1. Cause in Fact - Facts proving that the defendant’s conduct was the cause of the plaintiff’s harm in a physical or scientific way
   • The court constistantly denies liability in tort when the defendents negligent actions are not the cause of the plaintiffs injury
   • “But for” But for X then Y would not have occured
   • The defendants actions NEED NOT BE THE ONLY CAUSE, just one of the causes
2. Proximate or Legal Causation – Does the defendant have a valid legal argument that the circumstances of the event would prevent him from being liable for damages to the plaintiff

• Defendant supplied water to the plaintiff maintaining two pipelines
  1. Hemlock – Potable drinking water
  2. Holly – For firefighting and Street Cleaning
• Pipes inadvertantly got crossed and the dirty Holly water ended up in townspeople’s homes
• The Holly water contained polluted water not fully cleansed of sewage
• Plaintiff became ill fom Typhoid fever which can be cause by a number of elemnets
  1. Drinking polluted water
  2. Raw fruits and veggies that were grown using human excrement to fertilize the soil
  3. Consumption of shellfish (Not common)
  4. Infected Milk and veggies
  5. Houseflies in certain localities
  6. Contact with infected person
  7. Ice with typhoid bacilli
  8. Fruits Veggies etc washed in contaminated water
  9. UKNOWN vague medical causes
• Important question…Did the plaintiff provided evidence that reasonably establishes his illness was due to the contaminated water?
• Doctors opinion believes the cause of typhoid is the the cause
• Dr. Goler did tests on the water and found increased chlorine, solids, etc. and also talked to people who were sick. From this evidence the Dr concluded that the townspeople go the typhoid from the water, Dr Dodge reached the same conclusion, his tests however did not discover bacteria BUT did find some evidence of it.
• Dr. Brady  (for D) says that’s not how they got typhoid
• • Defendant argues that
    1. Evidence fails to establish
    2. The plaintiff had to prove that his illness was not from any other cause
• 57 witness who drank the water a got typhoid fever
  • Court believes this and doesnt require a witness testimony
• Defense claims interpretation of a Rule that
  1. When there is one or more possible cause plaintiff cannot recover without proving that defendant’s action was, in whole OR in part, the cause
  2. Becasue typhoid is cause by Unknown causes this would essentially force the P to disprove unknown causes, which is obvi impossible.
• Judge does not feel this rule is so inflexible as to require the P to disprove all other causes
  • “If two or more possible cases exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable the party has complied with the spirit of the rule”
  • It is suficiant for the P to prove with Reasonable Certainty that the direct cause of harm resulted from the D actions
• But for the citys crossing the lines would the P cathc typhoid?
• Reversed and new trial granted

The rule in Stub would require the D to pay for all 58 cases, and this is UNFAIR

Proportional Liability

• Man falls down, negligently lit dark stairs, and died
• Nothing to show that darkness was a cause of the accident
• Nothing to show that the stairs were being used in the normal manner
• Simply a “conjecture?” that the darkness cause the fall
  • But for the darkness would the P have fell?
• Case dismissed for absense of proof that the P fell because it was too dark (obviously because he was dead)

Hinman v Sobocienski, 808 P.2d 820 (Alaska 1991)

• Tenent found injured at bottom of negligently lit dark stairs
• P proved that the stairs were unreasonably dangerous
• P did not provide evidence that “The condition of the stairway contributed to her injuries”
• Trial court Directed verdict for Defendant
• Supreme Court Alaska 4-1 REVERSED
  • “When a resident is then found injured at the bottom of those stairs, a reasonable inference is that the dangerous condition more likely than not played a substantial part in the mishap”
  • Most likely for policy reasons, landlord in best position to protect harm and distribute losses
    • Expanding liability is a trend, not surprising!

Hypo

• Drunk driver
• Kid darts out in front, gets run over
• D – even a skillful sober driver could not have avoided
• In these cases the Court will go out of its way to uphold a verdict for the P
• Juries will strive hard to even find liability, even when it is a stretch
• Because we have such a strict policy against drunk driving

How about causation?

• JSL occurs when two or more actions cause the harm to the P
  • In contrast to “Independent and Successive” (I/S) liability where two actors actions “neither act in concert or contribute concurrently to the same wrong”
  • Although sometimes I/S can be found to be JSL when the harm is “incapable of any reasonable or practicable division or allocation”
• Traditional Rule
  • If the P damages were found to be $100,000 each D could be liable for the full amount
  • ie if plaintiff A has no money plaintiff B must pay the full $100,000 and vice versa
• Modern Rule
  • Plaintiffs usually pay based on their respective percentages of harm if they are solvent
  • DOES NOT prevent a D from collecting 100% from a D if the other D is insolvent!!!
  • BUT if the split is 25-75% and both parties are solvent then the damages will generally be paid proportionally
• Ravo v. Rogatnick (514 NE2d NY1987)
  • Baby injured at birth by either Obstetrician, Pediatrician OR both
  • Not clear who cause what harm, possibly and I/S –> JSL because :::
    • “The evidence showed that the brain damage was a  single indivisible injury”
  • Jury told to place JSL based on 100%
  • Finds OB 80% PD 20%
  • PD claims he should only have to pay 20% of the damages
    • Court disagrees –> When tortfeasors actions cause a joint harm then for all legal purposes there is a “joint enterprise” liable for the damages
    • EITHER party can still be responsible for 100%
• JSL has come under fire due to unfairness because a 25% responsible party could have to pay 100% if the 75% was insolvent
  • JSL was a side effect of Comparative Negligence because if you can compare the Negligence of P vs D then why not compare D vs D?
• Modern Current Rule fits roughly in these categories
  1. Abolished JSL –> solvent party only responsible for his share
  2. Abolished JSL WHEN the solvent party is less than 50% responsible
  3. A few states (California *cough cough*) keep JSL for economic damages but not for non-economic damages
  4. Handful have abolished JSL when the P is partially at fault (comparative negligence), but retained when P is not at fault
  5. Handful retain JSL but distribute the insolvent losses among other solvent parties based on their percentage of fault
  6. Handful have abolished for some types of torts (like toxic and environmental because a very small party could end up liable for a corporations actions) NY for example retains JSL for auto accidents, recklessness, and some environmental cases.
• Summers v. Tice Supreme Ct CA 1948 933 Cal.2d 80, 199 P.2d 1.
  • Quail hunters both fire shot, P is hit by two pellets, one in the eye one in the mouth
  • Unable to decide who’s shot hit the P the judge found both D liable in JSL
    • Court did not give credence to one D admission to a third party that he shot the injuring pellets
  • Same rules apply in criminal cases (Street racers both JSL for injured pedestrian/damaged property as result of a crash
  • Policy because if one D can escape liability so can the other
  • Found NOT to engage in Concerted Activity because they DID NOT engage in concerted effort to shoot in Plaintiff
  • Court is stuck unless court can prove whose pellet cause the injury
    • You have to link a P injury to the D actions
    • Doctrine in lower court says that both can be liable.
  • Analogous to Ybarra v. Spangard res ipsa loquitur case (unconscious man injures shoulder during surgery)
    • res ipsa loquitur – the mere fact that an accident occurred implies negligence
  • Holding “under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently”
    • Reasons of policy, it doesnt matter that they didnt both engage in an effort in concert to be negligent.

Follow the flow chart to establish or deny personal jurisdiction:

<h3>Federal Rules of Evidence Law School Supplements</h3>

<ul>
<li><a href=”http://www.amazon.com/gp/product/0735507473/ref=as_li_tf_tl?ie=UTF8&tag=collegebook-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735507473″>Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735507473″ width=”1″ height=”1″ border=”0″ alt=”" style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/0735508739/ref=as_li_tf_tl?ie=UTF8&tag=collegebook-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735508739″>Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735508739″ width=”1″ height=”1″ border=”0″ alt=”" style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/0735590427/ref=as_li_tf_tl?ie=UTF8&tag=collegebook-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735590427″>Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735590427″ width=”1″ height=”1″ border=”0″ alt=”" style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/0735598045/ref=as_li_tf_tl?ie=UTF8&tag=collegebook-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0735598045″>Law in a Flash: Evidence 2011</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=0735598045″ width=”1″ height=”1″ border=”0″ alt=”" style=”border:none !important; margin:0px !important;” /></li>

<li><a href=”http://www.amazon.com/gp/product/1454802480/ref=as_li_tf_tl?ie=UTF8&tag=collegebook-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=1454802480″>Evidence: Examples & Explanations, Eighth Edition</a><img src=”http://www.assoc-amazon.com/e/ir?t=collegebook-20&l=as2&o=1&a=1454802480″ width=”1″ height=”1″ border=”0″ alt=”" style=”border:none !important; margin:0px !important;” /></li>
</ul>

Chapter 1: Evidence Law and the System

1. Why Rules of Evidence:
   1. Why Evidence Law at all?
      • Lay Jury = amateur factfinder
      • 5 reasons for Evidence Law:
        1. Mistrust of juries
        2. To serve substantive policies relating to the matter being litigated to set burdens of persuasion
           • Ex. Plaintiff has a better chance if he only needs to prove his case by a “preponderance” (lowest standard of proof known to the law) as opposed to “clear and convincing” evidence
        3. To further substantive policies unrelated to the matter in litigation—what we may call extrinsic substantive policies
           • Ex. Protection of marriage
        4. To ensure accurate factfinding
        5. To control the scope and duration of trials, because they must run their course within reasonable dispatch
   2. Why Rules Rather Than Common Law?
      • Accessibility is the main reason advanced by framers of the Federal Rules of Evidence
      • Pre-Rules Evidence Law : common law tradition was followed
      • Federal Rules of Evidence:
        1. Created by Advisory Committee that comprised practitioners, judges, and law professors appointed by the US Supreme Court
        2. Congress then made changes  they deleted the privilege rules
2. What Happens at Trial:
   1. Jury Selectionn:
      • Voir Dire: court and counsel try to find our whether any members of the panel should not serve in the case at hand
      • People can be excluded for age, bias, prejudiced because of work/income connection to members of trial
      • Each party has a fixed number of peremptory challenges which entitles him to exclude potential jurors for any reason at all
   2. Opening Statement:
      • Overview and traditionally the party bearing the burden of persuasion (usually P in civil litigation and prosecutor in criminal) has the right to make the 1^st opening statement
   3. Presentation of Proof:
      • The order of proof:
        1. Plaintiff (or prosecutor) presents his case-in-chief, then rests;
        2. Defendant presents his case-in-chief, then rests;
        3. Plaintiff (or prosecutor) presents his case-in-rebuttal;
        4. Defendant presents his case-in-rebuttal (sometimes called his “case-in-rejoinder”)
        5. Each side presents further cases-in-rebuttal (again sometimes called cases-in-rejoinder)
      • Order of Examination:
        1. Direct examination by the calling party
        2. Cross-examination by the adverse party
        3. Redirect examination by the calling party
        4. Re-cross by the adverse party
        5. Further redirect and recross as may be necessary
   4. Trial Motion
      • Motion for judgment:
        1. Judge assumes that jury (if given the case) will believe witnesses for the party opposing the motion, which means that the judge does not determine credibility issues (or resolves them in favor of the party opposing the motion)
        2. Typically such motions are denied
   5. Closing motions:
      • Party bearing the burden of persuasion has the right to make two closing arguments, one before and one after the adversary
   6. Instructions:
      • Explain substantive principles and allocate and define the burdens of proof on the issues
      • Curative Instructions: Judge may also instruct jury to admonish certain portions of testimony
      • “Limiting Instructions”: instructions that advise the jury to consider certain proof only on one point and not others or against one party and not others
      • Some instructions seeks to convey to juries the effect of presumptions and certain formal inferences
   7. Deliberations
   8. The Verdict
   9. Judgment and Post Trial Motions:
      • After verdict is announced, the court enters judgment
      • In civil cases, generally the prevailing party prepares the judgment for the court’s signature
      • In criminal cases in which the jury returns a verdict of not guilty, a judgment of acquittal is signed by the judge and entered by the clerk
      • JNOV (now called judgment as a matter of law) motion
   10. Appellate Review:
       • Finality principle: appellate review may be had only at the end of the case, when the trial court has entered a final judgment
       • There are notable exceptions (class certification, etc)
       • Even when judgment has been entered, a party may obtain full appellate review only if it has preserved its claim of error by stating its position promptly and clearly at trial
3. Making the Record:
   1. What is the Record and How Is It Made?
      • The official record of trial comprises of 5 different kinds of material:
        1. The pleadings
        2. Filed documents: motions accompany briefs, documents seeking and providing discovery, jury instructions, and court orders
        3. The record of proceedings
        4. The exhibits
        5. Docket entries
   2. Beware of Pitfalls—What Not to Do:
      • Echoing
      • Overlapping
      • Numbers, Names and Big Words
      • Exhibits
      • Pantomime, Nonverbal Cue, Gesture, Internal Reference
      • Going “off the record”
      • The sidebar conference
   3. Taking Care—What to Do
      • As the forgoing discussion suggests by negative inference, two important contributions that the trial lawyer makes in preparing a useful record of the proceedings are
        1. (1) to ensure that utterances important to his cause, whether his own or those of witnesses or the judge are spoken clearly enough to be understood and put down by the reporter
        2. (2) to ensure that those utterances have meaning when they appear in printed form in the transcript
4. How Evidence is Admitted or Excluded:
   1. Getting Evidence In: Foundation and Offer
      • Testimonial Proof—Direct Examination:
        1. Lay the Fondation:
           • Ask questions that show that the witness has personal knowledge of the matters to which he will speak
           • Then lawyer asks substantive questions getting at witnesses knowledge of pertinent facts  must generally be done with nonleading questions
           • Leading Questions: bad because they:
             • Invoke in the witness a false memory of events
             • Induce him to lessen efforts to relate what he actually remembers and acquiesce instead in the examiner’s suggested version
             • Distract him from important detail b directing his attention only to selected aspects of the story
      • Testimonial Proof—Cross Examination:
        1. Leading the witness: acceptable on cross examination b/c:
           • 1) May Invoke the conscience of the witness and awaken his memory sufficiently to dislodge him from his previous version of events in favor of what he himself considers a more complete or accurate version
           • 2) Expose limits or inaccuracies in his memory
           • 3) Focus his attention on important details
        2. Scope of Direct Rule: traditional rule is that cross-questioning is limited to matters explored on direct
      • PROBLEM 1-A: HOW DID IT HAPPEN?
        1. Now Mr. Dreeves, you and Ms. Barton are seeing each other socially, isn’t that right?
           • Cross examination should be limited to the subject matter of the direct but that the judge may permit inquiry into additional matters
           • Probably outside the scope, but the judge may permit it if it goes to the witness’ credibility  reason to lie  this one would go to credibility
           • Leading question possibly
        2. Isn’t it true, Mr. Deeves that at the time of the accident Ms. Barton here had turned clear around in her seat and was looking out the back window of the car?
           • This seems relevant in scope because it deals with a possible cause of the accident and attempts to shift blame from Felson to Barton
           • If Barton was negligent or partially liable that matters
           • Barton will argue he wasn’t asked this and Felson will say the judge should permit this broader questioning
        3. Tell me Mr. Deeves, you and Ms. Barton here had just finished lunch at Sebastian’s where she drank three glasses of wine just before the accident, isn’t that true?
           • Improper because it doesn’t go to credibility of witness on witness stand
      • Real Evidence:
        1. “Real Evidence”:
           • refers to tangible things directly involved in the transaction or events in litigation (i.e. the defective steering assembly involved in the accident)
           • can be established by testimonial account
      • Demonstrative Evidence:
        1. “Demonstrative Evidence”:
           • tangible proof that in some way makes graphic the point to be proved
      • Writings:
        1. “Writings”:
           • one kind of physical evidence that generall must be introduced at trial rather than proved by means of testimonial descriptions
           • often writings = real evidence
   2. Keeping Evidence Out:
      • The Objection:
        1. Reasons for Objections and Limitations:
           • Fairness
           • Helps court who can’t always guide or take sides
           • Objections must be timely
           • The objection should include a statement of the underlying reason (grounds)
        2. Specific v. General Objections:
           • Specific  May be for want of better terms, either substantive or formal in nature
           • General  alliterative phrase “irrelevant, incimpetent, and immaterial”
        3. Grounds: “Substantive” or “Formal”
           • Substantive Objections:
             • Rest on particular exclusionary principles in the Rules of Evidence
        4. Formal Objections:
           • Focus on the manner of questioning and they are standard equipment for trial lawyers
           • Often tactical weapons used to obstruct, delay or break the cadence of the opposition
           • Common Formal Objections:
             • 1) Asked and Answered
             • 2) Assumes Facts Not In Evidence
             • 3) Argumentative
             • 4) Compound:
               1. sometimes a question seeks more than one answer or suggests alternative responses, while being framed in a way that invites a yes or no response
             • 5) Leading the Witness
             • 6) Misleading
             • 7) Speculation or Conjecture
             • 8) Ambiguous, uncertain and unintelligible
             • 9) Nonresponsive to the Question
      • The Motion in Limine:
        1. Provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial
        2. Occurs when one party anticipates evidence being admitted that the other side will have a serious objection to
        3. Judges hesitant to give
   3. The Offer of Proof:
      • A lawyer faced with a ruling excluding evidence must make a formal offer of proof, if he wants to preserve the point for later appellate review, which means demonstrating to the trial court exactly what is prepared to introduce if permitted
   4. Judicial MiniHearings
      • Rule 104 describes the functions of judge and jury in deciding evidence questions
        1. Rule 104(a) says the judge determines “preliminary questions” – witness competency, privilege, and admissibility of evidence”
        2. Rule 104(b) says it is different when relevancy turns on fulfillment of a condition of fact
           • The jury decides whether the condition is satisfied (fulfilled) and evidence that is conditionally relevant is admitted upon or subject to the introduction of sufficient other evidence to support a finding by the jury that the condition is satisfied
5. Consequences of Evidential Error:
   1. General Notes:
      • 3 Main Causes of Imperfection:
        1. Some rules are slippery or complex
        2. Some evidence rules are framed as vague standards and close appellate scrutiny would make little sense
        3. Ours is an adversary system, which places the lion’s share of responsibility for the conduct of trial on the litigants themselves
   2. Appraising Such Error on the Merits:
      • Errors that matter and errors that don’t – 2 points of distinction
        1. The evidence of error must have affected what Rule 103 calls a substantive right  meaning essentially outcome
        2. We need some standard to deal wit uncertain situations b/c reviewing courts often cannot tell for sure that even the most egregious error actually affected the result
           • Usual standard is probably affected
      • Kinds of Error:
        1. Reversible Error:
           • Refers to the kind of mistake that probably did affect the judgment
        2. Harmless Error:
           • Refers to the kind of mistake that probably did NOT affect the judgment
        3. Plain Error:
           • The kind of mistake that warrants relief on appeal in the estimation of the reviewing court, even though appellant failed to take the steps usually necessary to preserve its rights
        4. Constitutional Error:
           • Usually means a mistake in admitting evidence for the prosecution that should have been excluded under the Constitution
      • 3 Doctrines (that turn reversible into harmless):
        1. Cumulative Evidence Doctrine:
           • Supports affirmance despite errors by the trial court both in admitting and in excluding
           • “While the trial judge did err in admitting evidence offered against the appellant, still so much other proper evidence supported on the same point that the jury would likely have found against her even if the judge had correctly excluded the evidence in question.”
        2. “Curative Instruction Doctrine:
           • When a judge commits an evidence error, he may be able to avoid reversal by means of an instruction to the jury  instructions to disregard
        3. “Overwhelming Evidence” Doctrine:
           • If a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms
   3. Appellate Deference: The Discretion of the Trial Judge:
      • Trial judge has broad discretion (FRE 403 and FRE 611)
   4. Procedural Pitfalls and Adversarial Gambits:
      • 3 Kinds of Behavior from Appellant (that prevent court from considering whether evidence was wrongly admitted):
        1. Failing to Object or Offer Proof
        2. Inviting Error:
           • Lawyers sometimes put questions that produce otherwise excludable answers
           • Assuming that the witness fairly replies to the question asked, the questioner is said to have invited any error that would otherwise arise in allowing the answer
        3. Opening the Door:
           • A Party testifying on direct examination by his own counsel makes an ill-advised and overbroad assertion that he has a blemish free past  then opposing side can cross on this
   5. PROBLEM 1-B: He Didn’t Object:
      • Carl Dreeves joins with Abby Barton as the 2^nd plaintiff in the suit against Eric Felsen. The Defense offers testimony by police officer Hill, based on measurements of skid marks at the scene, that Barton’s Fiat was traveling at a speed of about 50 mph just before entering the intersection. Counsel for Barton objects that the officer Hill is not qualified as an expert in accident reconstruction and that estimates of speed based on skid marks involve sheer speculation and are not helpful to the jury.
      • The court overrules the objection, the jury returns a verdict for Felsen, the court enters judgment that Barton and Dreeves take nothing and that their claims be dismissed with prejudice. Dreeves appeals and Felsen argues that the appeal should be dismissed b/c his failure to object below.
      • ANSWER: the court of appeal would have to determine whether the error was reversible (probably affecting the judgment) or harmless. If the police officers testimony was among other (eye witnesses, experts, etc) evidence showing that Barton was going 50 mph then it probably did not affect the outcome of the trial. This approach is known as the cumulative evidence doctrine.
        1. Or if there was overwhelming evidence to support Barton’s speeding the court could apply that and the objection would
        2. The objection was specific (lay not qualified to testify as an expert) and timely
        3. Yes it should prevail
6. Obtaining Review of Evidence Points:
   1. Appeal from Judgment:
      • Evidence rulings are for the most part, an example of the nonappealable interlocutory order
   2. Interlocutory Appeal:
      • 2 instances where interlocutory appeal is allowed:
        1. Privilege Rulings:
           • Under one approach  the threshold question is whether the person from whom info was sought has been held in contempt  if not, not review may be had
           • Under another approach  the treshold question is whether the nondisclosing person is a party to the action  if he is a party, he may obtain review of the privilege ruling only by suffering an adverse judgment on the merits of the case, then raising the privilege issue on appeal from the judgment
        2. Supression Motions:
           • In criminal cases in federal court, the applicable statute paves the way for government appeals “from a decision or order…suppressing or excluding evidence…not made after D has been put in jeopardy and before the verdict or finding on an indictment or information” if the U.S. Attorney certifies that the appeal has not been taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding

Class Notes:

• Preparation and being a story teller are the most important qualities as a trial lawyer
• Trial:
  • Plaintiff Expert testimony as to the standard of care
    • Breach of the standard of care
  • Defendant  affirmative defenses (statute of limitations)
  • Evidence provides information for the record  failure to get info added into the record can be the death of your case
  • Forms of Proof:
    • Documents, Witness, Physical evidence, anything presented to the eyes, ears and nose of the jury
• Federal Rules of Evidence:
  • Product of detailed study
  • Used in both civil and criminal cases (federal)
  • How does a proposed evidence rule become law Congress authorized the federal judiciary to proscribe the rules
    • Important to know that there is a multi-stage process for a new rule to come into existence  takes years and continuous study
    • Ultimately the rules find themselves at US Supreme Court  if they approve they submit it to Congress in May 1 of the year it’s supposed to be submitted
    • Congress can either do nothing (and it becomes law) or they can change it however they want
      • Politics are therefore involved in the rulemaking
  • Major revision on the way to the FRE
• Federal Rules of Evidence:
  • General provisions (Rules 101-106)
  • Judicial Notice (Rule 201)
  • Presumptions in Civil Actions and Proceedings (Rules 301-302)
  • Opinions and Expert Testimony (Rules 701-706)
  • Hearsay (Rules 801-807)
• Something doesn’t have to be admissible, but it must be reasonably calculated to lead to discoverable material
• Rule 56(e):
  • You must have otherwise admissible form
  • When a motion for summary judg. Is made and properly supported the opposing party may not rely on admissions or denials made in its pleadings  affidavits must set out specific facts showing genuine issue for trial
  • If opposing party does not so respond then Sum Judg should be entered against that party
• Differences Between CA Evidence Code and FRE:
  • FRE do not set forth detailed privilege rules, unlike the CA evidence code
  • CA evidence code is important to discuss because it’s on the bar
• Basic Ideas/Intro Reading:
  • Read advisory committee notes are not the rule, but are often looked to by courts in determining the meaning of the rule
• Scope of the Rules (Rule 101):
  • These rules govern proceedings in the courts…
  • Rule 1101 also covers this
• • The rules are broadly applicable
  • The rules apply in both civil and criminal cases
  • Federal court  do federal rules of evidence always govern? (False) state law drives the rule of decision
    • There are certain things for which the federal court would look to state courts for law
    • Federal court will look to state court in the area of presumptions, privileges and it might matter
    • Rule 1101© Rule of privilege
    • Rule 1101(d) Preliminary question of fact:
      • 1) the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104
      • 2) Grand jury
      • 3) Miscellaneous proceedings
  • Should the judge follow the federal rules of evidence even though she’s the factfinder? Yes, but they do bend the rules
    • The judge does have to follow the rules even if she’s the factfinder, but in practice they are bent
    • CA rule is very similar to the FRE
• Underlying Rational for Rules:
  • 1) Regulate the evidence submitted to a jury (mistrust of juries)
    • sometimes we don’t trust jurors with all “relevant” evidence
    • sometimes evidence is relevant but not admissible
  • 2) Provide a mechanism to favor/disfavor certain claims or parties
    • burden of persuasion in civil fraud case is clear and convincing (and must be plead by particularity)  because it’s easy to plead fraud and there needs to be that element of intent
    • by tinkering with burden of persuasion we’re disfavoring fraud claims
    • Criminal justice system favors letting guilty people go by setting the standard at beyond a reasonable doubt
  • 3) Provide a mechanism for accurate fact-finding
    • Authentication rules (not just any document can be admitted)
  • 4) Provide a mechanism to encourage important policies unrelated to the present litigation
    • Some rules are meant to encourage action without letting the other side then hold it against that party
  • 5) Provide a mechanism for the protection of private relationships
    • Couples don’t have to testify against each other
  • 6) Provide a mechanism to limit the scope and duration of trials
    • all nonrelevant evidence is excluded at trial
  • 7) Allow for due process at the trial
  • THEREFORE ALL RELEVANT EVIDENCE IS NOT ADMISSIBLE AT TRIAL
• Jury:
  • Talk to them through witnesses
• Objections to Closing Argument:
  • Addressing jurors by name
  • Inflamatory arguments
  • Misstating law or facts
  • Unduly emotional argument
  • Urging emotional argument
  • Urging matters outside of the trial
  • Mentioning the wealth of poverty of the parties

General Notes:

• Litigation Process:
  • Complaint and Answer
  • Pretrial Discovery
  • Pre-Trial Motions
  • Motions in Limine: Motion to discuss evidence that you think the other side is going to attempt to bring in at trial  you file a Motion in Limine to discuss this ahead of time (to keep certain things away from people of the jury)
  • Jury Selection (voir dire)
  • Plaintiff’s Opening Statement
    • They go first because they have the burden of persuasion
    • The party who carries the burden sits closest to the jury
  • Defendant’s Opening Statement
  • Case-in-Chief of Plaintiff
  • Motions at the Close of the Plaintiff’s case
    • Motion for directed verdict
  • Case-in-Chief of Defendant
  • Rebuttal Evidence
  • P’s Closing Argument
  • D’s Closing Argument
  • P’s Rebuttal Argument
  • Arguments Regarding Jury Instructions
    • DO NOT IGNORE jury instructions when you get to closing argument
    • Jury will have instructions (sometimes they’re complicated) and so in a non-condescending way help them to get to the answer that you want
    • You cannot and should not ignore those instructions in your closing argument
  • Jury Instructions
  • Jury Deliberation
  • Verdict and Entry of Judgment
  • Post-Trial Motions
  • Appellate Review
• Objections:
  • Addressing juror by name
  • Vague and ambiguous
  • Assumes facts not in evidence
  • Argumentative
  • Asked and answered
    • Can’t continuously ask a question that has been answered
  • Calls for a narrative
    • Question doesn’t have for specific enough answer and invites story telling from the witness
  • Unresponsive
  • Speculative
  • Compound Question
  • Sustained = well formed objection
  • Overruled = objection is without merit
• Example Objections to Opening Statement:
  • Addressing jurors by name
  • Arguments of the facts or law
  • Arguing the credibility of anticipated witnesses
  • Referring to evidence which has been excluded by motion in limine
  • Inflamatory Argument
  • Misstating law or facts
  • Unduly emotional argument
  • Urging matters outside of the trial record
  • Mentioning the wealth or poverty…
• Objections—Rules to Live by:
  • Act promptly
  • Know your judge
  • Always be courteous
  • Reserve objections for important matters
  • Be specific
  • If more than one objection is present, name them all
  • Request court to make appropriate instructions on evidence
  • Decide whether you want to be heard at side bar
  • When appropriate, use the opportunity during your opponent’s direct examination to voir dire the witness for the purpose of an objection
  • Know the rules of evidence and be comfortable utilizing them
• Objection and Appeal:
  • We want a rule that says that without a timely objection/offer of proof the appeal issue is not preserved (To preserve justice and finality of judgments and discourage people from sitting on their hands)
  • We are not entitled to fair trial in every aspect  we are entitled to appeal, but that doesn’t mean that any error is grounds for a new trial
  • The error must be reversible
  • “Rulings on evidence cannot be assigned as error unless
    • 1) a substantial right is effected and
    • 2) the nature of the error was called to the attention of the judge, so as to alert him to the proper…
  • Successful Appeal:
    • A timely or proper objection or offer of proof must have been made
    • Appellant must establish that the trial court’s evidentiary ruling was in error
    • The appellate court must be persuaded that the effort effected a substantial right of the appellant (i.e. was a harmful error as opposed to a harmless error. This is known as reversible error or prejudicial error)
    • Offer of Proof: shows and puts into record what that witness would have said had he/she been allowed to testify
    • General objection or specific objection on other grounds isn’t sufficient for an appeal brought for other reasons
• Rule 103. Rulings on Evidence:
  • (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
    • (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record…
  • Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
• Advisory Committee:
  • “The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point.”
    • This is VERY VERY tricky
    • Better make sure a ruling is a definitive ruling
• Trial Court Discretion:
  • TC has discretion to exclude things
• Plain Error:
  • When error is so egregious and outrageous that the court of appeals will change ruling even though no timely objection
  • More likely they’ll find plain error when there was lack of timely objection but less likely when not timely offer of proof (with offer of proof and no objection, the appeals court can see what the evidence was and what the error was more easily)
• Rule 103:
  • (d) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they werenot brought to the attention of the court
  • UNDER CA evidence code there is no plain error rule
    • Even though there might be error it’s got to be
      • A) appears objection or motion to provide evidence to make clear specific ground of objection or motion and there was an error
      • B) court is of opinion that the error resulting in miscarriage of justice
    • 354 deals with exclusion of evidence:
      • Evidence code says
      • It’s got to be error, result in miscarriage of justice and have one of the following 3 things:
        • 1)
        • 2)
        • 3) evidence was sought by questions asked by questions during cross or re-cross examination
• Rule 104:
  • (a) Questions of admissibility generally
    • Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound b the rules of evidence except those with respect to privileges.
• Limited Admissibility:
  • Evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose
  • Party seeking admission of evidence can be required
• Rule 105: Limited Admissibility
  • When evidence which is admissible as to one party or for one purpose but admissible as to another party or for another purpose is admitted, the court upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
    • Doesn’t mandate that corrective instruction be given as soon as evidence comes in  it can come in during instructions phase instead or during both
    • Advis. Committee tells us that there is close relationship between this Rule 105 and Ruel 403 which requires exclusion when probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
    • The present Rule recognizes the practice of admitting evidence for a limited purpose and instructing…
  • Alternative to Limiting Instructions:
    • Exclusion
    • Redaction
    • Separate Trials
• Rule of Completeness:
  • Rule 106: allows an adverse party to require the introduction at the time…
  • The rule is based on 2 considerations
    • 1) the first is misleading impression created by taking matters out of context
    • 2) The second is the inadequacy of repair work when delayed to a point later in the trial
  • Note: you shouldn’t read something out of context because you’ll look silly to the jury
    • This rule doesn’t cover oral statements that aren’t recorded  but courts will often extend the rule to oral testimony as well by virtue of 611(a)
• CA evidence code is broader and takes into consideration oral conversation

Types of Evidence:

• Real Evidence:
  • Refers to the tangible things directly involved in the transactions or
  • Direct v. Circumstantial
    • Direct = evidence which, if accepted to be true, establishes the point
    • Circumstantial = facts which if proved, may provide a basis for an inference that other facts are true
      • Permissible factual inferences
  • Original v. prepared
    • Original = evidence which exists as part of the event
    • Prepared = evidence prepared for use in the present case (i.e. demonstrative evidence)
  • To get any evidence into record, you must lay necessary foundation

Order of Witness Examination:

• Court has a lot of discretion over mode and order of interrogating witnesses and presenting evidence

Cross Examination:

• Limited scope of cross examination to what was addressed in initial examination BUT you can also ask questions as to their credibility
• Rule 611 says limitation isn’t just scope of direct but it is scope of direct plus credibility of this witness
• 611(b): Cross examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination
  • Various reasons for this:
    • 1) party vounces for his own witness but only to the extent of matters elicited on direct
    • 2) maintain orderly presentation of case

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Recap:

• Leading Questions:
  • Don’t really want to use leading questions even if permitted because the jury will think you’re trying to control the situation
  • 1^st person to call:
    • person who can tell story from beginning to end
  • Generally not allowed on direct examination
  • Cross Examination:
    • Limited by scope restriction and credibility of that witness
  • Leading Question: Any question that suggests the desired answer
    • Ex: Isn’t it true that before you left, you close and locked the gate to the pool?
  • Rule 611: Mode and Order of Interrogation and Presentation:
    • © Leading Questions:
      • Leading questions should not be used on direct exam. of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross examination.
      • “The Rule 611© continues the traditional view that the suggestive powers of the leading questions are as general proposition undesirable. Within this tradition, however, numerous exceptions.”
• Exceptions to Rule Preventing Leading Questions on Direct Examination:
  • Preliminary matters
  • Hostile witness
  • Adverse party
  • Witness identified with an adverse party
  • Forgetful witnesses or frightened witness
  • Child Witness
• Cross Examination:
  • If you know something bad is going to come out in cross, you should bring it out yourself in direct examination to position it the way you want and make yourself look more honest/truthful
  • Effective cross-examination:
    • Take full advantage of pre-trial discovery (know that discovery tools can be used to give advantage on cross examination)
    • Be prepared (be able to give your closing argument even before the trial starts)
    • Utilize cross-examination only to support your arguments
    • Listen carefully to the witnesses’ answers
    • Do not quarrel with the witness
    • Do not give the witness the opportunity to once again tell his or her story
    • Never permit the witness to explain
    • Avoid the one too many question (leave it for summation)
    • Respect the intelligence of the jury
    • Be succinct, be simple (use plain words)
    • Always use leading questions
    • NEVER ask questions to which you do not already know the answer
• Separate Witnesses:
  • Witnesses should be separated while the others are on stand with exceptions (victim)
  • “The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing lies.”
  • Rule 615: Exclusion of Witness:
    • At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion.
    • New law says victims are allowed to be present except in situation where their testimony would be materially affected by their presence
    • “This tule does not authorize exclusion of
      • 1) party who is natural person
      • 2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or
      • 3) a person whose presence I shown by a party to be essential to the presentation of the party’s cause, or
      • 4) a person authorized by statute to be present
    • “Many DC permit a government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness…It is our understanding that this was the intention of the House committee. It is certainly this committee’s construction of the rule.”
  • Techniques for Refreshing Recollection:
    • Ask for recess
    • Ask leading question
    • Refresh present recollection
    • Seek to have memory refreshing evidence put into the record
    • You can refresh recollection with anything (even an inadmissible document)
      • ‘Can’t read from inadmissible diary, but she can reference it
    • “A lawyer may legitimately attempt to refresh a witness’ memory, to assist the witness to testify in a straightforward and effective way, and to help the witness be prepared to meet improper or suggestive lines of hostile examination.”
      • “On the other hand, a lawyer may not assist or school a witness n twisting or distorting the witness’ subjective memory and, thus, the truth as far as the witness knows it.”
  • Rule 612: Writing Used to Refresh Memory:
    • Except as othweise provided in criminal proceedings by section 2500 of title 18, US Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—
      • 1) While testifying, or
      • 2) Before testifying, if the court in its discretion determines it is necessary in the interests of justice,
    • an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross examnation the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness
  • Jenks Act:
    • Bars discovery
    • Limitation on what defense lawyers can get before witnesses testify
    • Even grand jury testimony defense lawyers gets
    • Defense cannot get such statements until said witness has testified on direct examination
    • Conclusions:
      • 1) D is entitled to statements from govt. witness before testifying
      • 2) probably statements by govt. witness not covered by Act are not discoverable

Chapter 6: Competency of Witnesses

A. Historical Note:

1. Class Notes:
   • Our witnesses need to have personal knowledge
   • All witnesses do not have to have personal knowledge (certain limited exceptions  expert witnesses)
   • Competency: eligibility of witness to take the stand
   • Most grounds that came from common law that made witnesses not competent to testify have been moved into impeachment area
   • Rule 601:
     • Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State Law.
2. General Notes:
   • One of the striking contrasts btwn common law and modern rules of evidence = in area of competency of witnesses
     • Common law = imposed disabilities that made potential witnesses incompetent to testify in court
   • Imposed Disabilities:
     • 1) Mental Incapacity:
       • Insane or mentally impaired were incompetent to be witnesses at common law
     • 2) Religious Belief:
       • At common law  belief n a deity who would punish false swearing, either in this life or hereafter, was an essential component of oath
       • Atheists, agnostics, others weren’t deemed competent to take oath
     • 3) Criminal Conviction:
       • Person convicted of certain “infamous” crimes were rendered “civilly dead”  they couldn’t vote, hold office, serve on jury, or testify as witnesses
       • This disqualification has since been abolished
     • 4) Infancy:
       • Common law was MUCH more strict than modern evidence law in disqualifying children as witnesses
       • Courts tended to focus more on their ability to understand the oath  now the focus is on their capacities of perception and recollection
     • 5) Parties:
       • The general rule of the common law was that a party could not be a witness for himself or a coparty in the case
       • This has been abandoned in all jurisdictions
     • 6) Spouses of Parties:
       • At one time spouse was incompetent to testify either for or against the other
       • Today: spouse is no longer incompetent to give favorable testimony and the rules on adverse spousal testimony have been narrowed
       • In criminal cases, D can’t block testimony of spouse wiling to give it
     • 7) Accomplices:
       • Common law barred testimony of accomplices either for or against D if they were parties to the same charge  no longer so
     • 8) Other Interested Persons:
       • Common law also disqualified witnesses having a direct interest in the litigation  virtually obsolete now

B. Competency: The Modern Rule

1. United States v. Lightly (US Court of Appeals for the 4^th Circuit, 677 F.2d 1027, 1982):
   • Facts:
     • Inmate stabbed in cell and Lightly and McDuffie were suspected  but only Lightly charged
     • McDuffie not indicted b/c court appointed psychiatrist found him incompetent to stand trial and criminally insane at time of offense
     • Lightly argued that he saw McDuffie assaulting inmate and he tried to pull him off and was cut (not that he tried to kill the other inmate) this was corroborated by 3 other ppl
       • McDuffie also would have testified that Lightly wasn’t involved in the attempted murder/stabbing
   • Legal Issue:
     • Was the lower court’s finding that McDuffie could not testify because he was found criminally insane and subject to hallucinations correct? NO
   • Holding/Rationale:
     • New Rule:
       • Every witness is presumed competent to testify UNLESS it can be shown that the witness does not have personal knowledge of the matters about which he is to testify, that he does not have the capacity to recall, or that he does not understand the duty to testify truthfully
     • Application:
       • McDuffie had sufficient memory to have personal knowledge of the matters at hand  Therefore IMPROPER for the court to disqualify him from testifying
       • This was not harmless error (would have made Lightly innocent)
   • Class Notes:
     • McDuffe would have testified  there was offer of proof made
     • The court found that someone even criminally insane can be considered a competent witness

C. The Oath Requirement

1. United States v. Fowler (US Court of Appeals for the 5^th Circuit, 605 F.2d 181, 1979):
   • Facts:
     • D (Fowler) stopped filing taxes and he was indicted in 1971
     • At trial (during which gov. employed the “bank deposits” mode of proof) D was convicted on all counts  D appeals
     • D puts forth 7 points of error (1 of importance):
       • D complained that court erred in refusing to allow him to testify after he refused either to swear or affirm that he would tell the truth or submit to cross-examination
   • Legal Issue:
     • Is statement that someone is truthful sufficient to constitute oath for the purposes of testifying? NO
   • Holding/Rationale:
     • FRE 603: “Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation”
     • Fowler must pay
   • Other Notes:
     • One purpose of the oath is to impress on the mind of the witness a duty to speak only the truth
     • Less obvious purpose = to make him amenable to criminal prosecution if perjured testimony is given
   • Class Notes:
     • Even criminal accused can be prevented from testifying if he refuses to tell the truth
2. Interpreters:
   • Rule 604: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation
3. Personal Knowledge:
   • Rule 602: Lack of Personal Knowledge:
     • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the wintess has personal knowledge of the matter

D. The Child Witness:

1. Rickets v. Delaware (Delaware Supreme Court, 488 A.2d 856, 1985)
   • Facts:
     • D was indicted, tried and convicted on one count of 1^st degree rape of a 5 year old girl
     • At bench trial, the girl (6 years old now) testified with the use of anatomically correct dolls and drawings that D raped her
     • Before testimony:
       • Child said she went to church, that a lie was a thing that was not true and that it was bad to tell a lie
       • She promised to tell the truth about everything asked in court  but she said she wasn’t sure what heaven was
   • Issue:
     • Did the TC commit reversible error in allowing the minor victim, then 6 years old, to testify without an adequate foundation to determine her competency as a witness? NO.
   • Holding/Rationale:
     • Under Rules 601 and 603 of the Delaware Rules of Evidence, the TC court did not err in permitting the child to testify
     • DRE 601:
       • “Every person is competent to be a witness except as otherwise provided in these rules”
       • “no mental or moral qualifications for testifying as a witness are specified…discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity if difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence”
     • Application:
       • Under DRE, girl is presumed competent
     • DRE 603:
       • “Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so”
       • rule designed to afford flexibility with children  therefore child was properly found to be competent
   • Class Notes:
     • To be competent you must have 4 things:
       • 1) you must take an oath (don’t have to believe in god however)
       • 2) witness must have perceived something
       • 3) there must be bridge of temporal gap between when you perceived it and when you are going to testify it (must have some minimal recollection)
       • 4) witness must be able to relay information to trier of fact
     • Are there circumstances where statutorily or case law makes person incompetent to testify
       • Ladies and gentlemen of the jury
       • Judge as witness
       • Dead man statutes
       • Spouse testimony
     • Oath and Affirmation—Rule 603:
       • Before testifying, every witness shall take oath saying they’ll testify truthfully
   • Other Notes:
     • Sometimes courts overlook competency issues or deliberately overrise objections on that ground when out-of-court statements by children are offered pursuant to hearsay exception.
   • Exceptions to Juror Testimony:
     • Extraneous prejudicial information
     • Outside influence
     • Pre- and post-deliberative conduct

E. Previously Hypnotized Witnesses

1. Rock v. Arkansas (US Supreme Court, 483 U.S. 44, 1987)
   • Facts:
     • D (Rock) was charged with manslaughter of husband
     • D was in fight with husband that night and told officers that “she stood up to leave room and her husband grabbed her by the throat and choaked her and threw her against the wall and at that time she walked over and picked up the weapon and pointed it toward the floor and he hit her again and she shot him.”
     • Since D couldn’t remember precise details of shooting, attorney suggested hypnosis in order to refresh memory
       • Hypnosis revealed that she never remembered pulling the trigger  the gun was investigated and found defective and prone to fire when dropped
     • Prosecution fought to get hypnosis testimony out  judge agreed
     • D was convicted and appealed
   • Legal Issue:
     • Did Arkansas’ evidentiary rule prohibiting the admission of hypnotically refreshed testimony violate D’s constitutional right to testify on her own behalf as a D in criminal case? YES
   • Holding/Rationale:
     • D’s claim that her testimony was impermissibly excluded is bottomed on her constitutional right to testify in her own defense
     • Just as a state may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony
     • General Rule:
       • When a state rule of evidence conflicts with the right to present witnesses, the rule may not be applied mechanistically to defeat the ends of justice, but must meet the fundamental standards of due process
       • There are HOWEVER limitations
     • Application:
       • Arkansas rule assumes that hypnosis-induced testimony is always unreliable  therefore this rule operates as a detriment to any D who undergoes hypnosis
       • Rule prevented D from recounting events
       • Despite inaccuracies of hypnosis they can be limited by using trained professionals in neutral setting, corroborating evidence,
     • FINAL WORD: Court can’t arbitrarily exclude all testimony without assessing accuracy b/c it may be reliable in case at hand
   • Class Notes:
     • Supreme court said lower court could not adopts per se rule against hypnotic-induced testimony
     • Court does not say that you have to permit hypnotically induced testimony  State can limit this with certain criteria but cannot just prohibit it entirely

F. Dead Man’s Statutes

1. General Notes:
   • States are concerned with people testifying when the only people that would corroborate their testimony are dead and when they are testifying about the conduct of the dead person  States created Dead Man’s Statutes as a result
     • Apply to torts involving the deceased as well as contractual transactions
     • Sometimes they bar testimony by the survivor on any fact occurring prior to the other’s death  criticized for looking on all survivors with suspicion

G. Lawyers as Witnesses

1. General Notes:
   • At common law, attorneys were incompetent as witnesses in cases they were trying only if they had a direct pecuniary interest in the subject of the litigation
   • Now, they can testify but judge has discretion to exclude such testimony or to condition it on withdrawal by the attorney from the case
   • Testimony by attorney violates Code of Professional Responsibility UNLESS:
     • “A lawyer shall not accept employment in contemplates or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
       • 1) if the testimony will relate solely to an uncontested matter
       • 2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony
       • 3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client
       • 4) As to any matter, if refusal would work a substantial hardship on the client b/c of the distinctive value of the lawyer or his firm as counsel on a particular case

H. Jurors as Witnesses:

• Class Notes:
  • Common law requirements for competency have for the most part been thrown out
  • There are certain situations where we say that even though a witness is otherwise competent we’ll declare them incompetent
  • What happens when jury ignored law and one juror talks?
    • We don’t let this in under Rule 606 because it would remove the finality of judgments
  • Rule 606(b) Inquiry into validity of verdict or indictment,
    • “Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the jruro to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about
      • whether extraneous prejudicial information was improperly brought to the jury’s attention
      • whether any outside influence was improperly brought to bear upon any juror or
      • whether there was a mistake in entering the verdict onto the verdict form.”
    • “A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.”

2. Preverdict Testimony by Jurors:
   • Common law = did not disqualify a juror from testifying before a jury of which he was a member (b/c of concern that juror would relate information w/out cross-examination)
   • Rarely arises now but
     • Even where the potential of a juror to be called as a witness has been overlooked, FRE 606(a) prohibits testimony by that juror before the jury panel on which he serves
3. Problem 6-A: Outside Influence:
   • In a highly publicized criminal prosecution of Volstad, a leading political figure, the jury is given strict instruction not to read the newspaper accounts of the trial or discuss the case with anyone. During the trial, the judge receives info that one juror read newspaper accounts of the trial and discussed those accounts with others at lunch. The judge also hears that an associate of D talked with the same juror outside of court and offered what may have been a bribe. During a recess in trial, after other jurors had been excused, the judge questions the juror about both matters. Does FRE 606(a) bar such inquiry?
4. Postverdict Testimony by Jurors:
   • Tanner v. United States (US Supreme Court, 483 US 107, 1987)
     • Facts:
       • Conover and Tanner were convicted of conspiring to defraud the US in violation of 18 USC §371  they appealed arguing that DC erred in refusing to admit juror testimony as a post-verdict hearing on juror intoxication during the trial
       • One juror called attorney and informed them that jurors were consuming booze during breaks
       • DC concluded that juror testimony on intoxication was inadmissible under FRE 606(b)
     • Legal Issue:
       • Does alcohol and drugs constitute an “extraneous influence” that would permit juror testimony to impeach a jury verdict? NO.
     • Holding/Rationale:
       • Public Policy:
         • Disfavors post-verdict investigation into juror misconduct because it disrupts the finality of the process
       • Court doesn’t think that drug use constitutes an outside influence
       • D failed to prove “substantial if not wholly conclusive evidence of juror incompetency”
       • DC did not err in deciding, based on the inadmissibility of juror testimony and the clear insufficiency of the nonjuror evidence offered by petitioners, that an additional post-verdict evidentiary hearing was unnecessary
     • Class Notes:
       • Justice Marshall’s Dissenting Opinion:
         • “It is undisputed that Rule 606(b) does not exclude juror testimony as to matters occurring before or after deliberations…Because petitioners’ claim of juror misconduct and incompetency involves objectively verifiable conduct occurring prior to deliberations, juror testimony in support of the claims is admissible under Rule 606(b)…
         • “Even if I agreed with the Court’s expansive construction of Rule 606(b), I would nonetheless find the testimony of juror intoxification admissible under the Rule’s “outside influence” exception. As a common sense matter, drugs and alcohol are outside influences on jury members.”
       • Maybe court should have argued that this would be slippery slope to get into
       • Nothing prevents the judge from waking jurors or removing drunk ones
     • Polling the Jury:
       • If you win DO NOT poll the jury (asking each individual juror if that was their verdict)
     • Clerical Errors:
       • Clerical errors (like we checked the wrong box RE our decision) can be corrected
5. Problem 6-B: Refusal to Take the Stand
   • Letter can’t be considered and juror can’t testify
6. Problem 6-C: The $800,000 Jury Error:
   • 606 doesn’t allow affidavits but judge can set aside verdict with JNOV
7. Problem 6-D: The Jury View:
   • Yes, because this would constitute extraneous influence  jury is not to do their own investigating
   • They couldn’t go to the scene unless taken by the court
8. Problem 6-E: The Bomber:
   • This is a close call and could go either way
   • Knowledge was specialized  argument for outside influence
   • Personal knowledge can’t be excluded entirely from jury deliberations
9. Rule 601: General Rule of Competency
   • Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

I. Judges as Witnesses:

1. General Notes:
   • Common law didn’t consider a judge incompetent to testify in a trial over which the judge is presiding
   • FRE 605 explicitly makes this one of the few federal grounds for incompetency
   • Sometimes they get around this by asking questions to witness in a way that gives their opinion
2. Rule 605. Competency of Judge as Witness:
   • The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
   • “The authority of the judge to question witnesses is also well established…The authority is, of course abused when the judge abandons his proper roll and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extend of its exercise are not susceptible of formulation in a Rule.

J. The Personal Knowledge Requirement

1. General Notes:
   • FRE 602 provides that “a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter”
   • This is different from competency in FRE 104:
     • Competency pertains to the qualification of a person to be a witness
2. Problem 6-F: The Peacock’s Tale:
   • She doesn’t have personal knowledge  Hearsay
   • Argument that if person isn’t qualified as expert, you can challenge this as lack of personal knowledge
3. Class Notes:
   • Witnesses credibility may be impeached with certain prior convictions
   • Competency does not mean that the witness is credible  the cross examination can attack her credibility
4. Rule 614 CAllign and Interrogation of Witnesses by Court
   • a) Calling by Court:
     • The court may, on its own motion or at the suggestion of a party, call witnesses, and all aprties are entitled to cross-examine witnesses thus called.
   • B) Interrogation by Court:
     • The court may interrogate witnesses

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Chapter 11: Judicial Notice

1. Introduction
   • General Notes:
     • Judicial Notice:
       • Describes the process by which a court determines certain matters without need for formal proof
       • Covers 4 areas:
         • 1) adjudicative facts (governed by FRE 201)
           • facts that normally go to the jury in a jury case
           • doctrine that relives a party of burden of producing evidence on indisputable issues, furthering trial efficiency
           • nonjury trial  judge takes judicial notice by making ruling
           • jury trial  judicial notice requires instruction informing jury that notice was taken
         • 2) evaluative facts (unregulated)
           • Matters of common knowledge that judge and jurors bring to deliberations  background info
           • No evidence introduced to prove therefore sometimes referred to as “nonevidence” facts
         • 3) legislative facts (unregulated)
           • facts considered by a trial or appellate court in ruling on questions of law
           • legal question may = interpretation of statute or constitutional provision
           • facts which inform the tribunal’s legislative judgment = legislative facts
           • no jury instruction b/c leg. Facts are beyond province of jury
         • 4) law
           • Judicial notice of law = process by which court determines controlling law
   • Class Notes:
     • Judicial Notice  takes place when court determines there isn’t need for formal proof
     • Judicial Notice provision (201) deals only with very small portion of judicial notice
       • FRE govern only judicial notice of adjudicative facts and NOTHING ELSE
     • Judicial Notice:
       • 1) Adjudicative Facts (Rule 201)
         • The who, what, when and how of the given case
         • The argument between the parties that the light was red
         • Facts of the case which the trier of fact determines based upon the application of the given law.
         • Judicial notice results in this fact being true without formal presentation of evidence. It is a substitute for formal proof at the time of trial.
         • Notes:
           • Lawyers have gotten themselves in trouble from relying on judicial notice, not gotten it and then lacked the evidence to prove it
         • Rule 2019b) Kinds of Facts:
           • A judicially noticed fact must be one not subject to reasonable dispute in that it is either
             1. Generally known within the trial court’s territorial jurisdiction
             2. Facts capable of accurate and ready determination
         • Rule 201(d):
           • A court shall take judicial notice if requested by a party and spplied
           • 201(f) Time of taking notice: Judicial notice may be taken at any state of the proceeding
             1. This can be before, during or after trial
           • 201(g):
             1. Distinguishes between civil and criminal
             2. Can’t have judicial notice for the first time on appeal in a criminal case (because that would be doing run around 201(g)) but you can in civil case
       • 2) Legislative Facts
         • legislative facts may have legal significance outside case
         • Legislative facts, on the other hand, are those which have relevance to legal reasoning in the law making process, whether in the formulation of a ruling principle or ruling by a judge or court in the enactment of a legislative body
           • WHEREAS adjudicative facts are simply the facts of a particular case
         •  
       • 3) Basic Facts
         • Referred to as non-evidence facts
       • 4) Law
   • Class Notes:
     • Don’t rely on judicial notice because you might be caught having the evidence that you need at the time of trial
   • Problems
     • 11-A: Dry Pavement:
       • If the fact is subject to reasonable dispute then it can go to jury  whether or not it rained can be gathered from weather service with reasonable accuracy so this should be given judicial notice under 201(b)
       • 104 (a) and (b) might be relevant
         • Have to be careful and shouldn’t take judicial notice between whether pavement was wet or dry depending on rain
         • Pavement could be slippery or dry or wet for a number of reasons (timing of rain and areas, etc)
     • 11-B: The Subpeona:
       • Court should take judicial notice that West was served because under 201(b) this fact is one not subject to reasonable dispute b/c it is capable of accurate determination by sources whose accuracy cannot be reasonably questioned
     • 11-C: Interstate Call
       • This problem deals with an adjudicative fact and therefore 201 applies
       • Under 201(b) the drive time can be reasonable disputed (because someone might speed) and therefore the court should not take judicial notice
       • They are asking for judicial notice of knowledge  there is no way that the court’s going to give this
         • Can’t use the driving time but can’t use that as fact that he knew of location
     • 11-D: The Football Fan:
       • This is adjudicative fact which is governed by FRE 201 but since it is reasonable disputable (perhaps the game was taped) the court should not take judicial notice that there was no football game being televised at the time of the robbery
         • OR if they do, they should carefully instruct the jury as to the possibility that the defendant was watching a pre-taped game
       • Game time might be subject to reasonable dispute (tv guide could be wrong)
       • Can take judicial notice of the attack but not that it caused package to be late
     • 11-E Delayed Shipment:
       • These facts are adjudicative and the flight information is not subject to dispute and can be proved from reliable (reasonably undisputable) sources
       • Therefore court should take judicial notice of these points
       • HOWEVER court might have to look at whether courier service could drive to destination
     • 11-F Asbestos and Cancer:
       • if it has been conclusively proved under 201(b) that asbestos causes cancer then court can take judicial notice
       • If subject to reasonable dispute then it CANNOT have judicial notice
         • There may still have been reasonable dispute we should not take judicial notice  that should be factfinder’s decision
       • If civil action D is barred from attempting to prove otherwise
       • If criminal action D can attempt to prove otherwise and jury has option of taking judicial notice or not
   • Government of the Virgin Islands v. Gereau (United States Court of Appeals for 3^rd Circuit, 1975):
     • Facts:
       • D contends that DC erred in denying motion for new trial
       • D was convicted of murder and jury returned verdict but after D filed motion for new trial on ground that verdict was NOT freely assented to by all jurors
       • There was dispute that jury attendant pressured juror (one juror testified to this but matron denied conversation)
       • Judge chose who to believe jury matron based on thought that one woman was grateful for opportunity to earn extra money as jury matron
     • Legal Issue:
       • Was this form of judicial notice proper?
     • Holding/Rationale:
       • Credibility findings RE siding w/ matron doesn’t lack adequate support in record  therefore DC ruling affirmed
       • HOWEVER:
         • Trial judge’s reliance on personal, subjective belief about needs and motive of Matron was improper ground for rejecting juror’s concededly credible testimony
       • General Rule:
         • With respect to judicial notice of adjudicative facts the tradition = one of caution in requiring that matter be beyond reasonable controversy
     • Class Notes:
       • Even though the court recognized that there was improper judicial notice, the defendant didn’t win the appeal because the error was harmless
2. Judicial Notice in Criminal Cases:
   • United States v. Jones (US Court of Appeals 6^th Circuit, 1978):
     • Facts:
       • D was convicted of illegally intercepting phone conversations of estranged wife
       • After jury convicted D the DC judge granted D’s motion for judgment of acquittal on ground that government failed to prove that South Central Bell Telephone Company was “a common carrier…providing or operating…facilities for the transmission of interstate or foreign communications,” (a requirement of fed. eavesdropping statute)
       • P sought judicial notice that South Bell was common carrier
     • Legal Issue:
       • Can judicial notice be taken in criminal case on appeal? No because jury must have opportunity to decide whether to accept judicial notice or not in criminal case.
       • DC judgment is therefore affirmed.
     • Holding/Rationale:
       • 201(f) doesn’t distinguish btwn judicial notice in criminal/civil cases HOWEVER:
         • In a civil action, the court shall instruct jury to accept as conclusive any fact judicially noticed.
         • In criminal case, the court shall instruct jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
3. Evaluative Facts:
   • In conducting a process of judicial reasoning, as of other reasoning, not a step can be taken without assuming something which has not been proved; and the capacity to do this, with competent judgment and efficiency, is imputed to judges and juries as part of their necessary mental outfit
4. Judicial Notice of Legislative Facts
   • Muller v. Oregon (United States Supreme Court, 1907):
     • Holding/Rationale:
       • Court finds rational basis for Oregon statute limiting the hours women can work in laundries and factories to a max of ten hours per day, and therefore upholds its constitutionality
       • Legislation and opinions referred to in margin are significant of a widespread belief that woman’s physical structure justify special legislation restricting conditions under which she should be permitted to toil
     • Roe v. Wade:
       • U.S. Supreme Court’s use of date related to mortality rates for early abortions
     • Brown v. Board of Education
       • U.S. Supreme Court’s use of social science studies showing that segregation creates a feeling of inferiority
   • Houser v. State (Washington Supreme Court, 1975):
     • Facts:
       • Houser brought action on his behalf and that of all 18-20 year olds, challenging the constitutionality of legislation that established minimum drinking age of 21
       • P contended that no rational basis existed for present statutory scheme under which Washington citizens are considered to be adults at age 18 for all purposes except possession and consumption of alcohol
       • Other side gave 2 studies which court sided with despite P’s expert affidavit
       • P challenges both TC’s judicial notice of State’s studies and its refusal to grant him a trial on merits of contradictory factual claims
     • Legal Issue:
       • Should court have given judicial notice? YES, TC did NOT err.
     • Holding/Rationale:
       • State’s summary judgment motion required court to inquire NOT into facts of particular case at bar but into general relationship btwn attainment of age 21 and effect of alcohol consumption
       • Question was one of law, not fact  whether there was rational relationship btwn statutory distinction and state purposes it was alleged to serve
       • A court may ascertain as it sees fit any fact that is merely a ground for laying down a rule law
         • In order to determine whethere was “rational relationship” btwn statutory classification and objective said to justify it  court must look beyond case reports and use conjecture and probability
     • Class Notes:
       • Since it was judicial notice of legislative fact (studies being legislative facts) the court doesn’t have to show that the facts are reasonably indisputable
5. Judicial Notice of Law:
   • General Notes;
     • Process by which court uses to determine applicable law
     • Common law tradition requires federal judges to take judicial notice fo all domestic statutory and case law, state law as well as federal
6. The Problem of Classification:
   • United States v. Gould (US Court of Appeals for 8^th Circuit, 1976):
     • Facts:
       • Ds were convicted of conspiring to import and actually importing cocaine
       • Jury was instructed:
         • “If you find the substance was cocaine hydrochloride, you are instructed that cocaine hydrochloride is a schedule II controlled substance under the laws of the US”
       • D argued that P should have been required to prove that substance seized was on schedule of controlled substances
     • Legal Issue:
       • 1) Was it error for the DC to take judicial notice of fact that cocaine hydrochloride is a schedule II controlled substance?
       • 2) If we conclude that it was permissible to judicially notice this fact, we must determine whether DC erred in instructing jury that it must accept this fact as conclusive
     • Holding/Rationale:
       • 1) Not common knowledge but easily discernable
         • Therefore it was proper for DC to judicially notice this fact
     • Class Notes:
       • The judge shouldn’t have said “you must find” but should have said “you may find”
7. Elements of trial:
   • Judge (judicial function)
   • Trier of Fact (Jury function)
   • At least two parties
   • At least one issue (one point of disagreement)
   • Motion to Dismiss:
     • You didn’t state a claim
     • You didn’t plead fraud with particularity
     • Assuming all allegations in claim are true, we should still win
   • Summary Judgment:
     • There’s no genuine issue of material fact
   • Summary Adjudication:
     • Partial summary judgment
   • Trial:
     • Evidence RE: Disputes Issue  Trial
   • Burden of Proof:
     • Assumes 2 separate and distinct burdens
       • 1) Burden of going forward (burden of production)
       • 2) Burden of persuasion
     • Prosecution will stand first because it has burden of going forward and burden of persuasion for all elements of the crime (affirmative defenses HOWEVER are different)
       • After prosecution, defense will ask for motion for directed verdict  they’ll say they prosecution hasn’t fulfilled burden of going forward
         • Judge must measure evidence and decide whether or not to deny or grant motion for summary judgment
         • All evidence during presentation of prosecution’s case must fill the “Prima Facie Box”  the judge then looks at this box and asks whether a reasonable jury can decide it one way or another
         • If judge says there’s reasonable evidence for jury to decide then defense will have opportunity to call witness
     • Burden of Going Forward:
       • “If the party carries the burden of going forward on any given issue, then the party must produce sufficient evidence to support a jury finding in its favor on this issue”
       • “Failing to satisfy the burden of going forward will result in a motion to dismiss or a motion for directed verdict being granted.”
       • “This burden of going forward is satisfied if sufficient evidence is submitted to create a fact question so that the jury may determine this fact question.”
     • Burden of Proof:
       • Jury has persuasion box (size of box isn’t always the same) where the judge instructs the parties as to the size of the box
         • Jury will then give instruction to jury as to what box they must base judgment on
       • Sizes of Proof:
         • 1) Preponderance of the Evidence (small)
         • 2) Clear and Convincing Evidence (medium)
           • Use for fraud case (fraud can’t be plead generally, must be plead with particularity)  court disfavors fraud claims
         • 3) Beyond a Reasonable Doubt (large)
8. Presumptions:
   • Use in 3 Major Ways:
     • 1) Improper: Given fact A we infer fact B
       • Factual Inference:
         • Basic Fact  (may be inferred) Inferred fact
         • It was raining on the day of the accident  road condition slippery
         • This is not a presumption
       •  
     • 2) Improper: Anyone under the age of 7 may not be prosecuted for a crime
       • Word presumption being brought into this is not presumption
       • Rule of Law (Conclusive Presumption);
         • Basic Fact  (must be found) Presumed Fact
         • Under Age 7  Cannot be prosecutes

• 3) True Presumption
  • True presumption actually shifts one of the burdens from party who normally has burden to the other party
  • FRE =
    • Imposes on the party against whom the presumption is directed the burden of going forward with evidence to rebut or meet the presumption
    • Does not shift the burden of persuasion
  • True presumption cannot be used to tamper with burden of persuasion or burden of going forward in criminal case
  • Rule 301:
    • In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion.
    • “Presumptions governed by this Rule 301 are given the effect of placing upon the opposing party, the burden of establishing the non-existence of the presumed fact…
• Sources of Presumption:
  • Statutory
  • Case Law
  • State Evidence Codes
  • The FRE
• Presumption Examples
  • Always basic fact and presumed fact
  • 1) A properly mailed letter is presumed to have been received
    • Basic fact = letter was properly mail
    • Presumed fact = letter was received
    • Other party then has burden of going forward to show that didn’t receive it
  • 2) Person not heard from in seven years is presumed to be deceased
    • Basic fact = haven’t heard from them
    • Presumed fact = dead
  • 3) Party is presumed to have the requisite
• Other Side’s Response:
  • If the other side put evidence to disprove then you win that presumption
• Presumption Ways To Attack:
  • Evidence disputing basic fact
  • Evidence disputing presumed fact
  • Evidence can dispute both
• Evidence Disputing Basic Fact:
  • Presumption applies only if trier of fact finds the basic fact is established
  • Becomes a jury question if sufficient disputed evidence
• No Evidence Contesting the Presumed Fact:
  • And no evidence contesting basic fact
  • The other side (insurance company) would have the burden of going forward  if they fail to put up evidence showing husband was alive, they failed to meet that burden and wife wins on that issue  then it doesn’t need to go to the jury
  • “In this situation, the presumed fact is established (assuming basic fact established). The court in this case is required to instruct the jury that the presumed fact must be taken as established. This distinguishes a presumption from a permissible inference.”
• Evidence Disputing Presumed Fact:
  • Cogent and Compelling Evidence – Reasonable jury could not find otherwise (Presumption completely overcome)
  • Evidence Sufficient to Raise Jury Questions (different views)
    • Matters whether in federal jurisdiction or some other jurisdiction because if in fact insurance puts on evidence sufficient to raise jury question
      • 1) Under FRE the presumption is GONE
        • “Bursting Bubble View”: Since presumption shifts only burden of going forward, the presumption disappears when sufficient evidence to raise a jury question is submitted. “
          1. Federal Rule 301 adopts this view, except where State law provides the rule of decision.
• Counterproof Sufficient to Raise Jury Question
  • “Morgan View”: A presumption shifts the burden of persuasion to disprove the existence of the presumed fact.
    • Under this view the possibility of establishing the presumed fact stays alive, even in the presence of evidence that a reasonable jury could find that the presumed fact does not exist
• California View:
  • CA follows same rule as the FRE for presumptions based upon probability
  • CA follows Morgan view for presumptions dealing with public policy
• Conflicting Presumptions:
  • If two or more presumptions apply, courts will generally utilize the presumption that has the more significant public policy considerations
• Allowable Criminal Inference:
  • Must place no burden of any kind on the defendant
  • Allows (but does not require) the jury to infer the criminal element
  • Must be logically based—the fact to be inferred must rationally follow from the basic fact
  • Must be clear that something is logical factual inference and NOT presumption
• Reis Ipsa Loquitor: the thing speaks for itself
  • Is this shifting burden, or is it just a mere inference?
  • Generally it’s just an inference, not an actual shifting of the burden

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Chapter 2: Relevance

Introduction:

• Relevance: Everyday word describing factors that bear on the decisions we make and problems we set out to solve
• A Relational Concept:
  • Relevance carries meaning only in context
  • Context in which relevance questions arise is defined partly by applicable substantive law (like doctrine of respondent superior) and partly by the issues that the parties raise
    • In criminal cases the issues are raised by the information or indictment and D’s plea
    • In civil cases the pleadings raise issues generally, thought they are refined through discovery and motions and narrowed by pretrial conference and order
• Direct and Circumstantial:
  • “Direct” describes evidence that, if accepted as genuine or believed true, necessarily establishes the point for which it is offered (if E believed, the trier must conclude that he was employed by the Corporation)
  • “Circumstantial” means evidence that, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so (perhaps E was seen loading the truck but other facts suggest he was helping a friend employed by the Corporation)
    • Poses only real challenge in administering the requirement of logical relevancy and assessing the sufficiency of proof to take a case to the jury
• Rationality:
  • Evidence law emphasizes reason and logic and looks backward

A. Logical Relevance

• 1. Relevance and Materiality:
  • At common law Evidence was relevant if it tended to establish the point for which it was offered and material if the point bore on issues of the case
    • Evidence can only be admitted if it is relevant and material
  • FRE 401: Evidence is relevant if it tends to make more or less probable the existence of any consequential fact
  • Old Chief v. United States (Supreme Court of the US, 1997):
    • Facts:
      • D was charged w/ being a convicted felon in possession of firearm, assault with a deadly weapon and using firearm in crime of violence
      • To prevent past crime history from coming in D attempts to stipulate to previous conviction (assault causing serious bodily injury)
      • D wanted jury to only know that he had previous conviction “punishable by imprisonment exceeding 1 year”  but wanted no names/nature of assault revealed
    • Legal Issue:
      • Was the name of the prior conviction relevant under FRE 401?
    • Holding/Rationale:
      • 401:Defines relevant evidence as having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be w/out the evidence
        • The admissibility of this evidence should be based on considerations of waste and undue prejudice  NOT on matters of relevance
      • Stipulations:
        • D can’t stipulate away evidence hurtful to him and P has right to present the case as it wishes
        • This isn’t a question of admissibility due to relevance but whether evidence would be unduly prejudicial to D
    • Class Notes:
      • Fearing prejudice if the jury learns the nature of the earlier crime, Ds sometimes seek to avoid such an informative disclosure by offering to concede the fact of the prior conviction
      • D filed motion in limine require govt to refrain from naming prior convictions
        • Prosecutor refused to join in a stipulation, insisting on his right to prove his case his own way, and the DC agreed, ruling orally that “If he doesn’t want to stipulate, he doesn’t have to.”
        • Doesn’t need to be in dispute to be relevant  CA evidence code doesn’t agree with this
      • Prosecution should have ability to provide narrative richness of his or her own case so the information is RELEVANT
      • HOWEVER the trial judge should weigh the probative value of the evidence against the unfair prejudice that it causes
• 2. Establishing Relevance: The Evidential Hypothesis:
  • Evidential Hypothesis:
    • Explaining why proof is relevant
    • An evidential hypothesis contains
      • 1) one or more “general premise(s)”—a general proposition about the ways of the world or human nature
      • 2) at least one specific premise linking the proof to the general premise
      • 3) it sets out the conclusion toward which the evidence points
    • Sets out steps of reasoning and inference by “deduction” and “induction”
      • Deductive Argument: One in which the stated premises necessarily lead to a particular conclusion (major or general premise holds that “all humans are mortal” and minor (or particular) premise asserts that “Socrates is human.”)
      • Inductive Argument: Less categorical The conclusion does not necessarily follow from the premises, though they support the conclusion
        • Ex.Proving that D robbed a bank by evidence that he stated an intent t do so involves inductive argument: The major premises are that “people who intend to do something likely do it” and “people who state an intent likely have it”
          • Minor premise is “defendant stated his intent to the rob the bank”
• Problem 2:
  • Part A: You need evidence that there was a likelihood that he would continue going 80 miles per hour or at least some evidence showing how long it would take to slow down
  • Part B: Should be permitted because this gives alternative explanation of guilt. P couldn’t ask D to prove more before letting Carla testify because the burden is on P.
• 4. Relevance in Operation: Hypothesis and Standard Applied:
  • Evidence of efforts to avoid capture is generally admissible in criminal trials BUT does not create a “presumption of guilt” or suffice for conviction
  • Courts often suggest that relevancy depends on the reasonableness of the assumption that D knew he was under investigation and that his inference becomes weaker as lapsed time between the crime and alleged flight increases
• Problem 2-C:
  • In support of proffer: People who attempt to avoid capture are likely guilty. The defendant attempted to avoid capture and therefore the defendant is likely to be guilty of some crime.
  • In support of exclusion: People who are not aware they are under investigation may attempt to flee. Defendant was not aware that he was under investigation for the charges. Defendant attempted to flee.

B. Pragmatic Relevance

• 1. Prejudice and Confusion:
  • FRE 403:Lets the judge exclude relevant evidence on account of any danger described there (unfair prejudice, confusion of issues, misleading to jury) or any of the consideration also set out there
    • Evidence is to be excluded only if probative value is substantially outweighed by any of the listed dangers and considerations
  • Problem 2-D:
    • The witnesses past falls are relevant because if prone to falling it might give some other explanation. This is not unduly prejudicial to plaintiff who can explain that on these occasions the floor was also overwaxed. The other reports can corroborate the
  • Problem 2-E:
    • The evidence is relevant because a history of abuse might show a violent tendency on the part of Donald.
    • However the evidence is probably unduly prejudicial because just because they sought refuge or because Donald had abusive tendencies doesn’t mean he would murder his wife.
  • State v. Chapple (Arizona Supreme Court, 1983):
    • Facts:
      • Alleged murder claims to have been in another state at time of crime
      • D contends that TC erred by admitting pics of charred body and skull of victim
    • Legal Issue:
      • Did TC err in admitting the photos into evidence?
    • Holding/Rationale:
      • General Rule RE Photographs
        • Photos must be relevant to an issue in the case to be admitted but relevancy not only test
        • If the photos have any bearing upon any issue in the case, they may be received although they may also have a tendency to prejudice the jury against the person whom committed the offense
        • The discretion of the TC will not be disturbed on appeal unless it has been clearly abused
        • Official Rule: Exhibits which tend to inflame the jury must first be found relevant. TC must consider the probative value of exhibits and determine whether it outweighs the danger of prejudice
      • Application:
        • Court definitely agrees that photos were relevant but facts shown in photos were NOT at issue
        • Therefore photos had little probative value and that there admission into evidence could have almost no value on issues being tried
        • Therefore admission was in ERROR
    • Class Notes on Case:
      • These are extremely gruesome photos and the prosecution wants the photos
      • The unfair prejudice is if in fact the jury sees the photos, sees how bad they are and needs to convict someone, the only party to convict is the one on trial  plays on emotions of jury
      • There was nothing for TC to weigh because there was no conclusion but exclusion of photos because they have almost NO probative value
        • As a result, prosecutors will make more sophisticated arguments regarding why the photos need to come in
    • Class Notes:
      • Whether D was killer was at issue and prosecution offers enlarged photos of dead bodies depicting multiple stab wounds
      • Issue: Should these photos be allowed in evidence?
      • Gruesome photos have routinely come into evidence but the courts have pushed back against this recently  most appellate divisions approve the photos
      • These photos illustrate, corroborate and explain the testimony
      • See Note 4 page 77
  • Old Chief v. United States (II):
    • Facts:
      • Same as above  D offered to stipulate to conviction in hope of keeping details from jury
      • Court found that name of prior conviction is relevant but now addresses prejudice
    • Legal Issue;
      • Would admitting name of prior conviction unfairly prejudice D?
    • Holding/Rationale:
      • 2 possibilities for analysis under 403:
        • 1) An item of evidence may be viewed as an island, with estimates of its own probative value and unfairly prejudicial risk the sole reference points in deciding whether danger substantially outweighs value and whether evidence ought to be excluded
          • Or question of admissibility might be seen as inviting further comparisons to take account of the full evidentiary context of the case as the court understands it when the ruling must be made
        • 2) On objection the court would decide whether particular item raises danger of unfair prejudice and then weigh probative value against unfair prejudice
      • Availability of other means of proof may be a factor in determining admissibility of evidence under 403
      • Application:
        • In this case alternative proof was in the form of stipulation where jury would learn of D’s felon status
        • Court thinks therefore that probative value from knowing actual crime is not sufficiently high so as to warrant refusing the stipulation
      • Judgment reversed

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

• Although relevant evidence may be excluded if its probative value is substantially outweifhed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
• Prejudice is not the concern, just unfair prejudice
• In order to be relevant, evidence does NOT need to be in dispute under FRE, but in CA it DOES
• Limiting Instructions:
  • Courts love to give them but if you’re on receiving end but you need to know that limiting instructions won’t cure huge unfair prejudice creeping into trial
• Trying to give power to trial judge

Proposition 8:

• Prop 8 amended constitution and provided provision in constitution dealing with right to truth in evidence
• Prop 8 was passed
• Except as provided by statute approved by 2/3 vote in both houses of legislature  relevant evidence shall not be excluded in any criminal proceeding
• Nothing in section will affect statutory provision relating to privilege, hearsay, 352, 1103
• 352 of CA evidence Code:
  • courts power to exclude if unfair prejudice substantially outweighs probative value
• 1103: Rule that prohibits character questions unless
• 1101: NOT mentioned in prop 8 and this is the general character rule that says character can’t be utilized unless certain exceptions are met
• Legislature, after this proposition passed, modified a portion of 1101 and Supreme Court of CA has held that when legislature modified 1101 that they reenacted 1101 in its entirety

2. Limited Admissibility—Confining the Impact of Proof:

• Often evidence is admissible in support of one claim but not another or proves one point but is highly prejudicial
• Rule 403
  • Permits the trial judge to balance probative worth against risks of “unfair prejudice” or “confusion” of issues or misleading the jury and admit or exclude accordingly.
• Rule 105:
  • Authorizes a very different approach  admit the evidence on the point for which or against the parties as to whom it is competent, but give “limiting instructions” to prevent misuse on other issues or as against other parties
  • More often than courts admit evidence having unwanted spillover effect, and parties raising objection on this ground must content themselves with a limiting instruction

3. Completeness—Providing Context:

• Problem: Evidence that might be competent on a point is so connected with other evidence that it would be a distortion to consider the one without the other. Sometimes the proponent choose to present a small piece of a larger picture and thus distorts meaning
• FRE 403: Authorizes one approach  balance and admit or exclude the whole accordingly
• FRE 106: Authorizes another approach  The adverse party may require introduction of “any other part” of the statement that “ought in fairness to be considered contemporaneously” with the part already offered

4. The Shortness of Life

• Trial judges can exclude probative evidence not only because of prejudice and confusion, but also for more mundane reasons like undue delay, waste of time, or needless presentation of cumulative evidence
  • Courts can therefore limit the number of witnesses called to prove any particular point

5. The Functions of Judge and Jury:

• Simple Relevance:
  • The judge alone decides whether a particular point, which a proffered item of evidence concededly tends to establish or refute, is consequential under FRE 401
  • Judge decides whether proffered evidence actually tends to prove the point for which it is offered
  • Judge determines “simple” relevance by thinking about legal issues in the case and about the inductive inferences that we have already examined
• Conditional Relevance:
  • FRE 104(b) provides that when relevance turns on “the fulfillment of a condition of fact” the judge performs only a screening function: When different answers are reasonable, the jury decides
  • Well-Understood Instances of Conditional Relevance:
    • Questions of authenticity
• Class Notes:
  • Court alone decides whether evidence offered makes sense with regard to facts to be proven  this is known as simple relevance
  • The jury then weighs the evidence
  • Relevancy conditioned on a fact:
    • 104(b) determination
    • When relevancy turns on condition of fact judge merely screens that evidence to determine whether reasonable juror could determine something based on condition of fact
  • Example Conditional Relevancy:
    • Prosecution in a federal bank robbery case seeks to introduce evidence that D owned blue t-shirt and a pair of white jeans
    • Why is this relevant? A witness to the crime saw the bank robber run from the scene wearing a blue t-shirt and white jeans
    • Relevancy HOWEVER is conditioned on whether witness actually saw this  that is for the jury to decide
    • The relevance of D owning blue shirt and white jeans hinges upon testimony from the eyewitness. This is conditional relevance
      • The court here does not make a determination as to the reliability or credibility of eyewitnesses. Instead, the jury makes this determination under Rule 104(b)
    • Rule 104: Preliminary Questions:
      • (b) Relevancy conditioned on fact: When the 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…
      • The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted.
  • 104©: Hearing of Jury:
  • 104(d): Testimony of accused:
    • The accused doesn’t, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case
  • 103(c): Hearing of Jury:
    • In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statement or offers of proof or asking questions in the hearing of the jury.
• Weight and Sufficiency Distinguished:
  • As a matter of timing, a judge decides whether evidence is relevant when it is offered and functionally he assesses relevancy in deciding whether to admit or exclude
• Notes:
  • In US v. Huddleston  federal courts give juries the question whether D committed other acts, treating the question as one of conditional relevancy under FRE 104(b) and assessing the sufficiency of the evidence
  • Rape Shield Principles in 412:
    • “This provision protects the privacy of complaining witnesses in sexual assault and abuse cases by blocking the defense from proving their sexual “behavior” or “predisposition” often in support of claims of consent”

C. The Relevance of Probative Analysis:

People v. Collins (CA Supreme Court, 1968)

• Facts:
  • Jury found wife and husband guilty of second degree robbery
  • Old woman robbed by woman she claims has dark-blonde hair with ponytail
  • Nearby homeowner says he sees the woman get into a yellow car driven by a black man with a beard
  • Prosecution has trouble establishing that this couple is the same couple and calls math instructor as witness
  • Professor attempts to establish that, assuming the robbery was committed by a white woman with a blond ponytail who left the scene with a black man with a beard and mustache, there was an overwhelming probability that the crime was committed by this couple
  • Professor testifies about Product Rule = states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur –
    • Witness then assumed probabilities for individual characteristics
• Legal Issue:
  • Did the trial court err in admitting the evidence pertaining to mathematical theory of probability? Yes
• Holding/Rationale:
  • Conclusion:Prosecution’s introduction/use of mathematical probability statistics injected 2 errors into case:
    • 1) Testimony itself lack an adequate foundation both in evidence and in statistical theory
      • Doesn’t give evidence to individual probabilities of characteristics ‘
      • No showing that characteristics were mutually exclusive
    • 2) Testimony and the manner in which the prosecution used it distracted the jury from its proper and requisite function of weighing the evidence on the issue of guilt, encouraged jurors to rely upon an engaging but logically irrelevant demonstrated, foreclosed the possibility of an effective defense by an attorney unschooled in math, and placed jurors and defense at disadvantage in sifting relevant fact from inapplicable theory
      • Problem is that statistics can’t tell us that couple possessed characteristics described by witnesses or that they were the only couple in LA with those characteristics
      • Math can’t establish that witnesses correctly saw and described events  jury must also weigh credibility of witnesses and this is not a mathematical process
  • Court therefore erred in admitting over D’s objection evidence pertaining to mathematical theory of probability and in denying D’s motion to strike such evidence
• Class Notes:
  • Court ultimately through it out  bare naked statistical type of arguments do not constitute evidence
  • Sometimes when you only have statistical evidence (Hertz example) you can try to create a presumption and switch the burden of going forward on that issue to the defendant
    • D was in better position to know info about truck

Chapter 5: Relevance Revisited:

A. Character Evidence

1. Relevancy and Form:

• Class Notes:
  • Defendant can bring character witness to stand to testify that he’d a peaceful person and prosecution can sometimes bring character witness to the stand to testify about violent nature
  • Juries can sometimes misuse evidence  403 isn’t good enough because it errs on the side of allowing the evidence
  • There’s a problem if we say no to character because of 401 and 402 which tends to allow evidence so long as it is relevant
  • Character = propensity (you are violent therefore you were violent on the day in question
    • As used in the rules, character means…
    • You must determine the:
      • 1) Method used to prove character trait
      • 2) Purpose why character evidence is offered
      • 3) Type of case (criminal or civil)
  • Outline:
    • Character Traits 404(a), 405
    • Other Acts 404(b)
    • Habit 406
  • Methods Use To Prove Character:
    • 1) Specific Acts:
      • Did John Doe hit his wife at the local bar last year?
    • 2) Reputation Testimony:
      • Are you aware of John Doe’s reputation for violence?
    • 3) Opinion Testimony:
      • In your opinion, is John Doe a violent individual?
  • Purpose Why the Character Evidence is Offered:
    • Essential Element Evidence (governed 405(b))
      • Character or triat of character evidence is allowed to prove an essential element of a charge, plan or defense
      • Applicable in both criminal and civil cases with all 3 types of proof are allowed (reputation, opinion, and specific facts)
      • First, determine actual elements of criminal/civil claim or defense
      • Character is almost never an essential element of the crime
      • More often an essential element in civil cases:
        • Child Custody Dispute: fitness of parent
        • Defamation: Truth is a defense to a defamation claim
        • Wrongful Death Case
        • Employment Litigation; in a discrimination suitm a defense is raised that the P was terminated for incompetence therefore competence is a question
    • Circumstantial Evidence (this is where propensity falls under, governed by 404(a))
• “Character”:
  • Describes a person’s inclinations and suggests their innateness
  • Character as Evidence of Conduct:
    • Specific inclinations are not only descriptive but predictive, suggesting patterns of behavior and thus telling us something about the likelihood that a person would or would not do certain acts  tells disposition
    • Assessing probative worth must be left to intuition and judgment
  • Form of the Evidence:
    • 3 ways that character is proved by testimony (“Character Witness”)
      • 1) Witness may describe acts by the person that indicate the existence of the trait
      • 2) Witness might give her opinion that the person has the trait in question
      • 3) Witness might describe his reputation
    • FRE 405(a):
      • Authorize both reputation and opinion evidence, but sharply restrict evidence of specific instances

2. Character to Prove Conduct on a Particular Question:

• Character of Criminal Defendant
  • Problem 5A:
    • Under Rule 404(a) Character evidence is not admissible for the purpose of proving action in conformity therewith on a particular occasion  so defense could rebut prosecution’s attempt to paint D in a bad light with character witness
    • HOWEVER when D introduces witness to testify to good character, prosecution is free to rebut with character witness according to Rule 404(a)(1)
    • Class Notes:
      • Criminal assault case  no essential element so we’re dealing with circumstantial evidence (general propensity)
      • Prosecution wants to show predisposition to violence (yes relevant)
        • Generally this is prevented from coming under 404(a)
        • 404(a)(1) says prosecution can’t initially introduce evidence until D opens door
      • When D calls reverend Gram to testify as to D’s peaceable nature this is relevant and allowed under 404(a)(1)
        • Risk associated, however, because prosecution can come back and attack D and the witness on the stand’s credibility to doubly hurt D
          • You can now test this person with specific acts and impeach them so long as there is good faith basis
          • On cross exam to assist in testing credibility of character witness (once door has been opened) you may also use specific acts
            • On direct examination HOWEVER prosecution can only use opinion and reputation
            • BUT when D cross examines they can use opinion, reputation, and specific facts
      • Character of Accused/Victime
        • Rule 404(a) talks about pertinent trait of character. Accordingly it is required that the type of character evidence offered must related to the type of crime to which D is being accused
          • Honesty could be pertinent character trait in fraud/embezzlement case
        • On direct, only reputation and opinion testimony are available
        • On cross examination specific act testimony is also permissible (this is shown in 405(a) and 405(b))
  • Character of Victim 404(a)(2):
    • Defendant has a choice whether to initiate this type of evidence, except in certain homicide cases.
    • Generally, only after D has first presented character trait evidence as it related to the victim of the crime, may the prosecution rebut such evidence
      • When you claim self defense and say that the other guy was the first aggressor  this isn’t him testifying to his peaceful character (HOWEVER this doesn’t mean prosecution is stuck)
      • Problem: victim is dead and so we can’t really know if he’s telling the truth about who was the first aggressor
        • Therefore 404(a)(2) says that even though there is situation whereby criminal accused says victim was first aggressor, and doesn’t raise character it immediately allows prosecution to call witness to stand to testify to character ONLY IN HOMICIDE CASE
        • If it is a non-homicide case (battery) and D testified that victim attacked him first, that does NOT sufficiently raise the character trait of the victim and therefore does not allow character evidence under 404(a)(2)
  • Problem 5B:
    • Prosecution is wrong on both grounds
  • Problem 5C:
    • Either the testimony must be supported by reputation statements or the attorney must lay the proper foundation of specific acts (but acts only where character is an essential element of the crime)
  • Problem 5D:
    • Can cross examine because Revereand testified to nonviolent nature and prosecution is allowed to rebut
    • Showing witness lacks knowledge  but can’t talk about embezzling or tax evasion because these are not related to violence (brawl would be ok)
• Civil Cases:
  • Character evidence, when offered to prove behavior in a particular instance, is NEVER admissible in criminal cases
  • Since 1995 civil cases in which claimants seek damages for sexual assault or child molestation have been treated differently
    • Under FLE 415  a claimant in any such case can proved that D committed other similar offenses which may be considered for any relevant purpose

3. Character as an Element of a Charge, Claim or Defense:

• Criminal Cases:
  • Evidence of character is usually inadmissible to prove conduct on a particular occasion
    • When character evidence is admitted as proof of conduct, proof must take form of opinion or reputation
    • Specific instances may be raised on cross  cross-examiner may ask a character witness about acts by person whose character he has described
  • When is character an “essential” element of a charge or defense? (Under Rule 405(b))?
    • Almost never
    • Only example: “The chastity of a victum under statute specifying her chastity as an element of the crime of seduction”
  • Problem 5E:
    • Class Notes:
      • This is a criminal case and they are trying to use essential element improperly  they can’t use it as an essential element
      • If you do not have essential element it then may very well be that you’re using it for the general propensity  prosecution can use it for general propensity but not in this particular instance (D would have to raise character issue first)
      • As circumstantial evidence (since not essential element)
        • It is clearly relevant that person shoplifted in the past, but that doesn’t mean we allow it
        • “Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acated on the occasion in question consistently with his character. This use of character is circumstantial.”
        • “In any event, the criminal rule is so deeply embedded in our jurisprudence as to assume almost…
      • Once you establish Circumstantial:
        • 1) Determine whether evidence is dealing with character of accused/victim or impeachment of witness
          • When you put your credibility in issue your are subject to attacks on credibility
          • 404(a) provides certain exceptions to using character evidence
            • 1) Generally in civil case, not admissible. In criminal case, admissible only under certain limited circumstances
            • 2)
            • 3) Character of Witness (if witness takes stand, witness subjects themselves to being impeached under 607, 608 and 609)
          • Impeachment:
            • Impeachment of Witness, Rules 607, 608 and 609
          • If dealing with 404(a)(1) and (2) you must determine 1^st whether you’re in a civil or criminal case
          • 404(a) Intro tells us that character evidence is exception to 401 and is out except for certain instances
      • Summary: Character of Accuse/Victime Circumstantial Evidence
        • Not allowed in civil cases
        • General Rule: Not allowed in criminal cases
        • Exceptions in criminal cases:
          • Character of Accused—404(a)(1)
          • Character of Victim—404(a)(2)
          • Proof Allowed:
            • Reputation Testimony
            • Opinion Testimony
            • Specific Acts NOT Allowed
    • 404(a)(1): Character of Accused:
      • “Rebut the same”  prosecution doesn’t have right in the first instance to call character witness to the stand, HOWEVER, prosecution can rebut if the defendant decides to allow the evidence to come in
      • Defendant can allow this to come in the prosecution’s case if defense attorney lets it in by cross examination (by asking character question to prosecution witness)
      • If criminal accused attacks character of victim with witness in presenting their case (under 404(a)(2), the doors open for attacking character trait of accused  linkage doesn’t go both ways  this is based on linkage with 404(a)(1)  this does so if accused never even calls himself
      • If criminal accused chose to put character in issue by calling character witness this DOES NOT automatically open the door for attacks on character of criminal accused (linkage not present going other way 404(a)(2)
    • 404(a)(2): Character of Alleged Victim
    • Who initiates circumstantial character trait evidence in a criminal case?
      • Defendant makes this decision
      • Only after D presents character trait evidence as circumstantial evidence in a criminal case, is the prosecutor allowed to introduce contrary character trait evidence
      • NOTE there are additional rules for sexual assault and child molestation cases
• Civil Cases:
  • In civil litigation there are several common situations in which character is an ultimate issue  here evidence is not offered as predicate fact supporting an inference of behavior on particular occasion, but as an end in itself
  • Defamation:
    • Most obvious example is defamation suit in which truth is raised as a defense
    • Or D in libel suit might allege that what was said did not damage P, simply b/c P suffered bad reputation before defamatory utterance
  • Negligent Entrustment:
    • Case where P alleges that D was negligent in permitting another to operate his equipment (typically a car or truck) and that the other negligently injured P.
      • Here P must prove that latter was by disposition careless, in order to prevail on the point that D should not have entrusted the equipment to him
  • Child Custody:
    • Relative parental fitness of mother and father is assessed in order to serve best interests of child
      • Here character, in sense of being good parent, is ultimate issue
  • Wrongful Death:
    • Amount of recoverable damages may turn on worth of decedent to P
    • P can recover less if D can show that deceased was alcoholic or compulsive gambler

4. Prior Acts of Proof of Motive, Intent, Plan and Related Points

• General Considerations:
  • Although 404(b) doesn’t allow prior bad acts to prove crime, they may be admitted to prove intent
    • Ex. In federal courts for drug cases, government offers evidence that on some other occasion D sold drugs, as proof on this occasion he intended to sell similar drugs found in his possession
      • Court MUST however weigh probative value against unfair prejudice to D
    • 4 part test under which judge:
      • a) decides whether the evidence is offered for proper purpose
      • b) decides whether it is relevant for that purpose
      • c) decides whether its probative worth is outweighed by the risk of unfair prejudice, and
      • d) gives a limiting instruction on request
    • Basic rule against character evidence is a sham
      • It might better depict reality if reformulated as a narrow bar against the propensity inference; Prior offense evidence may be admitted in criminal cases on any issue to which it is relevant unless probative value is substantially outweighed by the risk of unfair prejudice, except that it is not admissible if its only relevance is to show a propensity on the part of the accused
  • Problem 5-F;
    • Smith should be allowed to testify because past events show an intent to deal drugs
    • Entrapment could be raised as defense but prosecution can still show intent
    • Class Notes:
      • Prosecution wants to use evidence to show intent NOT general propensity, but evidence will come in no problem
      • Identity (modus operandi): here problem using prior acts to prove identity depends on
        • 1) how close resemblance is
        • 2) unusual or distinctive nature of prior charged deeds
• Identity, Modus Operandi:
  • Problem 5-G:
    • With confession, crime might be considered habit under 406 and might show intent, proof of motive in which case confession could be admitted
    • Class Notes:
      • Court wants to introduce confession that this person did 8 similar robberies
      • Are they significant enough to count
• Proving the Prior Act:
  • When a prior act is a crime that leads to conviction, normally question whether to admit or exclude has 2 aspects
    • 1) Simple relevance: Does committing another crime (say drug selling) really tend to prove some particular point (say intent) in the case at hand?
    • 2) Pragmatic relevance (and unfair prejudice): Inevitably proving prior crimes has some prejudicial effect in suggesting that D is a bad actor generally, which raises possibility that jury will become angry and distracted, or may simple conclude that D should go to jail for whatever else evidence shows he’s done, regardless of whether he committed charged crime.
      • Especially problematic when D was charged but not convicted of prior crime
      • Huddleston announced 2 conclusions:
        • 1) The Rules do not require a preliminary finding by the court that the government proved a prior act. Instead judge makes threshold decision whether evidence is probative of a material issue other than character
        • 2) Prior acts raise questions of relevance condition on facts under FRE 104(b), which the jury decides by the preponderance standard
        • By this standard, proof of a prior crime is relevant if jury can reasonably conclude by a preponderance that the act occurred and that D as the actor

5. Character in Sex Offense Cases:

• Sexual History of Victim:
  • Common law tradition allowed evidence of past sexual conduct of the complaining witness
  • Rape sheidl statutes were enacted everywhere and then Congress enacted FRE 412 which qualifies 404(a)(2) by restricting the use of evidence relating to the sexual history of a sex crime
  • Problem 5-J:
    • Testimony by Thomas that he’d had sex with Leslie would be permissible under 412 to show that someone other than D was responsible for semen
    • Testimony of pervious sexual activity with D comes in under 412(1)(b)
    • Easy mark doesn’t get to come in  that’s character evidence that shouldn’t come in
    • Testimony about sex with someone else is relevant because 412(1)(a)
• Prior Offenses by Defendants in Sex Crime Trials:
  • FRE 413-415 allow prosecutors to prove sexual assault or child molestation by means of evidence that D assaulted or molested others
  • FRE 413: provides where a D is accused of sexual assault, evidence of other sexual assault offenses is admissible and may be considered on any matter to which it is relevant
  • FRE 414: provides that trials for child molestation, evidence of other child molestation offenses is admissible and may be considered for its bearing on any matter to which is relevant
  • FRE 415: extends to doctrines of FRE 413 and 414 to civil cases raising issues of sexual assault or child molestation
• Almost all states have similar statutes as 412
• Policy Reasons:
  • Avoid embarrassing victim
  • Judges couldn’t be trusted with making right determinations in this area
  • Encourage women to come forward
• 412 tries to strike a balance
• (a) Evidence generally inadmissible:
  • The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
    • 1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
• (b) Exceptions:
  • 1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
    • a) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence
    • b) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused the sexual misconduct offered by the accused to prove consent or by the prosecution; and
• (2) In a civil case, evidence offere to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.
  • Errs on the side of pushing the evidence out but adding to the scale the harm of the victim

Rule 412 example:

• Prosecution wants to call witness to stand to testify that victim was a virgin
• This would be relevant but not permitted under 412(a)(2) because the statute doesn’t distinguish based on chaste or sexual activity sexual predisposition
• If being used for general propensity, 404 governs. When using general propensity, the next question is whether it’s criminal case but also ask what kind of criminal case
  • If sexual assault case, then you need to consider 412

Rule 413-415:

• 413(a): In a criminal case in which the D is accused of an offense of sexual assault, evidence of D’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant
  • Under 413 the court is saying that another offense isn’t inherently/immediately unfairly prejudicial because rules allow P to make argument that he did it in the past, therefore he did it on the day in question
  • If it’s relevant, then it’s going to come in under 413 subject to 403  door opens for propensity argument
  • The offense need not be charged and even if the person was acquitted the offense could still come in  this gets at the idea that acquittal isn’t innocence, just means jury didn’t have enough evidence to find guilt
  • They still have 403  still have to check unfair prejudice, but if allowed under 413 then not prejudicial in sense that they can make inference (they are allowed to make inference but you must check for unfair prejudice)
• Congressional discussion (113 of supplement)
• There are disclosure requirement under 413(b) 15 days in advance
• 413(d): For the purposes of this Rule and Rule 415, offense …
  • extremely broad definition of sexual assault

Problem 5-L:

• Evidence about Laura: Claim it’s highly probative under 403 and permitted under 413  highly probative because almost same facts
• Sexual Assault on Minor:
  • Should be let in under 413 and it’s relevant because it’s a sexual assault case
  • Maybe you can argue that assault with minor isn’t even relevant (so 413 doesn’t apply), but even if found to be relevant that it’s so low on probative scale and so high on unfair prejudice scale
• 415 extends 413 and 414 into civil arena

Rule 404(b):

• Even if prosecution can’t get evidence in through general propensity they will try to get it in to show intent, motive, etc under rule 404(b)
• General Rule:
  • Evidence of other crimes, wrongs, or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it.
  • HOWEVER, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition.
    • The determination MUST be made whether the danger of undue prejudice outweighs the probative value of the evidence under Rule 403
  • 403(b) list of purposes to use prior bad acts isn’t exhaustive
• The burden of persuasion is on the proponent of the evidence
  • The size of the burden of persuasion box is preponderance of evidence
  • Who determines? The issue is a 104(b) conditional relevancy determination. Court screenes to make sure the 404(b) evidence is sufficient  THEN jury determines whether evidence has been proved by a preponderance of the evidence
• Facts: Dowling was convicted of robbing a Virigin Islands
• Intent exception:
  • Must be genuine issue before prior acts can be used
  • Trial judges often do

Relevancy Review:

• Relevant Evidence:Broad standard. Anything that adds to or detracts from likelihood of crime’s commission
  • 402: All relevant evidence admissible unless otherwise stated
  • generally propensity is relevant
  • Sexual assault and child molestation  no longer defendant’s choice

Prior Acts:

• Rule 404(b):
  • General Rule: “Evidence of other crimes, wrongs, or acts is not admissible to prove character as basis for suggesting the inference that conduct on a particular occasion was in conformity with it
  • “However, the evidence may be offered for another purpose, such as proof of motive, opportunity, and so on, which does not fall within the prohibition.”
  • “The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence under Rule 403
    • Still subject to Rule 403
• Must be link  needs to be connection to
• 404(b) does NOT mandate that it be a criminal or bad act  evidence of overdrawn bank account and owed substantial debt is admissible to show motive to commit crime

Relevance Continued:

B. Habit And Routine Practice:

• General Notes:
  • In contrast to “character evidence”, proof of personal habit is freely admitted
    • Habit is viewed as relevant to prove conduct whether corroborated or not and regardless of the presence of eyewitness
    • Courts distinguish based on moral overtone of character and neutral quality of habit
  • Habit = denotes one’s regular response to a repeated situation
    • A person’s regular practice of responding to a particular kind of situation with a specific type of conduct
  • Most habit evidence is offered in civil cases
  • Problem 5-M:
    • If they can produce driving record and say that he was always in habit of driving speed limit, etc this can go to habit (not character and be admissible)
  • Problem 5-N:
    • What mechanic did they day was part of habit and has nothing to do with character
• Class Notes:
  • Must distinguish between character evidence and habit evidence
  • Character = description of one’s moral disposition
  • Habit = regular response to repeated situation
    • A habit is the person’s regular practice of meeting a particular kind of situation w/ a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand signal for a left turn,
    • The drafters believe in having a different rule for habit than for character
  • Rule 406; Routine Practice:
    • Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice
  • Problem 5-M:
    • Not habit in this manner but it could be if the witness instead talked about how they drove w/ person all the time and they would always follow some procedure at a certain intersection
    • Statement goes to character
  • Problem 5-N:
    • This goes to habit because he always follows this procedure

C. Remedial Measures:

• General Notes:
  • At common law, evidence of subsequent remedial measures has long been excludable when offered to prove that the person in question was somehow at fault before and FRE 407 follows this
  • 3 Issues in Application of FRE 407:
    • 1) Does the exclusionary doctrine apply in products liability cases?
    • 2) Does the Erie doctrine require federal courts to follow state practice on subsequent measures? Most of modern authority says no, but matter is still open for debate.
    • 3) When may subsequent measures be shown to prove feasibility? (407 permits if point is controverted, but what does that mean)
• Class Notes:
  • Public policy reason for having this kind of policy  we want to encourage fixing of defects/problems
  • Subsequent Remedial Measures Rule 407:
    • Not admissible
      • To prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning
    • Admissible:
      • To prove ownership, control, or feasibility (if controverted), or if used for impeachment
    • “To other, and more impressive, ground for exclusion rests on social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.”
    • 407 applies only to subsequent remedial measures that are undertaken voluntarily  if they are mandated by government authority then protection under 407 does NOT exist
    • “Evidence of measures taken by D prior to the event do not fall within the exclusionary scope”
• Tuer v. McDonald (Court of Appeals of Maryland 1997):
  • Facts:
    • Tuer (P) brought medical malpractice suit against St. Joseph’s Hospital along w/ surgeon McDonald after husband’s cardiac arrest
    • Hospital had followed typical protocol w/ regard to drug and stopped giving it morning before surgery but then surgery had to be delayed due to more critical patient and husband suffered as a result of lack of drug  died
    • Hospital then changed policy
    • D made motion in limine to exclude any reference to the change in protocol
    • P countered claiming:
      • A) the change was not a remedial measure b/c D claimed prior protocol was correct
      • B) she was entitled to prove change to show that continuing drug was feasible
    • TC found that D didn’t have to admit wrongdoing to claim change was remedial, but it would admit proof if D denied feasibility (D didn’t deny feasibility  just said unsafe)
  • Legal Issue:
    • Was proof of change in protocol admissible to show feasibility and impeach testimony that restarting drug would be unsafe?
  • Holding/Rationale:
    • Feasibility:
      • 5-407 exempts subsequent remedial measure evidence from exclusionary provision when it is offered to prove feasibility, if feasibility has been controverted
      • Narrow definition of feasibility:
        • Disallows evidence of subsequent remedial measures under feasibility exception unless D has essentially contended that measures were not physically, technologically or economically possible under circumstances
        • Courts in this category say feasibility is not controverted—thus subsequent remedial evidence is not admissible under Rule—when D contends that design or practice complained of was chosen b/c of perceived comparative advantage over alternative design
      • Broad Definition:
        • Includes motives and explanations for not having adopted remedial measure earlier  includes that which is capable of being used successfully
      • Application:
        • Can’t just look at weather doc could have restarted drug but medical basis for protocol  D wasn’t saying it wasn’t feasible, just that it wasn’t safe
    • Impeachment:
      • Problem: Almost any testimony given by D witnesses could be contradicted at least in some minimal way by a subsequent remedial measure
      • Prevailing View:Impeachment exception cannot be read in so expansive a manner
        • Whether the evidence is allowed for impeachment depends more on nature of contradiction than on fact of it
      • Application: Court doesn’t think protocol change was admissible to impeach Doc’s statement that restarting drug would have been unsafe
  • Notes:
    • 407 and Strict Liability Claims: 1997 addition of language covering proof of defective “product,” or “design” or need for “warning instruction” indicates 407 does apply

D. Settlement Negotiations

• 1. Civil Settlements:
  • FRE 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 or to impeach through a prior inconsistent statement or contradiction
  • Want to try and get people to settle
  • 408 applies if there is claim that is disputed as to either validity or amount
    • Filing law suit is NOT required  must be some indication that party is going to make some kind of claim
    • Admission of liability will in fact be admissible and fall outside protections of 408
  • Problem 5-P:
    • There’s really no dispute as to validity or amount so these admissions will come in free of 408
• 2. Plea Bargaining in Criminal Cases:
  • Plea bargaining statements are excludable for many of the same reasons that apply to civil settlement negotiations
  • Public policy strongly favors plea bargains as a way of disposing of criminal cases and without this protection they wouldn’t occur
• Rule 410:
  • Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against who made the plea or was a participant in the plea discussions:
    • 1) a plea of guilty which was later withdrawn
    • 2) a plea of nolo contendere (no contest)
    • 3) any statement made in the course of any proceedings under Rule 11 of the FR of Criminal Procedure or comparable …
    • 4) any statement made in the course of plea discussions with any attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn
      • However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by D under oath, on the record, and in the presence of counsel

E. Proof of Payment of Medical Expenses:

• General Notes:
  • Where a person pays for injuries or other expenses incurred by another, in the belief that he is responsible or even simply as a Good Samaritan, FRE 409 provides that proof of such behavior is excludable if offered to prove liability
  • This is particularly useful for insurance carriers
  • Society benefits from allowing relevant evidence to be excluded …

F. Proof of Insurance Coverage:

• General Notes:
  • Rule 411 bars evidence of coverage offered in support of arguments that one intends to be careless
  • Lawyers will often insinuate the fact of insurance into case in other ways—like voir dire
  • 411 recognizes instances where fact of insurance may be admissible
  • “Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.” 

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Chapter 8: Impeachment of Witnesses

Introduction:

• Rule 611: Mode and Order of Interrogation and Presentation:
  • (b) Scope of cross-examination: Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
    • All competency issues have more or less been moved to credibility  impeachment
    • People call witnesses that are adverse all the time  you don’t have to vouch for credibility of every witness that you call
• Rule 607: Who May Impeach:
  • Abolishes common law rule requiring vouching for all witnesses
  • “The traditional rule against impeaching one’s own witness is abandoned as based on false premises. A party does not hold his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary.”
    • You can lead if they’re adverse  make sure you have deposed them
  • Thus witness can be impeached on both direct and cross examination
  • Taking the witness stand means something you put your credibility in issue
    • If you think that credibility is at stake because of particular issue you better bring out the issue first so that you and the witness don’t lose even more credibility
      • You should point out the frailties in your case
• 9 categories of impeachment:
  • see powerpoint slides
  • Impeachment by Evidence Attacking:
    • 1) Perception/personal knowledge
    • 2) Memory—bridge of the temporal gap between time past and time present
    • 3) Mental Capacity
      • As long as this bears on whether they’ll tell the truth, it is permissible to use in impeaching the witness
  • You must distinguish between:
    • 1) Collateral Evidence: Evidence that has no important independent significance. You cannot prove up collateral evidence if denied
      • something on the side that has no important significance in the case in question  then you can’t prove it up if denied
    • 2) Non-Collateral Evidence: Evidence that has important independent significance. You can prove up non-collateral evidence
  • Additional Areas of Impeachment:
    • 1) Bias, prejudice, interest, and corruption
    • 2) Prior criminal conviction
    • 3) Prior non-conviction acts bearing on truthfulness/untrtuhfulness
    • 4) Prior inconsistent statement
    • 5) Opinion and/or reputation evidence of character
  • 404(a) provides exceptions for when character is utilized
    • 404(a)(1) criminal
    • 404(a)(3) = impeachment
    • Impeachment by showing that a person isn’t truth does inherently involve character (maybe you have a character of being a liar)  for this all that’s required to open the door is for a witness to take the witness stand
  • 8-A Problem:
    • Probably going to come in because most likely highly probative to show bias
    • Other methods might be to get the information through discovery (for plaintiff)
    • Might make motion in limine to get questions kept out
  • Bias Example:
    • Q: Isn’t it true that you have been paid $50,000 by the D to come here and testify?
    • A: No
      • Not Collateral: Therefore, P can prove up the $50,000 payment to this witness
• Methods of Impeachment:
  • Three Focus on Brining Reasons to Doubt Words Generally:These are definite, but nonspecific
    • 1) Showing that witness has some bias, animus, motivation or corruption that might lead him to fabricate or shade his testimony to help or hurt on of the parties
    • 2) Showing a defect in sensory or mental capacity (perception or memory) that undercuts his testimony
    • 3) Showing that he is by disposition untruthful—Done by:
      • a) cross-examining target witness about nonconviction misconduct casting doubt on his honesty
      • b) cross-examining him about certain kinds of convictions
      • c) testimony by a character witness that the target witness is untruthful
  • Specific But Indefinite Methods:Specific in calling into doubt particular points in testimony but indefinite b/c they don’t reveal underlying cause
    • 4) Showing that witness has made prior inconsistent statement (one that conflicts w/ current testimony)
    • 5) Contradicting the witness—showing that he’s just plain wrong one 1+ points of testimony
• Repairing Credibility:
  • Subject to court discretion under FRE 611, the “supporting party” may examine the witness in an effort to refute points suggests during attack or explain away aspersions cast upon veracity

A. Nonspecific Impeachment:

• 1. Bias and Motivation:
  • Court has discretion in permissible forms of cross, but court can’t cut off all legitimate attempts to show bias
  • Court has held that denying cross-examination on witness’s bias can violate defense confrontation rights and due process
  • No specific rule covers this under rules but we can impeach on this
• United States v. Abel (United States Supreme Court, 1984):
  • Facts:
    • Abel and 2 others were indicted for robbing a savings and loan (2 others plead guilty) 1 (Ehle) agrees to testify against D and ID him has participant in robbery
      • D told prosecution that he’d counter guy’s testimony w/ Mills who knew both in prison where E said he planned to implicate D falsely to get better treatment from govt.
      • Prosecution said they would counter this by questioning E and revealing that they were all members of “Aryan Brotherhood,” a secret gang that required all members to deny existence of org and commit perjury, theft, and murder on each other’s behalf
        • D said this would be too prejudicial  court says OK if D denies gang, then E can come in  this happens at trial and E is brought in
      • Court wouldn’t allow words “Aryan Brotherhood” though b/c they are unduly prejudicial
    • Appeals court held E’s rebuttal testimony was admitted to show Mill’s membership in group might color testimony AND Mills’s membership in perjurious org means he must be lying on stand
      • Court of appeals said suggestion of perjury based on group tenet was impermissible
  • Legal Issue:
    • Since D did not take stand, was E’s testimony implicating D as a member of gang improper to impeach D and did it prejudice him by mere association?
  • Holding:
    • Evidence showing Mill’s and D’s membership in gang was sufficienctly probative of Mill’s possible bias toward D to warrant admission into evidence
  • Rationale:
    • FRE Rules:
      • Don’t expressly deal with impeachment for bias but case law tells us that Confrontation Clause of 6^th amendment requires D to have some opportunity to show bias on part of prosecution witness
      • 401 allows all relevant evidence and 402 says permissible except as otherwise provided Conclusion = Permissible to impeach witness by showing his bias under FRE
    • Application:
      • E’s testimony about gang makes Mill’s bias more probable  therefore relevant to support inference
      • Mill’s and D’s membership in gang wasn’t offered to convict either of crime  just to impeach Mill’s testimony
      • D argues that DC shouldn’t have permitted E’s description of gang as lying and murderous b/c it would inflame jury
        • HOWEVER attributes of gang bore directly on fact of bias AND on source and strength of Mill’s bias
    • Rule 608(b):
      • Allows cross examiner to impeach witness by asking him about specific instances of past conduct other than crimes covered by Rule 609 which are probative of his veracity or character for truthfulness or untruthfulness
      • Rule limits this by prohibiting cross-examiner form introducing extrinsic evidence of witness’ past conduct
      • D claims that prosecutor examined Mills not to show bias, but past conduct
      • Court thinks that testimony/questioning was clearly to show that membership could taint testimony
  • Class Notes:
    • Testimony outweighs prejudicial effect according to court, but court sanitizes testimony by prohibiting use of term “Aryan Brotherhood”
• Notes:
  • Retainer:
    • The fact that a witness is on a retainer bear directly on bias
    • Invariably the calling party does pay for the services of any expert who testifies, and in fact the calling party brings out the fact of payment during the initial phases of direct examination to avoid the appearance of hiding what will surely be paid by the other side
• 2. Sensory and Mental Capacity:
  • General Notes:
    • Attacking party may seeks to show that witness had only bried chance to see/hear what she has described in her testimony, or that she labors under defects in sensory capacity that may affect her observation, or that human perceptive processes work in ways suggesting that her testimony is not so persuasive as it seems
    • Ex 1.
      • Attacking party can show that witness was under influence of drugs at time of the events
    • Ex.2:
      • By what authority does a court order a witness to undergo psychiatric examination?  In 1 case, D sought to cross examine govt. witness over a psychiatric report that had found him competent, but trial judge refused to permit it
      • RULE = “One’s psychiatric history is an area of great personal privacy which can only be invaded in cross when required in the interests of justice”
        • Reasoning = Cross examination of an adverse witness on matters of such personal privacy, if of minimal probative value, is manifestly unfair and unnecessarily demeaning of witness
          • Info is generally pretty extraneous
      • Requirement to Include:
        • Witness’ mental impairment, to constitute a proper subject for cross-examination, must
          • 1) have been “at a time probatively related to the time period about which he was attempting to testify,
          • 2) must go to the witness’ qualification to testify and ability to recall, and
          • 3) must not introduce into the case a collateral issue which would confuse the jury and which would necessitate allowing the govt. to introduce testimony explaining the matter
• 3. Character for “Truth and Veracity”
  • Class Notes:
    • 608(b) you can introduce prior acts that show character for truthfulness/untruthfulness
      • 608(b) refers to collateral evidence and says that if you are allowed to use specific instances (other than past crimes) it cannot be collateral
    • If we’re going to allow it, should we make it collateral
    • General Rule: Specific instances cannot be used to attack…
      • Exception 608(b): prior non-conviction acts can be used only if:
        • 1) The trial court exercises its discretion and allows such evidence
      • This method generally isn’t used because:
        • 1) if they say no, you can’t prove it up and you look stupid
        • 2) you often don’t know about these kinds of things (lying on resume)
    • DC Court: held that it was grave error for TC not to allow D to cross key govt witness (police officer) about whether he lied under oath in prior trial even though he was never convicted of perjury
      • In order to impeach cross examining attorney need not have admissible evidence, just good faith basis for asking the questions
  • General Notes:
    • Proving “bad character for truth and veracity” = another standard impeach strategy
    • Rule 609 authorizes and regulates attacks based on showing untruthfulness: nonconviction misconduct, cross examination on convicttions, and use of character witness
    • Relationship Between 404 and 608/609:
      • Example = If D in a murder trial testifies, FRE 608 and 609 entitled the prosecutor to try to suggest that he s by disposition “dishonest” but FRE 404 continues to bar evidence that he is by disposition violent
  • Cross-Examination on Nonconviction Misconduct:
    • Process = 1 method to suggest witness is disposed to be untruthful is to bring out on cross instances of nonconviction misconduct that seem to bear on veracity
    • Limitations = Judges must regulate b/c just posing question can cause damage no matter how witness responds
      • 608(b) indicates that specific instances of conduct relating to truthfulness or untruthfulness “may in the discretion of the trial court” be raised on cross
    • Test = A witness may be cross-examined on a prior bad act that has no resulted in a criminal conviction only where:
      • 1) the examiner has a factual predicate for the question, AND
      • 2) the bad act bears directly upon the veracity of the witness in respect to the issues involved in the trial
  • United States v. Manske (United States Court of Appeals for the 7^th Circuit, 1999):
    • Facts:
      • In trial for conspiracy to distribute cocaine, D sought to cross-examine 2 alleged co-offenders (P and K) who said D was their primary source for cocaine
      • D attacked their credibility of (P, K and 2 others) showing they were getting leniency in exchange for testimony and that they had extensive histories of drug use and drug dealing
      • Prosecution made motion in limine to block this cross relating to threats P made to witness testifying in related case (saying he better change story or P would kill him)
      • Prosecution argued that threats = conduct not probative of truthfulness or untruthfulness b/c they tended only to show propensity for violence
      • TC granted govt motion  D appeal
    • Legal Issue:
      • Doe the impeachment rules permit questioning related to P’s threats?
    • Holding/Rationale:
      • Rule 608/609:
        • FRE 609 = a witness’s specific instances of conduct may only be raised on cross if they are probative of truthfulness or untruthfulness
        • 3 ways of looking at 608(b):
          • 1) Broad View: holds that virtually all conduct indicating bad character indicates untruthfulness, including robbery and assault  untenable view
          • 2) Narrow View: considers crime bearing on veracity only if it involves falsehood or deception, such as forgery or perjury
            • threat evidence probably excluded here
          • 3) Middle View: Behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity
      • Application of Middle View:
        • Threatening to cause physical harm to a person who proposes to testify against you indicates that P probably wouldn’t hesitate to give false testimony if it gave him some kind of advantage
        • Deference to TC under 608(b) doesn’t apply when TC incorrectly categorizes nature of evidence (here they construed it too narrowly)
    • Was Error Harmless:
      • Prosecution argues that even if error, it was harmless
      • Bias is one of the 5 well-recognized methods of attacking witness’s credibility
      • NOTE: If bias w
    • Class Notes:
      • This would be held to be collateral if denied
  • B. Proving Prior Convictions:
    • General Notes:
      • Second means of suggesting a witness is untruthful involves prior convictions
      • FRE 609(a): lets the cross examiner ask about:
        • 1) convictions for crimes punishable by death or imprisonment in excess of one year … but for witnesses other than a criminal D admissibility of convictions is subject to FRE 403 (convictions used only where probative value outweighs their prejudicial effect)
        • 2) convictions for either felonies or misdemeanors involving dishonesty or false statement
      • Because many courts different about which crimes involve dishonesty  use of prior convictions for impeachment engenders much variety in approach, brings problems of interpretation, raises many issues in trial and generates many appeals
    • Rule 609(a):
      • For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime
        • 1) was punishable by death or imprisonment in excess of 1 year … and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to D, OR
        • 2) involved dishonesty or false statement, regardless of the punishment
    • Rule 609(b) creates 10 year time limit  convictions older than this are excluded
    • Rule 609(c) also excludes convictions where there is pardon/annulment or the witness was found to be innocent
    • Rule 609(d) provides that youthful brushes with the law are generally inadmissible, but that in certain criminal cases such offenses may be raised in the case of witness other than the accused
    • Rule 609(e) permits cross on convictions despite pendency of an appeal
  • Class Notes:
    • 2 methods under 609:
      • 1) Evidence of conviction of crime involving dishonesty or false statement
      • 2) All other evidence of conviction of crime
    • 609(a)(2)—Evidence That a Witness Has Been Convicted of a Crime Involving Dishonesty or False Statement
      • Required admissibility; the Rule does not allow for a 403 balancing
      • Limitations found in 609(b), (c) and (d) still apply
      • 609(a)(2) applies to any witness, including a criminal defendant
      • “By the phrase “dishonesty and false statement” the Congerence means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement…
    • Example Acts Which do not Qualify as going to
• Evidence Not Involving Dishonesty or False Statement:
  • 2 types:
    • 1) Evidence that a witness other than the accused has been convicted of such a crime
    • 2) Evidence that an accused has been convicted of such crime
      • More protection for accused than other witnesses because he has to make decision about whether to testify
      • Protections under 609(a) are only for criminally accused  any other witness (D in civil case) is afforded different stand
    • Evidence that a witness other than an accused has been convicted of a crime shall be admitted only if:
      • 1) allowed after a tradition Rule 403 determination (erring on side of admitting)
      • 2) Crime is a felony ) punishable by death or imprisonment in excess of 1 year
      • 3) Still subject to limitations of Rule 609(b), (c) and (d)
    • Evidence that an accused has been convicted of a crime shall be admitted if:
      • Trial court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused (errs on the side pushing the evidence OUT)
      • Crime is a felony
      • Still subject to limitations of Rule 609(b), (c) and (d)
  • Additional Limitations to Rule 609(a):
    • Time Limit—Rule 609(b)
      • Conviction can be more than 10 years old if they were released from confinement and served less than 10 year sentence
      • This is unclear about from when to measure the 10 years (from the start of trial, from when he testifies, when charges are brough…) –Cases on this are not all consistent, but some say when trial starts for other witnesses, but when it’s D’s testimony we measure from when he takes stand to testify
      • Conviction happens 15 years ago, D has probation for 10 years what happens if probation is revoke and you go back to jail
        • Probation generally NOT considered confinement
        • If probation is revoked courts tend to show that there’s difference btwn technical probation violation and something more substantive (like committing another crime)
    • Effect of pardon, annulment, or certificate of rehab—Rule 609(c)
    • Juvenile adjudications—Rule 609(d)
  • United States v. Lipscomb (United States Court of Appeals for District of Columbia Circuit, 1983):
    • Facts:
      • In 2nd jury trial for possession of heroin w/ intent to distribute, D was convicted  he testified at 1^st trial (hung jury) and was impeached by cross-examination about robbery conviction 8 years earlier
      • D made motion in limine to prevent this cross on retrial but judge said P could ask pursuant to Rule 609(a)(1)
      • Judge lets prosecutor bring out prior convictions of D and 3 of D’s witnesses
    • Legal Issue:
      • Does 609 permit impeachment through prior convictions? YES
    • Holding:
      • Based on 609, legislative history and sound policy, that DC has discretion to determine when to inquire into facts and circumstances underlying prior conviction and how extensive an inquiry to conduct
    • Rationale:
      • Limiting Instructions a Legal Fiction:
        • The naïve assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction
        • When D is impeached by prior conviction, question of prejudice is not if, but how much
          • THEREFORE 609(a)(1) instructs courts to admit evidence of prior felony conviction only if court determines that probative value of admitting evidence outweighs prejudicial effect to D
        • In order to balance probativeness against prejudice under 609(a)(1), the DC may elicit facts RE background and circumstances (but does not always need to do so)
      • Policy Considerations:
        • P argues that even if DC can look at facts it shouldn’t because inquiry is burdensome and won’t lead to anything more than larceny was larceny
        • Court disagrees b/c pleading of not guilty and later conviction would speak to fact that witnesses didn’t tell the truth
        • Might give evidence of rehabilitation or lack there of w/ regard to certain types of crimes
        • Trial judge and D deserve information and burden on P isn’t that great
    • Class Notes:
      • Ds are put at risk not only by evidence of their own conviction if they take the stand but D can also be prejudiced if witnesses are impeached (affects his own credibility)
      • Start 609(a)(2) and then go to (a)(1) but don’t make the mistake of giving additional protections to criminal-accused (not civil defendants)
  • Additional Notes:
    • Gordon Factors to Consider:
      • 1) Nature of the conviction
      • 2) Its recency or remoteness
      • 3) Whether it is similar to the charged offense
      • 4) Whether D’s record is otherwise clean (convictions are presumably more probative of credibility if they show a continuing pattern rather than isolated instances
      • 5) the importance of credibility issues
      • 6) the importance of getting D’s own testimony
    • These factors are only used in weighing under 609(a)(1) because there is NO weighing under 609(a)(2)
• Luce v. United States (US Supreme Court, 1984):
  • Facts:
    • D was indicted on charges of conspiracy and possession of cocaine w/ intent to distribute
    • During trial D moved to preclude govt from using 1974 state conviction (possession of controlled substance) to impeach him
  • Legal Issue:
    • Was D, who did not testify at trial, entitled to review of DC’s ruling denying his motion to forbid use of prior convictions to impeach his credibility?
  • Holding/Rationale:
    • Any possible harm flowing from DC’s in limine ruling permitting impeachment by prior conviction is wholly speculative  because D didn’t testify
    • Court holds that to raise and preserve for review the claim of improper impeachment w/ a prior conviction, D must testify
  • Class Notes:
    • You want to preserve the issue for appeal you have to get on the witness stand and be impeached  can’t preserve it for appeal unless you testify
    • Problem for D because you have to testify and can’t take sting out ahead of time  if you take the sting out ahead of time, then you can’t appeal

Example Problem:

• Embezzlement #1:
  • 609(a)(2) crime that doesn’t come in because of time limit
• Embezzlement #2:
  • 609(a)(2) and there shouldn’t have any weighing of evidence
  • The evidence should have just come in  regardless of whether it was criminal accused
  • Time limit wasn’t implicated because 11 years ago but 5 years only were served
  • If 609(a)(2)  judge shouldn’t have balanced AT ALL
• 3^rdConviction:
  • 609(a)(1)  criminal accused so we use the stricter weighing standard
  • This was a felony conviction
  • Standard = judge used 403 standard instead of proper standard under 609(a)(1)
• 4^thConviction:
  • 609(a)(1) felony of someone else
  • Court uses and should use 403 standard
  • Court allowed impeachment with too much detail  can make spill over argument
• 5^thConviction:
  • 609(a)(2) crime and judge was therefore incorrect for excluding the evidence
  • Judge can’t exclude evidence under this situation even though it’s a misdemeanor because it’s 609(a)(2)
• 2. Very Violent Person:
  • “Violent Person” = 404(a)  can’t put character evidence unless it’s to rebut same
  • “Prone to Lie’ =

I’m B. Specific Impeachment

1. Prior Inconsistent Statements:

• Class Notes:
  • Rule 609: Impeachment by Evidence of Conviction of Crime
    • (a) General Rule:
      • For the purpose of attacking the character for truthfulness of a witness
      • (a) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it can be readily determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness
  • Court does NOT balance under 609(a)(2) ONLY under 609(a)(1)
• Problem 8-B:
  • Elmo = don’t impeach because then D is going to call witnesses and then you’ll lose other arguments to impeach witnesses of defense and criminal accused
  • Accused = standard is tougher for getting evidence in 
• Rule 404(a):
  • The general position is taken that character evidence is not admissible for the purpose of proving…
  • 608(a)
    • Only opinion and or reputation evidence is allowed
    • Evidence must refer only to character for truthfulness or untruthfulness
    • Cannot use evidence of truthful character until your witness’ veracity has first been attacked by opinion and/or reputation evidence
    • Basically  can’t call witnesses to say someone is truthful unless their veracity has been attached
    • “Character of truthfulness could be introduced before defendant took stand by the prosecution if it’s a fraud case (for example) where untruthfulness is one of the elements of the crime”
    • 404(a)(3):
      • allow evidence to be received to impeach
• Evidence Example Problem:
  • Holly is on trial for the murder of John
  • Can prosecution (in case in chief) call a character witness to testify as to holly’s character for violence? NO  can only rebut the same
  • Holly can’t call friend to testify to truthfulness unless reputation has been attacked
    • They have to attack credibility before she can call character witness to testify as to honest EVEN if she denies committing crime
  • 608(b) allow prosecutor to cross examine Holly using prior non-conviction acts bearing on Holly’s untruthfulness
    • Holly can now call Connie as a witness to testify to Holly’s wonderful reputation for truth and honesty
    • Holly can call Frank to testify that she is a peaceful non-violent person (pertinent trait and she’s allowed to open the door)
      • Prosecutor can’t call character witness to testify as to Holly’s reputation for dishonesty after this because Holly hasn’t opened door to this matter
• General notes:
  • If witness’s testimony differs on some point from prior statements, the attacking party may cross examine on these statements and prove them by extrinsic evidence (testimony by other witnesses)
• Prior Inconsistent Statements Class Notes:
  • Rule 613:
    • (a) Examining witness concerning prior state : In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel
    • (b) Extrinsic evidence of prior inconsistent statement of witness:
      • Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2)
  • Collateral or Noncollateral:
    • Depends whether issue is significant or non-significant
  • 607 Abuse;
    • Call adverse witness, set up inconsistency with otherwise inadmissible document and use document to impeach that witness and then judge gives instruction that its to be used for credibility determination and nothing else
• Procedural Fairness:
  • Common Law Conventions:
    • 1) During cross, attacking lawyer was expected to lead witness gently into subject of inconsistency
    • 2) Attacking laywer was not permitted to prove statement by extrinsic evidence (offering 1^st writing into evidence, or adducing testimony by another as to what was first said) unless he had first raised matter on cross
  • Modern Revision:
    • FRE 613(a): Cross-examiner no longer needs to worry about approaching subject gently
      • Only restriction is that opposing counsel is entitled to request to see the statement or learn of its contents to repair damage
    • FRE 613(b): If a prior inconsistency is proved by extrinsic evidence, generally witness must have opportunity to explain or deny it and adverse party must have chance to interrogate her
• United States v. Webster (US Court of Appeals for 7^th Circuit, 1984):
  • Facts:
    • D was convicted of aiding and abetting robbery of federally insured bank and receiving stolen bank funds  D appeals
    • Govt called another bank robber who had pled guilty (King) and showed that he’d given prior inconsistent statements inculpating D
      • Court gave limiting instruction to only consider statements for impeachment
    • D argues this was insufficient b/c govt should not be allowed to get inadmissible evidence before jury by calling hostile witness and then using his out-of-court statements, which would otherwise be inadmissible hearsay, to impeach him
  • Legal Issue:
    • Is impeachment by prior inconsistent statement permitted where the evidence is not otherwise admissible? Can’t use impeachment to subterfuge and get in inadmissible evidence BUT standard is one of good faith.
  • Holding/Rationale:
    • Court:
      • Impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible
    • Good Faith Standard:
      • There was no bad faith here b/c P asked judge to allow her to examine witness outside jury
      • D wants instead of good faith the court to hold that govt. may not impeach a witness w/ his prior inconsistent statements unless it is surprised and harmed by witness’s testimony
        • Govt shouldn’t have to choose between calling and not calling when witness might provide helpful and expected harmful testimony that can be overcome by impeachment
• Limitations on Impeachment:
  • Can’t just call witness to impeach:
    • While it is rule that a party calling a witness does not vouch for his credibility, it has never been rule that a party may call a witness where his testimony is known to be adverse for purpose of impeaching him
      • To do so would permit govt, in name of impeachment, to present testimony to jury by indirection which isn’t otherwise admissible
    • RULE = Impeachment by prior inconsistent statement may NOT be permitted where employed as a mere subterfuge to get before jury evidence not otherwise admissible
• Harris v. New York (United States Supreme Court, 1971):
  • Facts:
    • D was charged w/ selling heroin in 2 transactions where buyer was undercover cop who became state’s principal witness
    • H testified that he knew officer and appeared to sell him heroin but it was really baking powder and his motive was to make $
    • On cross P asks D about statements made after arrest (statements which were inadmissible and had not been mentioned in case-in-chief)
      • Statements partially contradicted D’s testimony and were to effect of “officer used me as middleman to buy some heroin from 3^rd person”
    • Court instructed jury that statements could be considered only in determining D’s credibility NOT guilt
      • D appeals
  • Legal Issue:
    • Was impeachment with evidence not otherwise admissible permissible in this case?
  • Holding/Rationale:
    • Miranda:
      • Barred prosecution from making its case w/ statements of an accused made while in custody prior to having or effectively waiving counsel
      • It does NOT follow from Miranda that evidence barred against accused in P’s case in chief is barred for all purposes
    • Application:
      • D shouldn’t be able to use Miranda as total shield
      • Since D’s statements after arrest contrasted sharply w/ testimony and impeachment process provided valuable aid to jury in assessing credibility
      • D—taking stand—is under obligation to speak truthfully and it would be unfair to prevent P from showing lies
  • Dissent;
    • Thinks that what is inadmissible in case in chief under Miranda v. Arizona is also inadmissible on cross to impeach credibility
    • “Constitution guarantees D the fullest opportunity to meet accusation against him. He must be free to deny all elements of case against him without giving leave to govt. to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for case in chief
    • Walder:
      • Walder was indicted in 1950 for purchasing and possessing heroine  D won on motion to suppress b/c narcotics were illegally seized
      • 2 years later D is indicted on another violation and testifies in his defense that he has never in his life possessed narcotics
      • P was permitted to introduced testimony from one of officers in 1950 seizure that they seized drugs
        • D went beyond denying elements and denied any past conduct
      • Evidence in Walder tended solely to impeach credibility but evidence was completely unrelated to indictment on trial and did not in any way interfere w/ freedom to deny all elements of case against him
      • Thinks Walder is different than present case because evidence used to impeach was on matters collateral to crime charged NOT non-collateral as in present case
  • Class Notes:
    • Court says that they can impeach with statements gained before reading of Miranda rights
• Jenkins v. Anderson (United States Supreme Court, 1980):
  • Fact:
    • D stabbed and killed Doyle Redding but was not apprehended until he turned himself in 2 weeks later  at time of trial he contended killing was self-defense
      • D claimed that Redding had robbed him and next day he encountered R who thought D told police about him  R apparently attacked D and D fights and stabs R
    • P uses Ds silence (in not coming forward to police) for 2 weeks after killing to impeach credibility by suggesting hat that D would have spoken out had he killed in self-defense
    • D claims Ps impeachment violated 5^th amendment guaranteeing accused the right to remain silent  D didn’t remain silent though during trial and took stand
  • Legal Issue:
    • Does use of prearrest silence to impeach D’s credibility violate either 5^th or 14^th amendment to Constitution? NO
  • Holding/Rationale:
    • Raffel v. US:
      • Court recognized that 5^th amendment is not violated when D who testifies in his own defense is impeached w/ prior silence
      • Court held that inquiry into prior silence was proper b/c immunity from giving testimony (in 1^st trial in that case) is on which D may waive by offering himself as witness
      • Court accepts side effect that Ds may be discouraged from exercising constitutional right to remain silent if it will be used against them
    • Approach:
      • In determining whether a constitutional right has been burdened impermissibly it is appropriate to consider the legitimacy of the challenged governmental practice
        • Impeachment is key to advancing truth and determining credibility
      • Also ask whether compelling the election impairs to an appreciable extent any of the policies behind rights involved
    • Fairness Under 14^th Amendment;
      • D also claims that use of prearrest silence to impeach his credibility denied him the fundamental fairness guaranteed by 14^th amendment
      • Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent w/ present statements that impeachment by reference to such silence is probative
      • In this case there is no fundamental unfairness b/c silence happened before reading of rights
        • HOWEVER  this decision does not mean state courts must allow impeachment through use of prearrest silence
  • Class Notes:
    • Pre-Miranda silence can in fact be used to impeach
    • Post-arrest and post-miranda silence CANNOT be used to impeach
    • Prior inconsistent statement
• Other Notes:
  • Insanity and Miranda Silence:
    • Doyle indicates that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise to impeach his trial testimony, and it is equally unfair to break the promise by using silence to overcome a claim of insanity

2. Contradiction:

• General Notes:
  • Impeaching a witness by contradiction entails showing that something he said in his testimony isn’t true
    • Can be done by cross (getting him to admit lie) or by extrinsic evidence (testimony form someone else, writing/recording)
• Limitations:
  • Courts recognize that all contradicting counterproof has some impeaching effect but lett it in only if it has additional relevance in the case—some relevance independent of its contradicting effect
  • 3 kinds of counterproof:
    • 1) Counterproof that not only contradicts but also tends to prove a substantive point (evidence that goes to merits as well)
      • Usually gets in
    • 2) Counterproof that not only contradicts but tends to prove some other impeaching point
      • Usually gets in b/c it tends to show bias
    • 3) Counterproof that ONLY contradicts
      • Here evidence is usually excluded for it has no relevancy apart from contradicting the witness  can be admitted, HOWEVER, if court thinks it’s not possible for witness to be innocently mistaken
      • It is evidence that contradicts on a collateral point
    • Basic idea is that what can’t get in during case in chief can’t really be used to contract
      • HOWEVER benefit of contradiction method is that it changes when evidence can be introduced (P might rather present something later to really show lack of credibility of witness AND support her case)
      • Also beneficial because sometimes you can get in other evidence when witness tells lie, that isn’t otherwise admissible (like previous accidents) but that go to show character (as bad driver)
  • Rule 608(b):
    • Basically provides that an attacking party may cross a witness on nonconviction misconduct if probative of untruthfulness but that such misconduct may not be proved by extrinsic evidence

General Introduction Class Notes:

• Pleadings:
  • Might be important if detailed allegations are made in pleadings that are then denied in the answer without hesitation  you can later use these statements to impeach
• Impeachment by Evidence Attacking: (9 ways to impeach a witness at Trial)
  • 1) Perception/Personal Knowledge
  • 2) Memory—bridge of the temporal gap between time past and time present
  • 3) Mental capacity
  • 4) Bias, prejudice, interest and corruption
    • Non-collateral
  • 5) Prior criminal conviction
    • Non-collateral
    • Governed by 609
  • 6) Prior non-conviction acts bearing on truthfulness/untruthfulness
  • 7) Prior inconsistent statement
    • Rule 613 governs this in part
    • May be collateral or non-collateral depending how important issues are to case
  • 8) Opinion and/or reputation evidence of character
    • Collateral
  • 9) Contradiction
    • Witness testifies and you want to show that what witness actually testified to is not accurate in some aspect  shows that if they’re wrong on one aspect they may be wrong on another matter
    • Impeaching a witness by contradiction is done by showing that witness’s testimony is wrong in some regard
    • 608(b) doesn’t depend on contradicting witness testimony on stand
      • It says, you lied before so you’ll lie now and has a built in collateral aspect
      • You might rather try to squeeze something into this category because then you can prove it up with extrinsic evidence if it’s relevant to something important in the case
• Discretion:
  • Trial judges have some authority to leave out evidence
• Problem 8-F:
  • See page 580 for facts
  • The prosecution wants to say that the testimony has been contradicted and they want to use extrinsic evidence to show it
  • Issue: Is this collateral or not?
    • This will depend on how central the testimony is to the case at hand
  • Kinney is only testifying that Oswald wasn’t there on June 27  not entirely contradictory to what the waiter is saying
  • The waiter says “I never laid eyes on him”  if you could show that waiter was there on July 14 then it would be a lot more likely to come in
    • non-collateral

United States v. Havens (United States Supreme Court, (1980):

• Facts:
  • D was convicted of importing, conspiring to import and intentionally possessing a controlled substance, cocaine.
  • Ds friend M was searched at customs and they found cocaine on him (in sewn on patches w/cut up t-shirt) then luggage was searched w/out warrant
  • Searching D’s luggage they find cut up T-shirt that was used to sew on cocaine
  • Court of Appeals held that illegally seized evidence may not be used for impeachment only if evidence contradicts a particular statement made by D in course of his direct cross examination
• Legal Issue:
  • Can evidence suppressed as the fruit of an unlawful search and seizure nevertheless be used to impeach a D’s false trial testimony, given in response to proper cross-examination, where the evidence does not squarely contradict D’s testimony on direct examination?
• Holding/Rationale:
  • Direct/Cross:
    • Court doesn’t think that just b/c evidence does not directly contradict statement made on direct it is out
    • Cort must consider how closely cross about shirt and luggage was connected w/ matters on direct
    • Rule: If matters would be suggested to reasonably competent cross-examiner by D’s testimony, then prosecution can introduction questions to impeach
  • Truth Issues:
    • System seeks to reach truthful conclusion and system would fail if Ds were permitted to use perjury as a means of keeping out key evidence
    • Constitutional limitations shouldn’t only be extended to direct examination but cross as well  otherwise function of cross is lost b/c lying witness can’t be crossed effectively
• Dissent:
  • Interprets Agnello (and prior cases) as saying that impeachment by cross-examination about suppressible evidence must be warranted by D’s statements upon direct questioning
• Problem 8-G:
  • Young charged w/ selling narcotics and testifies that he was elsewhere at time of crime and prosecution asks if he’s ever sold narcotics before
  • Class Notes:
    • Highlights important area  make sure you school witnesses to pause so attorney has time to object
    • Prosecution can’t ask if he’s ever sold narcotics before
      • Can’t utilize specific act to show general propensity
      • Can argue that you’re not using it to show general propensity but that you’re using it to show general intent (under 404(b))
    • Assume question is wrong but person answers first with a lie
      • Defense should make motion to strike because the question was improper so the fact that the answer was perjured isn’t grounds for impeachment
      • Court is unlikely to allow impeachment to go forward
• Rule 610:
  • Evidence of religion is not admissible to support or attack witness credibility
  • Evidence of the religious 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
  • This doesn’t mean that no aspect of religion can enter witness box
    • Can be used to show bias (priest on stand where church is defendant)
  • You can’t use religion to show you’re a good person

Repairing Credibility

• General Notes:
  • Rules allow for repairing of damage from impeachment but rules place 2 conditions on it:
    • 1) Generally courts disallow any attempt to repair credibility before attach has come
      • 608(a) states this principle BUT you can out the facts first
      • Permissible on direct
        • 1) for any party to adduce testimony by his expert to the effect that she is being paid for her services
        • 2) for calling party to bring out that its witnesses have been convicted of crimes
        • 3) for the prosecutor to bring out that its witness entered into plea bargain
        • 4) for the calling party to bring out any connection or affinity that she has w/ witness, such as personal/business relationships, which are obvious grounds of bias
    • 2) Repair should be made at the point of the attack
• Class Notes:
  • Take Out the sting on Direct Examination:
    • “it is permissible on direct
      • 1) for any party to adduce testimony by his expert to…
  • Repairing Credibility:
    • Explanation by Impeached Witness
    • Prior consistent statements
    • Character evidence of truthfulness
  • Prior Inconsistent Statement:
    • Maybe show that statement was never made
    • Show that statement wasn’t said as party claims
  • Repairing Credibility—Character Evidence of Truthfulness;
    • 1) Cannot bolster credibility until after witness’ truthfulness has first been attacked
    • 2) Character witness may then testify (opinion or reputation) as to the truthful disposition of attacked witness
  • 609 (prior criminal convictions), 608 (prior nonconviction actions bearing on truthfullness) and 608(a)
    • Evidence to bolster credibility can be admitted after attacks based on the above
• 1. What Constitutes an Attack on Credibility that Paves Way for Repair?
  • General Rule:
    • Evidence that simply contradicts or refutes testimony given by a witness does not invite rehabilitation or repair
• 2. Evidence of Good Character:
  • Rule 608(a) authorizes courts to admit “opinion or reputation” testimony supporting credibility after “character for truthfulness has been attacked
  • Cross Examination: There are risks associated w/ this strategy if the witness doesn’t know about bad character activities
    • Cross examiner can test knowledge and judgment of good character witness under Rule 405
• United States v. Medical Therapy Sciences (United States Court of Appeals for the Second Circuit (1978):
  • Facts:
    • D was convicted of filing false claims for Medicare payments and obtaining double payments for procedures
    • Govt had D’s employee—BR who helped in filing forms—testify against him and on appeal D contends that trial judge erred in permitting prosecutor to call character witness to bolster BR’s credibility
      • And this error was crucial in light of D’s claims that BR alone perpetrated frauds
    • D claims BR’s character for truthfulness wasn’t attacked under meaning of rule
  • Holding/Rationale:
    • Rule 608(a):
      • Character evidence may be used to support a witness, but the rule limits its use so that “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.”
      • Rule contains no limitation that precludes a party from offering character evidence under circumstances where it anticipates impeachment, rather, the even that triggers the applicability of the rule is an attack on the witness’ veracity
  • Class Notes:
    • Prosecution brought out BR’s (BR = Prosecution’s star witness) past convictions in anticipation of impeachment
      • Prosecution CANNOT then repair credibility UNLESS there is attack from D because credibility has not been attacked simply because you impeach your own witness or take the sting out of impeachment

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Chapter Fourteen: The “Best Evidence” Doctrine

A. Introduction:

• Class Notes:
  • Best Evidence Rule does NOT mean that you have to put the best evidence forward  rename it “original document rule” in your mind
  • Came about in old common law before industrial revolution before copier
    • There was a distrust for handmade copies at this time so court wanted original document  hence name “original document rule”
  • Bring original if you’re trying to prove contents of original
  • Federal rule much broader than common law rule
  • Procedure:
    • 1) First ask yourself if rule is implicated
    • 2) Then ask if you have to use original, is there an exception
  • Summary of Rule:
    • 1) Applies
      • 1002: To prove the content of a writing, recording, or photo, the original writing, recording or photo is required, except as otherwise provided in these rules or by Act of Congress
    • If Best Evidence rule applies then:
      • 1) Generally, duplicate is admissible to the same extent as the original
      • 2) However, duplicated not admissible if unfair to admit in lieu of the original or a genuine dispute as to the original’s authenticity exists
      • 3) Even if original is require, production of such original can b excused under certain circumstances
    • Exceptions Where Original Need Not Be Produced:
      • 1) Original lost or destroyed
      • 2) Original not obtainable
      • 3) Original in possession of opponent
      • 4) Collateral (Unimportant items)
• General Notes:
  • Most effective/persuasive evidence is not always the most reliable evidence but because this is generally not the case, the law does not require parties to produce the best evidence, and in fact the law does not generally impose any such requirement
  • Exception = “Best Evidence Rule”
    • Arises in proving the contents of writings
    • Rule precludes proof of the terms of a writing no only by testimony, but also by a copy (even if reliable), unless the original is unavailable through no fault of the party seeking to prove its content
  • “Best Evidence Rule”—5 Considerations
    • 1) Written word traditionally has special sanctity in legal affairs, justifying more stringent proof requirements
    • 2) Any method of proving the content of a writing other than the writing itself, is distinctly inferior
      • Variation in wording can make BIG difference
    • 3) Modern photocopy methods have not always been available and copies of writings have been viewed with suspicion
      • Requirement for original = safeguard against forgeries
    • 4) Production of original writings assures completeness and prevents segments from being removed from their context
    • 5) Examining the writing may help resolve disputes over authenticity
  • FRE and Best Evidence Rule:
    • FRE 1002:
      • Codifies Best Evidence Rule and extends it to recordings and photographs
      • Sets forth general rule that original is required except as provided for by rules
    • FRE 1004(4):
      • Dispenses w/ requirement of producing the original when the writing, recording or photograph is not closely related to a controlling issue
  • Problem 14-A:
    • Paula sues Daniel for statements made in letter to P’s employer  letter isn’t produced  On appeal, Daniel contends that it was clear violation to allow employer to testify at to contends of letter w/out being required to produce it
    • Questions:
      • Was duplicate produced? Why didn’t he object? Did D give testimony as to contents of letter or did he give written admission? Were contents collateral?
    • Class Notes:
      • Court of appeal will focus on whether error was harmless (harmless error is not a ground for appeal) (Must → make a timely objection and a timely offer of proof).
      • Substantial right of the party must have been affected for appeal to be granted
        • Court will determine whether writing is central to the case and whether the contents of the writing is challenged
  • Definitions—Rule 1001:
    • 1) Writings and Recordings;
      • Writings and recordings consist of letters, words, or numbers or their equivalent…
    • 2) Photographs
    • 3) Original:
      • An original of a writing or recording is the writing or recording itself or any counterpart inteded to have the same effect by a person executing or issuing it. An original of a photo includes the negative or any print therefrom. If date are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect he data accurately, is an original.
    • 4) Duplicate:
      • Rule 1003 recognizes use of modern technology and permits photocopies
      • Admissible to same extent as original unless:
        • 1) a genuine question is raised as to the authenticity of the original or
        • 2) in the circumstances it would be unfair to admit the duplicate in lieu of the original
    • Rule 1004: Admissibility of Other Evidence of Content:
      • The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—
        • 1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
• Other Class Notes:
  • Best evidence rule comes into play where…
    • 1) where substantive law mandates that you prove contents
    • 2) you’ve decided that you want to prove the contents
• United States v. Duffy (US Court of Appeals for 5^th Circuit, 1972):
  • Facts:
    • D was convicted of knowingly transporting stolen car from FL to CA
    • D was employed at car dealership in FL  car was in for repair in body shop where D worked  that same weekend D and car disappeared
    • D tried to argue that he worked on the car in FL, but that he’d hitch-hiked to CA
      • Police officer and FBI agent testified that in trunk of car was suitcase where shirt w/ monogram mark DUF
      • D objected to admission of testimony and asked that shirt be produced  Trial judge overruled and D appealed
  • Legal Issue:
    • Did the trial court’s decision not to require production of the monogramed shirt, violate the Best Evidence Rule? NO b/c rule was not applicable
  • Holding/Rationale:
    • Best Evidence Rule:
      • In proving the terms of a writing, where such terms are material, the original writing must be produced, unless it is shown to be unavailable for some reason other than the serious fault of the proponent
    • Applicability:
      • Rule not applicable here b/c shirt w/ mark isn’t considered writing
        • Judge has discretion to treat evidence as chattel or writing where evidence = object bearing mark (that’s chattel AND writing)
        • Judge should consider accuracy policy behind rule when making decision  here this wasn’t a problem because inscription was 3 letters
      • Writing/Mark was also not central to the case  shirt was collateral evidence of crime
  • Class notes:
    • Court says object is inscribed chattel therefore original isn’t necessary  this is an unlikely ruling
    • RULE 1003: A duplicate is admissible to the same extent as the original UNLESS a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.
      • *** A copy CAN be an “original” IF the copy is the actual Doc in dispute
    • Always subpoena originals, you have an absolute right to inspect clear crisp original copies, dont accept illegible docs.
  • Notes:
    • Guidelines for TC Judge in Determining Applicability of Best Evidence Rule:
      • The term “collateral” and the defining phrase used in 1004(4) imply that it is the unimportance of the matter in question to the issues in the case which counts. NO doubt this factor is significant, but others facts that are equally important include:
        • a) the simplicity or complexity of content and consequent risk of error in admitting a testimonial account
        • b) the strength of the proffered evidence of content, taking into account corroborative witnesses or evidence and the presence or absence of bias or self-interest on the part of the witnesses
        • c) the breadth of the margin for error within which mistake in a testimonial description would not undermine the point to be proved
        • d) the presence or absence or an actual dispute as to content
        • e) the ease or difficulty of producing the original, and
        • f) the reasons why the proponent of other proof of content does not have or offer the original itself

C. Defining An “Original”

• Problem 14-B:
  • Denise has Dr. Murphy arrange for adoption of her newborn on express condition that her identity will never be disclosed to adoptive parents  later Dr gives child photocopied papers that show mother’s name
  • Denise sues Dr  at trial Denise shows photocopy of records  Dr. objects saying originals are needed
  • In this case the photocopy would actually be considered an original under the definition in 1001 because it was meant to have the same effect by the person executing it. Because the copy was the document shown to the daughter that put the issue in dispute

D. Use of Duplicates:

• General Notes:
  • Duplicate (under 1001(4)) = machine-made copy, not handmade copies
    • Because they are so good now, 1003 permits duplicate w/out need to make excuses for nonproduction w/ 2 exceptions
• Problem 14-D:
  • P sues hospital and dr for negligence that caused permanent brain damage  after operation she is permanently comatose and loses her unborn baby
  • Dr claims that it would be negligent to operate on patient who had eaten 1 hour before surgery but claims record shows P had eaten 9 hours before
  • Nurse testifies that P had eaten 1 hour prior, chart reflected this, but after failed surgery, dr forced nurse to change form  before doing so nurse photocopied original writing on form
  • Copy is offered as evidence and D objects on Best Evidence Rule
  • Copy should be treated as original and trier of fact should be left to determine whether document was forgery under FRE 1008(a)

E. Best Evidence Doctrine in Operation:

• General Notes:
  • 2 Situations of Application of Doctrine:
    • 1) Circumstance in which substantive law forces the content of a writing into prominence, and in effect simply requires one party or another to prove that content
    • 2) Circumstance in which a party chooses to prove content, even though she might theoretically present an adequate claim or defense w/out such proof
      • Situation in which party strategy forces writing into prominence
• Problem 14-E:
  • Best evidence objection should be sustained because the we are trying to get content in as evidence and prove contents  substantive law requires proof of contents therefore original in necessary
• Problem 14-F:
  • Testimony is being offered to prove content of photo therefore you need to submit original
  • This is different than the meyers case
• Meyers v. United States (US Court of Appeals, District of Columbia Circuit, 1948):
  • Facts:
    • Meyers on trial for suborning perjury and D2 on trial for perjury
    • Govt attempt to prove that D2 lied in testimony to Senate Committee by using testimony of Chief Counsel to Committee as to what was said
      • Meyers appeals this as “bizarre procedure”
  • Legal Issue:
    • Was it reversible error to allow Chief to testify as to what D2 said to subcommittee?
  • Holding/Rationale:
    • Best Evidence Rule:
      • Court thinks Chief could testify despite the fact that the transcript may have been the best evidence of D2’s testimony before subcommittee
        • Court thinks anything else would be misconception of rule
      • They say rule is limited to cases where contents of writing are to be proved and here there was NO attempt to prove contents of writing
        • Transcript = shorthand of what was said but NOT only admissible evidence RE it
      • D also had copy of transcript and could have crossed D regarding any mistakes
  • Dissent:
    • This that when transcript is 315 pages it is ridiculous to have man testify from memory as to what was said to prove perjury
  • Class Notes:
    • Best evidence doctrine is not doctrine of probative hierarchy
    • Transcript is probably best evidence but that doesn’t mean that Chief can’t testify and govt can’t use that as evidence of testimony
    • Best evidence doctrine is limited to cases where contents of writing are to be proven  that’s not the case here
    • Just because there is more probative evidence out there doesn’t mean it must be used
    • Bring the original if you are trying to prove the content of a writing recording or photo
• Problem 14-G:
  • DEA records and hear conversation between Peter and Quinn in drug surveillance
  • Nolan (DEA) questions Peter and has him repeat and sign a statement that stenographer wrote
    • 1) Nolan can testify because it is not written work
    • 2) Nolan can testify as to Peter’s statements  because statements were not written until after
    • 3) Nolan can testify about what Quinn said
  • What was said is the issue, not what was on the recording, therefore the tape is not required
    • Exactly like Myers, it should be overruled because the issue was what the participants said in conversation, not the recording of the conversation
• Problem 14-H:
  • Best Chix sues farmer to recover balance of price adjustment b/c some of the chickens were infected
  • Best Chix wants to testify as to contents of vet report but the report should be submitted since it is a written document
  • Objection Sustained: because the farmer is seeking to produce a writing that is not unavailable at the tie of trial

F. Production of Original Excused

• Exceptions

Sylvania Electric Products v. Flanagan (US Court of Appeal for First Circuit, 1965)

• Facts:
  • D hired P to make parking lot for its plant and there was clearing that had to be done  but P didn’t have to remove material cleared
  • On last day under contract P claims that D made oral agreement with P to pay him $13/hr/truck to haul material away  bill came to $25,000 which D refused to pay
  • D appeals on grounds that DC erred in admitting certain evidence in violation of Best Evidence Rule
    • 1) Exhibit A – summary of date contained in invoices and tally sheets (D objected several times at trial and P was supposed to bring in tally sheets but never did)
    • 2) Photostatic copies of bills and invoices sent to P by other truckers for rental of their trucks on job
    • 3) Copies of 2 bills sent to D by P for work done
• Legal Issue:
  • Did TC err by not requiring original copies to be submitted? YES  New Trial
• Holding/Rationale:
  • Tally Sheets RE #1:
    • Best Evidence Rule tells us that tally sheets recording work are the best evidence to show what work was actually performed therefore summary (secondary evidence) of their content it NOT sufficient UNLESS proper showing that it is unavailable
      • Evidence doesn’t show that sheets were unavailable just that P failed to attempt to produce
      • It would have also had to be shown that loss of originals wasn’t the fault of P
  • Result:
    • Normally prejudicial error with respect to damages requires new trial on damages only
    • HOWEVER b/c entire case depended on P’s credibility and P was never called upon to explain credibility according to record  records could in fact entirely corroborate D’s account  THEREFORE NEW TRIAL NEEDED
• Problem 14-L:
  • Contract was burned in fire through no fault of P and he wants to prove terms by testimony rather than photocopy
  • 1004 gives no hierarchy scheme so testimony is fine → just keep in mind that the other side can introduce a photocopy especially if it is contradictory to the testimony
  • If you’re excused from producing the original, the rules don’t mandate that you submit next most probative piece of evidence
    • RULES DO NOT MANDATE THIS
    • NO HEIRARCHY of secondary evidence
• Problem 14-M:
  • Trimble is prosecuted for tax evasion and govt calls IRS accountant to testify
  • Prosecutor offers
    • 1) IRS accountant’s summary of deposits and
    • 2) chart prepared by accountant summarizing entries
  • 1006 is only applicable if the court cannot conveniently examine all volumes but originals should still be made available for examination at reasonable time and place
  • Objection should be overruled, assuming there are just way too many documents to realisticly examine in court.
• The Verdict
  • The original document “was destroyed” when the 1 was changed to a 9, therefore the photocopy shold have come in as an original

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Recap of Best Evidence Doctrine:

• There’s no hierarchy of probative value
• Rule 1007: Testimony or Written Admission of Party:
  • Contents of writings, recordings or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original
• Rule 1005; Public Records:
  • The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercised of reasonable diligence, then other evidence of the contents may be given.
• Rule 1008: Functions of Court and Jury

Chapter 13: Foundational Evidence, Authentication

A. Introduction

• Class Notes:
  • Foundation = mechanism to screen out evidence that isn’t reliable
    • If there’s no foundation present you might not know what your proper objections are or are not
    • Underlying policy, this is used to screen out irrelevant, or prejudicial evidence
  • General Requirement of Authentication (Laying the Foundation):
    • 1. General requirement of authentication or identification is satisfied by the proponent providing evidence that the matter in question is what it claims it to be. (e.g. This is the gun I found at the crime scene)
    • 2. The burdens of production and persuasion are on the proponent of the evidence (e.g. up to the person presenting evidence to show authenticity)
    • 3. Authentication issues are decided under Rule 104(b). (Ultimately up to the jury to decide on authenticity and whether or not to admit it)
  • Rule 901: Requirement of Authentication or Identification:
    • (a) General Provision:
      • The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
  • Example Procedure for Authenticating Trial Exhibits:
    • 1. Be sure you know exactly what exhibits the other side is going to use at trial and preserve your objections. Know your trial strategy regarding each of these exhibits.
    • 2. Mark all of your exhibits for identification. Find out how the court wants it done and comply. Do not wait until the last minute. This should be done well in advance of trial
    • 3. Organize a copy of all your marked exhibits in a binder for the court.
    • 4. Be sure you are prepared to authenticate each of your marked exhibits. Consider requests for admission and/or stipulations.
    • 5. Authenticate a given exhibit (e.g. have a witness testify that the exhibit is what it claims to be).
    • 6. Offer the exhibit into evidence. Be sure to keep a proof and exhibit checklist.
    • 7. Permit opposing counsel the opportunity to review it.
    • 8. Obtain court ruling. Be sure you understand the ruling and ways you can satisfy judge’s concerns, if any, regarding admission of the exhibit.
    • 9. Be sure to make a record if the court rules against you.
    • 10. If admitted, publish the exhibit to the jury the most effective way allowed.
    • NOTE: court has discretion
  • The mere production of a document helps with authenticity
  • Civ Pro Rule 16 :: Pretrial Conference
    • Conference with the court before trial
    • Discuss issues
• Example Problem:
  • In case against holly for murder of John, the prosecution moves into evidence a knife found at the murder scene. The prosecution does not call any witness to testify that this knife is the one found at the murder scene. The prosecution, however, does call a pathologist, who testifies that John was killed by multiple stab wounds.
  • Holly’s counsel object to the admission of the knife. The prosecution argues that this is a matter for the jury to decide under Rule 104(b). What is the correct ruling?
  • Sustained = well taken objection  must be ample evidence for jury to decide one way or the other and prosecution didn’t put anything in
  • Someone has to testify that the knife was the one found at the murder
  • Objections:
    • If objections (aside from 402 or 403) to exhibits are not raised they are waived
• Tangible Evidence Generally Proved By:
  • 1. Witness testimony, based upon
• FRE 901: Requirement of Authentication or Identification:
  • (b) Illustrations: By way of illustration only, and not by way of limitation, the following are examples of authentication or identification confoming with the requirements of this rule
• General Notes:
  • Authentication:
    • Authenticating an item of evidence means offering “evidence sufficient to support a finding that the matter in question is what its proponent claims”  FRE 901(a)
    • FRE 902: allows “self-authentication” for trade inscriptions that would include at least the label on a can of peas, and perhaps logos that would appear in newspaper ads
      • FRE 901 relaxes authentication rule to allow courts to consider appearance, contends and internal patterns and expands list of things that are self-authenticating
    • FRE 104(b): A Screening Mechanism:
      • Trial judge plays a screening function, passing ultimate decision on authenticity to jury  BUT if proponent offers no proof of authenticity to enable jury to find an exhibit authentic  then exhibit MUST be excluded
  • Traditional Steps to Authenticate and Introduce Exhibit:
    • 1) Getting the court reporter to mark the exhibit for identification
    • 2) Offering testimony identifying or describing the exhibit (heart of authentication process)
    • 3) Offering the exhibit in evidence
    • 4) Letting counsel for other parties examine it
    • 5) Giving the other lawyers a chance to object
    • 6) Submitting the exhibit to the court to examine if it wishes to do so
    • 7) Getting a ruling
    • 8) Asking permission to present the exhibit, if admitted, to the jury by reading it to them or showing it to them

B. Tangible Objects

• United States v. Johnson (United States Court of Appeals for the Ninth Circuit, 1980):
  • Facts:
    • D was convicted of assault resulting in serious bodily injury for an attack with an axe on a victim named Papse (who is called as witness at trial)
    • Axe was seized from D’s home 5 days after assault  D argues insufficient foundation or authentication axe was admitted
      • D argues this was error because Papse (victim) couldn’t distinguish this axe from any other
      • P
  • Legal Issue:
    • Was there sufficient authentication of the ax to support its admission into evidence?
  • Holding/Rationale:
    • Rule:
      • FRE 901(a) provides that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
    • Application:
      • Although record reveals that ID of ax made by Papse may not have been free from doubt, witness did state that he was pretty sure it was the weapon used against him
      • Based on testimony reasonable juror could have found that ax was weapon used in assault
  • Class Notes:
    • Court said testimony was sufficient for authentication  Papse saw axe and thought it was same one
    • “The terms of the Rule are thus satisfied, and the proffered evidence should ordinarily be admitted, once a prima facie case has been made on the issue. At this point the matter is committed to the trier of fact to determine the evidence’s credibility and probative force”
      • This is a 104(b) determination
    • Seizing Object:
      • When police seize object they’ll note all distinctive markings so they can ID the object later as the one found at the scene
    • PROBLEM 13-A:
      • They control every aspect of the chain of custody to prove authentication
• United States v. Howard-Arias (1982):
  • Facts:
    • D was on board ship that was rescued by another boat  coast guard arrived and found pot on the boat that was recovered
    • D argues that they can’t prove authentication b/c no proof of chain of custody from boat to trial
  • Legal Issue:
    • What is rule regarding Chain of Custody and authentication?
  • Holding/Rationale:
    • Chain of Custody Rule:
      • Real evidence must be authenticated prior to its admission into evidence
      • Ultimate question is whether the authentication testimony was sufficiently complete so as to convince the court that it is improbable that the original item was switched/tampered with before trial
    • Resolution  rests on discretion of trial judge
  • Class Notes:
    • There was incomplete chain of custody
    • Special agent who received pot from costguard wasn’t able to testify does this equate to broken chain of title? NO
      • This didn’t matter to court because it wasn’t initial person who seized drugs (that would have mattered more)
      • This goes to weight of evidence, but court will still allow it to be admissible  they said this was minor link
    • Courts almost always require the original link in the chain
    • Well trained officers will restrict access to evidence as much as possible

C. Writings

• Class notes:
  • Must prove that particular person signed or authored the writing someone can ID signature based on familiarity
    • Rule 901(b)(2): Nonexpert opinion on handwriting
      • If a witness tries to say its not their handwriting then just ask them to write out a long handwritten passage
    • Rule 901(b)(3) Comparison by trier or expert witness = Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated
    • Rule 901(b)(4) Distinctive characteristics and the like = Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
      • Kind of encompass the common law “Reply Doctrine” authenticate showing that a “reply” clearly was imitated by a prior letter
  • Common Law Reply Doctrine:
    • Writing can be seen as coming from B if it can be shown to be response to earlier writing from A to B
• United States v. Bagaric (US Court of Appeals for Second Circuit, 1983):
  • Facts:
    • Ds were convicted of violations of RICO  1 D challenges admission of evidence linking him to co-racketeer
    • Evidence = letter discovered during search of D’s home
  • Legal Issue:
    • Was letter properly authenticated? YES
  • Holding/Rationale:
    • Rule : Authentication finding MAY be based entirely on circumstantial evidence including appearance, contents, substance, etc
    • Application: Letter was addressed to D and contents of letter went further to authentication
• Rule 901(b)(7) Public records or reports
• Rule 901(b)(8) Ancient documents or data compilation = Evidence that a document or data compilation, in any form, A is in such condition as to create no suspicion concerning its authenticity, B was in a place where it, if authentic, would likely be, and C, has been in existence 20 years or more at the time it is offered

D. Tape Recordings:

• Turnage v. State (Supreme Court of Minnesota, 2006):
  • Facts:
    • D was convicted of murder and sentenced to life imprisonment for killing Wa Van (apartment manager)
    • Prosecution introduces tape evidence and D argues there was no foundation to establish the tape-recorded copies of his telephone calls were same as originals
  • Legal Issue:
    • Is there genuine issue of authenticity? NO
  • Holding/Rationale:
    • Standard of Review:
      • DC has broad discretion over admissibility of evidence, and standard of review for adequacy of foundation w/ respect to admission of evidence is abuse of discretion
    • Application:
      • DC didn’t abuse discretion
      • 1) initial digital recordings of conversations satisfy required foundation elements that court noted in Furlev and would have been admissible as original tape recordings
      • 2) duplicated copies of digital tapes satisfied the requirement for admitting a duplicate recording
        • Standard under MRE 1003 is admissible unless genuine issue of material fact

F. Telephone Conversations

• United States v. Pool (US Court of Appeals for Fifth Circuit, 1981):
  • Facts:
    • D’s convicted of several charges dealing w/ attempt to import pot into US
    • D (Loye) appeals conviction count 9 (using phone for indictment) on grounds that phone call alleged to be from him was insufficiently authenticated
    • Conversation was with DEA (undercover agent) and D but was never recorded  D was ID-ed by DEA based on this conversation
  • Legal Issue:
    • Was conversation properly authenticated? NO
  • Holding/Rationale:
    • General Rule:
      • A telephone call out of the blue from one who identifies himself as X may not be, in itself, sufficient authentication of the call as in fact coming from X
    • Application:
      • Standard of admissibility is prima facie and evidence may be circumstantial BUT not sufficient evidence here
  • Class Notes on Case:
    • Witness must be able to make showing of ID of person on the other end of the line
    • Need more than calling and saying “This is X”
    • You could MAYBE use caller id
    • Rule 901(b)(6) Telephone Conversations:
      • Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if A in the case of a person, crcumstances, including self-ID, show the person answering to be the one called, or B in the case of a business, the call was made to a place of business and the conversation related to business …
  • Problem 13-H:
    • Evidence about a telephone convo
    • 901(b)(5) doesn’t help and nor does 901(b)(6) because he called a country club and he’d never spoke to the person before
    • Could maybe get it in under 901(b)(4)
      • Copies are authenticated under 902(4)
      • 902(2) authenticates only an original public document
• Class Notes:
  • Rule 901(b)(5) Voice Identification: ID of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker
  • Problem 13-b: K should be sufficient authenticating witness
• Photographs:

G. Self-Authentication

• General Notes:
  • FRE 902 allows for admissibility of self-authenticating exhibits  BUT it does not bar counter proof by the opponent
  • Newspaper is self-authenticating under 902(6) and label on candy bar is self-authenticating under 902(7)
  • A privately published book doesn’t qualify under 902(5)
• Self-Authentication:
  • 1. Extrinsic evidence not required for foundation.
  • 2. Rule 902 sets forth ten situations where this applies
  • 3. In no instance is the opposite party foreclosed from disputing authenticity
• Self-Authentication of Public Documents:
  • FRE 902(1) Domestic Public Documents Under Seal:
    • Rule relates only to original public document and tells you when original of public document (under seal) is self-authenticating
    • Probably not going to use 902(1) because you probably won’t get original
  • FRE 902(2) Domestic public documents not under seal:
    • Authenticating original public document (not under seal)
    • Doesn’t deal with copies
  • FRE 902(3): Foreign Public Documents
    • This deals with original public documents and not copies
  • FRE 902(4):
    • Deals with copies of original public documents
    • Purpose is so original need not be removed from public records
  • FRE 902(9) Commercial paper and related documents
• Rule 903 Subscribing Witness’ Testimony Unnecessary:
  • The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of writing.
    • This is referring to a will  don’t need testimony from the ppl who signed it unless there is argument that it wasn’t actually their signature
• Hearsay:
  • First define what is hearsay
  • Once it is hearsay, we must determine whether there should be exceptions to the hearsay rule

H. Demonstrative Evidence

• Belli, Demonstrative Evidence: Seeing is Believing (1980)
  • General Notes:
    • Demonstrative Evidence = anything which appeals to the jurors’ senses (something to see, touch, taste, smell, or listen to)
  • The Uses of Demonstrative Evidence:
    • Demonstrative evidence used for 3 major purposes:
      • 1) to establish the liability of D
      • 2) to illustrate the full extent and severity of P’s injuries, and
      • 3) to complement the written transcript for use on appeal
  • Types of Demonstrative Evidence:
    • Photos are most frequently used type of demonstrative evidence
    • When P was injured, photos are especially important in raising juror emotions and obtaining a higher award
• Notes:
  • Belli refers to demonstrative evidence as anything that appeals to senses
    • Definition is broader than most others b/c it could encompass testimony
    • Most commentators distinguish between “real” evidence (tangible objects) and “demonstrative” evidence (evidence having no independent probative value that serves as visual aid in understanding testimony or other evidence)
  • Admissibility with Tests or Experiments:
    • Admissibility of evidence depends upon a foundational showing of substantial similarity between the tests conducted and actual conditions. Perfect identity between experimental and actual conditions is neither attainable nor required. Dissimilarities effect the weight of the evidence, not admissibility.
    • Finally, the decision whether to admit or exclude evidence of experiments in a particular case rests largely in discretion of trial judge and his decision will not be overturned on appeal absent a clear showing of abuse of discretion.

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Chapter 4: Hearsay Exceptions (NOT REALLY EXCEPTIONS)

Introduction—Organization of the Hearsay Exceptions

• How to Tackle Hearsay Questions:
  • 1) Recognize whether hearsay or not hearsay
  • 2) If hearsay/nonhearsay filter through the other rules to see if it fits within exception that makes it admissible or inadmissible
  • 3) Make sure hearsay rule applies before you look at exceptions
• Statements Which Are Not Hearsay:
  • Rule 801(d) provides special rules defining certain statements as not hearsay
    • 1) Prior inconsistent and consistent statement by witness as set forth in Rule 801(d)(1)
    • 2) Admission by party-opponent as set forth in Rule 801(d)(2)
  • Federal rules define certain situations where D is subject to cross examination at trial and exclude those situations as nonhearsay
    • This ONLY applies when we’re offering it substantively (for the truth of the matter) and NOT impeachment
    • If using evidence for impeachment purposes then it’s NOT hearsay to begin with
• Rule 801:
  • The following definitions apply under this article:
  • (d) Statements which are not hearsay: A statement is not hearsay if—
    • 1) Prior statement by witness: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
      • A) inconsistent w/ the declarant testimony, and was given under oath subject to penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or
      • B) consistent with the declarant’s 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;
• Prior Inconsistent Statements:
  • If witness makes prior inconsistent statement you may impeach because it’s not hearsay
  • Can use statement substantively if you fit within 801(d)
  • ACN: “Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence.”
  • Problems arise:
    • What does other proceeding mean
    • What does cross-examination mean
      • Rule doesn’t say “concerning the subject matter of the statement”
      • If witness takes witness stand and refuses to answer any questions on cross, that won’t be subject to cross
    • How do we define inconsistent
      • Evasiveness is generally considered inconsistent
    • NOTE:
      • As long as you remember making statement that is enough, you don’t have to remember subject matter of statement
• Problem 4-A:
  • Barlow is tried on charges of racketeering
  • At grand jury proceeding Breen testifies at grand jury hearing that 3 of them committed crime
  • Then at trial he testifies that he can’t remember
• 5 Main Groups of Exceptions:
  • 1) Statements by Declarants Who Testify:
    • Rule 801(d)(1)
  • 2) Admissions:
    • Rule 801(d)(2)  5 variations on single idea = admissions doctrine
  • 3) Unrestricted Exceptions:
    • Rule 803 = 23 unrestricted exceptions
  • 4) Statements By Unavailable Declarants:
    • 804 (has five exceptions) that can be invoked only if the declarant is unavailable as a witness under 804(a)
  • 5) Catchall:
    • Rule 807 = Catchall exception
• Confrontation Clause:
  • Applies in federal and state courts and is the idea that the accused has the right to be confronted with Witnesses against him and has long been the reason against for blocking out of court statements (even some that fit within hearsay exception)
  • CC constrains ONLY prosecutors (not accused) and its exceptions apply to all parties in both civil and criminal trials
  • Restrictions to Confrontation Clause:
    • In Crawford Supreme Court held that CC applies only to “testimonial” statements (statements cannot be used against accused unless he has chance to cross-examine declarant)
  • Exceptions to Confrontation Clause
    • 1) Declarant testifies at trial where he can be cross-examined
      • Prior opportunity to be cross-examined, at deposition or prelim hearing may also be sufficient
    • 2) Forfeiture:
      • Court allows use of statements by witnesses who are “unavailable” b/c they cannot or won’t testify on account of “wrongful” behavior by party against who the statements are offered
      • Usually invoked against criminal Ds and behavior = threatening/killing witnesses
    • 3) Other Statements:
      • Coconspirator statements are admissible, and dying declarations too

A. Exceptions in FRE 801(d)(1)—Declarant Testifying

• General Notes:
  • 801(d)(1): defines as “not hearsay” 3 different kinds of prior statements by testifying witnesses:
    • A) Certain prior inconsistencies – prior inconsistent statement won’t be hearsay if 3 conditions are met:
      • 1) Witness must be cross-examinable concerning prior statement
      • 2) Statement must be inconsistent w/ present testimony
      • 3) Statement must have been made under oath in a prior proceeding or deposition
    • B) Certain prior consistencies
    • C) Statements of identification

1. Prior Inconsistent Statements:

• State v. Smith (Washington Supreme Court, 1982):
  • Facts:
    • Assault victim wrote statement on form supplied by police in which she named D as assailant  oath was signed under penalty of perjury
    • At trial, victim names another man as attacker  TC allowed prior inconsistent statement to be used as substantive evidence
      • TC granted new trial saying 801(d)(1)(i) didn’t apply
  • Legal Issue:
    • What do the words “other proceeding” mean in the on context of 801(d)(1)(A)?
  • Holding/Rationale:
    • Other Proceedings:
      • Includes, but not limited to, grand jury proceedings
      • NOT TRUE that every sworn statement given at police station during interrogation is admissible
      • 2 purposes to consider:
        • 1) remove doubt as to making of prior statement
        • 2) provide least minimal guarantees of truthfulness which an oath and the circumstance of a formalized proceeding tend to assure
    • Doubt as to First Statement:
      • Since witness testified to reason for lying and reason for new statement jury was in position to determine which story was true
    • All 3 requirements of 801(d)(1)(A) are met therefore TC should reinstate jury verdict and statements were admissible
  • Class Notes:
    • Prosecution can impeach her under Rule 607
    • Prosecution is trying to meet burden and needs to use evidence substantively
    • Federal cases suggest that station house affidavits are excluded under federal rules as an “other proceeding”
    • It never says that rule mandates that proceeding has right to cross-examination (i.e. grand jury proceeding)
      • Preliminary hearings are proceedings
  • NOTE:
    • Witness can be said to be “cross-examined” presently even if they “can’t remember” past events and previous testimony before grand jury about past events is being submitted
      • But not remembering is inconsistent with the fact the he remembered before
      • Although this argument is too broad, no one will ever repeat exactly what they said before. This argument fails because now every statement would prob be inconsistent

2. Prior Consistent Statements:

• General Notes:
  • 3 Conditions to Prior Consistent Statements that are NonHearsay:
    • 1) Witness must be cross-examinable at trial concerning prior statement
    • 2) Statement must be consistent with present testimony
    • 3) Statement must be offered to rebut a charge of “recent fabrication or improper influence or motive”
      • Ex. Cross examiner might suggest that witness just made it up or changed his story b/c he was cajoled, paid, or frightened
• Class Notes:
  • Examples of Prior Consistent Statements Allowed Under Common Law:
    • 1) W’s credibility is attached by prior inconsistent statement. W denies making statement. Prior consistent statement may be used to support denial of making such prior inconsistent statement (i.e. rehabilitate W’s credibility)
    • 2) W’s memory is attacked …
    • 3) W’s credibility is attacked by claims of recent fabrication or improper influence or motive. Prior consistent statement used to rebut this charge or recent fabrication or improper motive or influence
    • NOTE: Only allowed if the statement was made before the alleged fabrication, influence or motive came into existence
  • Federal Rule Notes:
    • ACN: Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. Under the rule they are substantive evidence.
      • We can take the statement and bring it in under 801(d)(1)(B). Does not mandate a prior inconsistent statement be made under oath.
• Tome v. United States (United States v. Supreme Court, 1995):
  • Facts:
    • D = convicted of abusing daughter A.T.
    • During cross  defense counsel suggests she was motivated by desire to live with mother
      • Court then lets in statements by A.T. to babysitter, social worker and doctors about abuse
    • Court allowed prior statements on basis that they refuted claim that wishing to live w/ mom motivated testimony
  • Legal Issue:
    • At issue = admissibility of statements, made by declarant who testifies as witness, that are consistent w/ testimony and are offered to rebut charge or a recent fabrication or improper influence or motive
    • Are out of court consistent statements made after alleged fabrication, or after alleged improper influence or motive arose, admissible under FRE?
  • Holding/Rationale:
    • Common Law Rule = Prior consistent statement introduced to rebut charge of recent fabrication or motive was admissible if statement had been made before alleged fabrication, or motivation came into being, but was inadmissible after
      • Does 801(d)(1)(B) embody this temporal requirement? YES
    • Rule 801 and Credibility:
      • 801 defines prior consistent statements as nonhearsay only if they are offered to rebut charge of recent fabrication or motive
        • Purpose is to rebut attack on witness’ credibility
        • TEMPORAL REQUIREMENT NECESSARY
    • CAN also disclose legislative purpose
  • Dissent:
    • Thinks rule means “if a TC properly admits a statement that is consistent w/ declarant’s testimony for the purpose of rebutting an express or implied charge of recent fabrication or motive, then the statement is not hearsay and the jury may also consider it for truth of what it says.”
  • Class Notes:
    • 801(d)(1)(B) carries forward temporal requirement of common law
    • Rule 801(d)(1)(b) defines as not hearsay a statement offered to rebut an express or implied…
    • What is left for common law uses of prior consistent statements after Rule 801(d)(1)(B) and Tome decision?
      • Not clear, but the following is better view:
        • 1) Prior consistent statements not offered for the truth of the matter asserted are still allowed
        • 2) However, if you use prior consistent statement to rebut claims of fabrication or improper influence or motive, then such statement must predate alleged fabrication, influence or motive. If satisfied, then such statement may be used substantively and to rehabilitate

3. Prior Statements of Identification:

• General Notes:
  • Since pretrial IDs are more reliable 801(d)(1)(C) creates another statement NOT HEARSAY for previous statements of identification made by witness after perceiving subject, provided that witness is subject at trial to cross concerning the statement
  • Wade-Gilbert Doctrine:
    • Establishes a per se rule that blocks use of some pretrial statements of ID that might fit 801(d)(1)(C)—those obtained in postindictment lineups where D is denied counsel (or possibly those obtained in unnecessarily suggestive circumstances)
• Class Notes:
  • 801(d)(1)(C) …one of identification of a person made after perceiving the person
• State v. Motta (Hawaii Supreme Court, 1983):
  • Facts:
    • Coffee house cashier is robbed at gunpoint by D  gives description to police artist who draws, sketch, picks D in photo array, positively IDs him at preliminary hearing and points him out at trial
      • Jury found D guilty even though he gave alibi defense
    • D contends that TC erred in admitting sketch based on cashier’s description b/c it was inadmissible hearsay under 802 (hearsay defined as statement, other than one made by declarant while testifying at trial, offered to prove truth of matter asserted)
  • Legal Issue:
    • Was the sketch hearsay or admissible? Sketch is hearsay but admissible under 801(d)(1)(C)
  • Holding/Rationale:
    • Court says that sketch is statement that would otherwise count as hearsay but falls under 801(d)(1)(C) and counts as an ID of person made after perceiving person so long as
      • 1) delcarant testifies at trial (according to 801(d)(1)), and
      • 2) is subject to cross-examination
  • Class Notes:
    • 801(d) doesn’t apply if witness is DEAD –> but may be some other way to get the info in
    • If you have statement that is hearsay, then ask yourself, is witness alive, is it prior consistent, inconsistent or ID that could fit 801(d)(1)

B. Exceptions in FRE 801(d)(2)—Admissions By Party Opponent

• General Notes:
  • When statement by party is offered against him, usually it conflicts with his position at trial, so it has nonhearsay significance as evidence of vacillation (impeachment, credibility
  • If I sue you, if you make admission that fits 801(d)(2), then it can be used substantively
• Class Notes:
  • Admissions by a party opponent are nonhearsay under 801(d)(2)
    • Hearsay is therefore a statement made out of court, offered for truth of the matter, not otherwise excluded under 801(d)(2)
      • Ask yourself, who is the declarant?
      • Is the declarant the party opponent? If so, it could be admission by party opponent.
    • If D takes witness stand (civil or criminal case) he puts his credibility in issue and subjects himself to being impeached
      • He can be cross examined and impeached with prior statement
  • Why Are Party Opponent Admissions Considered Nonhearsay?
    • Parties to a law suit should be forced to live up to their statement or explain it
    • The other side is going to make or have the opportunity to make you do that
    • Advisory committee tells us that admissions by party opponent are excluded from hearsay because their admission into evidence is result of adversary system not hearsay provisions
  • Lawyer can also make admission on behalf of client
• 1. Individual Admissions (801(d)(2)(A))
  • In the case of individual admissions, there are almost no limits
  • 801(d)(2): Statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity
  • Prior Guilty Pleas:
    • Usually such pleads are admitted in later damage suits arising from incident
    • Plea of nolo contendere can sometimes help: It’s not admissible in a later civil suit, but it requires D to submit to punishment and allow entry of a criminal judgment against him and courts do not always allow such pleas
  • Class Notes:
    • Very broad
• Problem 4-B:
  • Martin leaves truck at Carters Automotive Repair and Refinishing where employee negligently leaves flaming torch near paint room  fire ensues and Martin’s car is destroyed
  • M sues Carter to recover  M calls insurance agent Esther who spoke with employer/owner before trial
    • Esther will testify that Carter said “Fire started in paint shed when [employee] put flaming welding torch … too close to fumes.”
  • Class Notes:
    • Martin is suing Carter and shop and they want to use statement
    • Would be hearsay under 801(c), BUT P wants to use D’s statement as an admission under 801(d)(2)
    • Carter HOWEVER has no personal knowledge of statement that he made AND his statement was self-serving b/c he was trying to get money from insurance company
    • RULE: Party opponent DOES NOT HAVE TO HAVE PERSONAL KNOWLEDGE under rules to have statement come in
      • This is the only exception to the personal knowledge requirement aside from expert witnesses
• Bruton v. United States (United States Supreme Court, 1968):
  • Facts:
    • Burton and Evans were charged and convicted of armed robbery
    • Postal Inspector testified that Evans made oral confession that he and Burton committed the robbery while being interrogated at jail
    • Jury was then instructed to consider confession by E as NOT against anyone not present or party to it
  • Legal Issue:
    • Was it proper to let in Evans confession with only a limiting instruction? NO
  • Holding/Rationale:
    • Limiting Instruction:
      • Not sufficient to stop jury from considering evidence as against the second D jury will infer guilt from one’s confession
    • Confrontation Rule:
      • This also goes against the idea that a party has a right to question adverse witnesses  D can’t do this if 3^rd party testifies that fellow D confessed
  • Class Notes:
    • Supreme Court says there is right of confrontation
      • Evans made statement but Postal Inspector gives testimony in court so D can’t cross-examine Evans
    • Prosecution is suing both B and E (so E is not going to testify)
    • Admitting evidence violates B’s 6^th amendment right
    • You could get around this by redacting the “B did it part” and just have the “I did it” part or you could try them separately
  • Variation:
    • If civil case and plaintiff is suing B and E
    • There is statement from E saying B and I did it
    • Statement comes in because
• Problem 4-C:
  • Sally claims she was sexually assaulted by Brixton  criminal charges are filed
  • Brixton considers plea of guilty for lesser charge
  • If Brixton pleads guilty his statements can be admitted in subsequent civil suit under 801(d)(2)(A) that makes what would be out of court statements nonhearsay
  • Admissions:
    • This is why in civil damages suit admissions for small infractions are inadmissible
• Limits on the Use of Admissions:
  • 403: We must argue that admission is culmulative or unfairly prejudicial that it outweighs probative value of admission
  • Constitutional Limitations:
    • Focuses on 6^th amendment right of confrontation
    • If you’re going to use statement made out of court for truth of matter asserted  if person who made statement can’t be confronted by criminal accused and it’s prosecution who’s using it against D, then at least we should discuss 6^th amendment right of confrontation
• 2. Adoptive Admissions:
  • United States v. Hooser:
    • Facts:
      • H was convicted of an armed robbery  4 witnesses ID-ed him as the perpetrator
      • Witness Rogers testified that he’d been w/ D before and after robbery
        • R said D told R he was going to rob bank and R saw D with money after and that D’s girlfriend made comments about how much money they had
      • D argues testimony elicited from R concerning girlfriend’s statements was inadmissible hearsay
    • Legal Issue:
      • Were statements RE girlfriend hearsay? NO, judgment affirmed.
    • Holding/Rationale:
      • Statement was made in D’s presence with only girlfriend and R present
      • Under total circumstances court believes that probable human behavior would have been for D promptly to deny his girlfriend’s statement if it had not been true
    • Class Notes:
      • You’re talking about using silence to establish an admission
      • They’re going to say this is a factually driven issue and the jury should decide under 401
        

NonHearsay Under the Federal Rules (Cont) – 195-220

Doyle v. Ohio (United States Supreme Court, 1976)

• Facts:
  • Doyle and Wood were convicted of selling 10 pounds of pot to narcotics informant Bonnel
  • Bonnel was to meet D and W to get pot but shortchanged them $430 in cash  they go looking for B and are then apprehended by police
  • At trial defense tries to show that arresting agents never saw what happened
    • Defense claims at trial that D and W were actually going to buy from B but deal went south, but story was not to police after reading of Miranda rights
    • Prosecution asks D why they didn’t give this story to police at time of arrest
• Legal Issue:
  • Does the use of post-Miranda warning silence violate due process? YES
• Holding/Rationale:
  • Miranda:
    • Silence after Miranda warnings may be nothing more than an arrestee’s exercise of his rights  therefore ambiguous and fundamentally unfair to allow arrested person’s silence to be used to impeach an explanation subsequently offered at trial
  • Rule: Use for impeachment purposes of D’s silence at time of arrest and after receiving Miranda warnings, violates Due Process Clause of 14^thAmendment
• Class Notes:
  • Precludes substantive use of post arrest and post Miranda silence as well even though hear they are talking about impeachment
• Pleadings:
  • Very important so lawyers should willy nilly put things in their pleadings
  • Even pleadings outside present case may be admissions

3. Admissions by Speaking Agents:

• General Notes:
  • Agency law defines conditions under which one person may act for another
    • There are conditions under which a statement by one person is viewed as an admission by another and considered nonhearsay
  • Idea = When one person hires another to speak for him, it is fair to allow the words of the latter to esbalish facts at trial against the former
• Notes on Admission in Judicial Proceedings:
  • Pleadings from prior lawsuits, as well as pleadings superseded by amendment in the pending suit, are generally admissible against the party who filed them (so are answers to interrogatories)
  • Under FRCP 36(a) a matter admitted is conclusively established in pending suit, but is NOT an admission for any other purpose
• Problem 4-F:
  • Child Garment crosses in front of bus after exiting and his killed when driver (not seeing him) runs him over
    • Parents sue driver and company they think is seller (which turns out to be wrong and they are dismissed)
    • In allegation against seller of bus, P alleges that mirrors were positioned such that driver could not have seen child  driver wants this allegation from dismissed complaint read into evidence
  • Purpose of alternate pleading is for judicial economy
    • However can we use pleadings plead in the alternative are used as admissions in this type of circumstance
    • If we allow this, we’re gutting the underlying public policy reasons for trying to encourage parties to plead in the alternative
  • Rule 36 says you can ask other side to admit or deny  if you make admission under 36, it is for purposes of the pending action and nothing else
  • 3^rdParty?
    • Statements don’t have to be made to 3^rd party to be an addmission  there’s no such restriction in the rules
• 801(d)(2)(C) and (D) are different because someone might not be authorized specifically but is making statement in course and scope of employment
  • This is because most employers don’t have authorize employees to make statements that are harmful to company, the statements can be admitted under (D)
• Personal Knowledge:
  • Person that speaks within scope of employment does NOT have to have personal knowledge

4. Admissions by Employees and Agents:

• Multiple or “Layered” Hearsay:
  • Statements by employees often rest upon or repeat what others in the workplace have said
  • Under FRE 805  multiple or layered hearsay is admissible if each statement fits an exception
  • NOTE: no personal knowledge requirement
• Government Admissions:
  • Traditionally, statements by public employees have not been admissible against the government on the grounds that:
    • 1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, and
    • 2) agents cannot bind the sovereign
• Mahlandt v. Wild Canid Survival & Research Center (US Court of Appeals 8^th Circuit, 1978):
  • Facts:
    • Action for damages arising from alleged attack by wolf on child
    • Child was sent to neighbor’s to get brother  he walked past gate where wolf was chained on other side
    • Neighbor hears scream and runs to child who has wolf on top of it child has cuts
      • Later comes out that child went under fence and got cuts from fence and wolf was only licking child’s face
    • HOWEVER there was statement from wolf keeper’s employer (Owen) to wolf keeper stating “Owen, would you call me at home…Sophie bit a child that came in your back yard…” there were also meeting minutes that referred to wolf biting child
      • TC excluded note and minutes b/c their sources did not have personal knowledge of the facts and therefore admissions were based on hearsay
  • Legal Issue:
    • Are statements admissible against Wild Canid Survival and Research Center?
  • Holding/Rationale:
    • Statements:
      • Were made by employe as agent/servent of Wild Canid Survival and concerned a matter within scope of his employment
    • Rule 801(d)(2)(D):
      • There is no express requirement of personal knowledge on the part of the declarant written into the rule  therefore statements by employee were admissible against D
    • Evidence from Meeting:
      • Falls under 801(d)(2)(C) but this rule does NOT suggest that minutes of corporate board meeting can be used against non-participating corporate employee  therefore meeting minutes NOT admissible
    • Rule 403: Exclusion of Relevant Evidence if Probative Value Outweighed by Prejudice:
      • Since relevant evidence is usually prejudicial
  • Class Notes:
    • Employee had no personal knowledge but was making statement within course and scope of employment
      • 801(d)(2) covers statements made in course of employment even if they don’t have personal knowledge

5. Coconspirator Statements

• Class Notes:
  • Conspiracy = some type of agreement and intent
    • People can take actions in furtherance of that conspiracy
  • If you have A, B and C in conspiracy and are making statements during pendency of conspiracy in furtherance of conspiracy
    • These are admissions by A, for example, as to what A says  what A says is also admission by B and C
  • If one of conspirators makes damaging statement during pendency of conspiracy in furtherance of conspiracy, it is an admission and is as if all other conspirators also made the statement
  • If statement is made during pendency of conspiracy but that is NOT in furtherance of conspiracy it is NOT admission by B and C  the same is true when the conspiracy is over
  • Conspiracy doesn’t have to be charged and the admission doesn’t really have to have anything to do with conspiracy
  • Disbarred lawyer does time in federal person and is released brags that he’s excellent sailor and gets call from buddy inside federal prison
    • Buddy and lawyer comes up with scheme where lawyer will buy pot in Asia and sail boat back to buddy who’s waiting
    • Lawyer decides he wants to steal drugs and not give them to buddy he calls his son and they create scam
    • Son makes various statements in furtherance of this scam
    • In charges against buddy and lawyer for conspiracy to distribute drugs, prosecutor wants to use statements of son and can do so under a new “uncharged conspiracy” to steal drugs from prison buddy
• General Notes:
  • Coconspirator Exception set out in 801(d)(2)(E):
    • “A coconspirator statement is admissible if:
      • 1) declarant and defendant conspired (coventurer requirement), and
      • 2) the statement was made during the course of the venture (pendency requirement)
      • 3) and in furtherance thereof (furtherance requirement)
  • Allowed in criminal and civil cases but generally only appears in criminal cases
  • Applying exception difficult because:
    • 1) proof of conspiracy is invariably circumstantial and diffuse
    • 2) the coventurer requirement introduces a problem of coincidence because conspiracy is both a predicate fact in the exception and an element of guilt or innocence
    • 3) coconspirator statements often assert or imply that declarant and D conspired, which introduces the problem of bootstrapping because statement asserts very fact on which its admissibility depends
• Bourjaily v. United States (United States Supreme Court, 1987):
  • Facts:
    • FBI undercover agent arranged to sell cocaine to L who stated on tape-recorded conversation that he had “friend’ who had questions about cocaine
      • FBI agent speaks to friend and they all arrange time for deal
      • At deal FBI arrest L and friend  friend is charged w/ conspiracy to disbribute
    • Prosecution got in L’s out of court statements over phone under Rule 801(d)(2)(E)
    • Friend (D) argues that b/c there was no opportunity to cross-examine L, statements violated constitutional right to confront witnesses against him
  • Legal Issue:
    • Were the out of court statements admissible as evidence of a conspiracy? YES
  • Holding/Rationale:
    • Rule 801(d)(2)(E):
      • Requires evidence that 1) there was a conspiracy involving the delcarant and the nonoffering party, and 2) that the statement was made in the course and in furtherance of the conspiracy
      • Standard to show this is a predponderance of the evidence (more likely than not)  lower courts applied this standard
    • Bookstrapping:
      • But D thinks they should look only at independent evidence (evidence other than statements sought to be admitted) to determine existence of conspiracy
      • Court DISAGREES  says that rule against bootstrapping did not survive FRE creation and Rule 104 permits court to look at any evidence it wishes in determining conspiracy under 801(d)(2)(E)
      • Out of court statements sough to be admitted under 801(d)(2)(E) themselves can be probative in determining whether there was conspiracy under 801(d)(2)(E)
  • Class Notes:
    • Court says this is a 104 determination whether there was conspiracy not the jury
      • Court also tells us that TC courts don’t have to find predicate facts by independent evidence alone
      • You can use conspiracy facts themselves to show that conspiracy existed
      • Leaves open the door to show whether co-conspirator statement can be used only to show conspiracy under 801(d)(2)(E)
    • Burden of Proof: preponderance of the evidence (NOT beyond a reasonable doubt)
    • TC doesn’t have to find conspiracy by independent facts
• Problem 4-H:
  • Statement (1):
    • Hearsay under 801(c) but does it fit 801(d)(2)(E)?
      • No, because even though there is conspiracy, the statements are not made in furtherance of conspiracy  these aren’t statements furthering illegal conspiracy as established
      • Just because coconspirator makes statement during pendency of conspiracy, doesn’t mean it fits 801(d)(2)(E)
  • Statement (2):
    • Fits into nonhearsay under 801(d)(2)(E) as coconspirator
    • Declarant and D conspired, the statements furthered the conspiracy and the statement was made during course of conspiratorial venture
  • Statement (3):
    • Doesn’t fit 801(d)(2)(E) because conspiracy was already over by this point
• Hearsay General Notes:
  • 1) First step = determine if hearsay
    • a) Determine arguable statement and delcarant
    • b) Ask whether it was out of court
    • c) As whether it was offered for the truth of the matter asserted
  • NOTE:
    • You might be able to use something for impeachment but you should also look to whether we want to use it substantively and then we look for further carve outs

NonHearsay Under the Federal Rules (Cont) – 195-220

Doyle v. Ohio (United States Supreme Court, 1976)

• Facts:
  • Doyle and Wood were convicted of selling 10 pounds of pot to narcotics informant Bonnel
  • Bonnel was to meet D and W to get pot but shortchanged them $430 in cash  they go looking for B and are then apprehended by police
  • At trial defense tries to show that arresting agents never saw what happened
    • Defense claims at trial that D and W were actually going to buy from B but deal went south, but story was not to police after reading of Miranda rights
    • Prosecution asks D why they didn’t give this story to police at time of arrest
• Legal Issue:
  • Does the use of post-Miranda warning silence violate due process? YES
• Holding/Rationale:
  • Miranda:
    • Silence after Miranda warnings may be nothing more than an arrestee’s exercise of his rights  therefore ambiguous and fundamentally unfair to allow arrested person’s silence to be used to impeach an explanation subsequently offered at trial
  • Rule: Use for impeachment purposes of D’s silence at time of arrest and after receiving Miranda warnings, violates Due Process Clause of 14^thAmendment
• Class Notes:
  • Precludes substantive use of post arrest and post Miranda silence as well even though hear they are talking about impeachment
• Pleadings:
  • Very important so lawyers should willy nilly put things in their pleadings
  • Even pleadings outside present case may be admissions

3. Admissions by Speaking Agents:

• General Notes:
  • Agency law defines conditions under which one person may act for another
    • There are conditions under which a statement by one person is viewed as an admission by another and considered nonhearsay
  • Idea = When one person hires another to speak for him, it is fair to allow the words of the latter to esbalish facts at trial against the former
• Notes on Admission in Judicial Proceedings:
  • Pleadings from prior lawsuits, as well as pleadings superseded by amendment in the pending suit, are generally admissible against the party who filed them (so are answers to interrogatories)
  • Under FRCP 36(a) a matter admitted is conclusively established in pending suit, but is NOT an admission for any other purpose
• Problem 4-F:
  • Child Garment crosses in front of bus after exiting and his killed when driver (not seeing him) runs him over
    • Parents sue driver and company they think is seller (which turns out to be wrong and they are dismissed)
    • In allegation against seller of bus, P alleges that mirrors were positioned such that driver could not have seen child  driver wants this allegation from dismissed complaint read into evidence
  • Purpose of alternate pleading is for judicial economy
    • However can we use pleadings plead in the alternative are used as admissions in this type of circumstance
    • If we allow this, we’re gutting the underlying public policy reasons for trying to encourage parties to plead in the alternative
  • Rule 36 says you can ask other side to admit or deny  if you make admission under 36, it is for purposes of the pending action and nothing else
  • 3^rdParty?
    • Statements don’t have to be made to 3^rd party to be an addmission  there’s no such restriction in the rules
• 801(d)(2)(C) and (D) are different because someone might not be authorized specifically but is making statement in course and scope of employment
  • This is because most employers don’t have authorize employees to make statements that are harmful to company, the statements can be admitted under (D)
• Personal Knowledge:
  • Person that speaks within scope of employment does NOT have to have personal knowledge

4. Admissions by Employees and Agents:

• Multiple or “Layered” Hearsay:
  • Statements by employees often rest upon or repeat what others in the workplace have said
  • Under FRE 805  multiple or layered hearsay is admissible if each statement fits an exception
  • NOTE: no personal knowledge requirement
• Government Admissions:
  • Traditionally, statements by public employees have not been admissible against the government on the grounds that:
    • 1) such people do not have the same sort of personal stake in the outcome of any dispute as private employees have, and
    • 2) agents cannot bind the sovereign
• Mahlandt v. Wild Canid Survival & Research Center (US Court of Appeals 8^th Circuit, 1978):
  • Facts:
    • Action for damages arising from alleged attack by wolf on child
    • Child was sent to neighbor’s to get brother  he walked past gate where wolf was chained on other side
    • Neighbor hears scream and runs to child who has wolf on top of it child has cuts
      • Later comes out that child went under fence and got cuts from fence and wolf was only licking child’s face
    • HOWEVER there was statement from wolf keeper’s employer (Owen) to wolf keeper stating “Owen, would you call me at home…Sophie bit a child that came in your back yard…” there were also meeting minutes that referred to wolf biting child
      • TC excluded note and minutes b/c their sources did not have personal knowledge of the facts and therefore admissions were based on hearsay
  • Legal Issue:
    • Are statements admissible against Wild Canid Survival and Research Center?
  • Holding/Rationale:
    • Statements:
      • Were made by employe as agent/servent of Wild Canid Survival and concerned a matter within scope of his employment
    • Rule 801(d)(2)(D):
      • There is no express requirement of personal knowledge on the part of the declarant written into the rule  therefore statements by employee were admissible against D
    • Evidence from Meeting:
      • Falls under 801(d)(2)(C) but this rule does NOT suggest that minutes of corporate board meeting can be used against non-participating corporate employee  therefore meeting minutes NOT admissible
    • Rule 403: Exclusion of Relevant Evidence if Probative Value Outweighed by Prejudice:
      • Since relevant evidence is usually prejudicial
  • Class Notes:
    • Employee had no personal knowledge but was making statement within course and scope of employment
      • 801(d)(2) covers statements made in course of employment even if they don’t have personal knowledge

5. Coconspirator Statements

• Class Notes:
  • Conspiracy = some type of agreement and intent
    • People can take actions in furtherance of that conspiracy
  • If you have A, B and C in conspiracy and are making statements during pendency of conspiracy in furtherance of conspiracy
    • These are admissions by A, for example, as to what A says  what A says is also admission by B and C
  • If one of conspirators makes damaging statement during pendency of conspiracy in furtherance of conspiracy, it is an admission and is as if all other conspirators also made the statement
  • If statement is made during pendency of conspiracy but that is NOT in furtherance of conspiracy it is NOT admission by B and C  the same is true when the conspiracy is over
  • Conspiracy doesn’t have to be charged and the admission doesn’t really have to have anything to do with conspiracy
  • Disbarred lawyer does time in federal person and is released brags that he’s excellent sailor and gets call from buddy inside federal prison
    • Buddy and lawyer comes up with scheme where lawyer will buy pot in Asia and sail boat back to buddy who’s waiting
    • Lawyer decides he wants to steal drugs and not give them to buddy he calls his son and they create scam
    • Son makes various statements in furtherance of this scam
    • In charges against buddy and lawyer for conspiracy to distribute drugs, prosecutor wants to use statements of son and can do so under a new “uncharged conspiracy” to steal drugs from prison buddy
• General Notes:
  • Coconspirator Exception set out in 801(d)(2)(E):
    • “A coconspirator statement is admissible if:
      • 1) declarant and defendant conspired (coventurer requirement), and
      • 2) the statement was made during the course of the venture (pendency requirement)
      • 3) and in furtherance thereof (furtherance requirement)
  • Allowed in criminal and civil cases but generally only appears in criminal cases
  • Applying exception difficult because:
    • 1) proof of conspiracy is invariably circumstantial and diffuse
    • 2) the coventurer requirement introduces a problem of coincidence because conspiracy is both a predicate fact in the exception and an element of guilt or innocence
    • 3) coconspirator statements often assert or imply that declarant and D conspired, which introduces the problem of bootstrapping because statement asserts very fact on which its admissibility depends
• Bourjaily v. United States (United States Supreme Court, 1987):
  • Facts:
    • FBI undercover agent arranged to sell cocaine to L who stated on tape-recorded conversation that he had “friend’ who had questions about cocaine
      • FBI agent speaks to friend and they all arrange time for deal
      • At deal FBI arrest L and friend  friend is charged w/ conspiracy to disbribute
    • Prosecution got in L’s out of court statements over phone under Rule 801(d)(2)(E)
    • Friend (D) argues that b/c there was no opportunity to cross-examine L, statements violated constitutional right to confront witnesses against him
  • Legal Issue:
    • Were the out of court statements admissible as evidence of a conspiracy? YES
  • Holding/Rationale:
    • Rule 801(d)(2)(E):
      • Requires evidence that 1) there was a conspiracy involving the delcarant and the nonoffering party, and 2) that the statement was made in the course and in furtherance of the conspiracy
      • Standard to show this is a predponderance of the evidence (more likely than not)  lower courts applied this standard
    • Bookstrapping:
      • But D thinks they should look only at independent evidence (evidence other than statements sought to be admitted) to determine existence of conspiracy
      • Court DISAGREES  says that rule against bootstrapping did not survive FRE creation and Rule 104 permits court to look at any evidence it wishes in determining conspiracy under 801(d)(2)(E)
      • Out of court statements sough to be admitted under 801(d)(2)(E) themselves can be probative in determining whether there was conspiracy under 801(d)(2)(E)
  • Class Notes:
    • Court says this is a 104 determination whether there was conspiracy not the jury
      • Court also tells us that TC courts don’t have to find predicate facts by independent evidence alone
      • You can use conspiracy facts themselves to show that conspiracy existed
      • Leaves open the door to show whether co-conspirator statement can be used only to show conspiracy under 801(d)(2)(E)
    • Burden of Proof: preponderance of the evidence (NOT beyond a reasonable doubt)
    • TC doesn’t have to find conspiracy by independent facts
• Problem 4-H:
  • Statement (1):
    • Hearsay under 801(c) but does it fit 801(d)(2)(E)?
      • No, because even though there is conspiracy, the statements are not made in furtherance of conspiracy  these aren’t statements furthering illegal conspiracy as established
      • Just because coconspirator makes statement during pendency of conspiracy, doesn’t mean it fits 801(d)(2)(E)
  • Statement (2):
    • Fits into nonhearsay under 801(d)(2)(E) as coconspirator
    • Declarant and D conspired, the statements furthered the conspiracy and the statement was made during course of conspiratorial venture
  • Statement (3):
    • Doesn’t fit 801(d)(2)(E) because conspiracy was already over by this point
• Hearsay General Notes:
  • 1) First step = determine if hearsay
    • a) Determine arguable statement and delcarant
    • b) Ask whether it was out of court
    • c) As whether it was offered for the truth of the matter asserted
  • NOTE:
    • You might be able to use something for impeachment but you should also look to whether we want to use it substantively and then we look for further carve outs

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Three: Hearsay

A. What is Hearsay:

1. Underlying Theory: Risks and Safeguards:

• General Notes:
  • Definition:
    • Hearsay is an out-of-court statement offered to prove the matter asserted
      • Ex. Bystanders statement is offered to prove what it asserts  hearsay
  • Letters can also amount to hearsay  X testifies that he received letter from bystander Y that says Z
    • Best evidence doctrine would require party seeking to show what letter says to offer the letter itself, or an excuse for not producing it
  • NOTE: If bystander testifies himself he can say whatever he remembers from being at scene
• Reasons to Exclude Hearsay:
  • 1) Absence of cross examination:
    • Out-of-court statements are not subject to this truth-testing technique
  • 2) Absence of demeanor evidence
    • Out-of-court declarant (Bystander for example) is not under gaze of 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 Oath:
    • Usually out-of-court declarant was not under oath at the time he spoke so the trier of fact has no indication that he felt any sense of moral or legal obligation to speak the truth
• Hearsay Risks:
  • There are 4 hearsay risks associated w/ out-of-court statements
  • 1) Risk of Misperception:
    • Risk not only a function of sensory capacity but of physical circumstance and of mental capacity and psychological condition
  • 2) Risk of fault memory:
    • Cross-exmaintion may be very useful in establishing, eliminating or reducing uncertainties that would arise from memory
    • This ability is not available with hearsay
  • 3) Risk of Mistatement:
    • This is the risk of ambiguity or faulty narration
    • Cross-examination (not available w/ hearsay) can get at the limits and intended meaning of what Bystander has to say
  • 4) Risk of Distortion:
    • Whether conscious or unconscious

B. A Closer Look at the Doctrine

1. What Is A Statement?

• Assertive Conduct
  • Hearsay doctrine rests of 4 risks of misperception, faulty memory, ambiguity, and insincerity and these risks appear not ONLY w/ verbal expression but ALSO with nonverbal conduct where the actor has assertive intent
    • Ex. Nodding or shaking of the head or shrugging the shoulders in answer to a question, pointing as a means of identifying
  • Evidence of such behavior is also hearsay
• Nonassertive Conduct:
  • Can also implicate most of the hearsay risks
  • Wright v. Doe d. Tatham (Court of Exchequer Chamber, 1837):
    • Facts:
      • (P) Tatham—cousin and sole heir to the decedent John Marsden brought suit to set aside will, which was allegedly procured by fraud
        • Will left valuable property to Wright (D)
      • D offers letters as proof (from ppl who had died before trial written to Marsden before death)
        • Letters indicated generally that writers thought testator was rational person
    • Legal Issue:
      • Were the letters admissible as proof that D possessed qualities of rationalness, etc? NO
    • Holding/Rationale:
      • Oath: That letters were sent = fact that’s proved on oath
      • Truth of Statement: Letters are meant to prove exactly what they say
        • Creates inference that letter wouldn’t have been mailed unless statements made therein were true
      • Proof of a particular fact, which is not itself a matter in issue, but which is relevant only as implying a statement or opinion of a 3^rd person on the matter in issue, is inadmissible in all cases where such a statement or opinion not an oath would be inadmissible
      • Therefore in this case 
        • Letters which are offered only to prove competence of testator, that is the truth of the implied statements therein contained, were properly rejected as the mere statement or opinion of the writer would certainly not have been admissible
  • Cain v. George (United States Court of Appeals for the Fifth Circuit, 1969):
    • Facts:
      • Parents bring wrongful death suit for death of their son who died of carbon monoxide poisoning while a guest in D’s hotel
      • P alleged gas had been improperly installed and vented
      • P loses and appeals  contends that TC erred in allowing evidence testimony of motel owners concerning number of guests who had stayed in room where son died who’d made no complaints
    • Legal Issue:
      • Was testimony hearsay? NO
    • Holding/Rationale:
      • Testimony went merely to whether motel owner had knowledge of anyone being harmed by heater
      • It was not hearsay evidence as it derived its value solely from credit to be given to witnesses themselves and was not dependent on veracity of competency of other persons
  • Notes:
    • If we were to strictly adopt the view from Cain—that you could speak only to that which you had first hand knowledge of—witnesses wouldn’t even be able to say where they were born (because they’d only know from parents telling them so)
    • System tolerates this kind of testimony even though the witness technically lacks personal knowledge and is technically testifying to hearsay
      • HOWEVER it would be another matter to rely on indirect hearsay to prove contested and substantial points in the case
  • United States v. Check (US Court of Appeals for the Second Circuit, 1978):
    • Facts:
      • Check (D) = patrolman in NYPD who was convicted of possessing cocaine w/ intent to distribute
      • Spinelli = detective who operated undercover and key witness against D who worked with informant Cali
      • Cali and Spinelli go to dinner and Cali goes outside to talk to D  Cali comes back and talks to Spinelli
      • At trial, b/c prosecution can’t ask SPinelli what Cali said w/out hearsay problem, prosecution asks Spinelli what he said
    • Legal Issue:
      • Was S’s testimony a form of hearsay? YES  new trial
    • Holding/Rationale:
      • Jury:
        • Jury learned from Spinelli’s testimony “I told Cali” that:
          • 1) D wanted S to front the money not only for the drugs he wished to buy from D but also to cover $300 which Cali owed D from a previous drug deal
          • 2) D kept drugs at his house
          • 3) D was supposed to arrive at the meeting w/ an ounce of cocaine and a taste of it, but, inasmuch as the cocaine was not of good quality, D didn’t bring drugs with him
          • 4) After seeing S in street, D felt more comfortable about dealing w/ him and would go ahead and arrange for sale
          • 5) D would produce cocaine that same afternoon
      • Problem:
        • S wasn’t just testifying to his side of the story but also inserting Cali’s statements
        • Out-of-court statements uttered by Cali, introduced by S, were being offered to prove the truth of the matters asserted in them
        • Govt argument that because statements were S’s own out-of-court statements they were excluded from hearsay rule
      • Therefore:
        • Significant portions of S’s testimony regarding conversations with Cali were hearsay, for that testimony was transparent attempt to incorporate into officer’s testimony info supplied by informant who did not testify at trial

2. When A Statement is Not Hearsay:

• General Notes:
  • Under FRE 801 a statement is hearsay when “offered to prove the truth of the matter asserted.
    • Negative inference of this definition = a statement is not hearsay when offered for any other purposes
  • 6 Common Purposes for Offering Statement:
    • 1) Impeachment
    • 2) Verbal Acts (or part of acts)
    • 3) Effect on listener or reader
    • 4) Verbal objects
    • 5) Circumstantial evidence of state of mind, and
    • 6) Circumstantial evidence of memory or belief
• Problem 3-C:
  • Abby sues Burton and Bystander is asked which car had light in its favor
  • Bystander says Abby’s  then Burton tries to impeach by bringing in hearsay testimony
  • Should be allowed under 801
• Problem 3-D:
  • State seeks to close down massage parlor used for prostitution
  • Witness testify = undercover agent who went there and was offered service  he recounts conversation “you can have it any way you like it” being offered to show solicitation for prostitution
  • Statements not hearsay because admitting for showing verbal acts
    • because its not being used to prove the matter asserted
• Problem 3-E:
  • John leases part of farm to C for payment = 40% of corn C could grow
  • C borrows money from bank w/ security interest in part of his crop  C defaults and bank respossessed double crib of corn from farm and sues to Prager
  • John sues Prager for conversion
  • J gives testimony that he and C went to farm where C pointed out that double crib of corn was J’s share
    • This goes to state of mind  whether C thought that corn was his  permitted
  • Banks offers testimony that when the loan officer went to field, C pointed out corn in double crib and said it was his
    • This also goes to state of mind  bank didn’t think that they were taking anyone’s corn
• Problem 3-F:
  • Jack is working at Crane company and thinks he smells odor in pipe
• Problem 3-G:
  • 1 Eagle bar and grill, match books. Probably likely that the holder of the matchbook had been to the Eagle Bar & Grill.
    • Legends on objects as non-circumstantial evidence of identification
  • 2 mug from U of Illinois
  • 3 Both people were testifying on their present knowledge and recollection which falls outside of hearsay

MUST Apply Bridges in the Hearsay Quiz

Federal Rules of Evidence Law School Supplements

• Evidence Under the Rules, Seventh Edition (Aspen Casebook Series)
• Casenotes Legal Briefs: Evidence, Keyed to Mueller & Kirkpatrick, 7th Edition
• Emanuel Law Outlines: Evidence (The Emanuel Law Outlines)
• Law in a Flash: Evidence 2011
• Evidence: Examples & Explanations, Eighth Edition

Hearsay Exceptions:

Conspiracy As Non-Hearsay:

• Coconspirator statements are admissible under 801(d)(2)(E) if:
  • 1) Declarant and defendant conspired
  • 2) Declarant’s statement furthered the conspiracy
  • 3) Declarant’s statement was made during the course of the conspiratorial venture
  • Note: Applies in both criminal and civil cases

Hearsay Exceptions and Purposes:

• General Notes:
  • Rules recognize numerous exceptions based on certain situations/statements made for truth of matter asserted that are trustworthy enough to let them in
• Hearsay Exception Categories:
  • 1) Rule 803: Hearsay Exceptions: Availability of Declarant Immaterial
    • Contains 23 exceptions
  • 2) Rule 804: Hearsay Exceptions: Declarant Unavailable
  • 3) Rule 807: Residual Exception
  • Other Notes:
    • “The exceptions are phrased in terms of nonapplication of the hearsay rule, rather than in positive terms of admissibility, in order to repel any implication that other possible grounds for exclusion are eliminated from consideration”
    • We are also still NOT excused from personal knowledge requirement (i.e. they heard the statement made)
  • Rule 805: Hearsay within Hearsay:
    • “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules”
    • If you have hearsay within hearsay, each piece has to be analyzed to be nonhearsay or fit within an exception
  • Judge determines whether something fits into hearsay exception
• Present Sense Impressions/Excited Utterances:
  • Less risk that the declarant is going to fabricate the statement when it’s made while perceiving the events
  • Might have additional reliability than most hearsay statements

Rule 803: Hearsay Exceptions Availability of Declarant Immatieral:

• (1) Present Sense Impression:
  • “A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
  • ACN: The underlying theory of Exception (1) is that substantial contemporaneity of even and statement negate the likelihood of deliberate or conscious misrepresentation
• (2) Excited Utterance:
  • Less time to make something up  reaction
  • “The theory of exception (2) is simply that circumstances may provide a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.”
  • Time can be stretched more in this exception compared to present sense impression
  • United States v. Arnold:
    • Daughter to Girlfriend of D makes statements out of court that prosecution wants to use for truth of matter asserted
    • Daughter called 911 saying “he’s got a gun, he’s going to kill me”
      • She doesn’t testify  statements were made out of court
    • D (mother’s boyfriend) is charged with felon-in-possession-of-a-firearm
    • Statements were close enough in time, declarant was in distress
    • NOTE: even if you only have statement itself it is sufficient to assist you in proving startling event  this is different from conspiracy where you need more than conspiracy hearsay statements to prove conspiracy
  • Other Notes:
    • Participation: No where in 803(2) does it mandate that you have to be participant  you can be bystander
      • Participation: by the declarant is not required: a non-participant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor
    • Time: Longest it has stretched is 14 hours
      • But post-tramatic stress where events are felt years later has not been admissible
  • Problem 4-I:
    • Example where statement alone is sufficient to prove excited utterance
• 803(1) v. 803(2):
  • Present Sense Impression:
    • 1) Any event or condition
    • 2) Statement must describe or explain event
    • 3) Made while perceiving or immediately thereafter.
  • Excited Utterance:
    • 1) Startling event or condition
    • 2) Statement need only to relate to a startling event
    • 3) Made while delcarant under stress excitement caused by event
• 803(3) Then Existing Mental, Emotional, or Physical Condition:
  • “A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health) but not including a statement of memory ofr belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
  • We are NOT talking about others state of mind  very important restriction is that the statement has to express emotion at that moment
    • “Yesterday I had shooting pain down my arm” DOES NOT fit within this exception
    • “I have a shooting pain down my arm” DOES NOT fit within this exception
    • “I’m going to Mexico this weekend” fits under 803(3)
  • Ask yourself:
    • 1) Is the evidence being used to prove current, future or past condition?
      • Present sense impression allowed  past not allowed
    • 2) Is it the future behavior of declarant or someone else at issue?
      • Can use statement about yourself and other to show only as it relates to you
  • Mutual Life Insurance v. Hillmon:
    • Tells us that you can somehow prove that this person also went under this present recollection or current mental state
    • We aren’t just trying to prove what delcarant did  here you’re trying to show that other parties mentioned also did this event
    • U.S. Supreme Court in Hillmon held that such a future statement of intent, if offered that the delcarant actually did go to Chicago, falls within the then existing state of mind exception.
    • ACN make clear that the Hillmon rule allowing evidence of intention as tending to prove the doing of the act intended is, of course, left undisturbed under 803(3).
  • United States v. Pheaster:
    • Rules weren’t in effect at time of this case
    • Presents question: are we allowed to use then-existing state of mind exception that others acted in conformity to statement
    • “The Committee intends that the Rule 803(3) be construed to limit the doctrine of Mutual Life Insurance Co. v. Hillmon so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person.”
• Handout:
  • A. Is the testimony in the above paragraphs 1-5 Hearsay?
    • 1) Yes, hearsay but there is no evidence that prosecution is trying to rebut same
    • 2) Not hearsay because she’s just testifying from personal knowledge
    • 3) Carve out under 801(d)(1)(C)
    • 4) Present sense impression exception
    • 5) Depends  if used to show that declarant did this OK, if used to show that someone else did this NOT OK
• 803(3) Will Exception to Exception:
  • Ad hoc judgments which finds ample reinforcement resting on practical grounds of necessity
  • For problem, do you need to take advantage of will’s exception to get the information in or can you just fit within existing state of mind

Rule 803: Hearsay Exceptions: Availability of Declarant Immaterial

• Daniel’s Will:
  • 1) Fits under 803(3) without will exception because it’s not a backward looking statement  forward looking statement that he’s going to give him something
  • 2) Fits under 803(3) without will exception because it’s intent
  • 3) Might have to use will exception because it might be looking backward
• If you have backward looking statement you can’t get it in under 803(3) unless it deals with will
  • “I believe that I had shooting pain down my back three months ago” NOT ALLOWED

Hearsay Exceptions II:

3. Statements to Physicians

• General Notes:
  • When person seeks treatment from physician, health hangs in balance so there’s good reason to believe he/she will be careful in describing symptoms to doc statement doesn’t have to be made just to doctors
    • “Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included.”
  • Therefore Rule 803(4) recognizes exception for such statements
  • 803(4) Statements for Purposes of Medical Diagnosis or Treatment:
    • Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis…
    • NOTE: Statements as to fault would not ordinarily qualify under this Rule
      • Medical diagnosis or treatment because they’re trying to get to experts as well
      • Exception also reaches statements by caretakers
• Blake v. State (Supreme Court of Wyoming, 1997):
  • Facts:
    • D was convicted of 2 counts of sexual assault of stepdaughter
    • After report of sexual abuse, victim was transported to hospital and examined by Dr. to whom she told that she was forcibly subjected to sexual intercourse by stepfather numerous times
    • Victim doesn’t testify at trial but doctor does  D objects but court allows under 803(4)
  • Legal Issue:
    • Was the doctor’s testimony excludible as hearsay or accepted under 803(4)? Admissible under exception.
  • Holding/Rationale:
    • General Rule:
      • In situations involving physical or sexual abuse, statements made by child victim to medical professional may be admitted
      • Statements of ID are also admitted in child abuse cases b/c of special character of diagnosis and treatment in sexual abuse cases
      • BUT there MUST be proper foundation
    • Foundation Rule—Renville Test:
      • Two-part test:
        • 1) Delcarant’s motive in making the statement is consistent w/ purposes of promoting treatment or diagnosis, and
        • 2) The content of the statement is reasonable relied on by a physician in treatment or diagnosis
      • Application:
        • 1) Victim made statements to aid in doctor’s assessment/examination  had correct motive
        • 2) Statements were used to help doctor determine which tests (rape kit) should be done
    • Note Re Age:
      • Age of child go toward weight of hearsay statements rather than their admissibility
  • Class Notes:
    • Doctor wants to show that she needs to know who the perpetrator was to perform further exams
  • Notes:
    • Majority’s View: Is that statements to doc ID-ing assailant are not “pertinent to medical treatment” despite the fact that they may relate to psychological treatment

4. Past Recollection Recorded

• General Notes:
  • Sometimes witness who can’t remember critical points has written down what he knew and what he wrote may be admissible as substitute for testimony  or used to refresh memory initially
  • To get writing admitted as evidence (not just to refresh memory), he must demonstrate:
    • 1) the witness lacks present recollection of the matter
    • 2) the statement accurately reflects knowledge he once had
    • 3) he made or adopted the statement, and
    • 4) he did so while the matter was fresh in his mind
  • Requirement that witness lacks sufficient recollection to enable him to testify fully is meant to protect against attorneys helping draft statements and having witnesses testify only from that
• Requirements for Recorded Recollection Hearsay Exception Under 803(5):
  • 1) Existence of a memo or record
  • 2) Must concern a matter about which the witness once had knowledge
  • 3) Must correctly reflect such knowledge of the witness
  • 4) The witness must have made or adopted the memo or record
  • 5) Must have made or adopted while the matter was fresh in the witness’ memory
  • 6)
  • “If admitted, the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party”
    • Since taking the place of testimony it would be unfair to send it back to jury because it would give it more weight
• Ohio v. Scott (Ohio Supreme Court, 1972):
  • Facts:
    • Scott (D) was convicted of shooting w/ intent to kill and shooting 2 cops  Victim Lee was blinded by shotgun blast in face
    • Tackett was friend of D and had conversation w/ him just prior to arrest she gave handwritten statement to police RE conversation
      • At trial Tackett has trouble remembering exactly what he said so they use statement to police  D argues it’s hearsay
  • Legal Issue:
    • Can past recollection recorded rule of evidence be used in criminal trial and, if used, does it violate D’s 6^th amendment right of confrontation?
  • Holding/Rationale:
    • Generally:
      • In present recollection refreshed  witness looks at memo to refresh memory of events, but the proceeds to testify upon basis of present independent knowledge
      • In past recollection recorded  witness’ present recollection is still absent or incomplete, but his present testimony is to effect that his recollection was complete at time memo was written and that such recollection was accurately recorded
    • Past Recollection Recorded Requirements:
      • Statement of Tackett meets requirements because 1) the statement consisted of facts of which the witness had firsthand knowledge, 2) the written statement was the original memo made near the time of the event while witness had clear and accurate memory of it, 3) the witness lacked a present recollection of words used by D, 4) witness stated that memo was accurate
  • Class Notes:
    • They wanted the statement over the testimony
    • Judge will resolve this question over 104(a)

5. Business Records:

• General Notes:
  • FRE 803(6)
  • “The element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”
  • Four elements of exception:
    • 1) Regular business; regularly kept record
      • exception embraces only records of a business institution, occupation or calling AND only those records it regularly generates
    • 2) Personal knowledge of source:
      • Source of information must be someone w/ personal knowledge, but person need not be one who made entry
      • Multiple hearsay could be allowed
    • 3) Contemporaneity:
      • Information must be recorded (or at least gathered) at time of act/event, or when condition was observed  requirement not interpreted literally (i.e. close to time is ok)
    • 4) Foundation testimony:
      • This hearsay exception expressly requires either testimony by the custodian of records or other qualified witness or a certification by such a person (affidavit)
  • Rule
    • 1. Regular
      • reaches only records kept in the course of a regularly conducted business activity
    • 2. Regular
      • Regular practice of that business to make the record
    • 3. At
      • Record made at or near the time of the events recorded therein
    • 4. Personal Knowledge
      • Made by a person w/ personal knowledge or made from info transmited by person w/ personal knowledge
      • Original source of information must have personal knowledge HOWEVER other persons in chain of transmission or person who creates record need not have personal knowledge
      • This contemplates and allows multiple hearsay
• Example Problem:
  • 1) Archie created record and it would be hearsay but since business record it’s admissible
    • Ben doesn’t have personal knowledge but nonetheless he’s in chain and this would also fit into 803(6)
    • Although not clear from words of 803(6) the source of the information and each other person participating in making business record, MUST be acting in routine of business
      • Therefore if source of info is coming from someone outside of business you won’t be able to get entire document in under business records exception
• Important
• Petrocelli v. Gallison (United States Court of Appeals for the First Circuit, 1982):
  • Facts:
    • Petrocelli (P) sues Doctor Gallison (D) alleging malpractice w/ hernia operation  P had to undergo 2 additional operations
    • Jury verdict for D and P appeals urging error in exclusion of sentence in D’s postop report and surgical note by other physician
      • D’s note = “During the court of [surgery] …nerve was severed”
      • Other physicians note = “Hernia well healed but very worried about pain from transected nerve”
  • Legal Issue:
    • Did court abuse its discretion in excluding parts of hospital record which indicated nerve was earlier severed? NO
  • Holding/Rationale:
    • Source:
      • Unclear whether statements were merely reflecting patient concern or whether they represented the concerns of hospital/doctors
      • Without personal knowledge of source statement = hearsay
    • Admissible By Other Means:
      • Assuming they were patient’s statements  although not admissible as record, they were admissible under 803(4)  statements for purposes of medical diagnosis or treatment
      • HOWEVER court does not think this was reversible error
      • P might also have deliberately not claimed evidence under 803(4) purposefully
  • Class Notes:
    • What if you fail under 803(6) can you slip it under 803(5)  here there’s no inherent conflict so you can
    • “Failure of record to mention a matter which would ordinarily … (see 803(7))
• Norcon, Inc. v. Kotowski (Supreme Court of Alaska, 1999):
  • Facts:
    • Exxon Valdez oil spill  Exxon retains Veco to perform cleanup  Veo subcontracts for some work w/ Norcon who employs Kotowski
    • Supervisor sexually harasses her invites her to room she goes, they drink, he tells her to come back later after consulting w/ supervisor (b/c there is no-alcohol policy) she gets tape recorder and goes in exchange for amnesty
    • Ultimately both are fired K sues
      • At trial K tries to get in memo written by security at work Re sexual harassment  D objects and P says it falls within business record exception
      • D claims memo contains double and triple hearsay of informants who provided info contained in memo which was then reiterated in memo
  • Legal Issue:
    • Was the memo admissible? YES/NO
  • Holding/Rationale:
    • Double Hearsay:
      • “Sources of info present no substantial problem w/ ordinary business records. All participants, including observer/participant furnishing info to be recorded, are acting routinely, under duty of accuracy, w/ employer reliance on result, or in short “in the regular course of business.” If, HOWEVER, the supplier of information does not act in regular course, an essential link is broken, assurance of accuracy does not extend to info itself, and fact that it may be recorded w/ scrupulous accuracy is of no avail.”
      • Application  since info came from outside employees of security it’s hearsay
    • Admissible by Other Means:
      • Although not admissible under 803(6) it can be regarded as nonhearsay as an admission by a party opponent under 801(d)(2)

6. Public Records:

• General Notes:
  • Exception for public records rests mainly on the great responsibility that attends the discharge of government functions in a democracy
    • Assumed that public servants go about their tasks w/ care, without bias or corruption and that scrutiny and exposure surrounding government functions add assurance that public records are trustworthy
  • “Justification for the exception for public records and report is the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record.”
  • 803(8)(B):
    • Use restriction is so that you have to testify at court and be cross-examined
    • Matters observed  building inspector making findings for code violations (this would fit within 803(8)(B))
  • 803(8)(C):
    • Now public official isn’t just observing things but now they are making findings based on things they observe
    • Factual findings can be based upon statements by outside witnesses
      • This makes it different from 803(6) because findings can be based on outsiders
      • 3^rd party statements are still not directly quoteable  they must be factual findings
      • Use restriction  can’t use against criminal defendant in criminal case
• Baker v. Elcona Homes Corp. (1979):
  • Facts:
    • Valiant car traveling south and Ford truck traveling westbound collided  estates of 4 passengers of Valiant sue driver of Ford and company he was employed by (since driving was part of employment)
    • D claimed he was blinded by sun  judgment in favor of D and P appeals
    • P objects to introduction of police accident report into evidence
  • Legal Issue:
    • Was the report admissible under 803? Yes, under 803(8)
  • Holding/Rationale:
    • Factual Findings:
      • 803(8)(C) asks whether report provided factual findings
      • Court thinks that whether light was red or green for one driver at time of accident is a factually finding within meaning of rule
    • Trustworthiness:
      • P could have made showing of untrustworthiness of report based on 4 factors:
        • 1) the timeliness of investigation
        • 2) the special skill or experience of the official
        • 3) whether a hearing was held on the level at which conducted
        • 4) possible motivational problems
      • P did not assert this and would have failed on this assertion
    • Class Notes:
      • The factual findings were admissible under 803(8), but the quoted statements from driver in report would still not be admissible
• United States v. Oates (1977):
  • Facts:
    • Appeal from judgment convicting D of possession of heroin w/ intent to distribute and of conspiracy to commit that offense
    • At trial government introduced report of official who tested the substance
  • Legal Issue:
    • Was the report admissible under 803(8)? NO, hearsay
  • Holding/Rationale:
    • 803(8)(C):
      • Indisputable that chemist’s report was report of factual findings resulting from investigation made pursuant to authority granted by law
    • 803(8)(B):
      • Report might fail to be public record under B b/c they are records of matters observed by police officers/other law enforcement personnel
      • Court considers chemist “other law enforcement personnel” and therefore says report must stay out
  • Class Notes:
    • It would be inappropriate to take public record and ignore use restrictions in 803(8) and qualify it as regular record under 803(6)
    • What happens if they really can’t remember  can you fall back upon past recollection recorded  professor believes the answer is yes
    • Some courts suggest that excluding all factual findings by law enforcement personal is too extreme
• Trustworthiness:
  • Even if requirements of 803(8) are met, the report can be kept out if found to be untrustworthiness
  • Factors which may be of assistance in passing upon the admissibility of evaluative reports:
    • 1) the timeliness of the investigation
    • 2) the special skill or experience of the official
    • 3) whether a hearing was held and the level at which conducted
    • 4) possible motivation problems
  • CA RULE = 1280: no use restrictions
    • 1) made by someone within course and scope of public employment
    • 2) made
    • Different than federal rule