THE LAW AND THE SYSTEM

A. ROLE OF JUDGE AND JURY

Preponderance standard generally applies to 104(a) decisions Rule 104 Preliminary Questions (a) Generally. Court makes determination re admissibility of evidence, qualification of a W, and existence of privilege & determination isnt bound by the FRE (b) Conditional Relevance If relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of that condition. (c) Confession Hearings: Hearings on the admissibility of confessions should be conducted out of the hearing of a jury (d) Testimony by accused. D does not become subject to cross-x on other issues if he testifies to a preliminary matter. (e) Weight & credibility. When evidence is admitted b/c of a ruling by the judge that is relevant or otherwise suitable for admission, that finding by the judge does not prevent the opponent of the evidence from attempting to show that it is not relevant or that its admission was otherwise based on an incorrect finding. Commentary Conditional Relevance: 1. Gate-keeper Judge finds that a reas. juror could find the fact 2. Jury is invited to draw that inference, if it wishes issues of law always decided by judge issues of fact could be decided by either judge or jury depending on circumstances: o if based on technical exclusionary rule, decision belongs to judge [FRE 104(a)] for example: witness competency FRE 601 admissibility of expert testimony hearsay exceptions legal standard to be applied judge may consider inadmissible evidence in such rulings, incl hearsay judge will exclude inflammatory evidence normally decided by preponderance o for relevance determination, judges role more limited where determination does not require finding of fact, judge decides ex requiring fact: Gadsby hypo: 80mph 30 miles west. Relevancy depends on whether driving conditions were constant. in case of conditional relevance, jury decides [FRE 104(b)] for example: o authenticity but judge first decides whether reasonable jury could find fact o Motion in Limine:

Typically, a party makes this motion when it believes that mere mention of the evidence during trial would be highly prejudicial and could not be remedied by an instruction to disregard. If strong objections are anticipated, petition for motion in limine to get a more thoughtful judgment after both argue subject during pretrial Under FRE 103(a) an objection need not be renewed if the judge makes a definitive ruling on a pretrial motion Judge can change the ruling if trial goes not as expected.

Rule 105 Limited Admissibility limiting instruction When ev which is admissible as to one part or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the ev to its proper scope and instruct the jury accordingly.

If its inadmissible, check for impeachment purposes

Appealing a Judges Ruling
Rule 103- Rulings on Evidence (a) Higher court wont find error on an evidence ruling unless a substantial right of the party is affected, and (1) If ruling admitted evidence, a timely objection or motion was made (stating the specific grounds if not apparent), or - In order to be able to appeal reversible error (in the exclusion of evidence proffered), you must make an objection that is timely (raised at the earliest reasonable opportunity) & specific in nature (the objection must include a statement explaining the ground for the objection) & a substantial right of the party must be affected. The General Objection o if overruled, it does not preserve for review whatever point the objector had in mind, and thus gives less than maximum protection (not a specific objection under FRE 103) o 3 reasons to use: Lawyer cannot find the right words immediately Everybody knows exactly what is wrong and the point is too obvious for words. Even if the objection is not preserved, it might be sustained by the judge. (2) If ruling excluded evidence, counsel had made clear what the substance of the ev was before excluded (offer of proof). (d) Plain Error Rule: Court can always recognize Plain Error affecting a substantial right (regardless of lack of objection). evidentiary ruling not appealable unless offer of proof made beforehand [FRE 103(a)(2)] judicial factfinding usually reviewed under clear error or abuse of discretion

Four kinds of error: 1. reversible mistake probably affected judgment and the evidence error must have affected a substantive right in order for appellate reversal to be proper. Also, the appellant took the necessary steps at trial to preserve his claim of error by either (a) making a timely and specific error, where the evidence was admitted below; or (b) made a sufficient offer of proof, where evidence was excluded below). 2. harmless mistake probably did not affect judgment a. most difficult for b. reviewing courts to distinguish from reversible error

c. reversible error may become harmless through any of three doctrines: i. cumulative evidence other evidence was sufficient to sustain result 1. whether error probably affected outcome ii. curative instruction 1. usually viewed as effective iii. overwhelming evidence evidence below overwhelming affirms result 3. plain error warrants relief even though appellant failed to properly preserve at trial 4. constitutional requires reversal unless shown harmless beyond reasonable doubt Crim
Obtaining review of Evidence points - Appeal from Judgment Rulings on evidence, examination of witnesses, claims of privelige - Interlocutory Appeal: When W claims a privelige and refuses to testify upon order Pretrial Orders suppressing evidence in criminal cases The Offer of Proof:

1.

A presentation of evidence for the record (but outside the jury's presence under FRE 103(c)) made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge's ruling. 2. Proponent must be ready to present his evidence when the objection is made and must make its "substance" known to the court (FRE 103(a)(2)). The appellate court needs to know whether evidence improperly excluded would have affected the outcome. 3. An offer of proof, which may also be used to persuade the court to admit the evidence has 3 parts: a. The evidence itself b. An explanation of its relevance, and c. An argument supporting admissibility. The Objection Making a Specific Objection: should include a statement of the underlying reason (ground) 2 types of specific objections: substantive & formal Substantive objections: rest on particular exclusionary principles in the FRE. Frequent Substantive objections: o Hearsay o Best Evidence Doctrines Formal objections: focus on the manner of questioning. Tactical weapons used to obstruct, delay, or break the cadence of the opposition. Objections are not from particular rules, but they speak to the broad authority of the trial judge to regulate the presentation of proof in the interest of getting at the truth while avoiding confusion and delay and preventing abuse of witnesses. Frequent Formal Objections: o "Asked & Answered" o "Assumes facts not in evidence" if the questioner imparts important info in his Q, it should be supported by proof already admitted. o "Argumentative" o "Compound" when a Q apparently seeks more than one answer or suggests alternative responses, while being framed in a way that invites a yes or no response.

The witness may answer yes or no and the meaning will then be obscure. Eg. "Did you telephone or see the decedent after that?" If the witness answers yes, then the answer may be ambiguous. o "Leading the witness" o "Misleading" the question misstates the evidence or misquotes the testimony of a previous witness. o "Speculation or conjecture" raises the point that witnesses are expected to say what they "know" not what they "guess" or "suppose" o "Ambiguous, uncertain, and unintelligible" points out a flaw in questions that cannot be understood or whose meaning depends entirely on inflection that the record cannot capture. o "Nonresponsive to the question" lawyers who ask proper questions on specific points are entitled to answers addressing those points. A witness is non responsive to the question when he ignores it or answers a different question not posed. Here, the questioning attorney asks the court to instruct the witness to answer the question asked. A fair answer to an openended question is not nonrepsonsive.

B. AUTHENTICATION
Generally
Requirement: authentication requirement satisfied by offering of evidence sufficient to support a finding that the matter in question is what its proponent claims [FRE 901(a)] Significance: authentication is a condition precedent to admissibility [FRE 901(a)] Procedure: issue of authenticity is one of 104(b) conditional relevance; may also be accomplished through discovery or by stipulation Illustrations: FRE 901(b) gives ten examples of authentication: 1. testimony of witness with knowledge 2. nonexpert opinion on handwriting 3. comparison by trier or expert witness 4. distinctive characteristics and like 5. voice identification 6. telephone conversations 7. public records or reports 8. ancient documents or data compilation 9. process or system 10. methods provided by statute or rule Demonstrative Evidence (Illustrative Evidence) - tangible proof that in some way makes graphic the point to be proved, created for trial - authentication should show object fairly represents or illustrates - varieties of such evidence available are enormous - courts retain discretion to reject under FRE 403 (e.g. questionable computer animations)
o E.g. diagrams, models, maps, photographs.

Real Evidence - tangible things directly involved in the transactions or litigation

authentication should show object is the object involved in underlying event o evidence admitted upon prima facie showing, jury then determines credibility and probative force authentication accomplished in one of two ways: o if item is readily or uniquely identifiable, needs to be shown this is the case o if not, authenticity demonstrated through chain of custody question is whether chain sufficiently complete that it is improbable that original item had been exchanged with another requirement is not one of iron-clad chain

Testimonial Proof FRE 611 - Judge orders the scope and style of testimony FRE 611(a) - Direct Examination o Start with background o lay the foundation (show personal knowledge) o Substantive Questions o Non-Leading Questions FRE 611(c) - Cross Examination o Leading Questions ok

Certain phrases can be leading: "isn't it a fact that" or "did you not" leading Qs suggest a response as such. A question that frames the only likely alternatives in an evenhanded way is not leading: "did you call him or did he call you?" A question that highlights one desired answer while diminishing the other option may be leadingDid you understand that you were to meet him at your home at 10 pm or what? The questioning is limited to the matters explored on direct examination.

o Within Scope of Direct FRE 611(b)

Writings and Recordings

Application Notes: - authentication may be based entirely on circumstantial evidence o reply doctrine allows authentication of letter from a person by proof that it replies to earlier, authenticated communication to that person o existence of distinctive characteristics may also suffice - writings own statement of authenticity (e.g. signature) alone is insufficient o but can authenticate with witness identification of signature or handwriting - recording requires demonstration that it is accurate reproduction of relevant sounds audited by witness o requires proof of: competency of operator fidelity of recording equipment absence of material deletions, alterations, additions identification of relevant speakers o but requirements not severely stringent/formalistic - telephone conversations require establishing parties to conversation o standard for voice identification is prima facie mere use of nickname on incoming call insufficient

o standards stricter for incoming than outgoing calls

If offered to prove what a person has said, first authenticate then show hearsay exception

Self-Authentication FRE 902

Significance: self-authenticating exhibits do not require extrinsic evidence of authenticity as a condition precedent to admissibility Application Notes: - fact of self-authentication does not bar counterproof by opponent - documents which may be self-authenticated enumerated in FRE 902

FRE 902 self-authentication items: (1) Domestic public documents under seal. (2) Domestic public documents not under seal. (3) Foreign public documents. (4) Certified copies of public records. (5) Official publications. (6) Newspapers and periodicals. (7) Trade inscriptions and the like. (8) Acknowledged documents. (9) Commercial paper and related documents. (10) Presumptions under Acts of Congress. (11) Certified domestic records of regularly conducted activity. (12) Certified foreign records of regularly conducted activity.

II. RELEVANCE
A. RELEVANCE GENERALLY
Step 1: Relevant under 401? Step 1a: determine whether a rational fact finder could be influenced by the material in deciding the existence of a fact. Consider context and whether the evidence creates a relevant chain of inferences (deduction). How relevant is the evidence to an element of the crime or defense? Step 2: Admissible under 403? Step 2a: Determine probative value (significance/relevancy/existence of other replacement evidence) Step 2b: Determine prejudicial effect Step 2c: Consider other proof that proves same point Step 2d: Compare prejudicial effects of different means of proof Ex. Limiting Instruction

Relevance and the Federal Rules

FRE 402 Relevant Admissible, Irrelevant Not FRE 401 Relevance Defined 1. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. [FRE 401]

Practical Issues in Relevance Rulings

104(a) decision to admit 403, 611: Judges discretion to exclude if doesnt seem rationally/logically connected to the case - Requirement 1: Materiality o Of consequence to the determination of the action o Evidence addresses issue in the case

Test: Would the jury want to know the fact to make its decision? Doesnt have to be sufficient in of itself o Repugnant evidence: admissible under 401 might be kept out under 403

Requirement 2: Probative value o Makes a fact more or less probable than without the evidence NOTE: standard is not more probable than not Ex. Old Chief (I): D charged with felon-in-possession of firearm. D sought to have jury hear only that he was convicted of a crime punishable by imprisonment exceeding 1 yr instead of the assault causing serious bodily injury previous charge Nature of prior conviction relevant b/c it places D in subclass of offenders & makes commission more probable. Cant stipulate to take away relevant evidence. Rationale: 1) want jury to hear all relevant evidence, 2) lawyers can choose their evidence and shouldnt be limited by opposing counsel or by stipulation. o Any tendency Only slight probative value is required The test is admission friendly the judge must believe that a rational fact finder could be influenced by the material in deciding the existence of a fact. Weight = aggregate probative worth Jury decides Relevancy (probative value) may be assessed by comparing evidentiary alternatives. Always analyze the facts in the evidence submitted in the context of the facts at issue. If the facts suggest that the the evidence supports no relevant inference or deduction, then the evidence is irrelevant. Hypo: 2 Drivers crashed and were killed in the middle of nowhere. D1's widow sued the estate of D2. A witness said he saw D2 going 80 mph 30 miles before the accident o Speed 30 miles before is relevant to the speed of that same driver at the point of the accident. o And that the speed is what caused the accident to occur. o There may be other factors (a stop sign, a town, cops, etc) between this point and the point of the accident that would have caused the driver to slow down. o If you can show these other facts, you can destroy the human inference relied on to make the evidence relevant (deduction). Hypo: Carl is identified as robbing a fish&chips stand. Carl's G-F answered the door when the cops came to arrest him and Carl ran and hid. The prosecutor wants to offer evidence of Carl's flight. Carl's arrest was based on an outstanding default warrant that was 2 years old for unrelated charges. o FRE 401: his flight is a fact of consequence (which can be very small, just a brick in the wall). o Relevant to the existence of a guilty conscience. Humans believe that a guilty conscience is evidence of actual guilt. So displays of a guilty conscience, like flight, are usually relevant. The evidence creates the beginning of a deductive chain of logic flight admitted jury presumes his guilt more probable that he committed robbery. Problem: Are his feelings of guilt caused by the recent robbery or his desire to avoid capture due to outstanding warrant (is the chain of logic severed thereby)? o The chain of inferences may be disrupted because there is a 2 yr old warrant out for his arrest & he may have been running from that warrant as opposed to having guilt for the fish&chips robbery. o Carl was arrested at his house if he were really concerned with an outstanding warrant, he wouldn't have been lounging around his house.

Flight is usually relevant

(1) Exclusion of Relevant Evidence [FRE 403] - Pragmatic Relevance: evidence excluded if probative value SUBSTANTIALLY OUTWEIGHED by danger of: o unfair prejudice o confusion of issues o misleading the jury o considerations of undue delay, waste of time, or needless cumulative evidence - probative value is diminished if fact to which directed is not in dispute o CHAPPLE only issue in dispute was identity not cause of death - the danger of unfair prejudice, o Evidence leads to invocation of extreme emotions by the jury, that drive jury to wrong result - confusion of the issues, o Evidence proves a fact, but will confuse the jury in using the fact o Ex. Car accident and gas tank blew up. Suit for negligent design against manufacturer, based on first collision causing explosion. Other driver in accident plead guilty to involuntary manslaughter. Plea inadmissible b/c overly prejudicial the jury will get confused because they will think the plea takes away manufacturers liability. - misleading the jury, or - undue delay, waste of time, or needless presentation of cumulative evidence. o Rationale: trial will go too long o Usually not reversible: 1) harmless error, 2) defer to trial judge - 104(a) question: Deference to trial judges decision on appeal. - Hypo: Woman slips on the grocery store floor. Plaintiff calls the grocery store manager to testify that he slipped on the floor twice before when it was overwaxed and that he received other reports of customers falling in the past year. o Customer falls: we don't know enough about these falls to know if they took place under substantially similar conditions. If not, then these falls do not create a logical chain of inference leading to the deductive conclusion that the over-waxing caused the fall. o The manager's falls: (a) He specifically stated that they were caused by overwaxing creating a logical inference that the fall in this case was also caused by over-waxing. o Note: evidence is only relevant when it has a logical bearing on a claim by the proponent of such evidence (i.e. it helps to establish a logical chain of inferences leading to the conclusion proponent seeks). In this case, proponent must show that the over-waxing was a dangerous condition, and the managers comment helps establish a logical chain of inferences supporting the establishment of this element. o Can the store introduce evidence that on the day of the fall, 1,000 people came into the store & did not fall? Yes, the evidence is relevant, even if not very persuasive. Evidence doesn't necessarily have to mean anything, it just has to be relevant (helps to establish an inferential chain of logic that makes a fact of consequence more or less probable). The chain= 1,000 people did not fall more probable that this customers accident was not the cause of a danagerous condition and was a mistake unique to this customer. o 3 Overall Reasons why Evidence won't come in under FRE 403: (1) Evidence seems relevant, but you can't connect it to a claim

(2) Even if you have connected it, it doesn't sufficiently support a logical chain of inference to justify the argument that its more or less probable that a conclusion (favorable to the proponent) has been established (3) Evidence is relevant under FRE 401, but the evidence carries with it unfair prejudice or other problem that outweighs its probative value.

The Relevance objection - As a lawyer making a Rule 403 objection, you must articulate o The probative value of the evidence o The unfairly prejudice, misleading, etc, effect o Why is it that the problematic aspect substantially outweighs the probative value of the evidence. OLD CHIEF V. US Note: the court considered evidence of Old Chiefs prior conviction (name thereof) relevant and did not allow Old Chief to claim not relevant on the basis of his stipulation. FRE 403 problem: o U/P because it proves the felon element but also does something the rules do not allow. Under rule 404, you cannot prove cases by using evidence of prior crimes "character evidence is not admissible to prove conduct." o If the inference is that the evidence tends to demonstrate that the D is of a violent nature, then its U/P because it would violate FRE 404. The evidence is relevant because it creates a logical chain of inference: Old Chief commited a violent felony it is more probable than w/o evidence that he would commit another such crime with a firearm he did commit such crime with a firearm. Problem: the second inference is improper b/c of rule 404. This probative value does not outweigh the U/P. Rule 403 is designed to help ensure that the jury does not make improper and illogical inferences based upon proferred evidence. o There is an equally significant piece of evidence in the use of an admission as a replacement that will not lead a juror into a sequence of bad character reasoning, so the u/p outweighs the probative value with the existence of this replacement evidence. Thus, a judge will consider the existence of replacement evidence when considering the probative value of the evidence proffered. o Probative factors: (a) how relevant is the evidence to material issues in the case? (b) how significant is the evidence to the proponents case in full? (c) is there any replacement evidence that is less prejudicial? - Hypo: A man dies after his gas tank explodes in a car crash. His widow sues the automaker alleging negligent design of the fuel tank was the cause of death. The Defendant Automaker introduced testimony that the impacting car was going 68 mph at the time of impact & introduced a certified copy of a guilty plea from the driver pleading guilty to involuntary manslaughter o 403 problem: the speed of the impacting vehicle tends to confuse the issues and mislead the jury on causation. Jury needs to know what caused the explosion, not what caused the 2 cars to collide. o The rule 403 issue substantially outweighs the probative value. If the guilty plea is relevant to speed at all, then its because of the assumption that maybe the driver was speeding. It's not apparent how much information the guilty plea even has on speed. Thus, the probative value is miniscule or perhaps absent.

(2) Limited Admissibility: Confining the Impact of Proof [FRE 105] - FRE 105 When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the ct, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. - FRE 105 allows use of limiting instructions to prevent misuse o can prevent misuse on other issues or against other parties - limiting instruction sometimes still insufficient protection - Hypo: After an accident in which the 2 drivers don't know who is at fault, they exchange information and D1 says "whoever screws up, her insurance will pay. I am sure my insurance will cover it. They'll pay for what happened to your Porsche." D2 sues and proposes to testify to what D1 said. D1 objects, invoking FRE 411. o FRE 411: evidence of insurance cannot be used against a person to prove negligence. o Evidence is relevant under FRE 401, but it invokes FRE 411 and thus has an unfair prejudice component. o The evidence could be admitted using an FRE 105 limiting instruction, such as Insurance is not relevant to your decision and should not be considered by you for any purpose (3) Rule of Completeness: Providing Context [FRE 106] - When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. - designed to mitigate risk of distortion resulting from admitting evidence without context - FRE 106 requires introduction of any other part of statement that ought in fairness to be considered contemporaneously with part already offered - Rule limited to writings and recorded statements. Does not apply to conversations. - If the statement, as it stands, is not misleading, then 106 doesn't apply. o also authorizes parties to answer incomplete presentation later in trial (rebuttal rule) Connected to FRE 403 if evidence so connected with the other evidence that it would be a distortion to consider one without the other, the judge will balance the probative value against risk of prejudice and admit or exclude the whole thing accordingly - Hypo: The man's wife dies in a crash where she is a pilot. The husband investigates and writes up his findings in a letter that the crash was caused by power rollback. The husband sues the manufacturer. The manufacturer defends with the theory that the crash was caused by pilot error. The manufacturer introduces portions of the husband's letter to prove its case. Statement is an admission under FRE 801(d)(2): the non-admitting party may introduce a piece of evidence (the letter) but not the other party (the admitting party). o FRE 106 "at that time" Rule allows H to introduce the whole letter as soon as the manufacturer began picking out favorable portions, whether or not H had the right to introduce the letter on direct (4) CONDITIONAL RELEVANCE a. FRE 104(a) the default rule. i. Most of the time, it is the judge who decides the relevancy of the evidence at the time it is offered. Only if the judge determines that it is relevant does the jury get to hear it. During deliberations the jury decides what weight, it any, to give it (FRE 104(e)). b. FRE 104(b) i. FRE 104(b) Evidence shall be admitted "upon" admission of "evidence sufficient to support a finding of the fulfillment of the condition.

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This means that the lawyer seeking admission of evidence, where relevancy of said evidence is dependant on a conditional fact, must show additional evidence sufficient to support the fulfillment of a condition ii. If the lawyer cannot show the elements of 104(b), then the judge will rule on admissibility under 104(a). iii. Assuming 104(b) is met, the lawyer should ask for jury instructions to help the jury understand their task iv. Hypo: P sues after a bike accident, claiming defective breaks. Expert witness testimony by an engineer who examined the bike. If permitted he'll testify that the brakes were not working properly, but his examination of the bike approximately 2 years after the date of the accident. 1. It may be argued that the testimony is not relevant unless the condition of the brakes 2 years after the accident is exactly the same as the condition immediately before the accident. This is conditional relevance b/c its relevance is conditioned on this unknown fact. If the lawyer seeking admission of this evidence can bring testimony by a witness who testifies that the bike has not been touched since the accident, then the judge might allow the jury to hear the evidence (he performs a screening function under FRE 104(b)), where the jury would be given a instruction. If the jury believed said testimony, then they would consider the evidence relevant. If not, then they would ignore it. (5) PROBABILITY a. People v. Collins Cali SCt 438 P.2d 33 (Cal. 1968), p.90 i. Facts: this is an appeal from Malcolm's conviction for 2nd degree robbery. His wife was also convicted, but she did not appeal. The prosecutor had testimony from several witnesses that described the woman and her getaway driver and their characteristics. Things like interracial couple, blonde ponytail, moustache, yellow car. The prosecutor had an instructor of mathematics testify about the "product rule" which states the probability of joint occurrences of a number of mutually independent events. The pros applied his own factors to each characteristic to come out with saying that there could be only one chance in 12million that the defendants were innocent. b. The ct makes technical criticisms of the prosecutor's mathematical theory & its application. The ct also raises policy-based objections that seem to apply even if these technical problems could be overcome. They are: i. The foundation for the admissibility of the testimony was never laid. ii. The testimony, even if true, gave no guidance on the critical issue, who was guilty of the crime. iii. The theory rested on the assumption that the witnesses called by the People had conclusively established that the guilty couple possessed the precise characteristics relied on by the prosecution. c. 2 settings in which statistical evidence is routinely accepted: i. DNA evidence for a crime. ii. DNA match paternity cases.

1.

B. RELEVANCE OF SPECIFIC TYPES OF EVIDENCE

Character Evidence

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Character Evidence tips:

General rule: Character evidence is inadmissible by Pros to prove action in conformity therewith FRE 404(a) (Subject to the exceptions under FRE 413, 414, & 415) BUT Character evidence (offered by accused) to prove accuseds action in conformity with that character is admissible. (After D introduces this evidence, Pros can introduce rebuttal evidence w/restrictions) Character in issue is admissible (character is an element of the crime) Civil Defamation (character at issue, relates to damages) Criminal entrapment (prosecution must show that D was predisposed to commit the crime) Civil negligent entrustment (should have known that the person entrusted with the car had a bad reputation related to driving) Child Custody relative parental fitness of mother and father is assessed in order to serve the best interests of the child. Wrongful Death the amount of recoverable damages may turn on the 'worth' of the decedent to the P. When Character is an element of the crime, specific acts, Ws opinion and reputation evidence allowed. Victims Traits FRE 404(a)(2) Self Defense can offer proof of violent character NO SPECIFIC ACTS just introduce testimony of reputation, opinion Pros may rebut with Character evidence of D or of the victim. Sexual behavior (FRE 412) past history with others than D to prove source of injury/semen Vs past behavior with D offered on whether she consented Other Crimes/Past Acts of - Generally inadmissible, but there are many exceptions FRE 404(b) shows that can be admissible for other purposes and gives nonexhaustive list. So the question is Does the other-crime or bad-act evidence tightly link D to some element of the crime? (admissible) or is it so loose that just suggests that bc D has a certain character trait he probably did it? (inadmissible) does evidence that D was convicted of committing a complicated burglary using a new technological device few can use help establish that D used such a device in the present case? If it is introduced for this purpose, probably admissible. If the device used was not important to the case, and the prior burglary conviction was introduced to merely support the inference that D was more likely to commit the burglary at issue presently b/c of his prior conviction, then this is improper and inadmissible.

(1) Character Evidence Used to Prove Conduct on Particular Occasion [FRE 404(a), 405(a)]
FRE 404(a): evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show action in conformity therewith FRE 405(a): In all cases where a character is admissible, testimony as to reputation or by testimony in the form of an opinion. On cross (and only on cross), inquiry is allowable into relevant specific instances of conduct. -When bringing a W to testify as to his opinion you must lay the foundation: you need to show that the witness and the person the witness is giving an opinion about knew each other in order for the witness to have formed an opinion of the person's trait of character. -When bringing a W to testify as to Ds reputation you must lay the foundation: establish that the witness is a member of the same community of that person, this is different than having knowledge to form your own opinion. IN CRIMINAL PROCEEDING, OPENS THE DOOR character evidence not admissible to prove conduct on particular occasion except: o character of criminal defendant: defendant may offer evidence of pertinent trait permissible form: witness called who testifies as to reputation or opinion o may not be specific acts

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prosecution may offer rebuttal evidence of defendants same trait permissible form: witness called who testifies as to reputation or opinion may cross-examine witness including about specific acts if o good faith basis for believing defendant committed act; and o act is relevant to specific character trait testified to (must be within the scope of direct) o not allowed to put on extrinsic evidence of bad act, just ask if W says I dont believe G cant prove not allowed to use this rule to discuss Ds character. prosecution may offer evidence of pertinent trait if defendant offered evidence of same trait in victim under 404(a)(2) does not apply if defendant offers his evidence on other theory o e.g. theory that defendant feared great injury (BURKS) o character of crime victim: defendant may offer evidence of pertinent trait permissible form: witness called who testifies as to reputation or opinion o may not be specific acts prosecution may offer rebuttal evidence of victims same trait permissible form: witness called who testifies as to reputation or opinion may cross-examine witness including about specific acts (subject to rule good faith and scope of direct restrictions) prosecution may offer evidence of victims peacefulness in homicide case if defendant alleges victim was first aggressor EXCEPTION: trait of peacefulness of murder victim is allowable. This is a compromise bc the victim is dead and there is nobody to rebut self-defense o character of witness: see Impeachment (FRE 607, 608, 609) o civil cases: generally not permitted at all may be allowable where underlying conduct criminal in nature

(2) Character as Element of Charge, Claim, or Defense [FRE 405(b)] - character evidence rules relaxed when essential element of a charge, claim, or defense: o this is very rare in criminal cases: e.g., as prosecution rebuttal to defense of entrapment but note this is more likely to come in under 404(b) o is more common in civil cases: e.g., defamation, negligent entrustment, child custody, wrongful death - in such cases, proof of specific acts is admissible as is reputation and opinion testimony

(3) Prior Acts as Proof of Motive, Intent, Plan, and Related Points [FRE 404(b)]
FRE 404(b): circumstantial evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. this means that character evidence is admissible when it is not being used for a character related purpose (such as using character to prove conduct)i.e. it has another purpose instead. four-pronged analysis (HUDDLESTON) o judge decides if evidence offered for proper purpose o judge decides if evidence relevant for that purpose

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o judge resolves FRE 403 question (probative vs. unfair prejudice) o judge gives limiting instruction (on request) o does not require preliminary finding that act proved by preponderance conviction is not required to introduce prior act but acquittal is factor to be considered in 403 probative inquiry may still be admitted despite acquittal (DOWLING) instead this is 104(b) question for jury to decide by preponderance
elements that may be circumstantially proven through other acts: o preparation/intent: usually to rebut contention that act done unknowingly or innocently exclusion not required if defense stipulates (OLD CHIEF) frequently used to rebut entrapment defense introduce prior acts when lots of other things have been proved o knowledge o identity/signature: used to show common plan or scheme (modus operandi) similarities must be sufficient to permit inference of pattern o plan/design: to show grand design encompassing charged and uncharged offense not applicable where offenses merely similar and temporally proximate requires common objective. Each crime amounts to a step or a stage in executing the plan EX: D is arrested and charged with fraudulently using Vs CC. D has in her possession 5 other cards in Ds name as well as 20 other CCs and Drivers licenses in the name of people other than D or V. This unconvicted bad acts evidence is admissible to show that the particular act charged is part if Vs broader plan or scheme to fraudulently - collect and use CCs making it more likely that she did this crime. o motive, opportunity o absence of mistake or accident brides in the bath requires notice, if requested, prior to trial of general nature of evidence to be introduced o may be excused if good cause shown US V. HUDDLESTON (SUPREME COURT 1988) 1) Rules do not require a preliminary finding by the court that the G proved a prior bad act by the preponderance. Instead, the judge just makes a threshold decision of whether the evidence is probative of a material issue other than character 2) Admitting evidence of prior acts raises a question of relevance conditioned on a fact under FRE 104(b), which is for the jury to decide under the preponderance approach. By this approach, proof of a prior crime is relevant if the jury can reasonably conclude by a preponderance that the act occurred and was the actor. The judge plays merely a screening role in these cases. This decision is not binding on the states, and some states have placed the entire decision in the Judge and/or imposed a clear and convincing standard. (4) Character in Sex Offense Cases [FRE 412, 413, 414, 415] FRE 412 generally restricts evidence of sexual history of victim in civil and criminal cases: o reputation evidence generally barred o opinion evidence of past sexual behavior or predisposition generally barred o FRE 412(b)(1) in a criminal case, evidence of specific acts of sexual activity barred except: relevant to prove other person source of semen, injury, or other evidence acts committed with defendant relevant to prove consent to the act by the victim;

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where exclusion would violate Constitution o FRE 412(b)(2): in civil case, evidence of prior sexual acts or predisposition admissible if probative value of evidence of specific acts substantially outweigh danger of harm to victim and unfair prejudice to any party. Evidence of reputation of the alleged victim is only admissible if it is put in question by the alleged victim. 412(b)(2) differs from the general rule governing admissibility set forth in FRE 403 in 3 ways: (1) it reverses the usual procedure by shifting the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence (2) the standard expressed in (b)(2) is more stringent that then original rule; it raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers. (3) the rule 412 test puts "harm to the victim" on the scale in addition to prejudice to the parties. o 412(C):(1) a party offering evidence under (b)'s exceptions has to do the following 2 things: (A) file a written motion 14 days before trial stating the purpose for its offering; (B) serve the motion on all parties and notify the victim (2) before the evidence is admitted, the judge must conduct a hearing in camera affording all parties a right to attend & be heard. Motion, related papers, and record of hearing must be sealed. FRE 413 allows in criminal defendants other sexual assault offenses in present sexual assault case o admitted for its bearing on any matter to which it is relevant o term offense does not require convictionjust need evidence of his past commission of such an act. o Notice is required. FRE 414 allows in criminal defendants other child molestation offenses in child molestation case o admitted for its bearing on any matter to which it is relevant o term offense does not require convictionjust need evidence of his past commission of such an act. o Notice is required. FRE 415 simply applies FRE 413 & 414 to civil cases. Notice is required.

Habit and Routine Practice

Evidence of Habit Admissible to Prove Conformity on Particular Occasion [FRE 406] Evidence of the habit, eyewitness or not, is relevant to prove conduct conforming to the habit. - habit refers to regular response to a repeated situation o distinguished from character which is tendency to act a certain way habit is more specific than character o three factors to examine in distinguishing habit from character: specificity must be very specific. regularity ratio of reaction to situations must be fair number of specific instances must have sufficient uniformity of response unreflective behavior semiautomatic, requires no thought - generally is behavior that is reflex behavior or mechanistic

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applies to conduct of individuals (habit) and organizations (routine practice) Proof of specific instances known to W of adherence to the habit is the best. o Cts sometimes allow testimony of opinion that someone has habit but never reputation Routine Practice o Evidence of the routine practice of an org or institution is admissible o W must describe with Sufficient Specificity and have Personal Knowledge of practice o Testimony need not be given by the person who carries out the business practice so long as W has detailed personal knowledge o Business custom can prove the non-ocurrence of an act

Remedial Measures
Evidence of Subsequent Remedial Measures Inadmissible to Prove Fault [FRE 407]

Subsequent remedial measures = measures that, if previously taken, would have made the injury or harm less likely to occur. RULE 407: ~ you cant prove that someone took remedial measures following an accident in order to prove she was negligent or culpable for the accident, or in product liability cases that there was a defect in the products design, or a need for a warning or instruction. ~ Rationale: dont want to discourage pple from fixing the problem, and there are other reasons for why pple may take remedial measures subsequently. the policy of encouraging responsible behavior probably wont affect product liability cases bc only want to avoid high insurance costs or litigation. expressly excludes evidence of subsequent remedial measures to prove: o negligence o culpable conduct o product defect or design o need for warning or instruction

such evidence can be admitted for other purposes, including proof of: o (1) ownership or control when they open the door rebuts claim that they had no power to change the situation LOOK FOR OWNER-TENANT DISPUTES o (2) feasibility of precautionary measures if controverted feasibility different from advisability (TUER) they open the door first It couldnt be done It could have been done but it would have been unsafe It could be done but we made the judgment that it would not have worked as well (Tuer) Hypo: say someone sneaks into the pool area by climbing a fence and are injured in the pool. P argues that there should have been a better barrier D defends: its not possible to build a barrier that's impenetrable. P learns that after the accident, D did build an impenetrable fence. -

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 The ban of 407 will not apply. D cannot raise a defense that is fundamentally inconsistent with the subsequent remedial measures that have been taken. Evidence is admissible. o (3) Impeachment EX: at trial. s witness says it was safe to use this product in this way (the way used it when he was injured and the wants to introduce a notice that they put on the product saying it was not safe to use it in that way directly contradicting and thus impeaching the witness. Most cts have held that subsequent remedial measure evidence is not ordinarily admissible for impeachment if it is offered for simple contradiction of a defense witness' testimony. (TUER) otherwise would undercut purposes of FRE 407 Do not read impeachment exception in a broad manner. o Hypo A person owns a public pool. There is an accident caused by someone diving into the pool at a point where the water is too shallow. After the accident the owners paint signs of how deep the water is at different points around the pool. Could the P introduce the evidence of the painting of the signs? Short answer: NO evidence of subsequent remedial measures cannot be used to prove fault. How could the D defend this case that would make the evidence admissible? If D's defense was "it wasn't my responsibility," then P could use it to show that D believed they had responsibility. This is the classic impeachment. The D denies responsibility for keeping the pool in safe condition and then takes an action that shows they have responsibility for safety. Also shows control. The D had control to put up signs. In this situation, P is not using the evidence to suggest guiltiness (which is what the rule prohibits). TUER V. MCDONALD (MD CT APP 1997) P brought a med mal suit against hospital and surgeons after her husband died of cardiac arrest while awaiting surgery. After V's death, hospital changed its protocol with respect to discontinuing a drug that was given to patients with V's condition. D's made a motion in limine to exclude any reference to the change in protocol. (the subsequent remedial measure). P countered that: (a) the change was not a remedial measure b/c the defense claimed the prior protocol was correct; and (b) she was entitled to prove the change to show that continuing the medication was "feasible." Two views: (a) Narrow View of feasibility disallows evidence of subsequent remedial efforts under the feasibility exception unless the D has essentially contended that the measures were not physically, technologically or economically possible under the circumstances at the time. OR o Under this view, evidence not admissible when: D contends that the design or practice complained of was chosen b/c of its perceived comparative advantage over the alternative design or practice, or D merely asserts that the instructions or warnings given with a product were acceptable or adequate and does not suggest that additional or different instructions or warnings could not have been given, or D urges that the alternative would not have been effective to prevent the kind of accident that occurred

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 (b) Broad View Feasible means more than that which is merely possible, but includes that which is capable of being utilized successfully. In this case: the court holds that in a medical context, feasibility has to include more than mere physical possibility (adopts the narrow approach), b/c virtually anything can be done to the human body. The assertion that a given course would be unsafe, in the sense that it would likely cause paramount harm to the patient, necessarily does not constitute an assertion that the course would not be feasible. It was feasible, but, in their view, not advisable (among the possible options). Where a judgment call is at issue (as in this case), then choosing one option over the other is not a statement that one option is not feasible. As to impeachment, the statement should be read in context and should not be impeached by the change in protocol b/c his statement was one of judgement it was not definite enough and impeachment should be given a narrow reading.

Settlement Negotiation and Proof of Payment

INTRODUCTION

For policy reasons, rule 408-409 limit the use of offers to compromise in payments and settlement as proof of some kind of admission of wrongdoing. Similar to Rule 407 Evidence is admissible if it is relevant for another reason than to suggest an awareness of wrongdoing

SETTLEMENT NEGOTIATION

FRE 408 "Compromise and offers to compromise" Rule 408 is inapplicable when compromise evidence is offered for a purpose other than to prove the validity, invalidity, or amount for a disputed claim Rule 408 bars proof of civil settlements, offers to settle, and conduct or statements made during settlement negotiations, when offered to prove liability for or invalidity of the claim or its amount. BUT, the key is to determine whether there is really a claim that is being settled or something less. Hypo: while driving in a car, plaintiff and passenger are struck by a car driven by D, causing injuries all around. Plaintiff and passenger sue, but Passenger settles, while Plaintiffs claim goes forward. Can Plaintiff seek to prove that D was negligent by offering proof that he paid passenger money to settle his claim? If D calls passenger as a witness, can plaintiff cross examine passenger on the fact of settlement? For what purpose? Evidence cannot be offered if the purpose is to prove fault. But, if and only if, the other person in the car appears as a witness on behalf of D, then P can (on cross you can bring out specific acts) bring out that witness received money. Because it goes to prove bias/untruthfulness. Hypo: potato farmer purchased a herbicide from a salesman (the herbicide was made by Cheron Chemical). Famer applies herbicide and his crop yield is negatively affected. Farmer gets the salesman to say you just tell us the damages and well get Cheron to pay. The statements that the company will pay for the farmer's damages are admissible under rule 408 the claim was never in dispute as to validity or amount. There was no claim at the time the statements were made. They were not made to compromise the claim. So, the statements can be used to prove liability.

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Important: a settlement only occurs (1) after there is a clear claim in dispute as between the parties; and (2) when the parties actually resolve the disputed claim. In this case, the farmer did not indicate that he had a claim against Cheron and the salesman was not seeking a settlement of any claim against Cheron.

PROOF OF PAYMENT OF MEDICAL EXPENSES

FRE 409 "Payment of Medical and Similar Expenses "Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury." Provision is useful in making it possible for an insurance carrier, which anticipates both liability and a possible dispute over amount, to advance sums necessary to compensate the claimant while still maintaining the position that it is not liable for the full amount claimed. Difference between 408 & 409 408 excludes not only settlement offers, but conduct or statements made in compromise negotiations 409 excludes only furnishing or offering or promising to pay medical and similar expenses (not statements or conduct) Difference suggests that statements accompanying an offer to pay medical expenses might not be excludable under 409, although such statements would be excludable if the context suggests that the parties were trying to settle the case.

PROOF OF INSURANCE COVERAGE

FRE 411 "Liability Insurance" Evidence not admissible to prove whether the person acted negligently or otherwise wrongly Admissible for another purpose, such as proof of agency, ownership, or control, or bias, or prejudice of a witness. Supports the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds. Rule drafted broadly to include contributory negligence or other fault of a P as well as fault of a D.

III. HEARSAY
Step 1: Hearsay by definition under FRE 801? Step 2: Non-hearsay use under FRE 801(d)? Step 3: Admissible b/c of hearsay exception under FRE 803, 804, or 807?

Reasons to Exclude Hearsay: 1. absence of cross-examination

a. Out of court statements are not subject to this truth-testing technique.

2. absence of demeanor evidence

a. The out of court declarant is not under the gaze of the trier of fact, at least at the time he speaks, so the trier lacks those impressions and clues which voice, inflection, expression, and appearance convey.
3. absence of the oath

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Hearsay Risks: 1. misperception 2. faulty memory 3. ambiguity (misstatement or faulty narration) 4. insincerity and distortion (conscious or unconscious)

A. DEFINING HEARSAY
FRE 801(c) Definition: Basically, an (1) out of court (2) statement or assertive conduct that is (3) offered to prove the truth of the matter asserted.

"Offered to prove the truth of the matter asserted" "Offered for the purpose of proving that the matter asserted is true" "Offered for a purpose that depends on a statement being true"

(a) A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

Oral assertion; or Written assertion; or Conduct intended as an assertion the judge makes the determination whether the declarant made an assertion under FRCP 104(a). (b) A "declarant" is a person who makes a statement. Out-of-court statement is any statement except one made by a witness during the trial while testifying before the trier of fact; includes prior statements by the witness made at a deposition or at an earlier trial

Was there a statement or assertive conduct?

Assertive Conduct 1. FRE 801(a) A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. 2. Intentionality requirement codified under modern and Federal rules; reversal of common law ruling in WRIGHT v. DOE (which embraced extremely broad definition of hearsay); statements/conduct not intended as assertions will never be hearsay

a. Conduct is assertive if it is intended to communicate something. 3. Nonassertive conduct includes visible psychological, physical and emotional reaction of a person
which may suggest something about what happened (GWINN mugbook) a. Wright v. Doe d. Tatham 1837 , held conduct no different than an oral statement as long as said conduct is conducted with the intent to make an assertion. b. 104(a): Judge decides if the conduct was meant to assert something 4. Hypo: Higgins (H) is on trial for robbery. The State calls Lissner (L) to the stand. Lissner overheard three individuals make separate statements, and State wants L to testify to this effect. a. Statement by Sirchev (S): "That fellow Higgins went out of here carrying money bags." This statement is only relevant if the fact finder believes the Declarant was telling the truth (i.e. the fact finder must determine both (a) that S had this belief; and (b) this belief reflected reality). So, its relevance depends on proving the truth of the matter asserted (believing the truth of the belief that was asserted). b. Statement by Oblique (O): "They ought to put Higgins in jail for this, and throw away the key." Why is this a use that depends on the truth of the matter asserted?

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Only if the belief is true does it help the prosecutors case (i.e. the fact finder must determine both (a) that O had this belief; and (b) this belief reflected reality). ii. The belief must be true and accurate for the statement to be relevant iii. Not relevant unless what O says reflects what he actually believes and reflects reality. 5. Hypo: truck blocks a sportscar's view of a light & approaching traffic at an intersection. The truck rolls forward. Then the sportscar (SC) drives thru the intersection and gets hit by H. A suit follows with the main issue as to whether the light was green when SC went thru it. a. The roll forward is not hearsay, it was not intended as an assertion. Without an assertion, there is no hearsay. The only way to have an assertion is to make the truck's action seem communicative to SC. 6. Hypo: A boat sinks at sea for reasons difficult to determine. On one side of the lawsuit is a negligence theory. On the other is the argument that the boat was not seaworthy. a. Evidence at issue: a witness saw the Captain inspect the boat and then load his family on the boat. Under the FRE, this is clearly not hearsay because there is no intentioned assertion. We are making an inference based on what the captain did. The inference is relevant on a point to be proved in the case, but was not meant as an assertion. EVIDENCE OF NON COMPLAINT 7. Evidence of noncompliant (aka negative hearsay) is usually admitted over a hearsay objection a. Cain v. George (US CoA 5th Cir)(1969): P's are people who stayed in D's motel and their son died of carbon monoxide poisoning during their stay. P's argued that the heater was improperly installed and vented and had never been inspected or cleaned. P's argue that the trial court erred in allowing in evidence of the testimony of motel owners of the number of people who stayed in that room without complaints. i. Ct says: testimony was relevant that carbon monoxide came from the smoldering chair and clothes and not from the heater. It related the knowledge of the motel owners of whether anyone was ever harmed by the heater. ii. Not hearsay b/c it derived value from the credit to be given to the witnesses themselves (motel owners) and not dependent on the veracity or competency of other persons who did not make any assertive comment or gesture (not making complaints is not an assertion b/c it is nopt intended to be communicative). INDIRECT HEARSAY

i.

1. Info developed for background usually admissible (birthplace and lack of personal knowledge
under FRE 602). But courts will not consider this hearsay, these are problems with the "personal knowledge" of the witness. FRE 602 (every witness must be shown to have personal knowledge of the facts to which she testified). Hearsay requires that the witness testify as to a verbal or assertive non-verbal declaration of another. If the background information is central to the case (contested and substantial points in the case), then such testimony might be considered in-direct hearsay. a. US v. Check (CoA 2nd Cir)(1978) Spinelli (good cop) was investigating Check (a bad cop), D, for dealing coke. Spinelli had an undercover informant who refused to testify in court. i. The prosecutor attempted to circumvent the hearsay rules by asking S to tell what S only said during his conversation with the informant about the sidewalk conversation, but not testify to what anyone else said. S testifies to what S said, in response to what informant said that D said. The informant is not the direct declarant (if so, then direct hearsay); instead, D is the declarant, but S testifies as

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to what the S says, which implies what informant said about what D said (indirect hearsay). ii. Holding: significant portions of S's testimony were hearsay. This device is improper. WHEN WITNESS AND DECLARANT ARE THE SAME PERSON

Hearsay to testify to what you previously said out of court. There may be an exception to this, but you still have to deal with the hearsay rule. Hypo: witness is a bystander at a car accident. When testifying, the witness says "just like I told the guy at the scene 'the blue car ran the red light'"= Hearsay. MACHINES AND ANIMALS CAN SPEAK

Machine statement 1: Witness testifies that he arrived at the store at 11:45 pm because he looked at his watch upon arrival, then this information is not considered hearsay technically, hearsay, but not significant enough. Machine statement 2: Witness testifies that he knew that the price was $47.50 because he entered relevant info into his Instaquote computer and the computer printed out a quote as such, then this will be considered hearsay people have placed all of this data into the computer. Animal statement 1: dog is discovered at a burglary site (PO believe that it was left by the burglar). The dog is surely to all people for 2 days until the PO bring in the burglary suspect, where the dog leaps up and warmly embraces the suspect this is not hearsay. The dog was not making an assertive statement. FRE 801 applies only to people. Animal statement 2: dog alerts an airport PO that a certain bag contains contraband. Courts are split (some hold hearsay, some argue that hearsay rule is not applicable because none of the risks of hearsay are implicated, see above). GREY AREA: (1) If O offered the the following statement (included in his diary) as evidence: If I dont take part in the robbery, they are going to kill me. Os statement will only be considered hearsay if the trier of fact is asked to (a) determine whether O truly believed this statement when he made it; and (b) this belief accurately reflects reality. If the trier of fact is asked only whether O believed that this statement when he made it, then this statement is not hearsay. (2) Committee Notes: Verbal conduct which is asserted but offered as a basis for inferring something other than the matter asserted is also excluded from the definition of hearsay by the language of subdivision (c). (3) Implied Assertions

These are assertions offered for what they suggest about unstated beliefs/assumptions. Hypo: if As statement that I need to put on a sweater is offered to prove that A believed the room was cold when the statement was made, then it can be argued that the statement was not an assertion that he believed the room was cold. Also, the statement would not be hearsay if offered to prove the room was cold because this statement is verbal conduct which is asserted but offered as a basis for inferring something other than the matter asserted. However, if the statement is this place is a great place for polar bears, then it is likely that declarant meant to say this place is cold. (4) PERFORMATIVE V. ASSERTION:

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US v. Singer (US Ct of Appeals, 8th Cir. 1983) 2 men prosecuted for drug offenses (Sazenski and Izquierdo). Apparently Izquiredo is using an alias of Carlos Almaden. Evidence = envelope addressed to Sazenski and Carlos Almaden w/ address of 600 Wilshire. If offered to prove that Ds lived @ that address, then Hearsay (because the evidence would be offered to prove the matter being asserted, where they lived), BUT in this case, the letter is being admitted to prove that Ds lived at that location because the landlord mailed the letter there. Therefore, the letter is not offered to prove the matter asserted, it is merely offered as circumstantial evidence to help support the claim that said letter was mailed (the performative aspect). So, a court must determine whether the statement is offered to support the performance of some act or offered to prove the truth of the matter asserted in said statement. Hypo: A lies to PO, saying My husband is in Denver (knowing the husband is hiding in the house). Issue is whether this statement is offered to prove the matter asserted or to offer it as an independent act of legal significance. Because she may subject herself to criminal liability by lying to PO, this is a legal act (non-hearsay and admissible), but some courts hold that the statement may be introduced because the statement is being offered for the absence of truth, which is the same this as offering it for its truth. Most courts hold lying to be nonhearsay.

(5) STATEMENTS PROVING MATTERS ASSUMED:

US. v. Pacelli: D's wife gathered people together. Lipsky (L), who attended this gathering, wants to testify to what everyone said. People talked about the killing that D allegedly did, and how it was bungled. The group tells L to go to Florida and give him money to go. o Offering the money is not assertive conduct. Even if this is mixed assertion/conduct, the plan was put in motion thru conduct (like Singer). Thus, this is not hearsay o Statements about the killing: in-direct hearsay. The statements were not in this form: D commited the act, but the statements were structured as such that an assertion that D committed the act could be implied. Statements need not be in typical declarative form if it obvious what the declarant is trying to say. For instance, Polar bears could live here obviously is a statement indicating that the declarant thinks that the room is cold. Recal that this statement could be offered to prove that the room was cold, but it could not be offered to prove that the declarant thought that the room was cold. Betts v. Betts: Proceeding for child custody. Mom and Dad divorce. Mom marries another man, and Daughter is placed with foster mom (after the suspicious death of daughters brother). Declarant = Daughter; Witness = foster mom. Statement: he (step father) killed my brother and hell kill my mommie too! o Dad's argument that the statement is not hearsay (i.e. he wants the statement admitted b/c he wants to get the child, wants to show that the Mom and step-father are unfit): (1) Statement not offered to show the truth, but that the daughter believe it; (2) Statement is offered for a reason not dependent on truth. o Not hearsay it is offered as circumstantial evidence of the state of the childs mind, not the truthfulness of the statement. The purpose of the statement to the proponents case was to establish the mental state of the child rather than prove the truth of the matter asserted. Such a finding should also resolve the FRE 403 matter (i.e. is the relevance of this statement substantially outweighed by the risk of unfair prejudice to the father in this case, the father was not being sued).

Is it offered to prove the truth of the matter asserted?

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Not Hearsay uses: (1) Non-assertive Conduct

E.g. Sea Captain

(2) Assertions offered for a reason Not Dependent on Truth (offered for purposes other than proving what it asserts):
Impeachment Verbal Act Effect on Listener/Reader Verbal Object Circumstantial Evidence of State of Mind Circumstantial Evidence of Memory/Belief

(1) Impeachment a. Prior inconsistent statements are not hearsay when offered to impeach. Judge can give limiting instruction (consider for credibility, not for its truth) but many jx allow for proof of what it asserts because juries have a hard time separating. b. If the statement is being used to show that the witness is not credible, then it is not being offered for its truth. (2) Verbal Acts (or parts of acts) a. Statements with independent legal significance are not hearsay. Operative acts giving rise to legal consequences (e.g., solicitation of prostitute the statement is the crime. Includes parts of acts words accompanying ambiguous physical acts ( this is your corn while pointing transferal of interest in property takes place by language). b. Issue: Do you have to believe the speaker, or does the saying of the statement have the legal effect? c. Examples: i. Defamation suit: P sues D for defamation. W says I heard D call P a crook. There is legal significance P cant recover unless he shows D said it. Verbal act. ii. Breach of K suit W testifies to hearing an exchange Ill paint your portrait. Ok Ill come by tomorrow - offer and acceptance. iii. Gift: X dies. Estate wants watch. D- X told me this watch is a gift to you not hearsay. iv. State of Mind look for pattern where knowledge, belief, intent are at issue. 1. Criminal State of Mind - D asked me if he could lawfully take a raise and I said yes To show thought the rules permitted he was allowed. 2. Criminal Belief - W- at academy, instructor told us that the Sure-shot is accurate up to .5mi - to show believed the gun would be accurate.

Hypo: Case where H & W die from the same car accident. Litigation ensues to determine how the will assets should be distributed & the parties must try to determine who died first. Bystander who ran to the car to see if anything can be done testifies that he heard a weak female voice say "I'm still alive in here." Offered to prove that W was alive and not H. Objection! hearsay: out of court statement offered to prove the matter asserted (that she's alive). i. Its not what she says, but that she can speak. It proves W is alive without having to rely on the truthfulness or credibility of the statement. So, none of the risks of hearsay are

d.

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implicated i.e. there would be no need to have the delarent placed under oath or have the statement subject to cross-examination, ect. (3) Effect on Listener or Reader a. Statements offered to show effect on listener/reader (e.g., that listener/reader was put on notice, had certain knowledge, had certain emotion, or behaved reasonably). b. Not hearsay when offered to prove whether the listener/reader reasonably believed the statement to be true. c. Does not matter whether the statement was true. d. Matters only what the hearer reasonably believed to be true. e. Relevant for the effect it has on the listener. f. Hypo: P was told by JF that he was from the gas company so he stood close to him when he lit a cigarette near an open gas line and caused an explosion which injured P. P sues the gas company for negligence, and the gas company claims that P was contributory negligent. Issue: whether P reasonably relied on the statement by JF (his action was therefore non-negligent). i. The statement is not hearsay B/c not offered for a hearsay purpose (we are not trying to establish the truthfulness of JFs statement). ii. Offered to prove whether the P (the listner) reasonably believed the statement to be true. iii. So, the statement is only relevant for its effect on the listner and not relevant for the truth of the matter asserted. (4) Verbal Objects a. Book of matches isnt hearsay not an assertion, but a statement by whoever manufactured the matches under FRE 401, relevant because has tendency to show that he had been at that bar. Circumstantial Probability. E.g., writings on a mug. (5) Circumstantial Evidence of State of Mind, Memory, or Belief Statements offered to show the state of mind of the declarant (e.g., declarants knowledge or sanity)

~ Hypo: The will is being offered to prove that W had no affection for H from which H
would expect a financial benefit. Offered to show what Anna believed to be true. i. The statements were concerning Hs acts of cruelty, but the statement was not being offered to prove that these acts occurred. If the statement was offered to: (a) prove that events described therein occurred hearsay. If the statements of cruelty are offered to prove that W believes that H is not deserving of any $ via will, then the statement is not being offered to prove the matter asserted b/c this was not information asserted in her statement. The fact finder must be asked to (a) determine whether W believed the statement; and (b) whether the statement reflects reality. The fact finder was not asked to consider (b) they were asked only about her belief. The same conclusion is reached if Ws statement is offered only to show that the statement was made. Hypo: if the declarant stated I am the king of mars, and petitioner claimed that this statement (that he repeats in court) proves that declarant is insane, then this statement will be admitted (not hearsay) b/c it does not depend on the truthfulness of the statement. The statement is not asserted for the meaning in which it is usedi.e. it is offered regardless of its truth not because of its truth. The statement is not offered to prove that declarant is the king of mars. The statement is merely circumstantial evidence that declarant is

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insane. BUT, if the statement I think I am the king of mars is offered to prove that the declarant thought he was the king of mars hearsay. If the statement I am the king of mars is offered to prove that the declarant (a) thinks he is from mars; and/or (b) is insane for this belief non-hearsay b/c statement is merely circumstantial evidence of his insanity. Hypo: Statement = what Sharon (S) said about the appearance of the room where she was raped. Hearsay if it was offered to prove that the room was like she said it was. In this case, the statement is offered to prove that S was in a particular room b/c it describes a very unique room. Theory = had she never been there, she wouldn't be able to describe the room (b/c of her age). i. Her statement is persuasive b/c of the detail of the memory and her ability to say this at all! Pros offering it to prove that she has been exposed to the room, the ability to talk about it tends to prove that she has seen it. This is circumstantial evidence of memory and is not hearsay b/c the fact finder is asked only to determine whether S had this belief (the belief is enough to suggest that she might have been there) not whether the belief reflects reality (i.e. whether the room truly was arranged as she believed it was arranaged).

B. HEARSAY EXCEPTIONS
Introduction to the Hearsay Exceptions The hearsay exceptions will admit statements even though they are offered to prove the truth of the matter asserted in other words, you apply the hearsay exceptions only after you have decided that the statement is hearsay. 4 Major Groupings of Hearsay Exceptions The 801(d) Exceptions: Prior Consistent Statements Prior (In)Consistent Statements Statements of Identification Admissions By Individual (used by opposing counsel) Adoptive and Agent Admissions The 803 Exceptions (unrestricted exceptions b/c the declarants statement is admissible regardless of whether testifies or could testify at trial). Present Sense Excited Utterance State of Mind Statements for Medical Purposes Past Recollection Recorded Business Records Public Records Learned Treatises The 804 Exceptions (exceptions only apply if the declarant is unavailable to testify at trial) Unavailability as a Witness Former Testimony Dying Declaration Statements Against Interest Forfeiture The 807 exceptions (the catchall exceptions): This exception reaches other reliable hearsay that does not fit into any of the above categories.

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Prior Statements by Testifying Declarant Defined as Not Hearsay FRE 801(d) (1)
Summary: Prior statement is not hearsay if: 1. declarant testifies at trial or hearing, and 2. declarant is subject to cross-examination concerning the statement, and 3. statement is (A) inconsistent with the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or (B) consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person. Substantive use of such statements is permitted. (1) Prior Inconsistent Statements [FRE 801(d)(1)(A)] ~ witness must now be cross-examinable concerning the prior statement ~ statement must be inconsistent with present testimony i. may not require diametrical opposition; may also include evasive answers, memory loss, silence ii. Court rules on feigned memory loss, which is considered inconsistent ~ statement must have been made under oath in prior proceeding or deposition i. generally refers to trial, preliminary hearing, grand jury proceeding ii. open question on affidavits and formal police interrogation (SMITH) 1. reliability is key in these fact-specific inquiries 2. original purpose of sworn statement also relevant 3. BUT Congress prob didnt intend and most federal cts exclude iii. informal oral statements not included ~ Check to see if qualifies as an admission. ~ can be used to impeach, sometimes also as substantive evidence ~ limited list of venues means statement will likely be recorded. Amnesia if G wants to bring prior inconsistent and W forgets, will say (1) not inconsistent (2) XE requirement cannot be satisfied. Scalia - should argue how can you trust him?

STATE V. SMITH (WA 1982) The relevant present statement by Conlin = live testimony at trial = that her attacker is Mr. Gomez.The prior statement = A statement to police that the D was her assailant. Pros doesn't use the prior statement for impeachment purposes (this is because the impeachment process tries to show that she wasn't telling the truth at either occasion). Prosecutor is seeking to show that what she said before is the truth. So, the pros wants the prior statement to be admitted and used for its truth. Pros argues that the prior statement is a truth admissible statement under 801(d)(1)(A). Statement fits criteria b/c: Declarant testifies; Is subject to cross examination; The statement is inconsistent; Its given under oath; But, what about the "trial, hearing, other proceeding, or at a deposition" element? When determining what "Other Proceeding" means, look at this on a case-by-case basis where reliability is the key. Could be argued that a "proceeding" indicates the legal system. The perspectives of the police and the legal system are different. When the context moves into the legal system, the risk of coercion in minimized.

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Ct. holds that hooker police station affidavit against pimp counts as other proceeding because it was under oath and was taken as standard procedure in one of the 4 legal methods for determining the existence of probable cause (original purpose). Hypo: A witness (W) gives testimony to the grand jury and says "I did it with other people." Then at the trial of one of these other people, W won't give testimony (claims amnesia). Pros wants to show the G/J transcript to the trial jury. D objects: hearsay. D makes 2 arguments that the statement does not fit the prior inconsistent statement exception: (1) The statements are not inconsistent; and (2) The witness is not subject to cross examination Its not unusual for the witness's statements to be slightly different. Witnesses remember new things and forget some old things. This is not inconsistent. (1) The 7th Circuit doesn't define inconsistent statements to be only opposing or incompatible statements. The memory loss is a significant change of position and there lies the inconsistency. Conclusion: most likely it's inconsistent & the declarant is subject to cross concerning the statement enough to satisfy the exception.

(2) Prior Consistent Statements [FRE 801(d)(1)(B)] ~ witness must be cross-examinable concerning the prior statement ~ statement must be consistent with present testimony ~ must be offered to rebut charge of recent fabrication or improper motive i. includes express and implied charges of fabrication/motive ii. rebuts only if the statement uttered before influence of motive (TOME) 1. otherwise is considered bolstering 2. but may still be admissible under 807 (catch-all) a. look to policy + relevance + context iii. An improper influence or motive is where Party A testifies that Party B was driving within the speed limit both at pre-trial and at the actual trial but later admits that B threatened her life (improper influence or motive) if she testified against him. A prior consistency tends to rebut an attack by Pros only if uttered before the supposed influence or motive came into play. Only if the prior statement came before the improper influence can we say that the witnesss second statement and first statement are consistent and free from influence or motive. iv. unclear whether statements made after influence of motive cannot be admitted at all or just cannot be given substantive effect (i.e., usable for rehabilitation of W impeached for something other than credibility)

TOME V. US (S. Ct 1995) Girl wants mom, says dad abuses. Preexisting motive excludes her PCS. If a PCS is offered for its truth, FRE 801(d)(1)(B) permits that use ONLY to rebut a claim of recent fabrication or improper motive And (ii) the PCS must have been made BEFORE the motive to fabricate arose (even though the text of the rule does not contain a pre-motive requirement)

(3) Prior Statements of Identification [FRE 801(d)(1)(C)] Application notes: ~ witness must be cross-examinable concerning the prior statement ~ must be a statement of identification of a person i. May go further to voice or pictures (AYALA) or even clothes in some jx ii. In Motta, the declarant was the person who created the work, but the sketch artist does not need to be present. The person directing the sketch artist needs to testify (subject to cross examination). ~ statement must be made by witness after perceiving the subject

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i. Most are photo IDs or police lineups ii. NO postindictment lineups where is denied counsel (Wade-Gilbert doctrine) iii. police sketches subject to different views: (MOTTA) 1. not hearsay (because not a statement) 2. hearsay but admissible under exceptions (e.g. res gestae)
a. sudden ID as corroborative but not substantive evidence 3. not hearsay by 801(d)(1)(C) (prior identification exception) a. allows use as substantive evidence b. may require cross-examinability of eyewitness and police artist CT: Common scenario is W is asked to id the perp, she says she cant bc his appearance is different - Admissible. can be offered for truth as substantive evidence

STATE V. MOTTA (HI 1983): Witness was a coffee shop clerk robbed @ gunpoint. Witness identified a sketch as looking like D. Witness confirmed the ID at a preliminary hearing and later at trial. D claims that the sketch was inadmissible hearsay. Court finds the sketch hearsay (it is an out of court statement made to prove what the suspect looked like), but the exception allows these admissions of prior identification.

Admissions by Party Opponent Defined as Not Hearsay FRE 801(d)(2)

Admission by party: party makes affirmative admission. Adoptive admission: a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person. o If A ran a red light and hit B, and B later says you ran that red light, huh. If B either (a) says nothing when a reasonable person would have said something; or (b) says something like youre right I did, then adoptive admission. Authorized statement: like a statement on As behalf from As lawyer. Agent/Employee: a statement by an agent or employee within the scope of his agency or employment is an admission of the employer or principle. Co-conspirator statement: must be during and in furtherance of the conspiracy. DIFF between declaration against interest and an admission: o Declaration against interest must be against declarants interest at the time it was made and applies only when the declarant is unavailable (both rules not applicable to admissions) o Declaration against interest may be entered into evidence by the party who made it,

Summary: Prior statement is not hearsay if: 1. offered against a party and 2. statement is (A) the partys own statement, in either an individual or representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

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3. the contents of the statement shall be considered but are not alone sufficient to establish the
declarants authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E) other law is needed to determine whether the statement is an admission. 4. distinguished from declaration against interest [FRE 804(b)(3)] because admission need not be against declarants interest at time it is made. Substantive use of such statements is permitted. Allows statements including opinion or conclusion of law, and even where not based on first-hand knowledge. Even if jumping to conclusions, you are responsible for what you say. a. What you say can be used against you. Even in circumstances in which you don't know what you're talking about. Even when you wouldn't be allowed to testify as a live witness. What you say out-of-court will always be admissible as a party-opponent statement. M: if you're lips are moving, it will be a party admission. (1) Individual Admissions [FRE 801(d)(2)(A)] FRE 801(d)(2)(A): Allows the party's own statement, in either an individual or a representative capacity.

~ ~

~ generally does not require declarant to have had personal knowledge ~ carries no against interest requirement [as exception FRE 804(b)(3) does] i. denials of wrongdoing can fall within the exception (MEYER) ~ Confrontation Clause prohibits use of spillover confession against co- in criminal case.
(BRUTON) i. redaction of references to co-defendant can cure statement (BRUTON, GARY) ii. unclear how spillover prejudice plays out in civil case 1. Limiting instruction probably allowed. 2. cts are overcrowded - judge will probably rely on limiting instruction 3. no Confrontation Clause issue here (6th does not apply). iii. limiting instr to jury in Civil Case: that decision must balance protection w/ state alternatives 1. jury will probably consider it to some degree nonetheless 2. not expressly mentioned = jury more likely to follow instr (MARSH) 5th Am bars involuntary confessions only if a state agent plays active role (CONNELLY) i. Confessions of severely incapacitated or injured are often excluded exclude if declarant is conclusively incapacitated from making a rational admission, as where he was at the time in a coma (AIDE) guilty pleas are usually admitted in damage suit arising from the incident (civil suit), but some states exclude traffic infraction pleas. Admit in fed case if state would exclude. i. Inadmissible if the plea never occurs or is withdrawn ii. Plea Discussions must be with prosecutor not police iii. Collateral admissions inadmissible iv. No contest please not admissible (not a statement one way or the other).

~ ~ ~

BRUTON V. US (S. Ct 1968) Trial of Bruton and Evans for armed postal robbery. At trial, Brutons admission that they both committed the crime was admitted against Evans. But, judge instructed jury not to consider it against B b/c it was hearsay (holding that a limiting instruction is enough to protect 1 D when another's confession is introduced). SCOTUS rejects this reasoning and holds that a jury cannot be trusted to ignore a confession that is inadmissible hearsay once they have heard it violates 6th Am Confrontation Clause. Alternative options: separate trials, redaction, leaving out the statement if G case strong enough, 2 juries and 1 trial.

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(2) Adoptive Admissions [FRE 801(d)(2)(B)] FRE 801(d)(2)(B): Allows a statement of which the party has manifested an adoption or belief in its truth. ~ It should be made to appear that: i. (a) the party heard the statement; ii. (b) the matter asserted was within his knowledge; and iii. (c) the occasion and nature of the statement were such that he would likely have replied if he did not mean to accept what was said iv. Even if these conditions are satisfied, the statement should be excluded if it appears that: 1. (d) the party did not understand the statement or its significance; 2. (e) some physical or psychological factor explains the lack of reply; 3. (f) the speaker was someone whom the party would likely ignore, or 4. (g) the silence came in response to questioning or comments by a law enforcement officer during custodial interrogation after Miranda warnings have been or should have been given ~ whether party adopted statement is 104(a) question ~ real and knowing test question is whether partys conduct justifies concluding that he knowingly agreed with other persons statement ~ Tacit Admissions: silence in face of statement/writing may indicate adoption: i. appropriate test is totality of circumstances and whether party would have likely replied if he did not mean to accept statement (HOOSIER) ii. in criminal case, silence while in custody post-Miranda is not adoption and cannot be used substantively or for impeachment (DOYLE) 1. this does not apply pre-Miranda warnings (JENKINS) ~ non-answers similarly depend on circumstances. FRE 104(a) determines admissibility i. balance jury confusion and prejudice Tacit Admissions Doctrine Minimum Requirements: Party heard the statement Knowledge of the matter asserted The occasion and nature of the statement were such that he would have likely replied if he didnt mean to accept what was said Exclude if phys or psych factor explains silence party would likely ignore speaker the silence came in response to questioning or comments by a law enforcement officer during custodial interrogation and Miranda warnings have or should have been given.

US V. HOOSIER (6th Cir 1976)- Silence in face of GF comments on price of ring considered adopted statement, admissible as substantive evidence.

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DOYLE V. OHIO (S. Ct 1976) - s silence post-Miranda offered to impeach credibility when he offered exculpatory story, not as substantive evidence of guilt. Court finds violation of 14th Am Due Process Clause. (3) Admissions by Speaking Agents [FRE 801(d)(2)(C)] FRE 801(d)(2)(C): Allows a statement by a person authorized by the party to make a statement concerning the subject. ~ often such statements are not offered for hearsay purpose (hence are verbal acts) i. such words commit the principal and are evidence to prove the commitment ~ bootstrapping problem: Although a trial court can consider the contents of a statement to determine whether it satisfies the requirements of Rule 801(d)(2), the statement itself can not be the only evidence of authority (this would be bootstrapping under Boujaily). ~ pleadings and interrogatories generally admissible against the person who filed them ~ Hypo: Child was run over by school bus driver while passing in front of the bus. The parents of said child bring suit against the bus driver, and then later add a second count against a bus seller: the mirrors on the vehicle were so positioned that a full and complete view of the area within its path was not discernible by someone seated in the drivers seat. The company got summary judgment because bus company could prove that they did not sell or make the bus (another bus company did). The bus driver wants to use this pleading (as quoted above) as a party-opponent statement against the plaintiffs. ~ Ps lawyer is authorized by the party to make a statement concerning the subject matter (an agent of the plaintiff) so, statement (although hearsay) is admissible under 801(d) (2)(C) (4) Admissions by Employees and Agents [FRE 801(d)(2)(D)] FRE 801(d)(2)(D): Allows a statement by the partys agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. ~ does not require declarant to have had personal knowledge (MAHLANDT) ~ no requirement of intent to tell 3rd party (in-house statements not excluded) i. email gets in if author is speaking about matters within the scope of her employ and can qualify as adoptive admission if forwarded (SEA-LAND SERVICE) ~ often multiple or layered hearsay - all in if made w/in scope of employment (FRE 805) ~ FRE 805 "Hearsay within Hearsay" 1. "Hearsay included within hearsay is not excludable under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." 2. Admissible if each statement must fit an exception. a. For example: A testifies as to what he heard B say that C said. Said testimony is admissible as long as the B statement and the C statement fit within a hearsay exception (the same or different). ~ may not cover independent contractors (but 801(d)(2)(B) sometimes may if agreement to that affect) ~ bootstrapping problem: stmt itself cannot be only evidence of acting within the scope ~ statements by public EEs not admissible against government ~ Problem of Coincidence: to determine admissibility and respondeat superior liability i. Resort to FRE 104(a) 1. there may be a rule of law to be applied 2. risk of prejudice may be so powerful on liability that jury wont disregard if the statement fails to meet evidentiary standard. Balance.

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MAHLANDT V. WILD CANID SURVIVAL & RESEARCH CENTER (8th Cir 1978) wants in three statements re: wolf bite (1) note on door from EE to ER (2) verbal statement from EE to ER (3) minutes of ER board meeting (EE not there). 1 & 2 in against EE (under 801(d)(2)(A)), ER (801(d)(2)(D)). 3 in against ER (801(d)(2)(C) Directors are hired to speak on behalf of the company being sued) but no agency rel to get in against EE - Agency only works in one direction Principle/employer may be held accountable for admission by agent/employee (if in scope of agency/employment), but agent/employee cannot be held accountable for admission by principle/employer. (5) Coconspirator Statements [FRE 801(d)(2)(E)] FRE 801(d)(2)(E): Allows a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. ~ three requirements: i. coventurer declarant and defendant conspired ii. pendency statement made during course of conspiracy (does not reach statements made before or after) iii. furtherance statement made in furtherance thereof (requirement weakly applied) ~ judge decides preliminary issue of these requirements by preponderance (BOURJAILY) ~ bootstrapping problem: statement itself can not be only evidence of conspiracy or membership of declarant or party against whom offered ~ doesnt require defendant be charged w/ conspiracy i. usually is just in conspiracy cases (difficulty of proof, usu circumstantial) ii. civil cases too use 1 against 2 in antitrust, conspiracy to violate IP rights ~ conduct of co-conspirators also vicariously attributable if meet furtherance, pendency BOURJAILY V. UNITED STATES (S. CT 1987): Judge decides pursuant to FRE 104(a) whether the three reqts are satisfied by a preponderance (preliminary factual matters decided by Judge). Court may look to the statement itself as part of the foundation of its admissibility, as long as that statement isnt the whole of it.

Availability of Declarant Immaterial (Unrestricted Exceptions) FRE 803

Summary:

~ FRE 803: most apply regardless of declarant availability to testify. ~ 2 exceptions fall outside this pattern i. FRE 803(5) allows statements of past recollection recorded only if declarant testifies and ~
lays a foundation) ii. FRE 308(18) allows learned treatises only if an expert testifies as a witness res gestae: Things that happened expresses the notion that the relationship between the event and statement was so close that there was no time to lie or forget.

(1) Present Sense Impression (res gestae) [FRE 803(1)]

~ Elements: (1) A statement (2) Describing or explaining an event or condition (3) Made while the declarant was perceiving the event or condition or immediately thereafter

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~ ~ ~ ~ ~ ~ ~ ~

Declarant need not be available to testify. immediacy is the critical element (must be made while or right after perception) statement must describe or explain the event or condition perceived often identifies perp right before assault/murder. 911 calls can satisfy but must address Crawford v. Washington some jx require visual corroboration Email just after call can be offered to prove the substance of the conversation. sometimes overlap nonhearsay circumstantial evidence of state of mind (NUTTALL) overlaps in practice with excited utterance

NUTTALL V. READING CO. (3D CIR 1956): s husband dies after being forced to work by boss. His stmts during and immediately after call with boss admissible to prove compulsion to come to work. Since these characterizations were made substantially at the time of the event they described was perceived, they are free from the possibility of lapse of memory, the likelihood of conscious misrepresentation is low (admissible under FRE 804(1)). His statement after call is also evid of nonhearsay circ state of mind. Excited Utterance (res gestae) [FRE 803(2)] ~ Elements: (1) A statement (2) Relating to a startling event or condition (3) Made while the declarant was under the stress of excitement (4) Caused by the alarming event or condition

~ excitement is the critical element ~ statement must relate to startling event or condition ~ declarant must have been under the stress of excitement caused by event/condition i. lapse of time not dispositive (IRON SHELL) not as critical as with Present
Sense Impressioni.e. could be after you awake from a coma and discover you are paralyzed by an accident that occurred four days earlier (as long as it is reasonable to presume that the stress of excitement of the startling event persists). ii. may qualify if response to inquiry (IRON SHELL) reflection or deliberation disqualify statement often fits statements made on emergency 911 calls (Consider Crawford issue) overlaps in practice with present sense impression unclear whether statements may bootstrap themselves to fit exception
TH

~ ~ ~ ~

US V. IRON SHELL (8 CIR 1980) attempted to rape little girl. Court considers factors for admissibility of her stmts under 803(2): time lapse, inquiry v. spontaneity, age, phys/mental condition, event characteristics, stmt subject matter. Admits, holds Confrontation Clause not violated because the excepted hearsay stmts (particularly to Dr) had sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth of the stmts.

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US V. ARNOLD: Tamica Gordon called 911 and told the operator that Arnold had threatened her with a gun. Arnold was a convicted felon. When the officers arrived, she told them the same story. When Arnold pulled up to the scene and appeared from a vehicle, she identified him as the assailant. The key is determining whether the statement was the result of reflective thought or whether it was a spontaneous reaction to the exciting event. In this case, the event was on-going when she made both statementsi.e. she had insufficient time to reflect.

(2) State of Mind (res gestae) [FRE 803(3)]

~ Elements of 803(3) (1) A statement of the declarant's then existing state of mind (2) But not including a statement of memory or belief to prove the fact remembered or believed.

~ A persons statement of fact can show two things: (a) the fact is something the person
believes; and (b) the fact believed is true. This exception allows the statement to be used to prove (a) but not (b). So, the statement can be used to prove a persons present mental state (state of mind, emotion, physical condition, including intent, plan, motive, design, mental feeling, pain, and bodily health), but the exception does not apply to statements of feeling to prove a fact remembered is true. i. The statement= I saw Bill yesterday a belief that he saw Bill yesterday. It can be introduced (exception to hearsay) to prove that he believed he saw Bill yesterday (at the time when he made the statement), but it is not admissible to show that he actually saw Bill yesterday (it is still hearsay). justification: risks of misperception, faulty memory small i. declarant is best source of info regarding mental state. ii. but risks of candor, ambiguity remain. If circs suggest insincerity, exclude. four uses; to prove declarants: i. then-existing physical condition 1. refers only to descriptions of how declarant feels as he talks ii. then-existing mental or emotional condition 1. refers only to descriptions of how declarant feels as he talks 2. can be telling re: other times/days but must be how he feels now, not felt 3. if fact-laden, balance with rule not to offer for fact remembered/believed a. is probative worth outweighed by risk of unfair prejudice? 403 iii. Plan 1. it is admissible on two issues: (a) whether declarant (A) had that plan at that time; and (b) whether declarant (A) carried out that plan. 2. As statement I went to the movies yesterday excludable hearsay b/c relates to a memory used to prove the truth of the fact remembered. 3. As statement I plan to go to the movies tomarrow and meet B admissible as relevant as to (a) & (b), as above. This same statement is admissible to show that B went to the movies the day after said statement was made (some courts require additional proof in order to admit). 4. Eg. There is a material issue of fact whether someone was hungry a. Someone heard them say "I am hungry" Can introduce this b. But what if the person said "I am hungry b/c I have not eaten for a week" to prove that the person hasn't' eaten for a long time NO this would be a statement in which declarant is recalling how long it has been since eaten offered to prove that fact.

~ ~

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c. If the statement is offered to prove if he was hungry, but the information about prior belief would result in unfair prejudice under FRE 403, then perhaps exclude it, limit the statement to just I am hungry, or perhaps give limiting instructions. iv. will (facts about it) 1. statement of memory or belief permissible to show intent to change terms of will bc mental state of the testator is of paramount importance a. He is most likely to be best informed on the subject b. Likely to be dead when reach litigation, need what he said before c. His views on the subject may be as trustworthy as live testimony by interested parties disputing the disposition of the estate. distinctions from nonhearsay use of statement i. 803(3) does not apply to statements of memory or belief about past actions if offered to prove fact remembered/believed (except for wills) (SHEPARD) ii. distinction based upon whether statement shows mental state because of its truth (hearsay, but may be excepted) or regardless of its truth (nonhearsay) 1. Statement shows mental state because of its truth: I believe I am the King of Mars. offered to prove that he believed he was the king of mars. hearsay, but may be excepted under FRE 803(3). 2. Statement shows mental state regardless of truth: I am the king of Mars. offered as circumstantial proof that declarant is insane. non-hearsay. Hypo: : The prosecutor has evidence that D Otto Neff was shaking down Paul Quade, who was found dead of knife wounds in the park. Prosecutor believes that Neff was collecting protection money from Quade, and Quade was killed when he attempted to resist the shake down. Prosecutor calls Quades best fried Roy Sarnak, who will testify that during the period in question Quade told to him: Neff is after me again. He says he will kill me and my family if I do not pay protection. Ive already paid him $5,000, and Im trying to steer clear of him. i. If the charge is extortion, then the victim state of mind is fear. The pros must prove that the victim is placed in fear by the D. Victim's state of mind is an element of the case.Thus, the probative value is high because its an element of extortion. Always address the FRE 403 analysis here the probabtive value is very high compared to U/P. ii. If the charge is murder, then the victims state of mind is not an element and the probabitve value is low probably the statement is used more to develop past beliefs and memory then to introduce the mental state component. Probably not admissible here b/c it supports an improper inference. iii. If self-defense, State of mind becomes more pertinent, so the statement comes back in. Allows an inference that if the victim feared D, then the victim would stay away from D and not pick a fight. This goes back to why its relevant. The PV increased beyond the U/P effect.

MUTUAL LIFE INSURANCE V. HILLMON S. CT 1892 Letters from cowboy saying he was going with admissible, direct evidence to show that he did it. If the performance of a particular act by an individual is an issue in a case, his intention (state of mind) to perform that act may be shown. The Hillmon Rule: Out of court statements indicating the intent of the declarant to do something can be admitted as proof that she acted accordingly (Note: this is her expressed intent, not anothers overhead reiteration of said intent).

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UNITED STATES V. PHEASTER 9 CIR 1976 Teens stmt of meeting dealer admissible. When hearsay evidence concerns the declarants stmt of intent to do something with another person, trier must infer from state of mind the probability of a particular act by both the declarant and the other. Possibility of unreliability of inference goes to weight. Different from Hillmon b/c the statement of one person's intention is being used to prove what another person did (GFs hearsay statement as to what victim said is used to establish what D did). Cts. Are split as to whether Pheasters extention of Hillman is the rule of law (other courts require other evidence proving the accuracy of the statement).
TH

(3) Statements to Physician [FRE 803(4)] ~ Elements: i. Statements made for purposes of medical diagnosis or treatment ii. If reasonably pertinent diagnosis or treatment. ~ includes both statements of past and present symptoms ~ statements must be pertinent to diagnosis or treatment i. can include statements made to non-M.D. for purposes of treatment ii. can include statements made by third party for purposes of treatment (where said party acts on behalf of the party against whom admission is sought) ~ may include statements of cause but generally not of fault i. may include statements of identity in cases of child abuse (BLAKE) 1. not all jurisdictions adopt this rule ii. Cause can be included if (and only if) its pertinent to the diagnosis ~ Justified: likely careful and accurate life and health at stake ~ firmly rooted exception ~ two requirements of Renville test (BLAKE) i. declarants motive is consistent with purposes of treatment/diagnosis ii. statement is reasonably relied upon by physician in treatment/diagnosis ~ CT: even if the Dr is only consulted in anticipation of litigation, statement can come in as long as relevant to the diagnosis BLAKE V. STATE WY 1997 admits statements of child re abuse, identification to Dr. While the childs motive may not be readily apparent, a young child is generally aware of the emotional and physical pain that she is suffering and is able to comprehend that she is receiving medical treatment to alleviate that suffering. Brings in the Renville test, which incorporates the foundation requirement. (4) Past Recollection Recorded [FRE 803(5)] ~ first try to refresh recollection by quoting relevant portions or showing him the document. If this doesnt work must try to get the statement into evidence ~ four requirements: (SCOTT) i. witness lacks present recollection ii. statement accurately reflects first-hand knowledge witness once had 1. witness to testify to having made it when ws memory was fresh (to its accurate recital) 2. officer to testify to its accurate recording iii. witness made or adopted accurate statement 1. CT: witness can testify to the accuracy of the statement. iv. witness did so while matter was fresh in his mind (no strict time limit) 1. to establish: a. Gaps/qualifications on face of stmt reflect uncertain memory b. Relative import of matters described

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~ ~

c. Nature of the matters; overly complex /detailed dont last as long d. Haste and vagueness suggest the matter is stale record admitted on this exception cannot be taken to jury room (not as an exhibit) i. unless allowed to be offered by adverse party ii. but is still read into evidence (distinguished from present recollection refreshed) raises Confrontation Clause question if witness cannot be adequately cross-examined on events described in statement

OHIO V. SCOTT OH 1972 Carols signed statement about the conversation she had just had with Randy where he reveals his crime admissible under past recollection recorded. Diff between Present Recollection refreshed (look at memo to refresh memory and then testify on basis of present independent knowledge)and past recollection recorded (recollection is still absent or incomplete but the present testimony is to the effect that his recollection was complete at the time the memo was written and that such recollection was accurately recorded therein). So, you can use just about anything to awaken a persons memory as to an event to which she created a memo FRE 612 allows the opposing party to offer the document used to refresh the partys memory into evidence (this document cannot be admitted into evidence or as an exhibit unless it satisfies the requirements of another hearsay exception or FRE 612 allows admission). (6) Business Records [FRE 803(6)] ~ four requirements: i. only records or other documents (including opinions and diagnosis) kept in the course of regularly conducted business activity and must be the regular practice of the business to create the document; 1. every person involved in preparation acting in regular course 2. regular course includes reports rarely (but regularly) made 3. patients relation of medical history not included because source not acting in regular course of business (PETROCELLI) ii. source of information must work in business and have personal knowledge (person making entry need not have personal knowledge mult. hearsay) 1. but if non-employee provides information falling within other hearsay exception, report may be admissible through two-step process (NORCON) this implicates the multiple hearsay exception under FRE 805. iii. info must be recorded or at least gathered at or near the time of event iv. foundation witness with firsthand knowledge of recordkeeping system. (EVANS) ~ court may exclude for lack of trustworthiness (PALMER) i. trustworthiness may be indicated by detail about the source of the information. ~ absence of record admissible to show nonoccurrence/nonexistence [FRE 803(7)] i. especially where primary utility is for litigating, not business ~ Info gathered or report created in preparation for litigation is not a document created under regular business practices and regularly kept as such. ~ the exception reaches records of events ect. made thru illegal business activities as well as those reports made by one man businesses. ~ It also covers schools, churches, charities, and hospitals. PETROCELLI V. GALLISON 1 CIR 1982 Patient tells new Dr that old Dr cut nerve, new hospital records mention the cut nerve but do not make clear whether the Dr found it himself or is including on the basis of the provided patient history. Records inadmissible under 803(6) bc they
ST

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dont report as part of reg business routine in which they are participants and not sure whether P or the Dr. made the statement that was recorded. NORCON, INC. V. KOTOWSKI ALASKA 1999 Woman harassed by boss wants to enter memo from an investigator with the company summarizing the info gathered re the incident. Court finds it properly admitted because although in 803(6) there was layered hearsay, the underlying was actually nonhearsay under 801(d)(2)(D), admission by party-opponent agent. This is a business record of Purcell b/c meets the elements of 803(6): An investigator from Purcell drew up this report while making an investigation the investigation is the regularly conducted business activity. It was the regular practice of Purcell to make these reports it is what they do every time an incident is reported to them. It was made "at or near the time of the event." But, Coyle and Stampley (witnesses) are outsiders to Purcell. Cannot bring in their statements under the same exemption b/c this is a 2nd level of hearsay. The exception for this is 801(d)(2)(C): C & S were agents speaking at the time employed by Norcon. Statements offered against the party made by an agent of the party. Party-opponent admissions. Remember to always end your analysis for facts suggesting that the document is untrustworthy!

(7) Public Records [FRE 803(8)] ~ covers three types of statements contained in records of public offices/agencies: i. mundane documents setting forth activities of the office or agency [(A)] 1. i.e. court transcripts to prove testimony given (ARIAS), internal report we tapped Xs phone ii. matters observed by public officials pursuant to duty imposed by law [(B)] 1. excluding matters observed by law enforcement in criminal cases iii. factual findings from official investigations [(C)] 1. for civil actions/proceedings and against the Govt in criminal cases a. not admissible against in criminal cases (OATES) 2. may include findings regarding disputed evidence (BAKER) a. may also include evaluative parts of report (BEECH) b. but underlying data may still be subject to hearsay rules ~ factors to evaluate trustworthiness (burden to show lack on ) 1. timeliness of investigation 2. special skill/experience of official/investigator 3. whether hearing was held (not a strict requirement) 4. possible motivational problems

a. Exception probably allows introduction of the conclusion, even if some of the underlying sources of information would not be admissible and had a certain amount of untrustworthiness. ii. Under Zenith (3d Cir 1983):
1. Extent to which findings rest on inadmissible evidence supplied by interested parties 2. Where hearings are employed, the extent to which appropriate safeguards are applied and observed 3. The extent to which findings rest upon findings by other bodies which may be suspect

39

4. Where findings rest on expert opinion, the extent to which the facts or ~ ~
data on which the opinion are based are reasonably relied on by experts in the field Absence of public record or entry to show nonoccurrence/nonexistence is acceptable [FRE803(10)] lab reports, even where excepted, may raise Confrontation Clause problems in crim i. many jx require notice of lab rpts, is entitled to subpoena the technician. Or can object to the report, in which case the technician is expected to testify. ii. If the OATES chemist were there and he didnt recall the testing, it could still come in under 803(5) past recollection recorded. iii. Whether lab reports can be admitted is often a question of reliability. multiple hearsay alright if underlying statement made by agent w/ duty to report unclear if report excluded by (B) or (C) in criminal case could come in under other hearsay exception, e.g. 803(6) (OATES says no, but is minority view differs)

~ ~

US V. OATES 2D CIR 1977 Ct chemist too sick to testify re heroin. G wants to introduce chemist rpt by testimony of another chemist who was acquainted with the regular practices and procedures of Customs under 803(6). Clearly it goes under 803(8)(C) but G is trying to sneak it in because there is an absolute inadmissibility of evaluative and law enforcement reports against s in criminal cases. Must look at FRE in such a way that police and evaluative rpts that dont clear 803(8) cant get in under another Rule. The Court also notes that the report might also be construed as "matters observed" by public officials under Clause (B), subject to certain restrictions. Even if not technically within the words of this provision, the Court holds that the words should be granted a full and flexible construction in order for Clause (B) to comply with the prohibition of the admission of such evidence under Clause (C).

BAKER V. ELCONA HOMES 6 CIR 1979 Accident who had the green light? The police report is prepared by the officer. Part of it includes what the truck driver tells the officer. 3 Things in the police report: (1) Observations at the scene (final resting positions, skidmarks); and (2) Conclusions about who ran the light (the car); and (3) Witness statements (from the truck driver). (1) Observations at the scene (final resting positions, skidmarks). This is a matter observed and reported pursuant to a legal duty (admissible). The exception to this element does not apply because it's a civil case. (2) Conclusions about who ran the red light admissible b/c this is a factual finding by an officer under a legal duty. (3) the witness statement embedded hearsay (the report created by the PO is fine under the Public records exception, but it is just the outer layer) the drivers statement is a party-opponent admission because it is being offered against the party whose agent makes the statement under FRE 801(d)(2)(C).
TH

(8) Learned Treatises [FRE 803(18)] Application notes: ~ 2 requirements for admissibility: i. treatise is reliable authority ii. expert relies on treatise on direct or called to attention on cross ~ Traditionally could only XE expert re treatise, not offer as subst. evidence bc i. Technical material confuses jurors ii. Such material is too easily wrenched out of context

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iii. Treatises are inferior to live testimony by experts iv. Technical knowledge evolves so quickly that treatises are likely to be obsolete.
~ Limitation: may be read into evidence, but not received as an exhibit b/c there is a risk that the treatise will be misunderstood and misapplied without expert assistance and supervision.

Declarant Unavailable (Restricted Exceptions) FRE 804

Unavailability Requirement: FRE 804(a)(1)-(4) The exceptions under FRE 804(b) can only in case of unavailability as a witness as defined in FRE 804(a): 1. (a) judge determines whether declarant is unavailable under FRE 104(a). a. question is one of admissibility b. requirement is satisfied if the testimony of the witness is unavailable. 2. five situations giving rise to unavailability: a. (a)(1) privilege claim leading to court granting exemption from testifying i. Test: (a) Witness claims privilege on the stand; and (b)Court approves privilege ii. Ex. Criminal Defendant: 5th Amendment privilege against self-incrimination even applies if one D wants to offer a statement by another D iii. generally cannot take advantage on mere assertion that declarant would claim privilege if called b/c judge needs to make a valid determination. b. (a)(2) refusal to testify persists (refers to actual refusal once called) i. On the stand, declarant declines to answer and does not cooperate when ordered to answer ii. An effort to secure his cooperation is essential iii. Rule contemplates a threat of contempt c. (a)(3) lack of memory as to subject matter of statement (must testify to this) i. note defendant may be cross-examinable on making of statement while still forgetful of underlying events (DICARO) d. (a)(4) death, serious illness, infirmity i. to gauge, look at 1. import of absent witness 2. nature of the illness 3. expected time of recovery and reliability of evidence used to guess 4. special circumstances (mental condition, psych unavailability, age) ii. Physical Illness 1. Serious Illness: uncertain prognosis so that you cant adjourn proceedings until person recovers 2. Minor Ailment: Speedy recovery possible; Adjourn proceedings to allow recovery not sufficient to satisfy exception. iii. Mental Illness: Insanity does not disqualify witness iv. Sexual abuse cases 1. Can create mental or physical unavailability 2. Witness must experience high level of apprehension/fear/embarrassment to not tesify 3. Can use deposition instead of trial testimony. e. (a)(5) unavoidable absence (unobtainable by subpoena or other reasonable means) i. usually a jurisdictional issue for FRE 804(b)(2)-(4), witness is not unavailable if deposition obtained ii. prosecution must make good faith effort to obtain witness (BARBER)

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Declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. ~ BARBER V. PAGE S. COURT 1968 2D's are charged with armed robbery: W&B. W, at his own trial, testified. B is at a separate trial. At that time, W is in a federal prison outside Oklahoma. Evidence here is the transcript of W's testimony from a preliminary hearing, introduced over B's objection. B was convicted and appealed. The issue is to what extent should the state have tried to bring W to testify live at B's trial. B didnt get chance to XE his partner in crime because W is in federal prison in TX like 225 miles away, State made no effort to obtain the presence of Woods even though they knew he was in prison. Witness is not unavailable unless the prosecutorial authorities have made a good faith effort to obtain his presence at trial. The Confrontation clause right is a trial right. (1) Former Testimony [FRE 804(b)(1)] Application notes: ~ Declarant must be unavailable in the current proceeding ~ statement must have been given in the same or different proceeding (not limited to judicial ones) i. includes depositions, preliminary hearings, administrative hearings ii. generally any hearing in which sworn testimony is taken iii. no affidavit, no signed transcript of a confession or interrogation. ~ cross-examination requirement applies (prior opportunity and a similar motive required to Dir/XE/Redir the unavailable declarant) i. civil: adverse party or predecessor in interest must have had opportunity as such. 1. Majority: Privity required to qualify as predecessor in interest a. Rationale: Imposing witness testimony in trial A on trial B is a problem; shouldnt bind attorney in B by what may have been sloppy examination in attorney A. 2. Minority (BAD LAW): Lloyd: Stand in the same shoes as someone else, who would have cross-examined the witness to be predecessor in interest ii. criminal: defendant himself must have had chance 1. NOTE: as long as the party against whom the testimony is now offered had an opportunity and a similar motive to XE, the fact that he didnt take the opp doesnt block the exception. ~ note that use of transcript of the former proceeding introduces two layers of hearsay i. testimony admissible under former testimony exception 1. Statement in the transcript: comes in under FRE 804(b)(1) for substantive purpose ii. transcript admissible under public records exception 1. Transcript: comes in under FRE 803(8)(B) for non-substantive purpose. (2) Analysis of Predecessor In Interest: ~ LLOYD V. AMERICAN EXPORT LINES, INC. 3 CIR. 1978 Lloyd (electrician) & Alvarez (engineer) involved in ship board altercation. Lloyd sued the ship owner alleging negligence and unseaworthiness (b/c owner put a crazy person on it: A). The ship owner impleaded Alvarez as a 3rd party D. Alvarez counterclaimed alleging negligence and unseaworthiness (b/c owner put a crazy person on it: L). This suit deals with As claims against the ship owner (b/c L is gone). ~ Ship owner wanted to prove Alvarez was the attacker in the fight & wanted to use the transcript of Lloyd's testimony, taken by a CG hearing examiner during proceedings to determine whether Lloyds merchant mariner's docs should be suspended or revoked for misconduct.
RD

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~ 1st element: Ct rules he is unavailable under the rule (good faith attempt to find L ~ ~
occured). 2nd element: it was a proceeding with testimony, counsel, an oath, and a decision. 3nd element: Did they have an opportunity and similar motive to examine in the prior proceeding? i. A was not a party at the Coast Guard proceedingi.e. A did not get an opportunity to examine L therein. Can be satisfied by a predecessor in interest in a civil case having the opportunity to examine. i. If some other qualified person that had a similar motive had the opportunity ii. CG is the only person who examined iii. Shipowner needs to show that CG is a PII of A. Must prove two elements: i. (1) the right person If the party against whom the testimony is now offered, or a predecessor in interest in a civil proceeding ii. (2) the right motive had an opportunity and similar motive to examine in the prior proceeding. Ship owner argues that Both CG and A want to establish that same thing. Because they have that same interest, they are PII. Problem is that you need to establish both (1) and (2) as above and having the same interest cannot satisfy both elements. The PII element must require something more to have meaning as a separate element. Holding (as to element 3): Ct says that its analysis of the concept of interests satisfies it that there was a sufficient community of interest shared by the CG in its hearing and A in the subsequent civil trial to satisfy 804(b)(1). The interest implicated herw as a claim or desire or demand which A as an individual, and the CG as a representative of a larger group sought to satisfy. So, Evidence was admitted. This is the Minority view. Concurring opinion predecessor in interest is defined in terms of a privity relationship. This is the majority view.

(2) Dying Declarations [FRE 804(b)(2)] 1. Elements: i. (1) Declarant must be unavailable (under FRE 804(a)) ii. (2) In a prosecution for homicide or in a civil action or proceeding, iii. (3) Statement must be made in the state of mind that their death was imminent. iv. (4) Dying declaration must concern the cause and circumstances of impending death v. (5) Declarant must have personal knowledge Application notes: ~ only statements concerning the cause or circumstances of impending death i. Identify assailant, describe accident ii. likely also covers descriptions of prior threats, quarrels, pain, substances etc. ~ must be settled hopeless expectation that death is imminent (SHEPARD Dr. Poison) i. declarant need not be actually dead (but must be unavailable). He may later recover. ~ whether declarant knew he was dying is 104(b) question (Judge makes this decision) ~ Even if someone believes that they are going to die, and they dont, their declarations are admissible. Even if someone does not believe that they were going to die and they do die, then the statement made without the belief in imminent death will not be admitted ~ Comes in for Criminal homicide and civil but no other criminal

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(3) Declarations against Interest [FRE 804(b)(3)] 2. Different from admissions under FRE 801(d)(2), where an admission is anything a party to a lawsuit has ever said (if it is relevant at trial). For a statement against interest, the declarant need not be a party nor does it matter in whose favor the statement is sought to be introduced. i. So, the statement could be used by either party to either inculpate or exculpate. 3. The proponent must show that the declarant is unavailable and must show also that when the declarant made the statement , it had the potential to harm an important interest of the declarant. 4. A judge must consider what a statement would typically mean to a reasonable person, in terms of having an effect on that persons monetary, property, or criminal liability interests. 5. When the statement against penal interest is offered to expulpate the accused and inculpate the declarant, FRE 804(b)(3) provides that the statement may be admitted only if corroborating circumstances clearly indicate that the statement is trustworthy. So, this requirement is implicated only where the accused is offering this statement to expulpate himself, not where the prosecution is offering this evidence or by any party in a civil case Tips on Declarations Against Interest: Introductory Qs: o What is the statement being offered to prove and by Whom? o Why is saying it a statement against declarants interest? Element one: Declarant Must be Unavailable Element two: statement must be against Declarants monetary, property, civil/criminal liability interests, or rendered his claim invalid against another. Element three: Statement must be against Declarants interest at the time of his making of said statement. Element five: A reasonable person in Declarants position would not have made the statement unless believing it to be true. o declarant must have understood negative implications to interest at time Element six: if the person seeking to use the statement is the accused in a criminal trial, and he is seeking to use said statement to expulpate himself in favor

~ collateral statements generally admitted (Kennedy wants no categ. Rule to exclude parts) i. self-serving or neutral not allowed as collateral esp if implicates (WILLIAMSN) ii. analysis requires view of surrounding circumstances (WILLIAMSON) ~ Crawford seriously weakens exceptions use against criminal defendants i. exception not firmly rooted for purposes of Confrontation Clause ii. Crawford does not clearly resolve issue; Williamson still relevant. iii. probably doesnt apply outside context of statements given to law enforcement
personnel; against-interest statements made to friends admissible w/o cross

~ Statements w/conflicting interests: i. WILLIAMSON V. US. S. CT 1994: H arrested on highway he had cocaine in his
truck. In his first interview, H said he got it from a Cuban in Ft. Laud, but it belonged to W and he was supposed to deliver it. When the DEA tried to arrange a controlled delivery H said he lied about the Cuban and delivering it to W, that W was in another car and saw H get busted. He said he lied because he was afraid of W. H refused to testify even under ct order and an offer of immunity ii. Only the parts of the confession which are clearly self-inculpatory should be admitted. The other parts should be excluded as there are motives to make statements which are false if one thinks they can escape blame by putting it on

44

someone else. Need not consider the entire confession a statement under FRE 801(a)(1) can admit some and throw out the rest. 1. If Paramount interest is self-serving: wont admit. Williams holds that FRE 804(b)(3) wont reach associated or collateral statements. 2. J. Kennedy disagrees with the majority in Williams: the exception does reach neutral statements if they are related to against interest statements. 3. CONTEXT is very important in this analysis. Because the statement in this case (provided to cops) could have provided him with immunity, he had an interest in making the statement, even though it was also selfincriminating. Also, note that a statement by A that is against As interest can be used by B (defendent) as against A (need corroboration here). iii. Corroborating circumstances: 1. The closer the relationship between the parties, the less likely the declarant is fabricating the statement. 2. The confessor made a voluntary statement after he has been given his Miranda rights. 3. No evidence that the declarant was trying to curry favor from the authorities. 4. The defendant repeated the statements and only inculpated himself. 5. Garvin gave permission to search. (3) Statement of personal or family history[FRE 804(b)(4)]: 1. Family history or pedigree information is admitted when the person is unavailable. (4) Statements Admissible because of Forfeiture by Misconduct [FRE 804(b)(6)] Application notes: (4) Provides that a party forfeits the right to object on hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant as a witness. ~ applies against a party that has (1) engaged or acquiesced in wrongdoing i. could be persuasion or physical prevention. ~ where wrongdoing was (2) intended to and did(3) procure unavailability of witness i. often spoken of as waiver (or forfeiture) of confrontation rights and the rights to object to the admission of the evidence under FRE 801. ~ judge determines whether forfeiture occurred (likely by preponderance) under 104(a). ~ if hearing on forefeiture is required, hearsay evidence, incl the witnesss out-of-court statements may be required (DAVIS 2006) ~ Difficult to Use / Apply Because: i. The party has to prove that the other side engaged in intimidation. All they have is evidence that the witness was intimidated. That person may be wrong, exaggerating or lying. But if you have a person willing to say they were intimidated, then the rule is met. ii. But, if the witness is afraid to testify, then likely they won't say that they were intimidated either. iii. Pros might believe it has happened, but would have nothing to put in front of the court. iv. And there are many reasons victim's don't testify. Common reason in domestic violence cases: they don't want their spouse or BF to go to jail, they want to reconcile. If that is the reason, then it doesn't fit the rule. (5) People v. Moreno: ~ BB told her mother that Moreno touched her inappropriately during a visit to his home, and reiterated the story to police. A videotape was used to allow the child to provide testimony without appearing in court (she refused to testify at trial citing the possibility of

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traumatization via the testimony). Issue is whether Morenos Confrontation rights were being violated when the testimony was allowed via videotape. In Reynolds v. US, the court held that the where the D was responsible for the witnesses absence, he forfeits his 6th amendment rights. States differ as to whether D must have intended to keep the child from testifying. His conduct must be designed to subvert the criminal justice system (such as threats perhaps). The court holds that there was no showing that D forfeited his Confrontation rights. Book notes that this statement would likely be construed as testimonial under Crawford.

The Catchall Exception FRE 807

Requirements: 1. A statement not covered by 803 or 804 but having equivalent circumstantial guarantees of trustworthiness a. Ex. Dallas County: Claim by county against insurance company for coverage if courthouse had been destroyed by lighting, but insurance company said the real cause of damage was a fire. There was a newspaper account about the fire. Judge said the newspaper was highly trustworthy b/c why else would someone write about it if it wasnt true? The Rules were drafted to reflect this holding. Comes in b/c usual dangers of hearsay not present: lack of memory, faulty narration, intent to influence ct, plain lack of truth (newspaper clipping was trustworthy and no provision covered it @ the time of suit). 2. May be admitted as a hearsay exception if the court determines: a. (A) the statement is evidence of a material fact; b. (B) the statement is more probative on that point than any other evidence the proponent can procure with reasonable efforts; and c. (C) the general purpose of these rules and the interests of justice will be served by admission. 3. There must be sufficient advance notice to the other party (sufficiently in advance of trial). These are circumstantial guarantees tied to the making of the statement. Statements are reliable when made close to the relevant event Present Sense Impression 803(1) Excited Utterance 803(2) Business Records 803(6) (7) Prior Statements of Identification 801(d)(1)(C) Past Recollection Recorded 803(5) Statements are reliable because there is a motivation to be truthful Statements for Purposes of Medical Diagnosis or Treatment 803(4) Dying Declarations 804(b)(2) Statements Against Interest 804(b)(3) Public Records Reports 803(8) Learned Treatises 803(18) Statements are reliable because they were given in a prior proceeding (live testimony, under oath, subject to cross examination) Prior Inconsistent Statements 801(d)(1)(A) Former Testimony 804(b)(1) Statements are reliable because the declarant is the best source of information and thus the least suspect State of Mind 803(3) a. factors to consider: (WEAVER)) i. whether declaration made under oath ii. length of time lapse between event and statement

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iii. iv. v. vi.

b. i.

ii. iii.

declarants motive/propensity to tell truth assurances of declarants first-hand knowledge whether statement is written or oral whether declarant has recanted statement additional circumstances to consider: (WEAVER) corroboration credibility of witness reporting statement availability of declarant for cross-examination

Application notes: 1. some courts subscribe to near miss theory a. refuses to admit under catchall statements that almost fit a different exception 2. catchall commonly applied to grand jury testimony a. but Crawford now requires declarant testify if used against criminal defendant 3. child abuse prosecutions often use the catchall a. Some factors to determine the trustworthiness of statements by children: i. Precocious knowledge: something a child of that age would only know/ be able to describe if it actually occurred (he put his potty in my potty; she should not know this at age 5). ii. Age-appropriate language: statement on difficult/delicate subject matter more attributable to child if phrased in language that child would understand/ use iii. Behavioral changes (trouble sleeping, fearfulness of men, regression in toilet habits) iv. General demeanor, indications of emotional pain v. Presence of bias/other motives on part of speaker or reporting witness vi. Signs of tension between child and alleged abusor vii. Training/expertise of person who talked to child viii. Consistency/number of repetitions b. but still must satisfy constitutional standard of trustworthiness in criminal cases STATE V. WEAVER IOWA 1996 Baby-sitter charged with the child's murder. Mom said, in Hardees, to several people, that she was with the child when the injury occurred and not in the baby-sitters care. 1. No one of the hearsay exceptions works. But it's the most exonerating evidence that would create reasonable doubt. 2. D needs to call the women in the Hardees so they can testify. But there will be a hearsay objection. 3. The ct makes a list that makes circumstantial guarantees with corroborating evidence. a. The witnesses were credible. b. The declarant is available to testify c. The statement was made in close proximity to events the declarant could be expected to remember. d. The declarant had first hand knowledge of the substance of the statement and was not relying on potentially erroneous secondary info. e. The statement was unambiguous and explicit in the events that occurred. f. The statement was not the response to interrogation, it was freely given. g. The statement was corroborated with medical evidence. h. More than one person agreed with the context of the statement.

C. THE CONFRONTATION CLAUSE [CRIMINAL CASES AGAINST ACCUSED]

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Generally
6th Amendment Confrontation Clause: In all criminal prosecutions the accused shall enjoy the right. To be confronted with the witnesses against him.

~ Entitles the accused to not just be present and watch but be visible during testimony i Can lose this right by misbehaving (IL v. ALLEN 1970) ii Court can let young assault victims testify from another room (MD v. CRAIG 1990) ~ Applies only to hearsay statements introduced at criminal trial against defendant. ~ Witness: one who bears testimony. Testimony: a solemn declaration or affirmation made for the
purpose of establishing or proving some fact (CRAWFORD)

~ Testimonial theory- Clause applies only to testimonial statements (at least where there was no opp for
XE) where testimonial refers at least to statements to law enforcement officers describing crimes, where the purpose is to aid in prosecuting or trying the alleged culprit. (CRAWFORD) i An out of court testimonial statement by W cant be admitted in a criminal case against D unless W is made available for cross examination at Ds trial (or subject to XE by D when the statement by D was made), BUT ii An out of court non-testimonial statement by W can be admitted against D without any Confrontation Clause problem even if W is never made available for XE by D (assuming the statement is otherwise admissible). Testimonial statements vs. non-testimonial statements

~ Testimonial Statement Test: the rough meaning of testimonial is bearing testimony. The declarant,
when making the statement, has some idea that it will or may be used in a serious legal proceeding. So, a casual off-hand remark to a friend who happens to be standing near declarant would typically not be testimonial. Clear Examples of Testimonial Statements 1. testimony at preliminary hearing 2. testimony before grand jury 3. testimony at former trial 4. statements taken by police officers during course of interrogations where there is no on-going emergency (CRAWFORD; DAVIS) 5. a DHS worker (child services person) here, you should have known that it was testimonial. Social worker is there to gather facts. Clear Examples of Nontestimonial Statements 1. Non-testimonial when made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency rather than merely describing past events. 2. A statement made to a 911 officer or other PO during an emergency here, the victim is not acting as a witness and her statement is not testimony b/c she would not have had some idea that her statement would be used in a serious legal proceedingi.e. the statements were just made to assist PO to help during an emergency. Even if the statements were initially non-testimonial (b/c they were offered to seek assistance during an on-going emergency), other statements (made after the emergency was over and where no further assistance was required) can be considered testimonial. a. Must look @ both the intent of the PO officer and the intent of the victim or person seeking assistance. 3. Statements offered to prove something other than the truth of the matter asserted. a. A lie to a PO is not testimonial. 4. statements by co-conspirator during course of conspiracy

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5. 6. 7. 8.

excited utterances spoken to friend/relative (but probably not 911 calls) present sense impressions to friend/relative state-of-mind statements to friend/relative dying declarations to relative

Examples of Nontestimonial or XE Reqt Satisfied 1. Rule 801(d)(1) prior statements of testifying witnesses 2. Rule 801(d)(2)(A-D) admissions, including vicarious admissions 3. not ordinarily a problem because declarant will be available 4. Co-conspirator statements (801)(d)(2)(E) specifically mentioned by Crawford 5. Business records 803(6)- Specifically mentioned by Crawford

Admissibility of testimonial statements

1. If the statement is testimonial, then Crawford imposes a bright line rule: the statement may not
be admitted against the accused unless the declarant is made available for XE by the accused, either @ the time of the statement or at the time of the accuseds trial. a. It remains unkown whether Confrontation Clause is implicated where D has an opportunity to XE W at the time of the declaration (i.e. at the preliminary hearing), fails to do so, and W is unavailable to testify at Ds later trial. Is declarant made available for cross-examination at trial (deferred cross)? 2. D must have a full and fair opportunity to cross W at trial the confrontation clause grants a fair opportunity but a minimal opportunity suffices (D not guaranteed an optimal oppertunity) the decisions in Green, ONiel, and Owens indicate that even non-responsive witnesses are cross examinable if they appear at trial. 3. witness clearly not available for cross if: a. not locatable for subpoena or does not come to court b. refuses to testify based on privilege 4. unclear if witness available for cross if: a. evasive or cannot remember facts about statement (very likely is available in cases of memory loss) (OWENS) i. even if witness may be behaving in bad faith (OWENS) ii. still may have doubts if meaningful cross not possible (OWENS) b. declarant denies making statement (very likley is available) (NELSON) c. young child testifying about abuse (IRON SHELL) one court held that her video testimony in trial was enough, even though D could not respond to questions in a meaningful way. 5. Confrontation Clause guarantees face-to-face meeting (COY) a. testimony through closed-circuit television suffices (CRAIG) i. unclear if this survives after Crawford 6. if yes, this [deferred cross] will suffice: Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it (CRAWFORD) 7. if no, go to next question If unavailable, did defendant have opportunity to cross declarant at time of statement? 1. defense counsel may choose not to cross at earlier hearing for tactical reasons a. unclear what happens in this situation 2. if yes, this [previous opportunity] may suffice for Confrontation Clause. 3. if no, may still be admissible in some cases: a. unclear if testimonial dying declarations admissible i. Crawford refers to cases admitting them

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b. forfeiture by misconduct statements likely admissible regardless (CRAWFORD)

Admissibility of nontestimonial statements

Apply the hearsay rules without considering Confrontation Clause issues

IV. WITNESSES
A. COMPETENCY OF WITNESSES

FRE 601 "General Rule of Competency" "Every person is competent to be a witness except as otherwise provided in these rules." FRE 603 "Oath or Affirmation" "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness'' conscience and impress the witness' mind with the duty to do so.

FORBIDDEN ATTACKS (P.593)

FRE 610 "Religious Beliefs or Opinions" "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced." An inquiry for the purpose of showing interest or bias because of their religious beliefs is not within the prohibition (i.e. W is a member of Ds church where D is pastor).

Personal Knowledge is Required of All Witnesses FRE 602

Generally: witness may not testify unless evidence introduced sufficient to support finding that witness has personal knowledge of matter 1. This requirement is usually satisfied by preliminary questions showing that the witness personally perceived certain facts before the witness is asked to relate those facts to the jury. 2. witness own testimony may be used for this purpose 3. rule subject to FRE 703 (opinion testimony by expert witness) 4. Personal knowledge is the other side of hearsay (no Personal Knowledge= hearsay). 5. When W is testifying as to hearsay, The relevant personal knowledge is hearing the statement made. Child Witness: where the witness is a child, courts can exclude the testimony under FRE 403 if it seems that the probative value of the testimony would be weak because the child was unable to tell the difference between truth and falsehood. A judge might find that (a) the child could not understand the oath requirement; and/or (b) that the child could not distinguish sufficiently between reality and fantasy meaning that she could not have had personal knowledge.

B. DIRECT AND CROSS-EXAMINATION

Leading Questions FRE 611(c)
Generally: leading questions not usually permissible on direct examination but usually permissible on cross-examination, subject to the following exceptions: 1. when necessary to develop testimony a. e.g. witness is young, timid, frightened, ignorant, uncomprehending, infirm 2. when dealing with hostile or adverse witness

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3. when nonleading questions would be more trouble than they are worth
a. e.g. some questions when qualifying expert, preliminary matters 4. when witness memory seems exhausted a. here FRE 612 permits use of present recollection refreshed (see infra) 5. not permissible on cross where witness is attorneys own client

Use of Writing to Refresh Memory FRE 612

1. often referred to as present recollection refreshed/revived a. distinguished from past recollection recorded: (BAKER) i. admissibility standards less rigorous ii. not limited to writings or documents (can be anything) b. can not be used as cloak to get in inadmissible document (does not have to be written by
W).

2. W must not be able to remember

a. Testimony still must be admissible. Cant remind W of hearsay b. DOC doesnt have to be admissible bc not entering into evidence c. BUT check to see if admissible i. Past recollection recorded 803(5) ii. Business record 803(6) 3. evidence used to refresh memory under 612 subject to discovery (JAMES JULIAN) a. includes material used at trial and material used prior to testifying b. includes otherwise privileged material (constitutes waiver of protection) i. possibly does not apply to work product privilege 4. W can be XEd on the document, can introduce parts of the doc that relate to Ws testimony 5. Opposing counsel: a. If item is shown to W at trial, have to show opposing counsel (FRE 612) b. The party against whom the refreshed memory witness has testified is entitled to introduce the document the witness used to refresh her memory. c. If item is shown before trial, it is left up to the courts discretion. Scope of Cross-Examination FRE 611(b) 1. scope of cross-examination limited to subject matter of direct examination 1. witness credibility may always be challenged on cross 2. if W takes the 5th on cross, the judge should strike the direct because Ws invocation of the 5th now prevemts from exercising Confrontation Clause rights. C. IMPEACHMENT AND REHABILITATION Generally: - impeachment means the casting of an adverse reflection on the veracity of the witness. Any matter that tends to prove or disprove the credibility of the witness should be admitted. - 5 main ways to impeach o Attack general character (past crimes, bad acts, bad reputation but esp truthfulness) o Prior inconsistent statement that contradict current testimony. o Bias o Sensory or Mental Defect - Usually happens on direct when you have a turncoat witness (FRE 607 allows impeachment of own W) or W is hostile or adverse W.

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any time using impeachment evid consider spillover effect (must weigh prejudice v. probativeness, same test as 403 if the witness is a party) A criminal D has the Constitutional right to impeach a W he has called.

Nonspecific Impeachment
General Impeachment (3 types) focuses on the witness, a defect with the witness so that whatever he says should not be believed, whatever you are trying to introduce has to be relevant to truthfulness and credibility so must determine if particular categories of crime has to do with truthfulness. If the crime itself involves a lie then may be more relevant to credibility. (1) Bias and Motivation - animus or motivation that might lead witness to fabricate his testimony, could be negative or favorable bias - may be shown by use of extrinsic evidence o Extrinsic = outside the examination of the W whose credibility we are challenging. o Most courts require you to lay a foundation before impeaching for bias with ex evidence: ask W about the alleged bias and only if W denies it can ex evid come in - bias is always relevant o Constitution requires defendant have chance to show witness bias - court may impose reasonable limits on efforts to show bias, including: o through FRE 403 o questions that merely intend to harass, annoy, or humiliate o questions that endanger personal safety of witness - fact of inadmissibility for different purpose does not require exclusion if offered to show bias (ABEL) o is sufficient that evidence could be admissible to show bias, but must consider the balcnce inquiry under FRE 403. - Expert Witness: can cross on how often the expert has testified and how many times for a particular party or that he is recieveing payment for a certain party (shows his interest in having his contractor win the action). US V. ABEL: SUPREME COURT 1984 Bias case Robbery case where G wants to show bias, judge allows them to present extrinsic evidence (G brought Erhle to testify as against Millls) that Mills was lying on the stand that Mills knew the and was lying for him, that they were associated in the Aryan brotherhood together (established while both were in jail, where the group swore to lie and kill on behalf of each other). Ehles testimony about the prison gang made the existence of Mills bias more probable. The type of organization in which a witness and party belong may be relevant to show bias under FRE 401. If the organization is a loosely knit group having nothing to do with the subject matter of the litigation, the inference of bias arising from common membership may be small or nonexistent the judge may decide to exclude the evidence under FRE403. Court allowed the name Aryan brotherhood to be stricken and gave a limiting instruction. o (FRE 608(b)): Prosecution can ask about specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness character for the truthfulness, other than conviction of crime as provided in rule 609, where specific acts may not be proved by extrinsic evidence (just Qs only) but can be asked intrinsically on Cross examination o In this case, Ehles was called and asked questions relevant to show Mills bias, and this was considered extrinsic evidence, but not extrinsic evidence offered to show the veracity of a prior act. So, the testimony is not contrary to FRE 608(b) b/c the extrinsic

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evidence (testimony by Ehle) was offered to show that Mills was biased and was not offered to show that past conduct had a bearing on his truthfulness. Although the fact that the extrinsic evidence offered (testimony by Ehle) could also have a direct impact on his truthfulness (meaning that it would be prohibited under 608(b)), it is acceptable as extrinsic evidence of bias. No rule of Evidence that says testimony admissible for one purpose and inadmissible for another is thereby inadmissible. This is impeachment, not prosecution (not offered to convict W of any crime). Only cant use membership as a basis of prosecution (if statement is used for the truth of the matter asserted, then Hearsay exclusion must be used; if only used to show bias, then likely acceptable). o If Prosecution wanted to ask Mills about specific instances of his past pertinent to the veracity of his testimony, they would have to ask him directly (intrinsically) and on cross examination. Here, such questions (if posed for this purpose) to Erle would be improper (extrinsic and therefore violative of 608(b)). (2) Sensory and Mental Capacity - Not mentioned in the rules - may be shown by use of extrinsic evidence - involves showing witness has impaired capacity to observe, remember, narrate events o inquiry into mental impairment must be shown to be probatively related to time period about which attempting to testify to be admissible must go to W qual to testify and ability to recall questions about treatment or stays in mental institutions may not introduce collateral issue to confuse jury and require testimony - may proceed by showing witness drunk or high on drugs at time of events o courts divided whether evidence of addiction allowable - attack on eyewitness testimony o e.g. alcoholic, something that would undercut his perception or memory. Many courts will not allow this if there is no showing that W was drunk or high at the time - Experts sometimes come in to show (cts split as to whether to allow): o Unreliability of eyewitness testimony o Memory diminishes exponentially o Stress causes inaccuracies in perception and recall o Observers assimilate or incorporate new and potentially inaccurate info they learn after and tend to conflate this data with their original memory o Later conversations reinforce opinions about ID o Accuracy bears little or no relationship with certainty o Cross-racial IDs contain more mistakes. Character Witnesses [FRE 608(a)] FRE 608(a): The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation (extrinsic evidence), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

~ 404(a)(3) you can make character inferences about testifying witnesses, if its about their
character for truthfulness This protects the witness, but is subject to 607,608,609).

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Evidence attacking a Ws character for truth-telling is introduced by testimony by other Ws (Extrinsic evidence and only via reputation or opinion testimony) o Rehabilitation by specific instances: at cts discretion, once W2 gives reputation or opinion testimony about W1s poor rep for truth, the party who called W1 may, at the cts discretion, rehabilitate W1 by bringing other Ws to testify as to W1s truthfulness (via reputation or opinion testimony). Note that in order for party A to bring Ws to testify as to W1s truthfulness via reputation or opinion of those Ws, W1s character must have been questioned by party B. Exception: in A criminal case, the D may comment on his own truthfulness where truthfulness is a pertinent trait to the charged crime, whether or not his character has been attacked. limitations on testimony: o Must establish foundation how W knows subject o may refer only to witness reputation for truthfulness/untruthfulness general bad character testimony not allowed o Past acts showing truthfulness must only be asked about on cross examination. o Opinion or reputation showing truthfulness must cannot be asked before truthfulness has been attacked by other side. o Opinions or reputation showing untruthfulness can be introduced (a) prior to other credibility evidence; (b) on direct examination; and (c) cross o Past acts showing untruthfulness can be testified on cross (FRE 608(b)). but not on direct.

(3) Character for Truth and Veracity Cross-Examination on Nonconviction Misconduct [FRE 608(b)] 608(b). Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (intrinsic) (1) concerning the witness character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. When asking about specific acts: o Can only use intrinsic evidence that comes on cross-examination of the person you are trying to impeach. o Cannot use extrinsic evidence (someone else who is testifying on direct examination) prior bad acts may be questioned about only on cross-examination further inquiry is collateral acts must be probative of truthfulness/veracity o generally disallowed unless about conduct directly involving lies/deception o subject to three views: (MANSKE) broad view: virtually any bad character conduct indicates untruthfulness narrow view: only conduct of falsehood/deception bears on veracity middle view: looks to relationship between specific acts and truthfulness reaches conduct seeking personal advantage by taking from others in violation of their rights this is most commonly-adopted view (MANSKE) o many acts for which resolution unclear (e.g., theft)

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such questioning is at discretion of judge attorney must have adequate, good-faith basis for believing the question is true (judge can ask) o Sanctions for asking without good faith basis: Might be a reason for a mistrial (if it is the prosecutor asking, then jeopardy might attach), or the judge might admonish the lawyer and undermine the lawyers credibility. often closely entwined with question of bias (MANSKE) o can involve both untruthfulness and attempts to frame adverse party o where this occurs, makes admissibility more likely

US V. MANSKE 7 CIR 1999 M attacked their credibility by bringing out the fact that they were getting leniency from the gov't and that they had extensive histories of drug use and drug dealing. WP is the one being impeached here. D wanted to ask (on XE) WP about threats that one WP made to other witnesses testifying in a related case. Gov't responded saying that the threats amounted to conduct not probative of truthfulness or untruthfulness. which is the only way you can ask about specific instances under 608(b). Issue: are the threats probative of truthfulness? Court: If a person has no compunction about getting witness to lie in previous proceedings, it is hard to see why he would have the incentive to remain completely honest in another persons proceedings, especially when he is receiving benefits for it (lighter sentence, immunity, etc). So, is probabtive of untruthfulness. Furthermore, there is a question of bias.
TH

Proving Prior Convictions [FRE 609] 609(a). (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement (must be elements of the crime). (b) time limit: more than ten years has elapsed since the date of the conviction OR of the release of the witness from prison, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. Evidence of a conviction more than 10 years old as calculated herein, is not = admissible unless the proponent gives to the adverse party sufficient advance written notice. - Under FRE 404, evidence about Ds past driving accidents is not admissible to create an improper propensity inference as to his commission of the current driving related crime, BUT under FRE 609, evidence of Ds past conduct in disrespect of law may be admissible to support an inference of his truthfulness as a testifying witness. - provable by cross-examination and extrinsic evidence - use limited to fact, date, place, of conviction and sentence imposed o courts may let in other details/circumstances under FRE 608(b) - Crimes involving dishonesty or false statement may always be admitted to impeach o not even subject to exclusion under FRE 403 NO DISCRETION o Rule applies to both criminal defendents and Ws. o Examples: perjury, false statement, criminal draud, embezzlement, taking property by false pretenses, counterfeiting, forgery, filing false tax returns o Other Theft Crimes: most hold that theft other than false pretenses and embezzlement are not crimen falsi: shopliftinr, robbery, receiving stolen goods. The only balance test applicable is under FRE 609(b). - Felony convictions (punishable by more than one year) may be admitted Where the 1 year reqt refers to the maximum allowed not time served o against criminal defendant if probative value outweighs its prejudicial effect

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note absence of word unfair before prejudice this test is more restrictive of admission than FRE 403 (NOT probative value is substantially outweighed by X,Y,Z) this means that more evidence will be excluded under this test than under FRE 403 (because probative evidence just has to outweigh not substantially outweigh). court may inquire of facts/circumstances of conviction (LIPSCOMB) but is not required to do so convictions for same crime should be admitted sparingly (GORDON) factors to consider in evaluating this: (GORDON) nature of conviction recency or remoteness similarity to charged offense whether defendants record is otherwise clean importance of credibility issues to testimony/case importance of getting defendants own testimony burden is on government to prove this (LIPSCOMB) o against other witness subject only to FRE403 (more relaxed) less risk of prejudice in this situation (more evidence will come in b/c less risk jury will misuse the evidence) other misdemeanor convictions may not be used unless involved dishonesty or false stmts o If pleaded down to a lesser charge, depends on the lesser, not the original charge may, before taking the stand, ask the court to rule in limine whether a particular conviction will be allowed to impeach him, can elect not to take the stand o BUT has to testify in order to preserve 609(a) claims Otherwise, the reviewing court ill not be able to determine the impact any erroneous impeachment may have had. (LUCE) o If he doesnt take the stand, however, the ruling will not be reviewed on appeal Ineligible Convictions o FRE 609(c): convictions pardoned on finding of innocence may not be used (rev. on appeal) if the pardon was because W was rehabilitated, may be used only if W has been convicted of a subsequent felony. o FRE 609(d): juvenile adjudication generally not admissible but sometimes may be allowed against witness other than accused if convection of the of the offense would be admissible to attack the credibility of an adult and the ct. is convinced that such admission is necessary for the fair determination of guilt or innocence. o old convictions (more than 10 years from prison term) may not be used unless specific facts and circumstances make probative value substantially outweigh unfair prejudicial effect. This is opposite than FRE 403 b/c this rule deals with admission and not exclusion here, admission is more restrictive (FRE 403 restricts exclusion).

US V. LIPSCOMB The district court has discretion to determine when to inquire into the facts and circumstances underlying prior conviction and how extensive an inquiry to conduct. Ct declines at this time to establish general guidelines for determining when inquiry beyond the name and date of conviction is necessary.

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Specific Impeachment
(4) Prior Inconsistent Statements [FRE 613] FRE 607 either party may impeach a witness for either side FRE 613 relates to using prior inconsistent statements for impeachment purposes o (a) if the party is being impeached intrinsically, the only requirement for using a prior inconsistent statement to impeach is that opposing counsel, on request is entitled to see the statements or learn its contents, for the purpose of repairing, if possible, the damage done by the attacker if he distorted the statement or took it out of context. o (b) if prior inconsistent statement is proved by extrinsic evidence, witness must have an opportunity to explain or deny it and the adverse party must have a chance to interrogate the witness. use for impeachment considered a nonhearsay use o therefore not admitted as substantive evidence if used for this purpose o not permitted where subterfuge to get evidence in otherwise inadmissiblei.e. where the evidence is offered to prove the truth of the matter asserted (WEBSTER) test is whether there was bad faith on part of calling party witness may be questioned on cross about inconsistency o inconsistency must be material o not admissible if statement only involves collateral matters o statement need not be shown to witness or summarized before inconsistency revealed but must be shown to opposing counsel on request extrinsic evidence of prior inconsistent statement admissible in some cases (up to Ct): o 2 protections of this in 613(b) witness must have opportunity to explain or deny statement opposing party also entitled to opportunity to interrogate/rehabilitate 613(b) can be dispensed with if the interests of justice somehow otherwise require and does not apply at all if stmet made by party opponent (CT) Admissible both ways- check to see if the PIS can be admitted both substantively and as impeachment. Two common second uses: o Partys own prior inconsistent stmt introduced by the other party (admission) o Persons prior statement given under oath at a proceeding or deposition (801(d)(1)(A)) substantive exception to hearsay rule OR consider prior consistant statemrnt under 801(d) (1)(B). Hypo: Civil suit: assault. P claims D hit him w/ a shovel. P's witness W testifies that D hit P without provocation. On cross, D's lawyer doesn't ask whether W made any prior statements about the event. D calls M, the cop, who investigated. M says W told him that he didn't see the blow being struck & thinks P might have thrown a rock at D. P's counsel objects that D should have asked this of W when W was on the stand o D is introducing the PIS as extrinsic evidence under 613(b)The extrinsic form of the evidence = M's (cop) testimony. Intrinsic form of same evidence would be W's cross examination o The rule doesn't say when the witness has to have the opportunity to explain or deny the statement. Rule only guarantees that opportunity. The judge has discretion as to the order in which it happens. o But, what if W has joined the foreign legion and become unavailable for impeachment? It is the responsibility of the party who is trying to impeach W to make sure that opposing counsel will have the opportunity to mitigate the damage.

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The judge will likely strike the PIS from the record if W doesn't have the opportunity to explain it under 613(b).

(5) Contradiction - impeachment by contradiction permissible with cross-examination - The admissibility of contradictory evidence for impeachment purposes is a 104(a) question. - Fact-on-fact Impeachment o You can suggest that what W is saying is not correct. It does not suggest a reason. Party A tends to show fact A, party B then introduces evidence tending to show Fact A is not so. - Collateral Issue Rule o Certain types of testimony by W2 or extrinsic evidence are deemed to be of such collateral interest to the case that they will not be allowed if their sole purpose is to contradict W1: o Disallowed: Prior bad acts (no conviction) as to collateral matters. counterproof that only contradicts on a collateral point Prior inconsistent statements not related to material fact Testimony given that was not true according to W2, unless material o Allowed counterproof that contradicts and tends to prove an impeaching point here evidence would get in for bias even if not contradictory o Prior criminal convictions o Bad character for truthfulness o Sensory or Mental defect counterproof that contradicts and tends to prove a substantive point here evidence would get in even if not contradictory note that use of extrinsic evidence makes this broader than FRE 608(b) for specific prior acts o because application of 608(b) to exclude extrinsic evidence is limited to instances where the evidence is introduced to show the Ws general character for truthfulness. This is inapplicable in determining admissibility of relevant evidence used to contradict. o also extrinsic evidence of statements/acts indicating bias permitted (ABEL) two effects of recognizing contradiction as method of impeachment: o justifies departure from normal trial sequence (e.g. rebuttal witness called later) o allows some evidence that would otherwise be excluded

Constitutional Issues
For our purposes, remember: bring it up on direct and youre toast, dont bring it up on direct and the govt wont be able to bootstrap evidence by first bringing it up on cross

~ PIS obtained in violation of Miranda can be used to impeach (HARRIS) may be relevant whether PIS used to impeach direct or cross testimony ~ pre-arrest silence can be used to impeach as PIS (JENKINS) up to states to decide for themselves (no Constitutional bar) 58

~ ~

most relevant where defendant would be expected to make particular statement postarrest, pre-Miranda silence also can be used to impeach as PIS (FLETCHER) post-Miranda silence can not be used (DOYLE)

~ Can set up XE (sandbag) so that evidence that is constitutionally inadmissible for the case-inchief slips in as extrinsic evidence to impeach by contradiction. (HAVENS)

Not allowed to impeach by using otherwise inadmissible evid but not constitutionally barred to contradict testimony on cross if the cross was designed to elicit a contradiction.

~ ~

Unfortunately they often come in together and the FRE violation is overshadowed by the constitutional issue. If invokes his Miranda rights, they keep asking him questions, his stmts are admissible for impeachment but not litigation (they are supposed to cease interrogation) (HASS) Truly involuntary statements cannot be used to impeach , violate due process by a seriously wounded in his debilitated and helpless condition on the edge of consciousness. (MINCEY) Testimony given in response to grant of legislative immunity is the essence of coerced testimony the witness is told to talk or gace Gs coercive sanctions conviction for contempt. (PORTASH) No Perjury by Proxy - The illegally obtained statements ( arrested without probable cause) cannot be used to impeach a defense witness not the . (James) US V. WEBSTER 7th Cir 1984 gov't called bank robber (K), as a hostile witness, who D was being charged with aiding and abetting. K was a hostile witness against Webster. K introduced testimony that if believed would have exculpated D. Gov't wanted to impeach him w/ prior inconsistent statements by K that inculpated D. Rule 607 when lawyer's call witnesses, the lawyer is not sponsoring what the witness says. You can impeach a witness that you, yourself called. But NOT if you're abusing that right. D argues that you cannot call a witness just to impeach them and that the prosecution knew that was going to happen. D alleges that the government abused rule 607 to get evidence before the jury that was not otherwise admissible. Ct: you cannot call a witness who will give testimony of zero PV for the purpose of impeaching with evidence that the jury cannot use for its substantive or truth value.

Court holds not violation of FRE 607: Lawyer didnt have to forego calling witness because she was unsure. She had a right to expect that he would tell the truth, and when he did not, she had a right to impeach him to preserve the case. Must the lawyer accept the statement of two of five bad facts, or can he ask about the three good ones and impeach on the two bad facts? Posner says that when this is the case, the lawyer isnt in the Morlang category. The lawyer is not behaving improperly by bringing out the good facts and impeaching on the ones that are unhelpful.

Morlang case cited in Webster. Atty cannot impeach own witness in order to bring in otherwise inadmissible evidence. Posner in Webster says this would be an abuse of 607 in either a criminal or civil case. HARRIS V. NEW YORK SUPREME COURT 1971 s un-Mirandized statement (sold heroin to undercover), inadmissible in the case-in-chief, can come in to impeach when he later denies the crime. Brennan: He gratuitously injected the issue when on direct he said he had never in his life possessed narcotics.

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Doyle: post-Miranda warning silence cant be used to impeach Ds credibility (J. Powell). Jenkins- Pre-arrest silence as impeachment not unconstitutional. But this guy was silent on self-defense killing for 2 weeks. Could be realization of getting caught, could be actual fear of police as a black man. In some states pre-arrest silence will not be allowed because probative value is too low and results in unfair prejudice (but this is a State by state decision). Powell says that hes not going to decide the Fifth Amendment question because once D testified, he waived that right. Thus, the silence that he had a right to maintain can now be used to impeach him. Fletcher upholds the use of post arrest silence where police neither question the nor deliver Miranda warning. US V. HAVENS SUPREME COURT 1980 s statements made in response to proper XE ( D says he had nothing to do with any "activity" and "material") are subject to otherwise proper impeachment by the G, albeit by evidence that was illegally obtained (could not bring into evidence the t-shirt on Constitutional grounds) and is inadmissible on the Gs direct case, or otherwise, as substantive of guilt. Defense attorney asked general question that elicited a general answer by D, but Ct. allowed Pros to ask D a more specific question are you saying that had nothing to do with the sewing of the t-shirt and pockets for drugs?" (ONLY
APPLIES WHEN THERE IS A CONSTITUTIONAL VIOLATION)

Rehabilitation
Timing of Rebuttal 1. rebuttal must generally be done after attack occurs (no bolstering), except: cts generally allow a party that anticipates an attack to reveal the impeaching facts first (this would be done to make it appear that this party was not hiding something) this is like developing a truthful background rather than impeaching your own witness (FRE 608 does not apply until the party has been attacked) this can occur in the following ways a. can preemptively adduce that expert is being paid for services b. can preemptively adduce that witness has criminal conviction c. can preemptively adduce that witness has entered plea bargain d. can preemptively adduce that witness has connection or affinity to calling party Exceptions: Prior out-of-court ID and prompt complaint of rape can be brought up on direct. The form of the rehabilitation must rebut/match the form of impeachment where party anticipates attack on direct and cross can be characterized as attack, trial judge may permit use of character witnesses (MEDICAL THERAPY SCIENCES) Substance of Rebuttal FRE 608 (a)(2) The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

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1. rebuttal must be made after attack: a.

evidence of good character for truthfulness may rebut: i. bad reputation for truthfulness ii. witnesss bad opinion of truthfulness iii. that witness has been convicted of crime iv. that witness has committed prior bad act v. cross-examination implying/stating that witness is liar (MEDICAL THERAPY) vi. courts split on if can rebut prior inconsistent statement 1. allowable if implicit attack on credibility (most jx see it this way) vii. may not rebut evidence merely that present testimony is inaccurate viii. may not rebut evidence of bias b. evidence of prior consistent statement may rebut: i. charge that testimony is recent fabrication 1. if statement made before alleged motive arose (TOME) ii. charge that testimony product of improper influence or motive 1. if statement made before alleged motive arose (TOME) iii. may not rebut attack on general character a. unless attack implies fabrication or improper influence/motive ix. must show that charge amounts to an express or implied claim of lying because of improper influence or ulterior motives (if construed to show that W was honestly mistaken, cannot rebut)

1. Evidence of Good Character ~ FRE 608a: call witness to show good charac for truth and veracity by reputation or opinion i. dont forget foundation ~ Judge retains discretion to permit the use of character witness ~ Danger of this method: On cross, other side can ask charac witness if he knows about specific bad conducts of D (must have rsnble basis), if no then charac witness lacks impt info to form an opinion, if he does, then doesnt seem credible. ~ US v. Medical Therapy Sciences i. Federal prosecution for false claims and gov't has a cooperating W (a former business partner of the D). Gov't knows that W is subject to impeachment on a few different grounds (a prior unrelated conviction). After the gov't W is c-x'd gov't calls a good character witness under 608(a), to bolster R's credibility. Problem: D impeached W on bias, but G rehabilitated W on good character for truthfulness. Court finds that D did not place Ws veracity in issue on cross examination, but it allows the trial judge discretion as to his finding that D did open the door by attacking the truthfulness of W. Acordingly, G properly rebutted the attack with evidence of truthful character. ii. So, the form of rebuttal must match the issues addressed in cross, but this issue is one for the Judge to decide. The case has to be taken as an example of the kind of conduct that can fall within the phrase or otherwise for purposes of 608(a)(2). 2. prior consistency ~ Substantive Use - FRE 801(d)(1)(B): defines as not hearsay a prior consistent statement to rebut a charge that witness testimony is a recent fabrication or the product of undue influence or motive. permits use of prior statement to prove what it asserts i. start with Tome make determinations of whether pre-motive (if it is to rebut a charge of recent fabrication or undue influence, no matter for substantive or rehabilitative use, must be pre-motive)

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ii. Must be pre-motive: the prior consistent statement must have been made before motive or influence came into play Rehabilitative use i. witnesss credibility must first be attacked ii. if charge of recent fabrication, still has to meet pre-motive requirement iii. any case other than recent fabrication (Tome or 801d1B doesnt control), can still come in to rehabilitate if post-motive. iv. up to judge to allow in if the evid doesnt meet Tome or the nonhearsay use.

Forbidden Attacks
FRE 610 Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. ~ Because religious belief is intensely personal religious attitudes evoke strong feelings in jurors society tolerates diversity of religion the subject ultimately brings great risk of prejudice and little prospect of developing anything helpful. FRE 603 have to declare by oath o One who objects is entitled to commit self to truth by some other means. Affiliation itself is not proof of bias, unless the church is involved in the suit or something Courts are not likely to construe the idea of religion broadly in this context lest every social or political association be claimed as religious, hence out-of-bounds for impeachment purposes.V.

o o o o

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OPINION AND EXPERT TESTIMONY A. LAY OPINION TESTIMONY

FRE 701: If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of 702. Wide Latitude Allowed for Lay Opinion Testimony [FRE 701, 704] - lay witness must have first-hand knowledge of subject of testimony o note this is different from hearsay - modern view is fact and opinion are regions on continuum o differ in degree rather than kind o reject the old fear about invading the province of the jury: FRE 704 says that lay opinion testimony is "not objectionable because it embraces an ultimate issue. - therefore lay opinion given latitude to be admissible where: o rationally based on witness perception (first-hand knowledge requirement)

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o helpful to clear understanding of witness testimony or determination of fact if can put jury at Ws vantage, do not need Ws opinion. (SKEET) o not based on scientific, technical, or other specialized knowledge under FRE 702
Prefer lay witnesses to speak in concrete terms Hearsay vs. first hand knowledge rules: o If W is professing to state matters that he has personally observed (when in fact he hasnt), then FRE 701 is the proper objection. o If W is repeating an out of court statement for the truth of the matter asserted, then FRE 801 is the proper objection.

Things Lay people can do: ~ Somewhat conclusory statements if can defend or clarify them ~ Driving speeds are a matter of common experience and within the capacity of grown laypersons ~ can testify to the apparent emotional state "guilty look" o suggested explanation is speculation and would be excluded on objection. ~ "upset about her little girl." Appraisal of emotional condition is proper, and the situation presents a sufficient basis for Hanson to explain that her concern was directed to Amy ~ can describe physical damage ("whole right side was caved in"), though the conclusion that the car was "totaled" might be objectionable as requiring the expertise of an insurance adjuster Things not to Do ~ Dont guess or speculate stick to what you know or think to be true ~ Dont answer questions of law what the speed limit was on general application but if there is a sign. ~ Knowledge of how pot smells is not part of common human experience o Would need to adduce testimony that he meant marijuana and establish he knew the smell ~ Injuries unless a doctor, cannot testify over objection to a medical diagnosis. But he can certainly testify lying prone, and that any movement of her torso produced a response of pain. ~ should not be allowed to give a dollar figure unless he has some special basis in experience or expertise.

B. EXERT TESTIMONY
Requirements
Rule 702. Testimony by Experts: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Five General Requirements 1. witness must be qualified by knowledge, skill, experience, training, or education 2. must assist trier of fact in understanding evidence or determining fact in issue 3. must be based upon sufficient facts or data 4. must be product of reliable principles and methods (see part C, infra) 5. principles and methods must have been applied reliably to facts of case (see part C, infra) a. two general requirements: (a) helpfulness; and (b) basis.

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(1) Who is an Expert? [FRE 702] - expert must be qualified which requires: o specialized knowledge, skill, experience, training, or education can with suitable training or education can qualify as expert even if lacking certification or experience also covers people with practice experience but no formal training (THOMAS) - qualification allows witness to state opinion on technical points (2) When Can Experts Testify? [FRE 702] - only if expert will assist the trier of fact to understand the evidence or determine a fact in issue o this standard (too vague to be a test) goes primarily to relevance judge exercises more control in 403 rulings over experts than lay witness o allows wide range of testimony o unclear if experts restricted to testimony on subjects beyond ken of lay juries where expert only marginally helpful due to common understanding, can restrict under FRE 403

C. RELIABILITY STANDARD FOR SCIENTIFIC/TECHNICAL EVIDENCE

The DAUBERT Standard for Specialized Evidence FRE 702
DAUBERT V. MERRELL DOW PHARMACEUTICALS Supreme Court 1993: Lower courts throw out experts testimony and it goes to the Supreme Court, which unanimously concludes that Frye did not survive adoption of FRE. Daubert reverses the lower courts and lowers the bar by omitting the phrase general acceptance. On the other hand, the trial court says that the judge has to get more involved, making a 104(a) judgment that it is valid science. From the point of view of these combatants, this second element is good for the defendants, getting the judge to act as a true gatekeeper. This holding has resulted in judges taking more of a hands-on role. In Kumho Tire, this is extended from merely scientific experts to all experts. Daubert 2 prong reliability standard, which is now incorporated into the rule o Must be based on a reliable method; and o Has to be a method that seems to fit in the facts of the case. Assuming the experts to be qualified THE JUDGE could: ==> First, admit the evidence because the experts are qualified and let the jury resolve the dispute. ==> Second, decide for yourself whether the plaintiffs proof is valid science and admit or exclude accordingly. (Daubert, at least in theory). ==> Third, defer to the broader scientific community for its judgment on the validity of the science, asking the proponent to show not only what the proof means and what it is, but also to show that scientists generally agree with it. judge performs gatekeeping role for expert testimony under FRE 104(a) applies to all expert testimony originally applied only to scientific testimony (DAUBERT) but extended to technical or other specialized knowledge (KUMHO TIRE)

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preliminarily, judge decides o relevance (FRE 401-402) o reliability of expert testimony Qualified Expert? Valid Science? o gauges balance of probative value and the six 403 Dangers By a preponderance standard, factors to see if the method/science is product of reliable principles and methods (DAUBERT) o whether it can be reliably tested. Whether it can be falsified (DAUBERT). o whether its been subjected to peer review and/or publication (DAUBERT) o whether its got a reasonably low error rate (DAUBERT) o whether there are professional standards controlling its operation o whether its generally accepted in the field (DAUBERT) not a necessary condition, as with (FRYE) but merely one factor o whether developed for purposes other than merely to produce evidence overarching subject is scientific validity; inquiry is a flexible one (DAUBERT) o most important is application of reasoning/methodology, not reasoning itself Other factors presented, cited by Daubert o Types of error, o existence of a professional literature appraising the process or technique, o nonjudicial uses and experience with it, o newness and relationship to more established processes or techniques, and o the qualifications of the witnesses Even if the judge concludes that it is a valid science, he can exclude under FRE 403.

KUMHO TIRES extended the Daubert test to all expert testimony not just scientific testimony. Even for technical testimony, must consider factors such as peer review, testability, degree of acceptance. Second, it

lays such stress on flexibility and "discretion" that it seems almost to dilute Daubert. (3) Bases for Expert Testimony [FRE 703, 705] Rule 703. Bases of Opinion Testimony by Experts: [A] The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. [B] If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. [C] Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. Rule 705. Disclosure of Facts or Data Underlying Expert Opinion: [A] The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. [B] The expert may in any event be required to disclose the underlying facts or data on cross-examination. Application Notes: ~ must be based on one of three types, provided of type reasonably relied upon in field

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facts or data learned by firsthand observation before the hearing i.e., material that FRE 602 requires of lay witnesses facts or data learned at the hearing this is unique to experts o testimony heard while sitting in the courtroom before testifying o info conveyed in hypo questions summing up evidence already admitted outside data gleaned before trial by consulting other sources (generous rule) but not intended to create new hearsay exception intent is not to make underlying data admissible for all purposes ~ foundation need not be laid before opinion elicited (FRE 705) ~ testimony can be based on material even if not admitted/admissible into evidence ~ such data may be relied upon by experts yet still not by trier of fact under FRE 703, expert shall not disclose such facts unless judge finds probative value outweighs prejudicial effect but disclosure required if raised on cross (FRE 705) ~ Expert witness must offer her own opinion (TOMASIAN) ~ Reasonable reliability is a key in this area, and that requires establishing the source of the information both to make it reasonable to use under FRE 703[B] and to meet hearsay exceptions. (TUBE) ~ Confrontation Clause problem if expert testimony based entirely on hearsay reports (LAWSON) ~ The 703(C) Test: Inadmissible evidence (Data used by the Expert): it must be determined by the ct that the probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect, in order to be disclosed to the jury. This is opposite of the FRE 403 test and is more restrictive of admission. This rule protects the jury from being exposed to otherwise inadmissible data or evidence relied on by the Expert. The rule presumes that the expert (if relying on inadmissible data that is reasonably relied on by experts in his field) can speak knowledgably without revealing the inadmissible information. o Hypo: Air entered system during surgery which caused neurological damage. Strange b/c the medical record has a statement that the tube came out during surgery. Written by Dr. Nirmal. N was apparently not present at the surgery. N gets called in and the patient wakes up during surgery and clearly has a neurological injury. P must prove what happened during surgery when he was unconscious. The expert's opinion is that the tube coming out caused the injury (embolism) this is a negligent act. Problem is that we don't know where the underlying information about the tube coming out in the medical record comes from. she comes to her conclusion because of what is written in the medical record about the tube coming out. Issue is whether this written statement should come in. Intent of FRE 703 is not to let an expert simply perform the function of laying a foundation to admit a report by another. An expert can rely on inadmissible evidence, but the reasonable reliance requirement was designed to protect reliability. The distinction between normal, reliable medical history, and unreliable hearsay contained in medical files, is a common theme in evidence law. Reasonable reliability is a key in this area, and that requires establishing the source of the information both to make it reasonable to use under FRE 703[B] (assuming it was unreasonable to rely on these hearsay

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statements in the medical fieldprobably) and to meet hearsay exceptions (like the business records exception or party opponent statement). If it is reasonable to rely on hearsay information, then the expert can rely on the hearsay statement of another when preparing his expert testimony, but this document cannot be admitted as evidence. UNITED STATES V. TOMASIAN Supreme Court 1986 expert testimony relying entirely on what others say inadmissible in case where witness, testifying on the value of ivory tusks, indicated that he consulted outside sources to ascertain the price per pound of ivory then multiplied by the weight. He had no opinion of his own or if that was a proper measure of value. US V. LAWSON expert testimony based entirely on hearsay reports violative of confrontation clause; a must have access to the hearsay info relied on by expert W. The Tube Came Out: intent of FRE 703 is not to let an expert simply perform the function of laying a foundation to admit a report by another. An expert can rely on inadmissible evidence, but the reasonable reliance requirement was designed to protect reliability. The distinction between normal, reliable medical history, and unreliable hearsay contained in medical files, is a common theme in evidence law. Reasonable reliability is a key in this area, and that requires establishing the source of the information both to make it reasonable to use under FRE 703[B] and to meet hearsay exceptions.

.24 Percent Alcohol: Situation in which the entire basis for the expert's testimony is inadmissible. Can you have a doctor testify to intoxication if the only basis for that conclusion is seeing the blood alcohol test? Proponent of testimony says: under 703, the Dr's mention of the BAL test would be U/P, but I will ensure he doesn't mention it and that he simply testifies to the fact of intoxication. Under Constitution, 4th Amendment problem with the report if the sample that was tested was obtained illegally by the government would lead to suppression of report and doctor's opinion. The Sixth Amendment comes into play with reports of this nature because of the right to confront, i.e., cross-examine, the person who prepared the report. The constitutional provisions are not likely to affect civil proceedings. For hearsay purposes, the report is treated as a written assertion, and the declarant is the person who prepared/generated it.

(4) Restrictions on Expert Testimony [FRE 704] Rule 704. Opinion on Ultimate Issue : (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. may not state opinion/inference whether criminal defendant had mental state/condition

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probably cannot answer questions phrased in terms of inadequately explored legal criteria (704 ACN) o e.g. can say party knew nature and extent of his property and natural objects of his bounty but not that party had capacity to make a will o this is difficult area for courts to resolve Senate note says FRE 704(b) reaches "all such 'ultimate' issues," including "premeditation in a homicide case" and "lack of predisposition" in entrapment.

Presentation of Expert Testimony

~ ~ ~ Establish that matter at hand could benefit from expertise Lay foundation: educational background? Degree? Experience? Employment in area covered by questioning? Familiarity with subject in suit? Qualify the witness: have to satisfy judge that witness is expert o Adverse party may stipulate if very impressive (want to keep jury from being over impressed), calling party may draw it out if credentials exceedingly impressive o If adverse party thinks not very qualified, can voir dire (XE on credentials) o Then court makes decision (FRE 104(a)) o Once qualified, can go straight to the matter: this different from lay witness which require laying foundation (personal knowledge, placing witness at scene, etc) FRE 705 experts can give opinion without first testifying to underlying data. (can start with foundation or can start with the ultimate opinion which gives the jury a basis of what is coming up next) experts can be crossed about the underlying bases for their opinions cross is very impt bc the expert opinion does not need foundation first. In order to prepare for cross, need a lot of discovery and FRCP 26(b)(4) requires that party reveal experts before trial. FRE 705 does limit the extent of the challenge to the underlying basis. cannot just be about the weight to the conclusion/opinion, has to go to underlying validity and admissibility.

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