statement occurred e. Unless i. 801(d) Determine if Statement is Excluded 1. Prior Statements by W now subject to Cross a. Prior Inconsistent Statement b. Prior Consistent Statement c. Prior Statement of Identification 2. Admissions by Party Opponent a. Partys own statement/representative b. Adoptive Admission c. Statement by Spokesperson/Agent d. Co-conspirator statement in furtherance of conspiracy ii. Determine if Statement Falls into Exception
803 Availability Matter 804 Unavailable

ExPECT BERP
1. 2. 3. 4. 5. 6. 7. 8. Excited Utterance Present Sense Impression Existing Condition Treatment Diagnosis Business Records Exception Catchall Recorded Recollection Public Records & Reports 1. 2. 3. 4. 5. 1. 2. 3. 4.

PRIMA DIFF
Privilege Refusal to Testify Illness or Death Memory Lack of Absent Dying Declaration Interest Stmt Against Former Testimony Forfeiture by Wrongdoing

f.

1. if NO Inadmissible a. Still other ways to get in 2. If YES Admissible Is evidence otherwise barred? i. Privilege

III. Elements of Hearsay

a. Statement i. Oral Writing Conduct ii. Assertion 1. D intends to communicate the facts of the statement a. Directly Asserts something 2. Implied Assertion a. D isn't making express statement but intends to communicate the facts i. Conduct 1. Intended by D to be a substitute for words a. Nod of head indicating yes b. who doesnt understand this? - raise my hand intended as substitute for yes ii. Silence b. Command & Question i. Is the door open? or "I would like the door closed" ii. "what is your name?" or "I don't know your name" c. Declaration i. "Laura ought to give that dog a bath" 1. Implies that Laura's dog is dirty and the dog needs a bath
34

b. c.

3. Indirect Assertion a. A matter asserted is just one link in a chain of inferences leading to the ultimate fact to be proven i. "I just spent all morning w/the architect planning my retirement home" 1. If prosecutor offered evidence to show that Alice who died that afternoon of drug overdose was not contemplating suicide thus not suicide ii. Chain of Inferences 1. Immediate Fact Alice was planning her retirement home 2. Intermediate Fact that she was planning for the long term 3. Ultimate Fact that she was probably not mulling suicide 4. THUS the indirect assertion is used to prove the prosecutions desired purpose that Alice was not contemplating suicide = hearsay b. Verbal assertions used inferentially, not being offered for truth though, offered for something else, something implicit in the statement itself iii. Non Assertive 1. Words or conduct D does not intend the facts of statement to communicate a. ouch b. NOTE: If there is no audience then words or conduct are not assertive c. Conduct NOT intended by D to be a substitute for words 2. Does anyone have an umbrella? a. Value of inference flows from implicit b. Verbal but noting asserted so it cant be offered for truth of matter asserted Declarant i. Person who makes a statement Offered to Prove the Truth of the Matter i. Hearsay 1. Statement is offered to prove that what the statement claims is true ii. Not Hearsay 1. Statement offered for any other purpose than the truth a. Just to prove statement occurred

a. NOT HEARSAY I. Offered to Prove Something Else

a. Statement Was Made i. Verbal Acts & Legally Statements Made 1. Offered to Prove a. Uttering certain words D trigger a legal right or duty or commit an offense i. Contract Defamation Slander Notice 2. Must only show statement was made to have legal force, doesnt matter what D intended meaning was a. EX i. "I accept" can make a K ii. "I do" at the altar makes a marriage iii. "I will kill you" is a threat iv. "he's a thief" in public can be slander 3. Statements operate independently of D belief or intended meaning a. So soundness of testimonial capacities don't mater ii. Impact on Hearer or Reader 1. Offered to prove a. The impact of the statement on someone who heard it or read it i. Emotion Notice Motive Reasonableness Good Bad Faith Belief 2. All we need to know is that D said the words and person heard
35

a. EX i. Testimony given by that another told him to fear someone who was going to shoot 1. Statement offered to prove that heard statement and was reasonable to fear person w/gun at time of incident ii. on trial for murder, police testify when arrested he had a letter in pocket that said your wife has been having an affair with your neighbor 1. Letter offered to prove read letter and had a motive for killing iii. on trial for negligence, knowledge of danger is the issue, statement from D your tire is about to burst 1. 2. Offered to prove had heard statement and on notice of possible danger 3. Significance of D words does not depend on the credibility of D testimonial capacity a. All that matters is that the person hearing or reading the words believed them not that the words themselves were true iii. Impeach D w/Prior Inconsistent Statement Rule 613 1. Offered to prove a. D (W b/c now testifying) has said different things at different times so testimony can't be trusted 2. All we need to know is that D made the statement and it is different than one made in court a. EX 3. Truth of out of court statement is irrelevant and D testimonial capacity is able to be tested by cross examination b. Circumstantially to prove D Belief i. Show D State of Mind & Belief & Knowledge 1. Offered to prove Ds state of mind or belief in making a statement when used circumstantially a. Intent Knowledge Purpose Negligent Reckless Sanity Fear 2. All we need to know is that D believed his statement a. Not that the statement itself was true b. EX i. I am John the Baptist 1. Offered to infer that D is insane ii. My brakes are defective 1. Offered to infer knowingly drove car anyway iii. Lets discuss business 1. Offered to infer D believed listener was sane 3. Effect on dangers

II. Offered to Prove Truth BUT EXCLUDED from Rule 801(d)

**These statements are theoretically hearsay, but are explicitly excluded for policy reasons ** it is fair to admit these in trial a. Prior Statements by Witness Presently Testifying i. General 1. Rationale a. b/c W and D are same person there is opportunity to cross examine at current trial, W is under oath, demeanor observable by jury b. Only bad thing is cross examination is delayed, from when W made out of court statement to present ii. Prior Inconsistent Statement - 801(d)(1)(A) 1. Elements
36

a. W and D are same person b. WD must testify at current trial and be subject to cross examination i. Fails if WD asserts self incrimination privilege 1. No longer subject to cross examination c. Prior statement i. is inconsistent w/trial testimony ii. was given under oath iii. was made at a trial, hearing, proceeding, grand jury, in deposition 1. Fails if prior statement given at police station or other govnt agency 2. Important When a. W implicates in grand jury testimony BUT then changes testimony when called at trial 3. Impeachment Rule 613 (p. 26) a. Offered for to prove inconsistency in statements, reducing credibility 4. Substantive Evidence This Rule a. To prove the truth of the facts in the statement against WD i. saying the light was or wasnt green iii. Prior Consistent Statement - 801(d)(1)(B) 1. Elements a. W does NOT need to testify at current trial or be subject to cross examination b. If Cross examiner purpose was express or implied that i. W changed story, or W recently lied about testimony b/c of an improper motive ii. Improper influence or self serving motive c. Prior statement i. Does NOT need to be given under Oath ii. BUT MUST be 1. Consistent w/testimony currently given 2. Made before W had motive or bias 2. Rehabilitation Rule 613 a. Offered to rebut an impeachment of dishonesty or bias and support W credibility i. To show statement was made 3. Substantive Evidence This One a. Prior consistent statement is admissible to prove the truth of the facts in the statement iv. Prior Statement of Identification - 801(d)(1)(C) 1. Rationale a. Usually prior identification statement is more reliable than in court pointing out of i. This type is usually more for show ii. What looks like is more fresh in WD mind 2. Elements a. W and D must be SAME person b. WD must testify at current trial and be subject to cross examination i. Satisfy even if WD cant remember prior identification 1. No Confrontation Clause problem 2. EX a. WD forgets who he identified or changes testimony b. W Substitute i. If WD cant identify at trial b/c memory problems, then another W who was present at

time of identification, testimony is admissible

c. Prior Statement of Identification made after perceiving
37

3. Criminal Trial a. Identification evidence must satisfy Confrontation Clause (p. 56) and Due Process requirements i. L required to be present at some types of identification procedures 4. Rehabilitation a. ? 5. Substantive Evidence a. Offered to prove the truth of the statement i. The person the WD said was b. Admission by Party Opponent i. General 1. Always look for 1st when you have hearsay 2. What a. Prior out of court statement made by a party Offered Against that party i. Party cant object on hearsay grounds when his opponent offers a statement made by himself b. can offer any statement made by w/o worrying about a hearsay objection 3. Rationale a. Responsibility i. People should take responsibility for their own words and acts 1. Do NOT allow party ability to make statement hearsay (inadmissible) 2. Party estopped from objecting to their own statement a. On grounds they didnt have opportunity to cross examine themselves b. Party can take stand and explain statement to jury ii. You made it now live with it 4. Requirements a. Out of court statement by Party D i. Any statement 1. Even if Not admitting/confessing to anything when made 2. Even Self Serving when made ii. Written Spoken Act - Opinion Conclusion of Law 1. Contrary to lay W rule iii. Deposition Testimony Casual Statement to a Friend b. Only offered Against Party D c. NO Personal Knowledge Required i. D doesnt have to have PK of anything w/in statement 5. Rehabilitation a. Rebut his own out of court statement via i. Contradiction ii. Taking stand Explain away ii. Individual Admissions 801(d)(1)(A) 1. Confession a. Of criminal is admission i. Even of part or all of an offense ii. Harm 1. If police testify falsely about confession gave BEFORE arrested - still admissible 2. Now will want to take stand to explain, which opens him up to cross examination on issues pertaining to charge and wont want to assert privilege of self incrimination 2. Exclude Guilty Plea a. Guilty plea in criminal case is an admission
38

i. Admissible against Party D in later criminal or civil case b. Except Rule 410 (p. 9) i. Guilty Plea later Withdrawn ii. Plea of No Contest iii. Offers to Plead Guilty or No Contest iv. Statements made Negotiating Pleas and Offers 3. Substantive Evidence a. Admissible to prove the truth of the facts of statement iii. Adoptive Admissions 801(d)(1)(B) 1. What a. Statement of another shown to be adopted or believed as true by Party D 2. Substantive Evidence a. Admissible to prove the truth of the facts of statement 3. Expressly a. Reads or hears statement and then nods or says yes b. Conduct or words to show knowingly agreed w/anothers statement 4. Non Verbally a. Implied Admission or Adoption by Silence or by Use i. Use of a document made by a 3rd person is an approval of its contents as correct and is an admission by adoption 1. Mere possession of a document is not an adoption of its contest b. Elements i. Party D actually heard, read and understood the statement ii. Capable Of Denying the statement iii. Under the circumstances, a Reasonable person would have Denied or Corrected the statement, if not true iv. Failure to deny = manifestation of the belief in statement 1. ONLY when a parties silence constitutes assent to the assertion made in his presence v. UNLESS 1. There is another plausible reason why Party D stayed silent NOT = adopted admission vi. Arrested Criminal 1. Failure when under arrest to deny an interrogating officers charge 2. Miranda Rights a. b/c you have right to remain silent b. may want to consult L before saying anything c. Harm i. Incentive to manufacture evidence ii. EX 1. Cars collide and (who is L) says you ran the stop sign and this accident is your fault 2. If remains silent, s statement can come into evidence as an adoption by iv. Agent Admissions (Vicarious Admission) 801(d)(1)(D) 1. What a. Hold party responsible for an admission that someone else makes even if party does NOTHING to adopt or manifest belief in it i. Agent does NOT need authority to speak 2. Rationale a. Due to special relationship, it is considered fair for the party to explain or clarify the Ds statement to preclude party from keeping it out on hearsay grounds 3. Elements of Implied Authorization a. Statement made by Agent of Principal to 3rd person
39

i. Employee and Company ii. Expert Testifying and Party that employed him b. Concerning a matter w/in scope of agent employment c. During existence of relationship d. Admissible against Principal 4. In House Use a. Admissible i. Communications made to principal are admissible against principal 1. NOT against Party D ii. Books & Records 1. Principal, who is party to suit, books and records prepared by employees for company internal use only are admissible iii. Rationale 1. Reliability in house reports are usually prepared in such a way that they are likely to be accurate b/c prepared by an insider's access to information iv. Internal reviews, inspections, internal meetings v. Corporation intends for outsiders not to see or hear results 5. Proof of Agency Relationship a. Statement made by agent is considered but must show more to establish i. Employment Records - Testimony of Agent on Stand 6. NOTE a. Admission by employee may be able to come in under other hearsay rules even if it fails to come in under this one b. Excited Utterance (803) (p. 42) v. Co-Conspirator Admissions (Vicarious Admission) 801(d)(1)(D) 1. What a. Hold party responsible for an admission that someone else makes even if party does NOTHING to adopt or manifest belief in it b. Confrontation Clause issue (p. 56) i. If statement of co-conspirator is offered during a joint trial w/another conspirator 2. Rationale a. Co-conspirator statement is admitted out of necessity b/c conspiracy is a hard thing to prove b. They are partners in crime, so fair for statement to be attributed to i. Can explain or clarify Ds statements c. We are going to hold the party responsible for his partners statements 3. Elements a. D and Party were co-conspirators b. Statement by a co-conspirator to other conspirators or 3rd party i. Look for Hearsay w/in Hearsay c. Made during the course of conspiracy i. No conspiracy if confession is made knowingly to police d. In furtherance of the conspiracy i. Statements that provide Assurance, maintain Trust and Cohesiveness among conspirators, Inform Members of Status, Persuade another to Join or Assist Conspiracy e. Admissible if offered Against conspirator i. NOTE: Conspiracy charge is NOT required 1. But cant be offered to prove an act in furtherance of another crime 2. EX a. Joint Venture

40

i. One who knew of venture and intended to associate w/it ii. Is a conspirator even though no conspiracy has been charged 4. Substantive Evidence a. Admissible to prove the truth of the facts of statement 5. Proof of Co-Conspiracy - 104(b) Huddleston Standard a. By Judicial Determination i. Offering party must prove existence of conspiracy

b. EXCEPTIONS - Availability of D Immaterial (ExPECT BERP) I. General - Rule 803

i. Offered to prove the truth of what D was communicating b. Statements made by D excluded when offered to prove truth of facts of statement that D intends to convey, b/c truthfulness and memory not an issue c. Apply whether or not declarant is available d. Rationale i. Reliability 1. Out of court statement is more reliable than an in court statement
41

2. It is more trustworthy, so dont need cross examination, sufficient enough to justify non production of D, even though they may be available ii. Prior statement is more superior to D trial testimony 1. b/c at the time the statement was made it was fresh in memory e. Personal Knowledge i. IS IT REQUIRED FOR ALL EXCEPTIONS OR JUST 2? f. Opinion Rule Doesnt Apply

II. Excited Utterance Rule 803(2) a. Statement made by D when under influence of startling event with 1st hand knowledge i. More broad rule than Present Sense Impression b. Rationale i. Lack of Capacity to Fabricate (Spontaneity) 1. Sincerity Reduced or Eliminated a. b/c D didnt have enough time to think about what they are saying i. Lack of opportunity to reflect ii. Poor Memory Reduced 1. Enhanced if D is participant instead of eyewitness a. b/c statement falls so closely to event c. Requirements i. Startling Event 1. Enough to stop D from thinking about what they are saying a. Unexpected event i. that dog just bit me ii. Accident iii. Criminal conduct b. Revival of memory of traumatic event i. Father told about death of child oh no not again 1. Statement prompted by announcement of unexpected death ii. Statement made by child retuning to scene where brother murdered iii. Wife viewing pic of person that was her husband committing bank robbery 1. oh my God, that looks like Johnny 2. Proof of Startling Event a. Can come from i. Statement by D ii. Condition and appearance of D ii. Statement Relating to that Event 1. Relate a. Descriptive of event b. Characteristics of person involved in event c. Wife statement that husband had gotten a phone call and was scared that he was going to die iii. Made by D w/Personal Knowledge (p. 22) 1. Participant in or Bystander to event iv. While D was under stress of excitement caused by event, Before D had time to reflect 1. Proof of Under Stress (subjective) a. Lapse of Time between event and statement i. Duration of state of excitement 1. Can be hours or minutes after 2. As long as D still under influence of event ii. Does NOT have to be contemporaneous w/event b. Age of D c. Physical and Mental State of D
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d. Characteristics of Event e. Subject Matter of Statements 2. Response to Questioning a. Fits in exception as long as D still under stress of event

III. Present Sense Impression Rule 803(1) a. Statement made by D w/in minutes of perceiving event 1st hand i. Time Factor & Subject Matter More stringent rule than Excited Utterance b. Rationale i. Lack of Time to Fabricate (Spontaneity) 1. Sincerity & Memory Reduced or Eliminated a. b/c D didnt have enough time to think about what they are saying b. b/c statement falls so closely to event c. Requirements i. Statement Describing or Explaining Event or Condition ii. Made while D was perceiving the event or immediately thereafter 1. Contemporaneous w/Perception a. Minutes difference 2. D perceives an event that is not particularly shocking or exciting, D may still be moved to comment on what D perceived at time of impression 3. Statement usually made to another person that is W testifying iii. About which D had Personal knowledge (p. 22)

IV. Existing Mental or Physical Condition Rule 803(3) a. Statement of D then existing state of mind, intent, plan, motive, design, sensation, emotion, mental feeling i. Circumstantial Statement 1. Statement doesnt directly reflect Ds present state of mind 2. D can be W or 3. Offered to prove something other than truth of matter asserted = Non Hearsay a. Offered to prove Ds belief of statement (p. 36) i. Like - D s motive 1. John is most despicable person I know b. Rationale i. Poor Memory Reduced 1. b/c statement made at same time as condition ii. Perception Eliminated 1. Little risk of misperceiving your own thoughts or physical condition iii. Necessity State of Mind 1. State of mind is a material fact it must be shown and is difficult to prove 2. And may be only evidence of that mental state iv. Sincerity Reduced 1. b/c less motivation to lie before litigation than after 2. More reliable than present testimony c. State of Mind In Issue D is i. Requirements 1. Statement Directly Reflects present state of mind of D 2. When D is 3. Offered to prove Truth of Matter Asserted a. Includes i. Current Belief 1. I think my breaks are bad D belief about soundness of breaks is in issue in case
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ii. Current Attitude 1. I dont like Ethel Ds feelings towards Ethel are at issue iii. Mental feeling 1. I am depressed Ds mental condition in issue proof that D committed Suicide ii. Who Uses 1. - Offered to prove D did not have culpable state of mind 2. NOT Prosecutors Admission of Party Opponent (p. 38) a. Dont need to use b/c statement made by b. Offered by c. For truth of matter asserted of state of mind iii. Future Conduct of D 1. Relevancy a. Less reliable proof than offering to prove present state of mind b/c dont know for certain that future conduct actually occurred b/c plans change, circumstances change 2. Elements (Hillman) a. Statement Directly Reflects D present intent, plan or design, to do something in the future i. D intent need not be directly in issue ii. Forward Looking Statement of Intent b. When D is or Someone else c. Offered to show D actually carried through w/plans i. Meaning D later acted in accordance w/state of mind, plan or design in statement ii. EX 1. I will revoke my will 2. Admissible to show that D later revoked will iv. NOT ADMISSIBLE 1. Past Conduct a. Statement by D of past conduct or event, that produced D present state of mind, offered to prove the fact remembered or believed b. EX i. I believe I went to the store yesterday ii. Dr. Shepherd has poisoned me 2. Future Conduct of Another a. Statement offered to show future conduct of another in order to make D statement entirely true i. Im going to meet Adel in the parking lot 1. D needs Adel present in order to meet him ii. Not okay to offer against person you are going to meet in parking lot d. Physical i. Requirements 1. Statement Reflects a Present Condition, Pain, Symptom, Existence of Pain 2. Made contemporaneous w/condition, NOT event that caused the condition 3. By D 4. To Spouse, Relative, Friend, Dr., or any other person for ANY reason 5. Offered to prove truth of D statement that D was in pain a. Current physical condition i. my back hurts Where Ds physical condition is in issue ii. ASK ABOUT PROBLEM 7.34(p. 511) STATEMENT TO LAWYER iii. IN DESCRIBING A PRESENT CONDITION WHICH RULE APPLIES 803(3 or 4)

V. Treatment & Medical Diagnosis Rule 803(4)

44

a. Statements made by D patient to Dr. for purpose of medical diagnosis or treatment i. Look for Hearsay w/in Hearsay (p. 33) 1. Usually part of a hospital or medical records b. Rationale i. Sincerity Reduced 1. D will not fabricate b/c effectiveness of treatment depends on accuracy of statement ii. Jury will learn about statement anyway 1. Statement made to Dr. W expertise for purpose of litigation, safeguard against false statement is their expertise c. Requirements i. By D patient to Dr. or other medical professional 1. Nurse, ambulance driver, family member (patient cant communicate) ii. Or By 3rd person on behalf of D, to Dr. or other medical professional iii. Describing Medical History, Past Symptoms, Pain, Sensations, Ailments Origin or General Character of Cause or External Source iv. Statement made for purpose of Medical Diagnosis or Treatment 1. Applies to statements made solely to Dr. can testify at trial 2. D motive in providing info must be patients desire to obtain treatment v. Pertinent to Diagnosis or Treatment (Cause or External Source of pain) 1. Info must be reasonable for Dr. to rely on in diagnosis or treatment a. What Happened Questions i. Dr. uses info to pinpoint certain areas of body and eliminate 1. I was raped, and drug behind bushes 2. Did man take your clothes off? 3. it was from trauma or force b. Who Did it Questions i. NOT admissible b/c doesnt help Dr. in treatment 1. I was hit by a truck that went through a red light 2. it was result of excessive force 3. Person who raped me was ii. Child Abuse Cases 1. Identity of abuser is relevant to treatment when abuse is by household member 2. Dr. doesnt want child to return to abuser vi. Offered to prove 1. Ds condition was caused by the incident or D sought treatment a. NOT to prove identify of car or negligence of person who committed accident b/c these arent pertinent to Ds diagnosis or treatment

VI. Business Records Rule 803(6 & 7)

a. Regular practice of business to keep and make a record of an event it is admissible as proof of that event b. Purpose i. Business record is a vehicle for demonstrating that the statement was made ii. Allows paper record to substitute for the in court testimony of employees who received info 1. Can be admitted w/o calling the authors of the record or employee c. Foundation i. Can be done by Anyone who is familiar w/how records are made and kept d. Rationale i. Sincerity Reduced 1. b/c business relies on these documents in their everyday affairs it is reasonable to assume they have an incentive to ensure records are reliable

45

a. Would be difficult to keep a business open for long if the regular activities were not based on reliable records b. So employees who make records have little reason to lie in records ii. Necessity 1. Too difficult to get every employee who took part in a routine transaction in court, so better to have business record admitted in place of live testimony e. LOOK FOR i. LOOK 4 Hearsay w/in Hearsay (p. 33) 1. Supplier w/PK made to another w/Duty a. Both Statements covered by Business Records Exception 2. Supplier has NO PK, made to another w/Duty a. Generally, neither admissible to prove truth of matter asserted b. UNLESS i. Suppliers statement fits w/in another hearsay exception 1. Hospital Records of patient description of symptoms made for medical treatment, existing physical condition 2. Police report w/info from bystander to accident excited utterance, present sense impression c. OR statement can be offered to prove the statement was made ii. Confrontation Clause Problems f. Requirements (KRAP) i. Regular Practice of Business To Keep such records 1. Business Type a. Institution, Hospital, School, Association, Profession, Occupation i. Practice is what the business does 2. Define Regular a. Doesnt need to be routine 3. Prove Regular a. By Testimony of ?, qualified W, dont need to be authorized b. Unless source of info, method, circumstances of preparation indicate Lack of Trustworthiness ii. Record, Report, Data Compilation, in any form, must be made in the regular course of business 1. Individual Records a. Employees personal diary listing wages and tips b. List of amount of drugs sold and $ received c. NOT a personal or household record 2. Define Regular a. Can NOT be self serving, preparation of litigation i. EX 1. Document of s Dr. NOT admissible by but Document of s Dr. is admissible by 3. Duty of Recorder a. To be made in regular course of business, Recorder must have a Duty as part of Employment to Record i. By Statute (public work) ii. By Contact (private work) iii. At or near the time of an Act, Event, Condition, Opinion or Diagnosis recorded 1. Opinion or Diagnosis a. Expert Testimony (p. 62) i. If opinion is not admissible under expert testimony 702, then it should NOT be admitted here iv. Made by an employee w/Personal Knowledge of the event reported (p. 22) 1. Supplier Must have Business Duty to Supply Info a. Employed by business, engaged in business, have other relational duty to business
46

2. Supplier LACKS PK a. LOOK 4 Hearsay w/in Hearsay Problem i. Outsider w/no or little connection w/business b. Usually Not Admissible v. Or made upon info provided by someone w/business duty to report the info 1. Recorder Does NOT Need PK of Event b/c has Duty to Business a. Rationale i. Record is still reliable b/c recorder and supplier were under a business duty to do their part accurately vi. Offered to Prove Truth of Matter Asserted in record of an event vii. Not Admissible if source of info or method or circumstances of its preparation indicate a lack of trustworthiness 1. If Supplier Not Under Business Duty BUT see Hearsay w/in Hearsay g. Absence of Business Records i. Elements 1. Evidence that a matter is NOT Included 2. In a Record, Report, Data Compilation 3. And it is a Regular Business Practice to Make and Keep matters of this kind 4. Are admissible if a. Offered to prove the Non-Occurrence or Non-Existence of the Matter b. Unless Source of Info Indicate Lack of Trustworthiness

VII. Exception Catch All Residual Rule 807

a. General i. Hearsay evidence that is reliable might not fit w/in any of the exceptions, catchall made to include hearsay that still possesses equivalent guarantees of trustworthiness ii. Determined by Judicial Decision at an ad hoc basis b. Rationale i. Necessity Trustworthiness c. Requirements i. Trustworthiness 1. Statement not be specifically covered by another hearsay exception 2. A statement close a near miss, to an exception has been argued to be excluded and admitted (contested issue) ii. Necessity 1. Statement must be more probative on the point for which it is offered than any other evidence which the proponent get through reasonable efforts a. Is a sort of best evidence provision b. If D available - catchall exception does NOT apply iii. Notice 1. Offering party must provide advance notice of its intention to use evidence and particulars of statement - name and address of D iv. Material 1. Statement must be offered as evidence of a material fact a. Is redundant as 401 already requires materiality v. Justice 1. General purposes of the rules and interests of justice must be served a. Redundant b/c 102 already mandates justice

VIII. Recorded Recollections Rule 803(5)

a. What? i. W having difficulty remembering details and memory cant be refreshed (p. 24) party will want to get statements from document admitted into evidence
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b. Purpose i. Document is a substitute for Ws testimony at trial ii. Can ONLY be read to jury 1. NOT admitted as an exhibit iii. To be received as an exhibit adverse party must offer it c. Rationale i. Poor Memory Reduced 1. Using writing accurately records to show that W vouched for reliability of document 2. Better to use what was written down than present testimony ii. Necessity 1. Lack of present memory compels party to choose between such a writing or nothing d. Requirements i. Record Made or Adopted by W 1. Adopted a. W makes statement to 3rd person who prepares record i. W should verify accuracy of record at time when event was fresh in memory ii. If W doesnt verify, W will testify as to accurate statement made to recorder, recorder must testify that record contains accurate account of Ws statement ii. Personal Knowledge 1. Eye witness must testify that she once had personal knowledge about what happened iii. Insufficient Recollection 1. Must testify that W has insufficient recollection to testify fully and accurately about the event a. W cant remember making record or what is in it iv. Made When Fresh 1. Must testify that W made the statement about the event when it was still fresh in her mind a. Made close to time of event v. Accurate Reflection 1. Must testify that letter accurately reflects her knowledge at that time a. Trustworthiness is considered on case by case basis i. From W record, testimony W routinely makes accurate records of this time, wouldnt have signed if not accurate vi. Offered to prove the truth of facts asserted in record e. Prosecutor will use to admit the writing i. WHY ONLY ?

IX. Public Records Rule 803 (8 & 10) a. Requirements i. Records, reports, statements or data compilations, in any form, of a govnt agency setting forth 1. The public agencies own activities a. Treasury departments receipts 2. Matters that the law requires, the agency to observe and report a. Public officials own 1st hand observations i. Rainfall records of weather bureau b. EXCLUDES i. Criminal cases things observed by police officers and other law enforcement 1. Investigative reports can NOT be offered against 3. Reports that set forth factual findings result from an authorized govnt investigation a. Applies to i. In civil cases AND ii. Against govnt in criminal cases
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b. Includes i. Opinions ii. Conclusions as to fault 1. Investigation by govnt agency into plane crash that concludes pilot error was reason for crash ii. unless the source of info or other circumstances indicate lack of trustworthiness b. NOTE: you can NOT admit something under this rule that is excluded under business records - 803(6)

c. EXCEPTIONS D Unavailable (DIFF) I. General Rule 804

a. D Competency i. Personal Knowledge Required by D (p. 22) b. Rationale i. Reliability Trustworthiness and Necessity 1. Preference is for live testimony and will resort to these exceptions only when testimony is not available 2. Hearsay allowed only when D could not meaningfully testify
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c. Unavailability Rule 804(a) PRIMA i. Unavailability is based on the Ds testimony not whether D can be present in court 1. Privilege 804(a)(1) a. D validly asserts privilege 2. Refusal to Testify 804(a)(2) a. D persists in refusing to testify despite an order of court 3. Illness or Death 804(a)(4) a. Present or to testify b/c of death or then existing physical or mental illness b. A continuance can be used to postpone trial until sickness is over 4. Memory- Lack 804(a)(3) a. D testifies to a lack of memory of subject matter of Ds statement 5. Absent 804(a)(5) a. Proponent unable to get D to attend i. D whereabouts are unknown and beyond subpoena power of court 1. In another country b. Proponent must show testimony could not be obtained by other reasonable means i. Offer to pay reasonable W expenses, travel fees 1. Especially in criminal case where unavailability has constitutional issue ii. NOT Unavailable 1. If D claims any of the above and result of proponent wrongdoing to prevent W from attending or testifying iii. NOTE 1. Dying Declarations - Statement Against Interest - Forfeiture by Wrongdoing a. D must be physically and testimony (deposition) unavailable

II. Dying Declarations Rule 804(b)(2)

a. What i. Statement made by D, under belief of impending death b. D Competency i. Personal Knowledge (p. 22) 1. Tries to omit statements of suspicion a. X shot me b. if D was shot in back then he couldnt have had opportunity to know it was ii. Opinions 1. statement includes part of D opinion 2. More relaxed rules than normal opinion testimony 3. Judge will do 403 Balance Test on it c. Rationale i. Sincerity Reduced or Eliminated 1. b/c D has nothing to loose ii. Necessity 1. Dont want homicides w/o evidence, so if victim can give us something we want that so badly, we overlook inability to cross examine d. Requirements i. D must be Unavailable (physically & testimony) ii. D must believe death is imminent 1. D does not have to die 2. NO hope of recovery a. Im a goner, Im going fast, get a priest 3. Belief Proven a. D own statements about his condition b. Other evidence of wound suffered c. D statements to others
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iii. Statement Concern the Cause or Circumstances of D imminent death 1. Statements identify assailant who caused injury 2. Statements describing events leading up to injury a. X has been stalking me for 2 days iv. Used in prosecution for homicide or any civil case v. Admitted against or by

III. Statements Against Interest Rule 804(b)(3)

a. What i. Disserving statement by D 1. Against D interest when made a. Statement given to police implicating someone else isnt against his interest and is self serving i. So parts of this confession are inadmissible 2. A reasonable person in D position would not have made the statement if it werent true b. Competency i. Personal Knowledge (p. 22) c. Rationale i. Sincerity Reduced or Eliminated 1. b/c all people tend not to make damaging statements against themselves unless they are true 2. It is likely to be reliable ii. Necessity d. Requirements i. D must be Unavailable (physically & testimony) ii. Statement Against D Interest When Made 1. Against Interest a. Statement that reasonable person would think would have a negative effect on D b. D does NOT have to be a party to suit 2. Pecuniary Civil Liability a. Economic Interest b. Debts owed c. Tort liability d. Ownership Interest 3. Penal Interest Criminal Liability iii. Offered to Acquit or Incriminate - NOT Admissible UNLESS 1. Corroborating Circumstance indicate trustworthiness of statement a. Motive i. Was there a reason for D to lie when made statement ii. Relationship of D to b. Character i. When statement made would D have made voluntary plead guilty or been exposed to criminal liability c. Repeat i. D repeat statement consistently and spontaneously, so that others heard d. Timing i. Timing of statement made e. Other Evidence i. Other evidence linking D to crime 2. Constitutional Issue (p. 56) a. Confrontation Clause 6th Amend i. Statement may not be let in if doesnt have ability to cross W b. States can interpret the fed rules more broadly

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i. So Constitution puts limits on state ability to use non disserving remark contained in a larger declaration against interest, made by someone other than

IV. Former Testimony Rule 804(b)(1)

a. What i. Out of court statement was itself made as testimony in another hearing or deposition ii. If certain requirements are met then they deemed reliable b. Rationale i. Necessity 1. Since former W is not available then we will take their testimony anyway we can a. But must be fair to party c. W Competency i. Oath - Testimony must be given under oath d. Requirements i. D must be Unavailable ii. Statement given at another Hearing Deposition Trial iii. Party, that Statement is offered against, must have had 1. Opportunity and Motive to develop testimony in prior proceeding was meaningful 2. Ask Self a. Who? b. Ask Questions to D before? i. Direct or Cross or Redirect of D 1. At time of former testimony c. Incentive to ask kinds of questions we would expect party to ask if W was testifying now? iv. Former Testimony Admissible 1. Transcripts of prior hearing 2. Testimony of W who was present at time testimony was given in prior proceeding a. From unaided memory or by refreshing recollection by use of transcript 3. NOT Affidavits or Statements made to police or other law enforcement e. Civil Trial i. If party who evidence is now offered against did NOT have opportunity and motive ii. Former testimony can be Admissible 1. If predecessor in interest of party who evidence is now offered against a. Substitute cross examiner b. Someone w/similar interest in developing testimony i. Sufficient Similarities of Parties and Issues 1. Proceedings must Involve same or very similar issues 2. Testimony issue must relate to that of proponent in current a. Type of proceeding in which testimony is given b. Trial strategy c. Potential penalties or financial stakes d. # of issues and parties 2. Had O and M to develop former testimony f. Criminal Trial - Grand Jury i. Confrontation Clause issue 1. There is NO opportunity for to cross examine W that calls 2. or their attorney is not allowed in grand jury room but can cross D ii. BUT testimony that elicited can be admissible against in current trial

V. Forfeiture by Wrongdoing Rule 804(b)(6)

a. In Camera Hearing
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i. Judge must do an in camera hearing to determine that it was s coercion that made W unavailable b. Requirements i. D must be Unavailable (physically & testimony) ii. Party knowingly engaged, complied passively or w/o protest in wrongdoing iii. That result in causing D to be unavailable iv. Proponent can offer ALL Ds statements 1. No limit on subject matter that can be offered against v. Party forfeits right to 1. Object on Hearsay Grounds to Admission of Ds Statements 2. Confrontation of W c. Rationale i. Designed to prevent a from upsetting the normal operation of system

VI. Attacking & Supporting Credibility of Declarant Rule 806

a. Opens Credibility of W to Attack or Support i. Permits litigants to attack a hearsay Ds credibility by most of techniques available against live W b. Who & What i. Spokespersons (801(d)(2)(C) ii. Agents (801(d)(2)(D) iii. Co-Conspirator (801(d)(2)(E) iv. Hearsay Admitted under (803 or 804) v. NOT Covered 1. Individual Admission under (801(d)(2)(A & B) a. b/c Party can attack their own credibility by taking stand 2. Live W Prior Statements admitted under 801(d)(1) a. b/c Parties can attack credibility of testifying W in normal fashion c. Attack Methods i. Non Character Impeachment 1. Proof of Bias 2. Contradiction by Inconsistent Statement (613) 3. Contradiction by Other Evidence ii. Character Based Impeachment 1. Evidence of Untruthful Character a. Opinion or Reputation (608(a)) b. Past Conviction (609) c. NO Specific Instances i. b/c hearsay D that isnt available cant be cross examined and (608(b)) bars extrinsic evidence of specific instances to prove untruthful character

D. CONFRONTATION CLAUSE - 6th Amendment I. Overview

a. Purpose i. Exclusionary Tool 1. Allows to keep out certain types of evidence 2. Procedural guarantee of reliability via cross examination 3. Limits use of hearsay against CRIMINAL b. Forfeiture by Wrongdoing (p. 52)
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i. Not Absolute Right ii. loses ALL CC rights 1. intentionally intimidates W who is going to testify against 2. EX - Domestic Violence iii. Giles 1. killed former girlfriend, found forfeited right to cross examine her statement to police, didnt have to show purpose in killing b/c Crawford and Davis framed forfeiture in equitable terms c. Historically Hearsay i. In criminal trial, use of hearsay evidence may violate s right to confront and cross examine W offered against him 1. b/c statements made out of court dont allow to cross examine D at time they were said ii. Strict application of CC would not allow D to testify to hearsay statements unless they fell w/in an exception 1. CC wasnt originally intended to preclude trial by affidavit

II. Test Analysis

a. 801 - Is evidence hearsay? i. No No CC problem admissible - 403 Balance Test b. Yes Does evidence fit into an exception or exclusion? i. (Expect Berp DIFF - Prior statement by W at trial - Admission by party opponent) ii. No No CC problem inadmissible c. Yes offered in Civil Case or i. Yes No CC problem admissible - 403 Balance Test d. Must be offered against Criminal CC Analysis i. D appear for cross examination ii. D unavailable to testify and did have prior chance to cross examine iii. Statement Not Testimonial iv. forfeit confrontation right by wrongdoing intending to keep D from testifying v. Statement a Dying Declaration e. Yes No CC problem - 403 Balance Test f. No CC Violation - Inadmissible

III. Right/Protections in CRIMINAL Trial

a. Be present at trial i. Forfeit if Disruptive Behavior or Voluntary Absence from court 1. Judge can order to be gagged or removed or held in contempt 2. Rationale - 403 Balance a. Necessity of right substantially outweighed by harm i. Waste and Expense of Suspending Trial ii. Inconvenience to court, , co-, W if trial stops iii. Public interest in having matter resolved iv. Court duty to resolve matter quickly b. Have Face to Face Confrontation of W offered against him i. Rationale 1. Sincerity a. More difficult to tell a lie about a person to his face than behind his back, but if lie is told it is told less convincingly 2. Necessary to fairness and integrity of fact finding process c. Cross Examine this W i. Limits by Judge Rule 611 (p. 25) 1. If concerned questions will harm W a. Harassment, prejudice, confusion of the issues, W safety, interrogation that is repetitive or marginally relevant
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2. In appropriate case to other competing interests a. Shield child W from trauma of court testimony ii. W Claim Privilege - Self Incrimination 5th Amend (p. 71) 1. s right defeated 2. Claiming privilege can be avoided by granting immunity to W after W could testify fully w/o fear of incrimination a. Harm i. Can severely prejudice by inability to uncover flaws 1. May be no choice but to strike the direct testimony from record but must look at the purpose of the question on cross and the role that the answer if given would have played in the defense iii. W evasive on Cross 1. Honestly cant remember - No CC violation 2. Lying cant remember maybe violation a. Unless can impeach W w/poor memory & credibility b. argue wants statement admitted w/o fear on cross specifics can come out 3. Denies event happened maybe violation a. cant test W b. Jury can see W demeanor c. can impeach W inconsistent statement 4. Prior Statements of Identification of (p. 37)

IV. Modern Application

a. Testimonial Statement i. IS Admissible IF 1. D IS In Court and Available for Cross Examination a. Rationale i. Even though wasnt able to cross D when statement was made, there are other protections that provide enough reliability to admit b. 403 Balance Test i. Compares purposes of CC w/harm in admitting hearsay 1. W will give this statement under Oath 2. Forces W to submit to cross 3. Permits jury to observe demeanor of W in making testimony and aiding jury in assessing W credibility ii. NOT Admissible b/c of CC 1. If offered to prove truth of matter asserted - NOT another purpose 2. UNLESS a. D is Unavailable (p. 50) (Roberts) b. had a prior opportunity to cross examine D (Crawford) iii. Elements of Testimonial (Davis & Hammond) 1. Former Testimony by D, made out of court (p. 50) 2. Where could not cross examine a. Preliminary Hearing - Grand Jury Deposition Affidavit b. Former Trial i. Same or different 3. Primary purpose is to aid investigation a. Formality to questions i. Station setting - Advice under Miranda - Tape Recording - Structured Question - Calm, tranquil, safe atmosphere - Separation of interviewee from any suspect b. Backward looking Description of incident - What happened i. EX made to social worker in child abuse case 4. Reasonably Expected to use in later criminal prosecution
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a. Declaration Against Penal Interest (p. 51) i. In custody or in response to interrogation, D confesses to crime and implicates ii. Confession cant be used against unless meet Rule iii. Off hand remark about murdering someone b. Excited Utterance (Depends) c. *Identification of (p. 37) i. Will be admissible though! 5. To Establish or Prove Past Event 6. And Objectively appears there is NO ongoing Emergency b. Non Testimonial Statement i. NO CC Analysis Required (Davis) ii. Unfair Non-Testimonial Argument 1. If non-testimonial statement is unreliable is there protection anywhere for ? 2. Maybe in Due Process Clause of 5th & 14th Amend a. If unreliable hearsay would render trial fundamentally unfair b. BUT problem b/c this reasoning mimics Roberts reliability holding and Crawford overturned this part of case iii. Types 1. Dying Declarations (p. 50) 2. Co-Conspirator Admissions Eavesdropping (p. 40) a. Made to further conspiracy and not knowingly made to police i. Letter written to guy about dogs in prison b. Even if implicates another person too 3. Excited Utterance (p. 42) a. Informal circumstances 4. Statement for Medical Treatment (p. 44) a. Crime victim to Dr. 5. Business and Public Records (p. 45) a. Made for non litigation purposes 6. Declaration Against Penal Interest (p. 51) a. If not made to police i. Made in course of going about ordinary business ii. Made w/o recognition it relates to criminal activity 7. Childs statements about abuse as long as parent or Dr. Questions are a. Objectively appear to be aimed in part to address on ongoing abusive situation or need for medical care b. Even if the child statement are relayed to police 4 prosecution

V. CRIMINAL Co-Conspirator Trials

a. What i. Testimonial statements made by confessing , that implicates a non-confessing ii. This statement can NOT be offered against non-confessing , as it will violate CC 1. Is same scenario as Crawford iii. Hearsay Exception (p. 34) 1. Confessor statement NOT being offered for truth of matter asserted? b. Rational i. Devastating to non-confessing accomplice case, such that it deprives him of constitutional rights 1. Unable to cross examine confessing co-conspirator, unless he takes stand ii. Jury will NOT be able to limit the evidence to only confessing party case c. How to Avoid CC ( wants to prosecute both) i. Sever Trials 1. Postpone trial of B and try A first, so A can be compelled to testify against B ii. Separate Juries 1. Use 2 juries, 1 for each and B jury removed when confession evidence of A given
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a. Saves necessity of conducting 2 separate trials iii. Bench Trial iv. Testimony by Confessor 1. A would take stand and testify BUT a. would not want to offer As statement implicating B against A at joint trial unless A has already taken stand v. Deal 1. Offer A deal if testifies against B vi. Grant A immunity vii. Redaction or Stipulation 1. or parties agree to delete all references in confession that relate to a. Delete s name and reference to existence b. Replace name w/neutral pronouns leaving no indication to jury that original statement contained actual names and standing alone statement doesnt otherwise connect to crime 2. Redaction that violates CC a. Replace name w/blank space or word deleted i. Makes revisions transparent b. In connection w/obvious blank, cant ask W if arrest was based on confession link then became clear c. Replace name w/symbol or other obvious indication of alteration d. Leaves statement that is too close to original 3. Cant Redact a. If reference to is so frequent or closely interrelated w/references to confessor conduct that little would be left of statement after editing viii. Joint Trial - Above Solutions Not Possible 1. Benefit of Joint Trial a. More economical b. Minimize burden on W, and court c. Avoid delay in bringing to trial 2. STRICT Rules if have Joint Trial a. Exclude from Joint Trial - Bruton Doctrine i. Testimonial Statement made by Confessing Co-Conspirator 1. Co-Conspirator Admission 2. Declaration Against Penal Interest 3. Admission of Party Opponent ii. That implicate Self and Non-Confessing Accomplice iii. Are Facially Incriminating hearsay iv. That is Devastating to Non-Confessing s case 1. Doesnt matter if confession is untrue v. Confessing Co-Conspirator does NOT Testify vi. Offered Against Confessing Co-Conspirator vii. Even w/limiting instruction b. Exclude from Joint Trial - Cruz i. Testimonial Statement by a Non Testifying co- ii. That implicates Self and other confessing iii. Corroborates other confessing statement iv. Both statements are Interlocking 1. Confession has same facts as non testifying co- v. That is Devastating to other confessing 1. when it conforms, in all essential respects to confession vi. Offered Against other Confessing vii. Even w/limiting instruction

VI. Case Overview

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a. Cali v. Green (good law) i. NO CC Problem = Admit 1. D present at trial, statement can be read into evidence = testifies 2. D responds to questions about prior statement ii. NO CC Problem = Admit 1. D unavailable tried to get D to trial 2. Prior statement made under oath and was subject to cross examination b. Roberts (part overruled) (1980) i. Created 2 Prong Analysis that must be met for hearsay statement to be admitted when D unavailable so there was a CC problem 1. Necessity a. Produce D at Trial or Demonstrate D Unavailable b. must made a good faith effort to obtain Ds presence at trial i. Unless no possibility of procuring W exists (W death) good faith demands nothing of 2. Reliability of Hearsay Statement a. If meet 1st part, now show that statement had indicia of reliability i. Showing of particularized guarantees of trustworthiness, from specific facts surrounding statement 1. EX: Declaration Against Interest in form of accomplice confession to police which also implicates b. Or if statement is firmly rooted hearsay exception, reliability inferred i. Co-conspirator admissions, excited utterance, medical diagnosis c. White v. Illinois (1992) i. NO CC Problem = Admit (against Roberts) 1. Excited Utterance and Medical statement 2. Statement of sex abuse of child made to parents and such or police right after crime ii. REASON 1. b/c focus on intent of D 2. original purpose of CC a. to prevent abuse of getting a conviction by against when D is unavailable 3. CC Problem only happens a. when there is an out of court statement in a formalized testimonial (affidavit, depo, prior testimony or confession) d. Crawford (Rejected reliability as a factor) (2004) i. HOLD 1. If an out of court statement is Testimonial no matter how reliable a. Testimonial means prior statement at hearing, grand jury, former trial and police investigations 2. CC prohibits use of statement UNLESS D is shown to be unavailable and was able to cross D at prior proceeding a. Cross Examination i. Is determinative consideration when hearsay statements have a testimonial component 3. If an out of court statement is Non Testimonial then NO CC problem ii. FACTS 1. To rebut claim of self defense offered statement made by W during videotaped station interrogation as a Declaration Against Ws Penal Interest, asserting spousal privilege W did not testify at trial iii. REASON 1. Outcomes in prior cases turned out the same their reasoning is wrong b/c they based it on things that CC didnt originally mean 2. Looked at original purpose of CC that a witness means testimony, so it only bars testimonial statements if didnt have right to cross D at prior trial.

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3. That is UNLESS D is shown to be unavailable and had right to cross previously. get rid of narrow reading of CC a. Similar to holdings in (Cali v. Green) Excluded statements if didnt have ability to cross D like b. Similar to holding in (Bruton) even if did have opportunity, excluded testimony when did not establish that D was unavailable 4. Roberts wrong b/c based decision on reliability of the hearsay statement and left this up to a judicial decision of reliability, thus the statement is untested by cross examination just b/c it is deemed reliable. But reliability is unpredictable as seen by lower courts in Sylvia Roberts case e. Davis & Hammond (Defined Testimonial & Non in police investigation) i. Testimonial (CC review Applies) 1. Circumstances objectively indicate there is no ongoing emergency and primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution a. D stating what happened in past for purposes of supporting investigation i. If D believes it was investigation ii. Non Testimonial (NO CC review) 1. primary purpose of interrogation is to enable police assistance to meet an ongoing emergency a. Elements i. D Not acting as W - Not Testifying - Statements were not a weaker substitute for live testimony ii. D statements made during Ongoing Emergency iii. See below too b. 911 Call i. D speaking about events as they were actually happening 1. Not describing past events ii. D in middle of ongoing emergency iii. D seeking help against a immediate physical threat iv. Questions asked by 911 operator were necessary to resolve emergency 1. I.e. name of attacker so police could know who they would be getting 2. Rather than learn what happened in past v. Formality of questions low, frantic answers

a. Compulsory Process Clause I. CRIMINAL Right

a. Have compulsory process for obtaining W in his favor i. may subpoena W b. Obtain and present all evidence that is critical to defense and has i. can ask questions, offer documents, offer testimony c. Persuasive Assurances of Trustworthiness i. Relevant and Material

II. Overview
a. Inclusionary Tool i. Allows to get evidence admitted that is usually inadmissible under rules of evidence 1. EX - can introduce a confession to crime by someone else that is normally excluded b/c hearsay b. Application i. Test applies to ANY evidence rule, not just hearsay 1. So if you cant get it in any other way and its critical and has assurances of trustworthiness, then make a compulsory process argument ii. Look for Hearsay
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1. Excited Utterance spontaneous confession 2. Made to close friends = more reliable 3. Declaration against interest 4. Corroborative evidence of an eyewitness c. State or Federal Rules Restricting Evidence i. Hearsay - 3rd Partys Confession to Crime (Chambers) 1. FACTS a. tries to show that X has confessed to crime that is trying to show innocence b. Statement was Declaration Against Interest but excluded originally b/c state excluded statements of penal interest 2. RULE a. Statement is relevant and material to case - Trustworthy facts corroborating Xs confession b. X is unavailable to testify i. Excluding could violate CP rights ii. UNLESS - shows that X was in jail at time of ii. Arbitrary or Disproportionate Standard 1. Holmes a. Cant examine evidence and deem it so compelling that cant present evidence that someone else committed crime i. But you can exclude evidence if it has little probative value and risks unfair prejudice or confusion 2. Accomplice Testimony a. Ex i. A statute banning A from testifying on behalf B, charged as coparticipants ii. But doesnt ban A from testifying against B b. Result i. Inequitable b/c favors consistently ii. And violates Bs CP rights

E. OPINION EVIDENCE a. Lay Testimony Rule 701 I. Overview

a. Result from process of reasoning in everyday life i. Typically called b/c W has PK about facts relevant to the case b. Uncle Jerry Standard i. Is this is the kind of opinion uncle jerry would be qualified to give? 1. He seemed drunk to me she seemed crazy to me c. Rule of Preference NOT Exclusion d. Rationale i. Reliable 1. More reliable for W to testify to facts w/in PK and allow jury to draw conclusions ii. Necessity + Helpful 1. Usually dont allow opinion unless necessary to case and helpful to jury

II. Scope of Testimony

a. In form of Opinion, Inference, Subjective Statements, Conclusion IF b. Personal Knowledge Foundation (Rule 602) i. Opinion is rationally based on perception of W and drawn from that knowledge 1. Show W intimate association and duration to event that forms basis of W opinion a. Senses i. I saw W when it was purchased b. Personalized Knowledge
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i. Can be exclusive to that W alone ii. EX -Tasting cocaine to know it is such c. Helpful to Jury i. Opinion is helpful to a clear understanding of Ws testimony or to determination of fact in issue 1. Allows jury to connect an inference to determine the fact a. Facts Difficult to Describe i. Use opinion If facts cant be adequately described and presented w/force and clearness b/c difficult to explain, complex ii. Conveys more than what facts alone say b. Facts to Backup Opinion i. Opinion is very Similar to Essential Element in case 1. b/c Jury not helped by testimony that tells it what result to reach c. Facts and Opinion Necessary for Decision i. If W not able to express self 2. Explain or Avoid common terms that have a specific legal meaning d. NOT based on Scientific Technical Specialized Knowledge 1. Cant make an ultimate inference of a parties guilt a. it was a guilty tone of voice i. Objection: Prejudicial probative 403

III. Subject Matter of Testimony

a. Appearance or Condition of Person or Thing i. Age Condition 1. Elderly, about 60 years old, strong, weak, ill 2. I could see he was dead (lay foundation) ii. NOT 1. Person suffering from specific disease or injury b. Manner of Conduct i. Suspicious Movement Drunkenness Insanity 1. Insanity a. Testify to Unusual Abnormal - Bizarre conduct (NO foundation) c. State of Emotion i. Angry Was Joking In Love Strong Affection For Each Other d. Sense Recognition i. Size Weight Sound Distance Sight 1. Heavy, red, bulky, beverage tastes like whiskey, degrees of light or darkness a. arm was flimsy and his body was cool b. I dont think hed been dead too long (Maybe ok if foundation) e. Particularized Knowledge based on Experience i. Identification 1. Voice Handwriting Photo a. Telephone voice, bank surveillance video 2. Foundation a. Must be laid to show familiarity w/identification means ii. Speed of Moving Object 1. Estimate mph Fast Very Fast 2. Foundation a. Must be laid to show W has some experience in observing rate of speed of moving objects iii. Narcotics 1. Substance appeared to be a narcotic a. Based on lay person particularized knowledge 2. Foundation of familiarity w/substance is established iv. Value of Service/Business/Home
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1. W can give opinion on value or projected profits b/c position in business a. Owner or officer of a business b. Homeowner value of home v. Hieroglyphics 1. Not expert testimony b/c labels are misleading but if you see through this it is just a logic puzzle f. NOT Admissible i. Agency or Authorization 1. Cant give conclusion of authorization to do something 2. Must ask about Facts a. Who was W employed by, nature, terms, surrounding circumstances of employment ii. Contract of Agreement 1. Cant give opinion that express K was made 2. Must ask about Facts a. Existence or nonexistence of elements that show if a K existed iii. Specifics of Narcotics 1. How manufactured 2. Describe intricate workings of narcotic distribution network g. May Be - Necessity i. How Long Dead 1. I dont think hed been dead too long a. Objection - Only expert can decide how long someone has been dead b. argue i. If this evidence doesnt come in then the evidence would be out totally b/c no one else to testify other than medical examiner but he would have looked at body several hours later

b. EXPERT TESTIMONY Rule 702 I. General

a. Results from process of reasoning which can only be mastered by specialist in field b. Purpose i. Are able to draw inferences that jury members arent able to draw ii. Provides jury w/more info so they can make a more informed decision c. Rationale i. Opinion testimony is disfavored except when necessary ii. To bring judicial practice into line w/practice of experts when they are not in court iii. Benefits to Offering Party & Harm to Other Party 1. Expert testimony holds greater weight than lay W a. Can discuss evidence not usually admissible to jury b. Hearsay info and couch observations as generalized opinions rather than 1st hand knowledge d. Requirements i. Proper Topic of Expert Testimony (702 & 704) 1. Improper a. Goes into province of jury b. Takes away job of jury and judge ii. Proper Basis (702 & 703) 1. Expert basis opinion or inference on reasonably reliable data and facts iii. Daubert Reliability Factors (702) 1. product of reliable principles and methods, reliably applied to facts of case iv. Rule 403 Balance Test 1. Favors party opposing expert testimony

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2. Protects opposing party by forcing proponent to present expert opinions w/o factual foundation that supports them v. Judicial 104(b) 1. Proponent of testimony must satisfy judge by preponderance of evidence that a. Opinion is based on sufficient facts or data b. Opinion is product of reliable principles and methods c. Expert has reliably applied principles and methods to facts of case e. Harmless Error i. When impermissible testimony is given w/in larger body of unobjectionable testimony concerning procedures that jury could easily have drawn same conclusions expert W did f. Appellate Review Standard i. Abuse of Discretion 1. Question isnt did they get it right or wrong, but did they abuse their discretion 2. Deferential standard of review a. That creates the incentive to get rid of cases quickly silicone case

II. Expert Qualifications Rule 702

a. Scientific Technical Specialized Knowledge i. NO License Needed ii. Rare level of knowledge iii. Skill iv. Life Experience 1. Explain how process works 2. Narcotics v. Training vi. Education vii. NOT Expert 1. Imprecise generalizations a. Personal investigative experience b. Hobby 2. Not providing empirical evidence or studies to support imprecise generalizations a. Use of newspaper articles b. How to Establish Expert i. Proponent of expert show how they can be an expert 1. Offer testimony as to their education, experience ii. Measured by nexus between W area of expertise and topic testifying on 1. Based on nature and extent of W knowledge and NOT title iii. Opposing party has right to cross W about qualifications c. Judicial Determination (104(a)) of expert qualification

III. Proper Subject Matter of Expert

a. Conflicting Experts i. A conflicting experts can both be properly admitted and doesnt foreclose issue to jury and jury should decide if they conflict and who they believe b. Standard - Assist Jury i. Of Scientific, Technical, or Specialized Knowledge will Assist Jury to Understand evidence in deciding case 1. Beyond the ken of jurors, supplying info or insights they would otherwise lack c. NOT Helpful to Jury i. Matters of Common Knowledge 1. Things everyone understands, so jury probably too a. Topic is being cloaked in expert testimony even though commonly known by jury
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2. Harm a. Jury will forego own common sense and rely on expert testimony ii. Opinion on Law & Ultimate Issues - Rule 704 1. CAN give opinion on ultimate issues that doesnt pre ordain the outcome a. BUT under 702 must be HELPful to jury i. Estimate of criminal responsibility 2. NOT Conclusion a. Exclude opinions phrased in terms of inadequately explored legal criteria i. Did T have capacity to make a will b. Tells jury what conclusion to reach, what to think based on party actions, by a legal term explaining its legal effect i. conduct was not justified under the circum ii. not warranted under the circum iii. conduct was totally improper iv. possessed narcotics w/intent to sell v. totally improper vi. Providing definition of deadly force c. Rationale i. Invades province of jury ii. If jury applies experts definition case could be improperly decided 3. CRIMINAL Insanity Defense - (Hinckley Exception) a. Can NOT testify about in insanity or intent defense i. appreciate wrongfulness of behavior ii. Satisfied element of crime b. CAN Testify i. Presenting and explaining diagnoses ii. Mental State and motivation at time of act (in clinical terms) iii. Whether had severe mental disease or defect iv. Characteristics of such disease or defect v. Testing , how tests were performed, general psychiatric mental state iii. Opinion on Credibility 1. NOT Imply Credibility of , or W a. Conclusory opinions that the crime did or didnt occur b. Other parties statements are truthful and believable c. Explain that victims behavior is consistent or inconsistent w/crime having occurred 2. Rationale a. Common experience of jury provides sufficient basis for assessment of credibility b. Jury has 3 lie detecting tools i. Oath Demeanor Evidence Cross Examination 1. If these are not present in the case, like truthfulness of hearsay, court doesnt give jury task of detecting lies 3. CAN a. Explain why crime may cause certain bizarre behaviors of victim after crime i. Delayed reporting, inconsistency and recantation in sexual abuse trial ii. Sexual abuse and rape trials b. Educate jury about effects of abuse i. So jury can accurately determine credibility of victim b/c they dont have ability to make this type of evaluation iv. Opinion on Eyewitness Identification 1. NOT testify to a. Whether this particular eyewitness identification is Accurate or Unreliability 2. CAN testify to a. General problems w/eyewitness identification
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i. Human memory and perception problems 1. To help jury determine if eyewitness id is credible b. Cross Racial Identification i. Why 1. b/c this type of ID isnt completely accurate ii. Helpful 1. jury not be able to make appropriate inferences about this directly from their life experiences iii. Similar to battered womens syndrome experts 1. Common sense inferences may be off mark 3. NOTE a. If Expert Not Interviewed Eyewitness 1. More likely jury will use it appropriately than if expert interviewed person since jury may just simply accept experts testimony d. Syndrome Evidence - Rape, Sexual Assault, Child, Battered Wife i. the opinions of experts who have examined the victim are much more likely to be seen as vouching for the victims story than the opinions of experts who have never examined the victim ii. Admissibility of Expert Testimony 1. Daubert Preliminary Hearing

a. Where you prove your burden that expert meets factors to determine admissibility of the expert testimony 2. Judicial Notice a. For evidence that is a reliable syndrome
i. Post traumatic stress disorder ii. Battered women syndrome iii. Rape trauma syndrome iii. Using an Expert Defensive and Offensively to Prove Causation 1. Diagnostic Testimony (Rape) a. Offensively i. call expert in case-in-chief - To prove that rape occurred 1. Offers expert testimony that diagnose victim w/syndrome 2. State then argues that b/c victim suffers from syndrome must have been raped ii. Can be introduced w/o 1st victim credibility being attacked by b. Defensively i. rehabilitates victim credibility after attacks that didnt happen or victim is a liar 1. Use profile evidence to help them understand superficially bazaar info 2. To explain to jury that the research has been done 2. Non-Diagnostic Testimony a. Offensively i. introduce syndrome in case-in-chief to rehabilitate victim credibility 1. Offers expert testimony that explains counterintuitive behaviors generally 2. Thus rehabilitates victims credibility w/o a diagnosis b. Defensively i. Rebuttal to rehabilitate victims credibility after attack by ii. Not to specifically diagnose particular victim in case as suffering from syndrome iv. Despite this, question of who raped victim is still open v. Example 1. Expert a. acting this way is consistent w/syndrome, acting the other way is consistent
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i. doesnt pin point an exact behavior that is consistent w/rape trauma syndrome 2. Objects doesnt assist jury a. Expert is willing to make a syndrome up for almost anyone and isnt reliable b/c it hasnt been tested i. Great argument b/c under 702 it doesnt say what is inconsistent 3. responds - will assist jury a. Expert is being used Defensively i. To combat social prejudices, common sense idea that a victim will behave a certain way, to show jury that there isnt a set way that a victim will respond to this kind of trauma vi. Separation Violence similar to battered women syndrome 1. Helps Jury a. Seems to be admissible per 702 to assist trier of fact b/c specific element of battered women syndrome would be something that a jury wouldnt know about b. BUT no Daubert factors test b/c syndromes are labels and not theories i. If expert made these things up then wouldnt come in per Daubert ii. But if there are studies on this area that they are empirically true 2. 403 Prejudice Issue a. Evidence is so specific of the facts of this case then there becomes a 403 problem b. Matches up with what happened in case and jury will hear the testimony and believe that this syndrome is true 3. Character Evidence a. Sounds like character evidence if elements ABC, then X happened trying to place in category of people that have these traits b. jury could punish him for his past abusive and controlling behavior b/c expert is vouching for this c. Jury Give Evidence 2 Much Weight

IV. Reliability of Expert Testimony

a. Test Today i. NOTE - dont support adopting Daubert and Kumho standards and do ii. Judicial Gatekeeper (determine at outset) 1. RELIABLE Good Science = Scientific Knowledge Derived by Scientific Method a. Knowledge must be more than a subjective belief or unsupported speculation b. Validity of Technique applying Theory (reliable principles and methods) c. Proper application of technique (Reliably applied to facts of case) d. Testimony must support what it purports to show 2. Test - TRAMP (Daubert & Kumho Tire) a. Tested i. Theory or technique has been or can be tested 1. By hypothesis b. Rate of Error i. Known or potential rate of error of theory or technique c. Acceptance (Frye) i. Extent to which the technique has been accepted d. Means i. Exists means for controlling its operation e. Peer Review & Publication i. Theory or technique has been subjected to peer review and publication 1. It increases likelihood that substantive flaws in methodology will be detected iii. Methods of Proof - Soundness of experts methodology not correctness 1. RELIABILITY a. Judicial Notice
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i. Proponent doesnt have to prove reliability b/c theory or technique has been established by precedent ii. Intoxication test Fingerprint Comparisons Firearm Identification b. Statutory i. Statute establishes reliability of theory or technique ii. Intoxication test Radar Blood Test c. Stipulation i. Stipulate to use results of test for only a certain purpose but it waives parties ability to object or challenge validity of theory or technique ii. Polygraph Test d. Evidentiary Foundation i. Show Peer Review & Publication OR Comes from pre litigation research 1. It increases likelihood that substantive flaws in methodology will be detected ii. Introducing evidence of expert testimony to prove validity of theory or technique iii. Explain precisely how they went about reaching their conclusions and point to an objective source to show they have followed scientific method 1. Learned treatise 2. Policy statement of professional association 3. Published article in scientific journal 2. Fit - RELEVANT a. Connection of Scientific, Profession, Business, Occupation to inference/task at hand i. Logically advances a material aspect of the proposing partys case ii. Does allow junk evidence in b. Purpose i. Testimony must Help trier of fact to determine a fact in issue iv. How to ATTACK Junk Science Evidence 1. Vigorous cross examination 2. Presentation for contrary evidence 3. Careful instruction on burden of proof b. Creation of the Doctrine i. Frye (General Acceptance Test) 1. FACTS a. charged w/murder and wanted expert to give testimony on a lie detector test, but b/c this was new scientific evidence NOT admissible 2. RULE a. Proponent of Novel scientific evidence must demonstrate that the evidence i. Proper test, theory or principal b. Has gained general acceptance in the scientific community by scrutiny of others in the field ii. Daubert (Scientific Knowledge) 1. FACTS a. s suing company for birth wanted to introduce expert testimony that showed these chemicals might cause birth defects in humans (in vitro and in vivo tests in animals, studies of the chemical structure of the drug) 2. HOLD a. Frye test no longer controls the admissibility of novel scientific evidence b. All scientific evidence is governed by Rule 702 3. RULE a. Scientific evidence presented concerning scientific knowledge must be reliable b. RELIABLE science = Scientific Knowledge + Derived by Scientific Method 1. SK
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a. Anybody of known facts or ideas inferred from such facts or accepted as truths on good grounds b. More than a subjective belief or unsupported speculation 2. SM - Hypothesis 3. GS a. Supported by appropriate validation based on what is known ii. Judge Gatekeeper - 4 Factors = Daubert Factors TRAMP 1. Tested - has been or can be tested 2. Rate of Error - Known or potential rate of error 3. Accepted - Extent to which the technique has been accepted 4. Peer Review & Publication - subjected to 5. Means - Exists means for controlling its operation iii. How to meet 1. Establish theory or technique has been subjected to peer review and publication OR 2. Establish testimony comes from pre-litigation research OR 3. Proponent by testimony of its own experts a. To be sufficient experts must explain precisely how they went about reaching their conclusions and point to an objective source to show they have followed scientific method c. RELEVANT = relevant scientific connection to task at hand i. Logically advances a material aspect of the proposing partys case 1. Subject of the inference must be so distinctly related to science, profession, business, occupation a. That it will help trier of fact iii. Analysis After Daubert but Before Kumho 1. Wasnt clear whether Daubert applies to non-scientific 2. Evidence that was considered unreliable to pass Daubert could come in as lay testimony as long as not scientific a. Handwriting evidence iv. Kumho Tire (extended reliability thresh hold test) 1. FACTS a. sued tire co for injuries and wanted to call expert in tire failure that said he could tell that a tire had suffered from a manufacturing defect, rather than caused by under inflating a tire or carry too much weight b. Expert based his conclusion on visual and tactile analysis of the tire 2. RULE a. Daubert test includes non scientific testimony i. Technical or other specialized forms of knowledge 1. Economist, plumber, psychologist, handwriting expert 3. Rationale a. Juries are less equip to analyze the evidence b. Jury can pick out junk non science easier c. Juries give too much weight to expert testimony 4. Analysis a. No reason to make distinction of non-scientific b/c i. 702 doesnt ii. All experts speak from common knowledge iii. All experts can testify based on hearsay and offer opinions iv. No clear line can be drawn between scientific and other expertise b. Now more difficult to get in non-scientific evidence b/c now test

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V. Proper Basis of Expert Rule 703

a. Litigated Facts Perceived by Expert BEFORE Hearing i. Personal Knowledge of litigated facts like Lay W 1. Nature and extent of parties medical stuff that expert has been treating a. In my opinion is permanently disabled b. Litigated Facts Perceived by Expert or Made Known to Expert AT Hearing i. Based on Hypothetical offered by L incorporating facts of trial 1. Does NOT have to have PK of litigated facts 2. Doesnt even have to have seen or meet parties before 3. Can offer opinion as to parties nature and extent a. L asks expert, if has these symptomsbased on your expertise what treatment would a reasonable Dr. in your town and practice area prescribe? ii. Based on Facts learned while Attending trial 1. Hypo: L ask on direct and cross a. Direct Dr. you heard in this case.assume that J was accurate when she estimated s speed at 40 and A was accurate when he said road was icy. Based on these facts and on your training and experience do you have an opinion as to the cause of the crash? b. Cross Dr. assume instead that road where collision took place was dry and ice free iii. Standard of Presentation of Facts - 104(b) conditional relevance 1. All facts contained in hypo must be related to facts proved in court a. L cant make up facts but there must be enough evidence to support a finding that necessary facts exist b. b/c expert opinion based on certain assumptions has NO relevance if assumptions are false c. Litigated Facts Perceived by or Made Known to Expert BEFORE Hearing (Hearsay) i. CAN rely on inadmissible hearsay AS long AS it is a type that is reasonably relied on by experts in same field 1. Expert may learn of facts from others via out of court statements a. UNLESS people that expert learn facts from testify at trial 2. EXCEPT a. Excited Utterance 803(2) i. When person expert learns from gives facts shortly after incident at trial and are still agitated by event may be admissible ii. Rationale 1. Expert assumed to have necessary skill to evaluate 2nd hand info and give it proper probative value and Not to take what everyone says as true iii. Substantively Admissible Reasonably Rely On 1. Medical Statements Rule 803(4) for Diagnosis or Treatment a. Applies even if patient speaks to Dr. not to get medical treatment b. Dr.s Reasonable reliance on other things than patient themselves i. Statements by Patients & Relatives ii. Hospital Records, Reports & X-Ray iii. Opinions of Nurse & other Dr. c. Rationale i. Dr. makes life and death decisions in reliance on them ii. Validation expertly performed and subject to cross is enough reliability for judicial purposes iii. Most are admissible w/expenditure of substantial time in producing and examining various authenticating W 2. Learned Treatises Rule 803(18) - To Pertinent parts of book a. Published Treatises Periodicals Pamphlets on subject of History Medicine Science Art b. Foundation of Treatise
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i. Proponent must establish authority of treatise through 1. This Expert other Expert Testimony Judicial Notice iv. Underlying Facts Rule 705 1. Not Required to give B4 Testify a. Data or facts underlying an experts opinion dont have to be given before he can testify as to his opinion, but can be, and can be discussed on cross b. Help Jury i. Can come in to aid jury in determining experts opinion is credible 2. Substantively NOT Admissible for proponent a. To prove truth of matter asserted b. Opponent on Cross Examination i. Can seek to undermine experts opinion by asking about underlying facts v. EXCEPTION - Substance of Underlying Facts of Inadmissible Hearsay 1. Proponent can bring in IF a. REVERSE 403 Balance Test i. If probative value in assisting jury to evaluate expert opinion substantially outweighs their prejudicial effect 1. Presumption against disclosure ii. Judicial Determination of reasonable 1. What experts in relevant discipline reasonably deem it to be 2. NO substitute judgment for expert in determine what data is sufficiently reliable b. Inadmissible i. Lacks in probative value and reliability such that no reasonable expert could base opinion on them c. IF admitted Limiting Instruction i. That underlying facts can NOT be used substantive decision ii. Judge should consider effectiveness of limit instruct

F. TESTIMONIAL EVIDENCE PRIVILEGES I. General Rule 501 (not enacted)

a. Privilege i. Right of an individual to refuse to disclose and prohibit others from disclosing info that is confidential in judicial proceeding b. Harm i. Hinders search for truth by excluding relevant and reliable evidence c. Rationale i. Promote policy that is external to goals of trial ii. Privacy 1. Right to have unfettered freedom in certain relationships from states supervisory or coercive powers iii. Relationships 1. Desire to encourage certain relationships by ensuring their confidentiality even at a high price of losing valuable info d. Constitutional Issues i. Balance Test 1. assurances of trustworthiness against the need for the evidence ii. If govnt calls W 1. CC trumps privilege 2. Govnt could give W immunity 3. can impeach W (ask about things) on cross BUT cant call W iii. EX 1. Boy confessed to murder to therapist and person on trial for the murder wanted to compel W to testify, Boy asserted 5th amend 2. Mother of boy waived therapist privilege and Dr. told counsel what boy had said
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3. Due to conflict of interest boys L was appointed as guardian ad litem e. Law Governs i. Constitution 1. 5th Amendment Self Incrimination ii. Federal Question & Criminal Cases 1. Federal = Rule 501 iii. Diversity case 1. State Law = Rule 501 f. What is a Privilege i. Communications made in confidence 1. Party must have intended it be confidential ii. Identity of Source of Information 1. Person intended to remain confidential g. Who can Assert Privilege i. Person whose interest or relationship is sought to be protected ii. By someone authorized to assert it on holders behalf 1. Guardian of incompetent person iii. By person who the confidence was shared with, can claim on holders behalf iv. Held by more than 1 person, each can claim privilege h. Inference i. NO inference should be drawn b/c a party claimed a privilege 1. Attorneys or judge can NOT make any comment or argument based on claim of privilege ii. Jury Instructions 1. Criminal has right, when requested for instruction explaining constitutional right to remain silent i. Waiver of Privilege i. Failure to Claim the Privilege 1. By the holder themselves or failure to object when privileged testimony offered ii. Voluntary Disclosure 1. Of privileged matter by the holder or someone else w/holders consent 2. UNLESS the disclosure is also privileged iii. A Contractual Provision 1. Waiving in advance the right to claim a privilege iv. Suing L, Dr. putting confidential communication in issue 1. Testifies about confidential communication j. NOT Waiver of Privilege i. Wrongfully Disclose 1. Someone wrongfully discloses info w/o holders consent ii. 1 Party Waives a Joint Privilege 1. This doesnt affect the right of the other joint holder to claim privilege iii. Eavesdropping 1. If privilege is based on confidential communication then if it is overheard by another and their presences was unknown, doesnt waive privilege 2. Eavesdropper Testify a. Generally i. They can testify as to what they overheard b. Modern i. They can NOT testify 1. As long as holder of privilege was not negligent, no waiver of privilege

II. Privilege Against Self Incrimination

a. Criminal or Civil i. Law Governs - 5th Amendment 1. No person shall be compelled in any criminal case to be a W against himself
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2. Trial, deposition, hearings, administrative ii. Privilege 1. Prohibits from Compelling Testimony a. Can not call as W 2. NOT Required to ever take the Stand a. Unsworn Statement i. If provides statement w/o oath then no waiver ii. In order to waive privilege must be called at W 3. Communication Covered a. The content of the communication leading to exposure of criminal liability iii. No Privilege 1. Compulsion to Submit CAN make submit to these a. Fingerprinting, photographing, measurements, to write or speak for identification, appear in court, to stand, walk, make particular gesture, urine sample, blood sample, gunshot residues 2. Immunity a. Prosecution greatest weapon to provide immunity i. Takes away privilege of 5th amendment self incrimination 1. can no longer incriminate themselves ii. must answer questions or be held in contempt iv. Duration of Privilege 1. Begins - When possibility of criminal prosecution exists 2. Ends - When possibility of criminal prosecution ends a. SOL expires, double jeopardy v. Waiver of Privilege 1. takes Oath & Voluntarily Testifies a. Waives privilege against compulsory self incrimination i. Matters of credibility or that testified on in direct 2. Attorney Mentions s Use of 5th Amendment a. Door opens and can now reference this fact b. Criminal or Civil Witness i. Oath - W called as W by and must take oath 1. Trial, deposition, hearings, administrative ii. Privilege 1. To Refuse to Testify a. If W believes that answering question would expose W to criminal liability i. Answer that would furnish a link in the chain of evidence needed to prosecute W for a crime b. When privilege asserted questioning doesnt end but only on subject matter that is covered 2. Judicial Test a. Judge determines if answer will incriminate W i. Is there an appreciable risk that the answer would subject W to criminal prosecution? iii. No Privilege 1. See Immunity above iv. Waiver of Privilege 1. W provides any part of answer

III. L/C Privilege Rule 503 (not enacted but recognized)

a. Holder - Client - (Individual, Corporation, Government) i. L when client is unavailable b. Rationale i. Intended to permit C to receive informed legal advice and effective representation 1. Which depends on full and frank communication between A & C
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2. C must have confidence in privilege so encouraged to tell truth ii. Criminal Case = 6th Amendment 1. Right to effective assistance of counsel c. Balancing Test (Swindler & Berlin) i. Interest of society in solving crime outweigh C interest in the privilege 1. Supports why duration lasts after death d. Law Governs - CL e. Procedure Issue i. C not a party and court breaches privilege 1. Parties lack standing 2. C can sue in separate action ii. Judge excludes evidence b/c erroneous assertion of privilege 1. Party who is not holder an appeal that relevant evidence excluded f. Privilege i. Refuse to Disclose & Prevent Others from Disclosing 1. Communications are in furtherance of professional legal services a. Based on subjective and reasonable belief of C 2. Allows C to withhold confidential communications (NOT actions) a. Made between L & C in trial and out b. Made between C & any person that represents A i. Dr. hired by A to examine C in preparation of litigation c. Pre-existing professional relationship i. Privilege would probably apply regardless of nature of the conversation d. All Communication is privileged or none at all 3. What a. Documents b. Facts discussed in communication c. Clients competency d. Disclosure to 3rd Party (eavesdrop) i. Assistant to attorney, investigator 1. As long as client takes all reasonable precautions to preserve confidentiality and intent of client to remain confidential 2. Less about whether the info actually remained confidential e. Corporate Communications i. Test 1. Did employee communicate w/L in their capacity as corporate counsel 2. Did employee and L act on request of superior 3. Was communication made to enable corp to obtain legal advice and employee is aware of this 4. Did communication concern matters w/in employees duties 5. Were communication considered confidential when made 4. When a. C can invoke privilege anytime during trial b. As party in suit, W, by standard ii. Blackmon Case 1. FACTS a. judicial services officer, during a recess at the trial, overheard eight or nine words in a conversation between and L 2. HOLD a. IS Privileged b/c trying to keep private iii. Crime/Fraud Exception 1. In Camera Inspection a. Court can review allegedly privileged communication to determine if it falls w/in crime fraud exception
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b. To obtain i. Party opposing privilege must present evidence sufficient to support a reasonable belief that in camera review will yield evidence that establishes there is no privilege 2. No privilege when attorneys advice is used to commit future crimes a. Attorney has duty to report client i. Crime, Serious Bodily Injury or Death ii. UNLESS 1. Crime will only result in great financial harm 3. Fraud a. No duty to report, A should withdraw from representation and convince client to do otherwise iv. Testamentary Exception 1. Will is contested L may disclose conversations about C intent, in order to honor C interest g. No Privilege i. Identity of C & Retention of Services, Exchange of $ 1. Generally a. Identity of C and the fact that A has been retained by C 2. UNLESS a. Name is essential to the nature of the case b. Communication already revealed by an article c. Disclosure of the name is = to releasing incriminating statement ii. Observations 1. That could have been made by anyone iii. Joint Clients 1. No privileges between joint clients who hire 1 A a. Insured and insurance company, divorce case iv. Notice to Appear 1. A statement that C was told needed to appear at trial or sentencing h. Duration of Privilege i. Indefinitely - Even after death i. Waiver of Privilege i. C or A Testimony 1. C testifies or elicits testimony from A concerning communication ii. Place Communication in Issue 1. C places As advice in issue a. claimed he relied on As advice in cashing check

IV. Physician - Patient Privilege Rule 50 (not enacted)

a. Holder - Patient i. Dr. or Hospital can assert on patients behalf b. Relationship Established i. Present c. Law Governs - State Statute d. Privilege i. Refuse to Disclose & Prevent Others from Disclosing 1. Allows patient to withhold confidential communications 2. Dr. is present w/patient for purposes of providing medical treatment 3. Patient knows Dr. is present for purpose of providing treatment a. Made to Dr. by patient & Advice given by dr. to patient i. Dr. Dentist Nurse others w/Dr. supervision b. When i. Info acquired while Dr. present w/patent in course of treatment

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ii. Info acquired was necessary to enable Dr. to act in professional capacity for diagnosis 1. What happened - How did it happen e. No Privilege i. Non-medical info (Dr. can testify as lay W) 1. Details of accident - Dates of treatment ii. Observations (That a lay person could observe) 1. Observation of fact that patient was ill 2. Description of clothing worn by patient 3. Observation of drugs falling out of patient pocket f. Waiver of Privilege i. Contract - Patient agrees to waive privilege - Life insurance policy

V. Psychotherapist & Social Worker Privilege - Rule 504 (not enacted) (Jafee)
a. Holder = Patient i. Patient guardian - Personal representative of deceased patient - Therapist can claim 4 patient b. Jafee Rationale i. Social Policy 1. Facilitates treatment for individuals suffering the effects of mental or emotional problem 2. Sacrificing the truth in light of societal interests ii. Effectiveness of treatment 1. Develop Relationship of confidence and trust a. Patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears 2. Sensitive nature cause embarrassment or disgrace 3. NO Balancing a. Which would make promise of confidentiality contingent upon judge decision of importance of patient's interest in privacy and evidentiary need for disclosure iii. Social Worker included 1. poor cant afford psychiatrist or psychologist iv. Experience prong 1. Every state recognized so Federal courts too c. Law Governs - Federal Statutory d. Privilege i. Refuse to Disclose & Prevent Others from Disclosing 1. Allows patient to withhold confidential communication 2. Made for purpose of obtaining treatment or diagnosis of mental or emotional condition 3. Made to a therapist by a patient a. Advice given by therapist to a patient b. Licensed Social Workers Psychologists - Psychiatrists ii. Qualified 1. Privilege repealed if needed to protect criminal confrontation right a. Court will allow to review psychiatric records of W and present evidence at trial b. EX i. Evidence that W suffers from mental or emotional condition that may cause doubt on their credibility 2. Dangerous Patient Exception a. Dr. reasonably believes patient may be dangerous to others i. Dr. can give warning to patient, authorities or a person patient identifies as a likely victim e. No Privilege i. Required Therapy 1. Civil Commitment Proceedings 2. Court Ordered Examination
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ii. Vocational and Educational Counseling VI. Husband & Wife Privilege Rule 505 (not enacted) a. Spousal Immunity Privilege Not Testify Against Spouse (CRIMINAL) i. Holder = W Spouse 1. Trammel Case a. W cant be compelled to adversely testify or foreclosed from testifying ii. Rationale 1. Social Policy a. Protects marital relationship from dissension iii. Privilege 1. Prohibits to Compel W to Testify against Spouse a. Even events that were before marriage 2. BUT can testify against spouse even if objects a. About events that occurred before marriage 3. Parties must have a valid marriage at time of trial iv. No Privilege 1. Spouse or Child Battery - Joint Participation in Crime 2. seeks favorable testimony from spouse a. Usually no privilege to refuse v. Duration of Privilege 1. While W Spouse and Spouse are married at time testifying 2. Terminates at Death or divorce of parties b. Privilege for Confidential Marital Communications(Criminal & Civil) i. Holder = Both Spouses ii. Rationale 1. Promote marital communication iii. Law Governs - Federal iv. Privilege 1. Refuse to Disclose & Prevent Other Spouse from Disclosing a. Allows Spouse to withhold confidential communication learned while married i. Verbal or conduct intended as communication ii. Made between spouses while they were married iii. Made in reliance on intimacy of marital relationship
b. c. 2. When either Spouse is a Party

Does NOT authorize either spouse to refuse to testify against the other or enable either spouse to bar the other from testifying adversely W left note for H on kitchen counter which kids could have seen But b/c of phrasing in letter Dear JimmyLove Louise) deemed confidential

EX
a. b.

v. No Privilege 1. Cases Btwn Spouses, Against Testifying Spouse or Their Kids a. Spouse or Child Battery b. Abusive Language 2. Joint Participation in Crime - Routine Exchanges of a Business Nature vi. Duration of Privilege 1. Indefinite - Survives divorce and death vii. Waiver of Privilege 1. No unilateral Waiver VII.

Clergy Privilege - Rule 505 (not enacted) a. Holder -Church Goer i. Clergy member can assert on behalf of CG b. Rationale i. Encouragement to disclose troubling matters
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c. Morales Case i. FACTS 1. B4 sentencing another person told priest, the co- mother, L, and his legal aid L that he committed the murder 2. After D died, priest and Legal Aid L disclosed D statement ii. HOLD 1. due process rights violated b/c had a right to present statement evidence that trial court improperly excluded 2. rights trump the privilege a. Assertion of 5th amend privilege vs. right to compulsory power i. Govnt cant force you to offer any evidence against yourself iii. RULE 1. I did it D Mother & L (Admissible) = Declarations Against Penal Interest 2. they didnt do it D Priest & Legal Aid L (Admissible) = Catch All Exception (sufficient reliability and trustworthiness) 3. Waiver a. D disclosed communication to other people after priest i. I just talked to Father Towne and told him that I did it. b. NOT Waiver = I did it. d. Privilege i. Refuse Disclosure & Prevent Others from Disclosing 1. Allows CG to withhold confidential communication 2. Between CG and member of clergy while clergy is in capacity as a spiritual advisor 3. Communication made for purpose of obtaining spiritual guidance a. Must be made privately except if others are present in furtherance of purpose of communication b. Minister Priest Rabbi - Other religious organization c. CG must reasonably believe person he is consulting w/is a member of clergy e. NO Privilege i. For a heart to heart 1. at the end of the talk, Towle absolved Forne f. Duration of Privilege i.

VIII.

Professional Journalist Privilege

a. Holder i. Journalist b. Miller Rationale i. Even if there is a CL privilege the investigators that issued subpoena for journalists info, didnt have to reveal where they got info about journalist ii. Encourage flow of information to newspapers and electronic media iii. Even if this creates a chilling effect on disclosure to reporters ok 1. b/c will chill exactly the kind of speech that should be chilled iv. Criminal - value of leak is minimal but harm is hugeit endangers lives c. Law Governs - Statue Statute, 501 & Federal CL (Criminal & Civil) d. Qualified Privilege i. Allows Journalist to withhold Identity of Source of Info 1. Journalist must disclose info or source if a. There are no other means to the info b. Necessary for justice 2. Test - Balancing of Interests a. Public interest for disclosure vs. Public Interest of News gathering b. Is info relevant c. Can info be obtained by alternate means
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d. Is compelling interest in info e. No Privilege i. No protection for info obtained from confidential sources

IX. Govnt Informant Privilege

a. b. c. d. Holder - Govnt Rationale - Protect public interest in effective law enforcement Law Governs Federal (Civil and Criminal) Qualified Privilege i. Allows Govnt to withhold Identity of Informer 1. Even over objection of informer ii. Assistance to Counsel 1. If identity of informant would provide substantial assistance to then Govnt required to reveal identity of information or dismiss case iii. Balance Test 1. Informants degree of involvement in crime 2. Helpfulness of disclosure to 3. Govnt interest in nondisclosure e. Determine if Privilege Applies i. In Camera Proceeding f. No Privilege i. Communication between Govnt and Informant 1. EXCEPT - If communication may reveal identity of informer g. Duration of Privilege i. Ends - When identity of informant becomes known

G. AUTHENTICATION OF EVIDENCE I. Generally Rule 901

a. Proponent must establish that the item is what they say it is, as a step towards admissibility i. Evidence cant speak so sponsoring W must speak for it b. Ties together Reliability and Relevance i. Authentication concerned w/reliability b/c evidence must be reliable in order for it to be relevant ii. Ex: bag of white powder found 1. If it cant be tied back to then it is irrelevant c. Standard of Proof Huddleston Standard - 104(b) i. Judge Determines 1. If there is sufficient evidence of which a reasonable juror could determine that evidence is what proponent claims it is a. Lowest Standard ii. Jury Determination 1. Decides if evidence is authentic (probative force it has) iii. Criminal Drug Case 1. prove to jury that item seized was same item analyzed beyond reasonable doubt

II. Physical Evidence

a. Tangible object that played some actual role in the act that caused litigation i. Gun Knife Drugs Bullets Currency Lab Slides Diary b. Standard i. Showing that evidence really is THE object that was involved in the act 1. Proof that this was gun actually used by robbing bank 2. Proof that this document is the K actually signed by 3. Proof that this tape accurately reproduces a conversation tried to bribe
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c. Methods of Authentication i. Testimony of Sponsoring W w/Personal Knowledge 1. Easily Identifiable - Distinctive Characteristics a. Testify that original object had specific unique characteristics and object in court today has the same i. Mark - Serial # - Police officer Initial - unusual looking hat b. If not established go to chain of custody 2. Chain of Custody a. Has been held in a substantially unbroken chain of possession i. Show adherence to some system of identification and custody ii. Dont have to negate all possibilities of tampering or contamination b. Standard i. To show object is same item and is In substantially the same condition as it was at time of crime 1. Condition more important when drugs c. Rationale i. Evidence should be accounted for during time it under someones control ii. To ensure it hasnt been altered d. Type of Evidence i. Likely to be confused or can be easily tampered with 1. Use lock sealed envelope or container w/custodian mark/initial a. To make evidence identifiable and eliminate problems of misidentification and contamination ii. Relevance of Evidence depends on lab analysis 1. Show that item seized at scene is same ones that were tested at the lab e. Link i. People who had physical custody of object 1. NOT person who had access to evidence but not possession of it f. Missing Link i. Doesnt prevent admission as long as it meets Huddleston Standard ii. Goes to weight not admissibility ii. Habit Evidence 1. Routine procedures used by police and crime lab 2. Procedure of secret service of tracking procedure to maintain chain of custody

III. Documentary Evidence

a. Requirements i. Meet 901 Authentication ii. Meet Hearsay Rule 802 iii. Privileges iv. Meet Best Evidence Rule 1002 v. Balance Test 403 1. EX - video is nothing new and is repetitive and distracting a. Unfair prejudice substantially outweighs its probative value b/c we already have this info in evidence via the pathologist, crime scene and computer persons testimony vi. Foundation 1. Identity of author or genuineness of document 2. Show that writing was made, signed or adopted b. Testimony of W w/Personal Knowledge i. Who 1. Can be anyone who observes write document a. Spouse, secretary, co-authors, author of it
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b. W doesnt need to be author c. Lay Testimony on Handwriting (701) i. Who 1. Sufficient familiarity w/handwriting of another person by seeing him write, exchanging correspondence, other means ii. How 1. Establish that W is sufficiently familiar w/handwriting to offer a valid opinion concerning its authenticity 2. Established B4 document was written 3. Can NOT gain familiarity w/anothers handwriting for purposes of litigation d. Comparison by Jury or Expert i. How 1. Show jury a sample of handwriting to determine if it same 2. Expert testify as to whether handwriting sample is same as a. May develop a familiarity with the handwriting just for the trial (thus after the document in question was written) through use of exemplars provided by court and then comparison to the document in question e. Distinctive Characteristics i. Stelmokas 1. Common sense says no one would frame him w/these documents so being in 2 places was characteristic of someone being in a German hospital and in Russia as well ii. How 1. Fingerprint on the document to show that was in the possession of the document 2. Found documents under his bed f. Public Records or Reports i. Who 1. evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept g. Ancient Documents i. If a document is old enough then it is unlikely that its authentic and wasnt just brought out for litigation ii. What 1. 20 years old + 2. In a condition that creates NO suspicion concerning its authenticity 3. Found in place you would expect if authentic 4. NOTE Does NOT have to be public doc; could be diary, etc. h. Process or System i. Foundation 1. Evidence describing a process or system used to produce a result 2. Showing that the process or system produces an accurate result ii. Tracing phone call 1. Sufficient to prove that a particular call was made to or from a particular phone 2. Insufficient to prove who made or received the call (doesnt show identity) a. b/c no assumption that b/c owns phone that was one who made or received a particular call b. To prove identity i. Need to combine this w/another authentication method Eyewitness iii. Security Camera that some sign Document i. Voice Identification i. Foundation 1. Establishing parties 2. Admissible Contents of conversation & Identification ii. Personal Knowledge

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1. W must have either seen the call being placed and the number dialed or heard the call being answered iii. Comparison by Trier or Expert W 1. Have say something in front of jury so that jury can decide and make comparison 2. Do a voiceprint analysis Linguistics analysis and language patterns iv. Distinctive Characteristics 1. Recognizes speaker by content a. The caller said the recipients name b. Conversation contents which only that person could know i. oh no, oh no when told about his knife ii. Combination - detective left a message for him to call and the call came a few hours later; fact that he used both the nickname and the proper name; and that in a later conversation with another officer the D said that he knew the first officer was looking for him 2. Someone who has heard the others voice many times before j. Telephone Conversations i. Personal Knowledge 1. W must have either seen the call being placed and the number dialed 2. Heard the call being answered 3. Someone who recorded the conversation ii. Distinctive Characteristics 1. Speaker knew things that only that person would have 2. Recognized others voice 3. Phone call was made to a number that was assigned to person iii. Process or System 1. Not alterations made to it a. Someone who recorded the conversation 2. How a. Machine was capable of recording conversation b. Operator of machine was competent c. Recording is authentic and correct k. Photograph i. Foundation 1. Testimony of W familiar w/scene or object depicted to say that photo is an accurate and correct representation of scene at the relevant time ii. Method 1. W w/Personal Knowledge of scene seen a. Doesnt have to be photographer b. How i. W is familiar w/object or scene ii. W explains the basis for his or her familiarity with the object or scene iii. W recognizes the object or scene in the photograph iv. W photo is a fair, accurate, true, or good depiction of the object or scene at the relevant time that the W saw 2. Process or System a. Someone who can testify about reliability of process by which picture taken i. Picture and contents admissible 1. Surveillance Tape, ATM photo b. How i. How does the machine work ii. How was it employed in particular application iii. There was no editing or tampering iv. Taken at appropriate time or in connection w/appropriate transaction 3. Chain of Custody a. Forms signed by someone showing evidence was sent to lab w/routing #
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b. Regular procedure was to fill out a property receipt for evidence received w/case #, date, location l. Video Tape i. Foundation 1. Show that video is an accurate and correct representation of scene depicted 2. Surveillance Tape, ATM photo, computer simulation ii. Eye Witness (Personal Knowledge) 1. Someone who saw the act take place pathologist, investigated crime 2. How a. W is familiar with the object or scene b. W explains the basis for his or her familiarity with the object or scene c. W recognizes what occurred in the video d. W video is a fair, accurate, true, depiction of what happened at the scene iii. NO Eye W (process and chain) 1. Process or System a. Someone who can testify that recorder was working properly at the time i. Works w/video system regularly, maintaining it, created video b. How i. How does the machine work 1. Do you check to make sure it was working properly 2. How animation expert took facts of case and made animation out of it ii. How was it employed in particular application 1. How did you decipher animation iii. There was no editing or tampering and it worked 1. Do you change battery from time to time iv. Do you believe video is a fair, accurate, true depiction of an accurate process or system 1. Taken at appropriate time or in connection w/appropriate transaction 2. Do you have any reason to believe it wasnt working on the day of the event 2. Chain of Custody a. Prove tape hasnt been altered i. Person who saw it taken out of machine can testify ii. Show it to someone right after its taken out of the machine marked w/number and checked into evidence

IV. Self Authentication Rule 902 CONTAC

a. Things are so plainly authentic that its highly unlikely it could be a forgery b. Examples: i. Commercial Paper ii. Official Publications 1. Statutes, rules, regulations and reports (bureau of senses) iii. Newspapers and Periodicals 1. Offering a forgery is a huge risk b/c anyone can get a copy paper iv. Trade Inscriptions v. Business Records 1. Proves authenticity of record and to establish that it meets the business requirements of hearsay 2. Written declaration by someone who is qualified to testify that records meet the requirements of the business records hearsay exception a. Notice must be given to opposing party and make records available to them for inspection
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3. but if the business certifies their records, then you dont have to have the custodian of the records come in (this will depend on how close the business is to the litigation) but this is still open to challenge vi. Certified public records 1. Notarized 2. similar argument since the other side can just go to the same office and ask for the records and if they get something different, then they know the first was a forgery Certain Public Records

V. Best Evidence - Rule 1002

a. Produce Original Document i. To prove Content of - when content is at issue 1. Writing Recording Photo ii. UNLESS NO Original Available 1. Use Oral Testimony about Contents of document 2. NOT Apply when Original is unavailable b/c of a. serious misconduct by proponent b. has been destroyed c. in possession of 3rd party d. cannot be conveniently obtained b. Rationale i. Reliability Protection 1. Prevent human recollection of a writing in place of the writing itself c. Problem 10.7 i. called W to prove by transcripts or W in court

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