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364 Cards in this Set
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what is evidence
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1. term not technically defined by the Federal Rules of Evidence, but it is the bedrock of litigation!
2. The term “Evidence” by itself refers to witness testimony and physical items parties want to present at trial to prove or refute an element of the case. |
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FRE
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1. A body of law (rules) that regulate the admissibility of the evidence that is offered as proof in a legal proceeding.
2. These rules essentially restrict the admissibility of evidence and govern the way in which witness testimony and physical items can be introduced in court in an attempt to determine what occurred in the past, often under circumstances of uncertainty. 3. You must know the rules and understand how they work for a successful litigation practice. 1. FRE Dictate the admission of facts that are relevant and reliable and exclude info that is prejudicial, confusing, speculative, cumulative, or otherwise unrelated to the case. 2. The Judge is the arbiter of the rules and enjoys a fair amount of discretion under the FRE. |
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trials
2 kinds |
1. Bench Trial – Judge determines outcome
2. Jury Trial – Jury determines outcome |
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structured process
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1. The Evidence and Procedure Rules make the process structured and somewhat predictable by dictating that a case be presented in a orderly, efficient and reliable manner, BUT…The outcome is really like rolling the dice in Vegas!
2. A gamble b/c no one can truly predict the outcome since trials are mainly fights over facts and factual inferences. |
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How are the Facts of a Case Proven at Trial (i.e., Types of Evidence)
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1. Witness Testimony
2. Answering questions under oath (Credibility). 3. Tangible Physical Evidence (Exhibits) i. Real Evidence - Evidence generated by the case (i.e., murder weapon, set of keys, etc.) ii. Demonstrative Evidence - Maps, photos, charts, experiments, etc., used to illustrate and explain the evidence in a case. 4. Direct v Circumstantial Evidence |
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witness testimony
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i. Testimonial evidence- fact finder must depend on witness to find the truth
ii. Judge (Bench Trial) or Jury (Jury Trial) Depends on Their Own View of the Evidence |
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4 testimonial capacities
The trier of fact relies on the credibility of a witness to determine the facts at issue based on the following: |
1. The witness’s perception – interpretation of his/her own sensory data (i.e., how well could she see/hear/smell, etc.)
2. The witness’s memory 3. The logic and clarity of the witness’s story – how well does she communicate and how clear is the story? 4. The witness’s veracity to tell the truth – any reason to lie?? (i.e., bias, motive, etc.) |
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how is tangible physical evidence admitted into evidence?
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“Exhibits”
In order to be admissible, Exhibits must be introduced by: 1. Giving it an exhibit number or letter Ex: If Prosecutor’s exhibits are numbered as admitted (i.e., “Plaintiff’s Exhibit #1), then Defense’s exhibits will be lettered (“Defendant’s Exhibit A”) . 2. Showing it is authentic Ex: Typically by questioning a witness with knowledge of its accuracy |
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with tangible evidence, the trier of fact uses
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his/her own personal interpretation of the evidence by viewing/considering the exhibits themselves instead of being dependent on someone else’s interpretation of sensory date (a witness’).
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painting the landscape process
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1. Good litigators carefully present their evidence in a step-by-step fashion by carefully crafting questions for a witness to “paint a picture” of the case as a coherent whole, one piece at a time.
2. Think of it as how an artist paints a landscape – one stroke and one color at a time. 3. Technique is VERY important! |
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direct v circumstantial
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Evidence either directly or circumstantially establishes a fact at issue in the lawsuit
Direct Evidence: Eyewitness Testimony based on witness’s personal knowledge gained through senses. If true, it proves a fact without inferences or presumptions. Evidence which resolves the matter Direct ex: someone testifies at trial they saw john hit his wife Circumstantial Evidence: Requires a fact-finder to make an inference to reach a factual conclusion in the case. Even if you believe it, it doesn’t resolve the issue. Need to do some type of reasoning to get to a conclusion. Inferences can be weak, moderate, or very strong. Circumstancial Ex: Finding the murder weapon on the Defendant shortly after the shooting => STRONG circumstantial evidence he was the shooter. Usually direct is more reliable and often stronger, but not always, because direct evidence is based on eyewitness testimony that brings with it issues with reliability, bad memory, bad eyesight, etc. Ex: Glove with blood on oj case. Put pieces |
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Situations where some other time, person, or event will still be relevant to your case
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1. Other events are more likely to be allowed if they are substantially similar
2. The more similar they are, the more relevant they are 3. We use other events to show CAUSATION and PRIOR ACCIDENTS OR CLAIMS Ex causation: eats at carrabas and gets sick. 5 other people who were at carrabas are also at the hospital. He can show other people ate the same thing and got sick. High probative value, not very hurtful to restaurant.. comes in Ex prior accidents: john beat up student 1 in 2004, student 2 in 2005, and student 3 in 2006. Substantially similar evidence. Its coming in 6. D wont be able to get ps prior claims in unless the prior claim was fraudulent, or the prior claim was relevant on the issue of damages 7. May want to bring in other events involving d to show: notice, defective/dangerous condition, or if intent or state of mind of a party is an issue, to rebut a claim, comparable to sales to establish values(like quantum meruit), 406 habit evidence, industrial or business routine, or industri |
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Public policy for excluding evidence even though it may be relevant
(5) |
411 liability insurance
407 subsequent remedial measures 408 settlement offers 409 offer to pay hospital 410 plea and plea discussion |
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411 liability insurance
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insurance is not allowed to show fault, show wrongful activity, negligence, or to show they are careful because they have insurance or ability to pay,
(exception-)but may be allowed for proof of ownership/agency/ or control, or to impeach witness for interest or bias or motive to lie. Ex: I stole car, john is owner. Or I fall down stairs, owner of building will not confess. Find out who pays insurance to show who owns building because the owner of the building is at issue. But if owner comes forward, cannot use insurance Ex #2- Defendant called an expert witness (an attorney) to impeach the credibility of Plaintiff’s expert by saying he had a bad reputation for truth and veracity. Plaintiff wanted to prove that the expert worked for the same liability insurance company as who was representing the defendant. Held: Allowed under the FRE 411 exception to impeach with bias. |
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why have liability insurance?
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Concern that a jury might use it to compensate a plaintiff w/out first determining fault
A juror might reason that even though the defendant wasn’t negligent, the plaintiff was injured and should be compensated. Since it’s the insurance company who will actually pay, let’s do it! Social policy reasons to encourage people to obtain liability insurance to compensate accident victims without fear that such info will be used against them |
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dont forget 403 when dealing with liability insurance!!
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ALL of these policy based limitations to relevance are subject to FRE 403, giving the judge the discretion to exclude such evidence if s/he thinks it is too unfairly prejudicial or there is other evidence that may show it.
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407 subsequent remedial measures
(by d only) |
not allowed to show proof of negligence because of public policy (want to encourage repairs).
They are allowed to show proof of ownership is in dispute, to impeach, or to rebut ds position of impossibility |
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407 subsequent remedial measures
exceptions |
It is admissible for any other purpose not prohibited by the rule, including (non-exhaustive list):
i. Ownership and control. When ownership or control is at issue (i.e., it’s in controversy) ii. Feasibility of Precautionary Measures. To rebut a claim that feasibility of precautionary measures (i.e., it’s not possible to make is safe! BUT, such feasibility must be at issue.This would be done on cross iii. Impeachment. Can be used to impeach a testifying witness, but courts have generally construed this narrowly to prevent the exception from swallowing the rule! |
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subsequent remedial measures
example |
coming to tutoring, seven inches of snow. Student 1 comes down stairs, john hasn’t shoveled and student breaks bones. Student 2 is 15 min early, sees student 1 fall, asks to shovel so no one else gets hurt. Student shovels. Student 1 sues john.
Can student 1 bring in fact student 2 came out and shoveled? Is it relevant- yes, to show john was on notice of danger and that he should have shoveled so no one would get hurt. This will come in because it wasn’t by d, it was student 2. If john came out to shovel or his agent, then it’s a subsequent remedial measure. |
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Plaintiff was injured while walking down a hallway of a commercial building b/c she tripped over a crack in the floor. She sues the defendant/owner of the building for negligence.Defendant denies that he is the owner of the building. Plaintiff offers to show that the Defendant repaired the crack in the floor.
Admissible? |
Yes. BUT isn’t this a subsequent remedial measure that is inadmissible under FRE 407? Yes!!!
BUT…It falls under the first exception! It IS admissible but ONLY to show ownership and control, not to prove negligence. |
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I am on my way out of the bank and walk into a glass door that was practically invisible and break my nose. I sue the bank for negligence. The bank claims that there is no way to avoid such an accident and still maintain its standards of cleanliness. I respond by wanting to show that after the accident, the bank put up red stickers on the door to make it more visible.
Admissible? |
Yes, but only to impeach, not as substantive evidence of liability. This is the impeachment exception
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subsequent remedial measures
defined |
An action taken after a harm or injury has occurred that in some measure attempts to rectify the cause or the harm or injury. It means that if this measure were taken previously, it would have made the injury or harm less likely to occur.
Note that this rule only applies to action taken AFTER the harm or injury.This means that evidence of measures taken by the defendant BEFORE the harm or injury are NOT excluded under FRE 407 |
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408 settlement offers
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compromise and offers to compromise. Don’t sue me, and ill do this. LAW ENCOURAGES SETTLEMENTS! Anything you say during a settlement talk cannot be brought in. unless evidence would have been discovered independently.
*****General Rule: Settlement offers in civil cases are NOT admissible to prove fault, liability, or amount of damage, or to impeach through prior inconsistent statements or contradictions. |
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2 Limitations for the rule of exclusion under 408 to apply:
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1. There must be a “claim”. Doesn’t necessarily mean at the stage of litigation, but a claim by a party must be asserted.
2. And The claim must be disputed as to either:Liability OR Amount So…If a party admits that s/he is BOTH liable (i.e., at fault) AND doesn’t dispute the amount, then it doesn’t fall under FRE 408, and the statement may be admissible unless it’s excluded under a different rule. |
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why are settlement offers generally inadmissible?
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Strongly favored by public policy. The law loves settlements so the FRE will not let parties use such settlements against each other to prove fault.
Settlements seldom constitute admissions. Most are attempts to “buy one’s peace” and avoid the stress, expense, and time-consuming nature of a trial Ex: im so sorry for accident. If you don’t sue me, ill pay you 10k I ran that red light. wont come in (but can be used for impeachment purposes). |
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A sweet old lady slips and falls in a store. The store owner walks up to her and says, “I’m so sorry you fell! It was my fault! I should have wiped up that spill sooner! Let’s settle and agree to the amount of damages.”The sweet old lady turns nasty and sues him!
Is his statement admissible to prove fault? |
No! It’s an admission of negligence, but it was made as part of a settlement discussion of the disputed damages issue. T/f, it falls under FRE 408 and is inadmissible to prove fault.
Any other objections to admission?Yes! Hearsay… any exclusions/exceptions?Yes! Party Admission! What about Statement Against Interest?Nope…UNLESS he is UNAVAILABLE to testify at trial! |
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Without any prior contact, my neighbor approaches me and says, “Are you the person who was bitten by my dog? Let’s settle.”Later, I sue my neighbor for negligence from the dog bite.
Is his admission of dog ownership admissible? |
Yes, b/c there was no “claim” yet. The facts hadn’t progressed that far.
If they had, this would be inadmissible under FRE 407 as settlement talk. |
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Monica, a former best friend of mine says, “Holly, I know I owe you $2500 for the money you lent to me, but if you want your money, you’ll have to sue me for it. On the other hand, if you want to settle now, I’ll pay you $1,500 if you will give me a full release.”I give my opinion on the matter and then sue her for the full amount.
Can I use her statement to show that she admitted liability on the note? |
yes
Why doesn’t this violate FRE 408? B/c the statement shows that there is a claim that is not disputed and she admits both liability and the amount. Any other objections to admission?Hearsay… any exclusions/exceptions?Party Admission! What about Statement Against Interest?Nope…UNLESS she is UNAVAILABLE to testify at trial! |
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claim requirement
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Statements made BEFORE a controversy arises are not covered by 408 b/c there is no dispute.
Therefore, for a “claim” to arise, it’s critical to determine the time when the “dispute” arose. Ex:I drive into my neighbor’s car and immediately run up to him and say, “It was all my fault. I will pay for everything!” He says nothing in response. No dispute => No claim => No 408, and statement comes in The judge decides admissibility under 104(a). It’s considered a preliminary question of fact for the trial court to decide. |
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Same facts, but this time I say, “It’s your fault! Why did you park that piece of crap truck there!” My neighbor responds with, “I disagree, you just don’t know how to drive, but let’s split the cost of the damages.”
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Dispute => claim => 408 kicks in and excludes all the statements related to fault and damages
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408 settlement offer
bias exception |
Evidence of compromise offers, acceptance or negotiations are admissible to prove that a witness is biased or prejudice
For it’s truth?No! Only to impeach and show bias. Plus, it’s not automatic. It’s subject to 401 and 403 The admissibility for this purpose often depends to a large degree on the terms of the agreement. |
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Prior inconsistent statements are not included as an exception to 408
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FRE 408 was amended in 2006 and specifically excludes using prior inconsistent statements or conduct as “another purpose”.
This means that you can’t use prior inconsistent statements to impeach, even though you can use bias. Why? It’s too broad and would swallow the exclusionary rule and go against the public policy of promoting settlements. |
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408 settlement offer
exception to negate a contention of undue delay |
Evidence of settlement talk may be admissible to rebut an allegation that a party is causing undue delay or obstruction.This really relates to when parties are dragging their feet
Ex: Defendant oil company refused to pay for repairs until the Plaintiff waived all other claims against it. At trial, defendant claimed that the Plaintiff failed to mitigate damages. Testimony of defendants bad faith negotiations was admitted under this exception to rebut its claim |
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408 settlement offer
Exception in criminal cases |
This was a recent amendment (2006) added to FRE 408 to allow in evidence of statements or conduct indicating fault that were made during settlement negotiations regarding a civil dispute with a gov’t regulatory, investigative, or enforcement agency in a later criminal case.
BUT they are NOT admissible in later civil suits b/n private parties (although some states reject this). This exception essentially prevents a party from making a statement during compromise negotiations with one gov’t agency from later contradicting it under oath, free from impeachment, when testifying in a criminal case brought by another gov’t agency (i.e., the prosecutor) BUT it may still be excluded under FRE 403 |
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409 offer to pay hospital bill
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not admissible
General Rule: Payments, offers to pay, and attempts to pay medical, hospital, or other similar expenses are NOT admissible to prove liability for an injury, even though is NOT really a settlement offer. |
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409 offer to pay hospital bill
exception |
If an admission of fact accompanies an offer to pay hospital or medical expenses, the admission may be admissible.
This rule encourages humanitarian gestures b/c they have low probative value for proving fault. BUT why is this rule necessary when FRE 408 prevents admissions of offers, etc.? FRE 409 does NOT require that a “claim” be made before the offer, unlike FRE 408. It’s often critical to get immediate medical attention following an accident. If one party immediately offers to pay the other’s medical bills, FRE 409 would keep this statement out to show fault, but it would come in under FRE 408 b/c a claim had not yet been made. |
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Going back to the A sweet old lady who slipped and fell in a store. The store owner walks up to her, but this time says, “I’m so sorry you fell! It was my fault! I should have wiped up that spill sooner! I promise to pay all of your medical costs related to this.”The sweet old lady turns nasty and sues him!
Is his statement admissible to prove fault? |
Yes! It’s an admission of negligence that accompanied an offer to pay medical bills. The offer to may medical bills is inadmissible to prove fault under FRE 409, and that is not considered a settlement offer under FRE 408.
Therefore, the admission of fault is treated separately and is admissible to prove fault. Hearsay…any exclusions/exceptions? Party Admission! What about Statement Against Interest? Nope…UNLESS he is UNAVAILABLE to testify at trial! |
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Same facts, but what if this time the store owner said, ““I’m so sorry you fell! It was my fault! I should have wiped up that spill sooner! I promise to pay all of your medical costs related to this, and let’s talk about settling this thing in terms of other damages.”The sweet old lady turns nasty and sues him!
Is his statement admissible to prove fault? |
NO, IF court decided there was a claim, b/c NOW the statement discussed a dispute about damages which made it fall under FRE 408 (settlement talk), and therefore the statement of fault would be inadmissible. And, the offer to may medical bills is inadmissible to prove fault under FRE 409.
Therefore, the entire statement is out to prove fault. |
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410 pleas and plea discussion
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These are not admissible against a d in any civil or criminal proceeding:
i. Please of guilty that was later withdrawn- d initially plead guiulty but later withdrew it ii. Please of no contest (not admitting liability, but will take the criminal sanctions)- Used in place of a guilty plea when a criminal defendant doesn’t want his plea used against him. Essentially, such pleas accept responsibility without admitting guilt iii. Statement made in the course of court proceedings regarding 1 or 2 iv. Statements made during plea discussions with prosecuting attorney which do not result in a guilty plea or which result in a guilty plea which is later withdrawn |
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410- when statements are admissible:
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i. In criminal proceeding for perjury or false statement, if subject statement was made by d under oath, on record, and in the presence of counsel
ii. If made to cop rather than an attorney for prosecutors office iii. In proceeding where another statement made during the same pela or plea discussions ais admitted, and fairness requires that the subject statement be considered contemporaneously iv. If you reach plea bargain and you don’t keep up your end of the bargain, anything said during plea bargain process comes in v. 410 is similar to FRE 408, but 410 applies ONLY to negotiations in criminal cases. FYI – guilty pleas (that aren’t w/drawn) ARE admissible to show the guilt of the defendant, BUT FRE 410 deals with plea bargain agreements and excludes them from being offered against the defendant in both civil and criminal proceedings. |
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Why are plea agreement discussions generally inadmissible?
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Want to encourage early disposition of criminal cases without the time and expense of a trial.
Can this exception be waived? US v Mezzanatto. Supreme Court held that the defendant entered into an agreement and knowingly and voluntarily waived the exclusionary provisions of the plea-statement rules and it was valid and enforceable. |
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role of the judge
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The Judge controls the trial process by setting limitations on lawyers in order to achieve justice and efficiency.
FRE gives trial judges a great deal of power and discretion to run their courtrooms, rule on objections and motions, and set limits on lawyers, as long as the power and discretion is exercised fairly and efficiently. If the judge makes a mistake on whether to allow evidence or not, the party must take certain steps to make sure that the mistake is preserved for appeal |
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Under 103, an erroneous ruling is not an error unless it is plain error (obvious) or
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i. It affects a substantial right of the party AND
ii. Party made a timely and specific objection AND iii. Party offered proof AND iv. Make sure the objection, offer, and ruling are on the record |
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Overview of the Source of Judges Power under FRE
(4) |
1. FRE 102 -Gives Judges the power to use FRE to “secure fairness” and “eliminate undue expense and delay.”
2. FRE 403-Recognizes the power and duty of judge to use his/her discretion to exclude relevant evidence that is otherwise admissible. 3. FRE 611-Commands the court to “exercise reasonable control over mode & order of interrogating witnesses and presenting evidence.” 4. FRE 614- Gives judges the right to call and question witnesses to clear up confusion or manage trials whenever necessary |
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FRE 102 – Purpose & Construction
fairness and eliminate undue expense/delay |
“These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” (Emphasis added)
102 Gives trial judges the power to set reasonable time limits on the various stages of the trial. Purpose is to find the truth. Find the truth in a just way The public is an un-named party in every lawsuit. Public resources are squandered if judicial proceedings go beyond reasonable bounds. |
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FRE 403-The Judge’s Discretionary Tool
balancing test |
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 outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” |
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403 gives a judge the discretion to exclude relevant evidence that would otherwise be admissible when its probative value substantially outweighed by the danger of one of more of the following 6 counterweights:
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1. Unfair prejudice
2. Confusion of issues 3. Misleading the jury 4. Undue delay 5. Waste of time 6. Cumulative evidence |
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FRE 611- Mode & Order of Interrogation & Presentation
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“(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence for 3 reasons:
ii. make the interrogation and presentation effective for the ascertainment of the truth, iii. avoid needless consumption of time, and iv. protect witnesses from harassment or undue embarrassment.” |
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how the Judge Applies these Rules Court
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i. Sets Time Limits of Presenting Evidence
ii. Can Adjust the Order of Witnesses and Their Testimony iii. Can Comment on Evidence iv. Can Question Witnesses |
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the Order of Witnesses and Their Testimony
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i. Usually how an attorney wants to place it’s case-in-chief is a trial strategy decision left to the parties and their counsel.
BUT courts do have the discretion and power to run their courtrooms and supervise the conduct of trials. ii. This means the judge can “butt in” to a certain degree and order the presentation of witnesses and testimony within reason. |
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judicial comments on evidence
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Believe it or not, Federal judges may comment on the evidence presented at trial in terms of their opinions on the facts, provided s/he makes it clear to the jury that all matters of fact are for their determination
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Judge’s Can Question Witnesses- FRE 614
Calling 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 parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party. (c) Objections. Objections to the calling of witnesses by the court or interrogation by it may be made at the time or at the next available opportunity when the jury is not present |
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what is 614 all about?
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i. FRE 614 expressly grants judges the right to call and question witnesses, even repeatedly and aggressively, to clear up confusion and manage trials where necessary. BUT there are limitations.
ii. Judges cannot ask questions that signal their belief or disbelief of witnesses b/c that determination is part of the jury’s role in the case. iii. Rarely, if ever, do judges actually call witnesses; however, many judges have reputations for questioning witnesses to gain info they feel was not properly or clearly brought out by trial counsel. |
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Preliminary Matters involving trial
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1. Pretrial conference – required by federal procedural rules to narrow the factual and legal issues & identify witnesses and documents that will be offered as evidence. Result is put in a pre-trial order that controls the presentation of each party’s case at trial.
2. Pretrial motions – may be made to attempt to control the admissibility of evidence at trial (called “Motions in Limine) |
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trial process
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1. Voir Dire (jury selection)
2. Opening Statements i. summary of theory of case and description of evidence that will be presented. ii. Plaintiff’s Opening iii. Defendant’s Opening (can be reserved until Defendant presents case-in-chief) 3. Plaintiff’s Case-in-Chief [direct/cross] i. (Defendant’s Motion for Judgment as a Matter of Law) (“Half-time”) ii. Request that judge concludes as a matter of law that no rational jury could find that the plaintiff/prosecution’s evidence satisfies the applicable standard of proof (i.e. beyond a reasonable doubt) 4. Defendant’s Case-in-Chief [direct/cross] 5. Plaintiff’s Rebuttal Witnesses 6. Defendant’s Rebuttal Witnesses i. (Plaintiff’s or Defendant’s D.V. Motion -- “Close of Evidence”) 7. Plaintiff’s Closing Argument (First) 8. Defendant’s Closing Argument 9. Plaintiff’s Closing Argument (Last) 10. Jury Instructions 11. Deliberations, Verdict, Judgment 12. Post-Trial, JNOV Motions, Appeal |
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what is relevance?
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1. Whether evidence is “relevant” is always the starting point and threshold question that always must first be asked before considering anything else.
2. how the FRE defines relevance is very different than laymen’s definition |
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There are 3 general rules of relevance under the FRE that determine whether evidence is “relevant.”
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1. FRE 401 – Contains the definition of Relevance
2. FRE 402 – Puts the definition to work, providing that all relevant evidence is presumptively admissible. 3. FRE 403 – Provides a discretionary balancing test (i.e., limitation) that allows a judge to exclude even relevant evidence under certain circumstances that weigh against admissibility. |
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FRE 401- definition of relevant evidence
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1. “Relevant evidence” aka LOGICAL RELEVANCE means evidence having any tendency to make any fact of consequence more or less probative (i.e., likely) than without the evidence. (Anything that helps prove or disprove something important to the case)
Ex: john accused shooting someone downtown lansing. Relevant john likes dogs? Maybe..we can show john likes dogs this guy abuses dogs and this was johns motive to shoot him. Evidence doesn’t have to be earth shattering- can be tiny that will lead to something |
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relevance embodies 2 concepts
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i. “Fact of Consequence to the determination of the action”
a. this turns on the requirements of the underlying substantive law (i.e., the elements of claims, defenses, and facts relating to the credibility of the testimony) b. Ex: Statutory Rape – whether victim “consented” is not legally relevant, but it would be in an adult rape. ii. “Any tendency” refers to “logical relevance” a. The evidence must be probative based on common experience and knowledge. b. This means more probable or less probable than without the evidence. c. Any increase or decrease in probability of a fact of consequence will suffice, no matter how small. |
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Shorthand basic question to always ask yourself when dealing with relevance:
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Does it seem like the jury ought to know about it for whatever it’s worth??
This will help you see how low the admissibility standard of relevancy under FRE 401 really is. |
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Probative value: Does the evidence itself have to prove the fact at issue?
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no.
i. It can be combined with other evidence to prove or disprove a fact. ii. It is probative if it results in any increase or decrease in the probability of a fact or consequence, no matter how small! iii. In fact, a particular piece of evidence may be relevant, while by itself, it proves nothing! iv. Puzzle pieces - a single puzzle piece or even several do not make a complete picture, but all of them are required. v. Moral of the story – FRE definition is VERY broad! |
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where dos 402 fit in?
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i. The operational rule!
ii. Once a trial judge determines the evidence is relevant under 401 (i.e., has probative value in proving or disproving a fact), FRE 402 deems the evidence presumptively admissible, except when other legal authority says otherwise (Constitution, Act of Congress, FRE, or other SC caselaw or statutes) Ex: Criminal drug case where drugs were obtained via illegal search and seizure in violation of 4th Am – while clearly “relevant”, it is inadmissible b/c it violates the Constitution so per FRE 402, it must be excluded. Ex: want to prove john shot clerk at restaurant. Someone testifies I think john shot him. My cousin told me john said… is what cousin said relevant? Yes. But will it come in? no. its hearsay |
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403 balancing test
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This is a discretionary rule that gives the judge the power to exclude even relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following 6 counterweights:
i. Unfair prejudice (most frequently argued) ii. Confusion of issues iii. Misleading the jury iv. Undue delay v. Waste of time vi. Cumulative evidence Balance probative value (how much will the evidence prove) against 6 counterweights Ex: Oj on trial for killing wife. How probative is video? On scale, it’s a 10. How prejudicial? 10. It will come in. if probative value substantially outweighed, it wont come in. * if theres a tie, its coming in! Ex: guy is poisoned. two experts take the stand with tests showing cause of death was poisoning. Third expert not allowed because of 403. Thirds expert saying the same thing is not very probative when you already have 2 experts who said it. How prejudicial is it? Waste of time. Low prob, high prejudice, not coming in. |
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counterweights: The 6 exclusions listed in FRE 403
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i. Range from those that might influence a decision on a non-logical (often emotional) basis to those that merely waste time at trial.
ii. Process of balancing the strength of the relevancy against the “counterweights” is called determining “legal relevancy” |
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unfair prejudice
1/6 403 exclusions |
The most frequently argued of all the Counterweights.
But what does it really mean? Isn’t most evidence offered by a party prejudicial in the sense that it is harmful to an opponent? Key – prejudice must be “UNFAIR!” “Unfair” means it must distort the fact finding function of the trial by allowing the jury to draw inferences that are improper. Ex: Prosecution wants to admit autopsy photos in homicide case. Relevant? Yes. Any other objection? 403! Judge can refuse to admit them b/c of the tendency to arouse the jury’s sense of outrage or horror which may encourage the jury to convict solely on their emotional reaction. Ex: prosecution of a murder. Use death certificate to show person died. Relevant to bring in body? Sure, but wont be allowed in under 403- very prejudicial. Would disgust jury and confuse them. |
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Confusion of Issues and Misleading the Jury
1/6 403 exclusions |
i. Refer to tendency of the evidence to distract the jury from deciding the case on a proper basis by placing too much emphasis on matters that are not essential to a proper determination.
ex: Showing how an allegedly defective product was later changed to remove defect may divert jury’s attention from whether it was defective at the relevant time. |
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Undue Delay, Waste of Time, Needless Presentation of Cumulative Ev:
1/6 403 exclusions |
i. Allow judge to keep trial streamlined and the fact-finder focused.
Ex: Only allowing testimony of 3 eyewitnesses vs. 10 eyewitnesses to the same exact bar fight |
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be careful with the balancing test
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witness sees accused chop victims head off. Witness is ready to testify to this in court. Accused makes a motion to keep the information out because the prejudicial value substantially outweighs probative value. Kept out?
No. Might be allowed in with limiting instruction |
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conducting the balancing test
3 steps judge must make |
FRE 401 – Determine whether evidence has probative value (i.e., logically relevant).
Is there any possibility of making a fact at issue more or less probable than without the evidence? a. If Yes = presumptively admissible under FRE 402 (go to #2) b. If No = Inadmissible & you’re done! ii. Judge estimates the strength of the probative value (extent to which the evidence will sway the jury) FRE 403 – Judge determines the strength of any of the 6 counterweights and decides whether they substantially outweigh the probative value. |
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substantially
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While in the definition, nowhere in the rule or the Advisory Committee Notes is this defined!
General Interpretation: In a case where the probative value and counterweighing factors are close, the judge should admit the evidence. => If the probative value is simply outweighed by the danger of unfair prejudice, then the evidence is still admissible! |
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stipulations v. limiting instructions
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Stipulations- Lawyers often use offers to stipulate strategically.
Limiting Instructions (FRE 105)- FRE 105 provides that evidence may be admissible for one purpose, but no another and requires the judge to direct the jury to only consider the specific evidence for a particular purpose and no other. (Judge tells jury that they can only use evidence heard for certain reasons) Limiting instruction ex: guy on trial for child molestation. Prosecution brings up he has molested before. But limits instructions to say cant use this to find him guilty. Not always very helpful |
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Gruesome photograph of the victim’s body in a murder case. Prosecution would like to use against the accused defendant. Defense would like to exclude the photograph because it would harm the defense case.
argue for defense/prosecution |
Defense would argue it Violates Rule 403 as serving mostly to enflaming the passions of the jury.
Also Violates Rule 403 b/c it is unfairly prejudicial (i.e., danger of unfair prejudice substantially outweighs the probative value) Prosecution will argue that it does not because it shows the violence of the murder and the location of the body. The danger of unfair prejudice may outweigh the probative value, but not substantially so. |
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Assume the judge acknowledges it is a very close call but decides to allow the photograph.
What could be the second level of the strategic fight the defendant could offer? |
Stipulation! Offer to stipulate that the victim was murdered violently and to stipulate to the location of the body.
In light of the stipulation, the photograph of the murdered victim now has very little probative value, but it still maintains all of its danger of unfair prejudice of enflaming the jury’s passions. The defense would calculate that the verbal stipulation is a lot better than having the jury see the gruesome photograph. The prosecution would argue the problem with the stipulation is it strips the prosecution of the graphic power of the reality of the photograph and softens the moral outrage of what was done to the victim. |
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What if the prosecution senses that the judge may be leaning toward exclusion in light of the offer to stipulate – (remember Old Chief said that the court should consider the offer to stipulate and then use its discretion, neither always accepting nor always denying the offer to stipulate).
What should the prosecution do? |
Request Limiting Instructions under FRE 105 -
The prosecution may suggest that the judge admit the photograph but also give the jury a limiting instruction This essentially tells the jury to ignore the danger of unfair prejudice associated with the photograph. In light of the instruction, the photograph loses some or all of its unfair prejudice. |
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Summary of a 403 strategical response and attack
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Defense would say: Exclude the photo under 403, but if not, then Exclude the photo, but offer to stipulate to whatever its probative value may be.
The prosecution, on the other hand, would say: Admit the photo and reject the 403 challenge, but if not, then Admit the photo, but suggest the judge give a limiting instruction telling the jury to ignore whatever the danger of unfair prejudice may be |
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review of 403 Determinations on Appeal
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i. It is very important to win the first round of the battle at the trial court level because a trial court will usually not be reversed on appeal for abusing discretion in making this discretionary balance, as long as there is at least something to balance (either probative value or danger of unfair prejudice).
ii. Also, in order to appeal a 403 decision, an objection must be made on the record as to the prejudicial effect to preserve the issue for appeal. |
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FRE 104 (a) Judicial Determination of Preliminary Questions
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Rule 104(a) generally provides that the judge, not the jury, makes preliminary legal decisions about the admissibility of proposed evidence, such as the qualifications of witnesses to testify or the existence of a privilege not to testify.
How is this done? Typically in a hearing outside the presence of the jury What is the Burden of Proof? Preponderance of the Evidence. Is the judge bound by the rules of evidence in making this decision? Nope, except for those dealing with privileges. Under FRE 104(a) a judge can consider inadmissible evidence in order to determine if other evidence is admissible (even hearsay!). this is because it’s assumed that the judge, unlike the jury, is legally trained to consider only reliable portions of evidence that is offered and is to disregard those that are unreliable. |
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rule 104 (b) Judicial Determination of Conditional Relevance
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i. Occasionally, relevancy of a piece of evidence is conditioned upon proof of other facts, making it “conditional.”
ii. Judge and jury share the responsibility in determining admissibility where admission is conditioned on another fact. iii. Judge’s Role: decide whether a reasonable jury could find the contested fact to be true. If so, judge admits it to jury iv. Jury’s Role: disregard the evidence if they find that the contested fact does not exist. |
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Character of Parties
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VERY HEAVILY TESTED.
***CHARACTER OF PARTIES AND IMPEACHMENT SECTION GO HAND IN HAND |
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character v. habit
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1. Character (404a) sometimes called disposition
i. general ii. tells about a persons traits (john is shy, nice mean, honest, violent, dishonest). iii. Cant prove character or persons trait in order to show conduct (cant prove you’re a drunk to prove you were drunk the night you were arrested) 2. Habit (406)- tells about specific things a person does (john always showers before work, signals before changing lanes, never curses). i. Almost always allowed. Specific reoccurring conduct. 3. Much more difficult to get character in than habit |
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example habit
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locking front door. Away for vacation and house is robbed. Issue is whether or not you locked door when you left. Use habit evidence to prove you locked it. Do you always lock your door? Yes, and I check every few hours.
If we can show somethings not really a habit, then we have to follow all the character rules |
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when to bring in habit
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1. To show person acted in a particular way (like stopping at a stop sign)
2. Standard of care 3. Terms of contract |
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character evidence
overview |
1. Character evidence: evidence that shows personality traits such as being honest/dishonest, violent/peaceful, careful/careless, etc.
2. Generally “character” refers to a person’s tendency to act consistently with certain mental and ethical traits (personality traits) i. Honesty vs. dishonesty ii. Peaceful vs. violent iii. Drunk vs. sober iv. Pessimist vs. optimist 3. FRE 404, 405, 608, 609 all deal with Character Evidence in some way shape or form, but FRE 608 and 609 address how it fits in with impeaching the credibility of a witness. |
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character attack
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1. What is the purpose for the use of character evidence (why do you want to bring it in)
i. Character is an issue in the case. This is allowed because its direct evidence and you can use any method to prove it. Ex: defamation ii. Circumstantial to infer conduct on occasion in question iii. To impeach credibility of witness (not really substantive) 2. What technique can you use to prove it? 405 i. Specific acts as conduct ii. Opinion iii. Reputation 3. What kind of case? CIVIL OR CRIMINAL 4. Character for what trait? Must be a trait that is relevant to the case |
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character to prove conduct in conformity
404a |
generally Character Evidence is NOT admissible to prove conduct in conformity (FRE 404(a)).
This means that generally speaking, you can’t use someone’s character (personality traits) to prove they acted that way in the present case. Character can often be a weak predictor of how a person will act in the future. It only offers a “tendency” towards acting a certain way.People should be tried on what they have actually done, NOT based on a particular character trait indicates they would do. |
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404a exception
when you can use character |
Character is directly at issue (element of crime, defense, etc.)
IMPEACHMENT – character for truth may be admissible to impeach. Remember…must look at the PURPOSE for which you want to bring the character evidence in. |
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civil cases
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No character is allowed as circumstantial evidence. Only allowed if it’s a substantive issue (can be proven anyway) usually in something like defamation. Truth is a defense to defamation, or for negligent entrustment character would be important
If character is a substantive issue, you can use any method of proving it (opinion, reputation, or specific instances) |
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examples when character is allowed
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1. Negligent entrustment or hiring,
2. defamation 3. entrapment 4. mental condition or competency 5. child custody case to see who is best for the child 6. wrongful death for consortium damages If its direct evidence, any party can bring it in at any time and can come in any way |
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criminal cases
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1. If d is charged with assault of an old lady, want priest to testify hes a nonviolent person (circumstantial). Why would you say this? Ive known john forever, once when he was a little boy and helped… . prosecution objects to the testimony. When priest took stand, opinion was fine. however, the specific instance was not allowed. Objection will be sustained. Improper character use.
2. Prosecution cant introduce any bad character evidence if the sole purpose is to establish propensity for crime, unless d either opens the door (brings it up on their own) or character is an essential element. So if they want to bring someone up to show john beat up neighbor, student, etc, that door is now open. Might be a good idea to not bring in that witness 3. If it is an essential element, any method can be used to prove it 4. If character is not an essential element- there are no crimes when character will be an essential element, but may be important to some defenses, like insanity or entrapment 5. No such thing |
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opening the door...
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prosecution cannot open door. Defense must.
How does d open door? *d must first put character in issue through 404a: i. Opinion ii. Reputation but not specific instances *P can then rebut 1 of 2 ways i. Cross exam of ds witness by inquiring about specific instances (by priest giving his opinion, priest can be cross examined and ask: did you know john was suspended for kicking his gym teacher and nearly killing his teammate) ii. P can call his own w who says ds reputation is bad D can also open the door if he talks about the victims character. If he does this, the door is open for the same character trait of the d Ex: d claims self defense and brings up what a violent person v is. now the prosecution can bring up how violent d is Generally we don’t allow both because it wouldn’t be very probative and would be prejudicial (would waste our time) 403 balancing test! |
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GLAZIER: 2 Parts to Mercy Rule Exception
(same as above?) |
The accused (defendant) CAN offer evidence (via witness testimony) of his pertinent good character to prove conduct in conformity [purpose #1] but ONLY by the following methods:
Enter FRE 405(a)): 1. Reputation and/or 2. Opinion The witness can NOT testify to specific “good” acts BUT: if defendant does open the door by offering evidence of his good character, the prosecution can THEN respond (to impeach the witness) by: a) Showing evidence of bad character evidence of the defendant with reputation or opinion evidence (through prosecutor’s own witness) AND/OR b) The prosecution, on cross examination of defendant’s witness, can also point to specific acts or misconduct (prior bad acts) to impeach that tarnish that defendant’s reputation or would affect the witness’s opinion of the defendant if that witness knew of them, BUT it is limited to: “Have you heard?” or “Did you know?” AND the prosecutor is stuck with the answer given. NOTE: This ONLY applies to criminal cases, and is NOT |
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more about the mercy rule
good faith |
1. The Mercy Rule, has a “good faith” requirement in that the prosecution can only ask questions s/he in “good faith” believes the defendant committed.
2. If good faith is challenged, the cross examiner must convince the judge why he believes the specific act occurred 3. May require production of an arrest or conviction record, or at least inform the judge about the source and credibility of the specific act info |
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risks of mercy rule
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Under this rule, a defendant chooses whether or not to offer “Mercy Rule” witnesses to testify to his good character, but if he does, it’s at the risk of opening the door to his bad character that otherwise wouldn’t come in, and even includes asking about specific prior bad acts, on top of reputation and opinion.
So…a good defense attorney should NEVER call “Mercy Rule” witnesses unless s/he has checked the defendant’s background They don’t always tell the truth. Run a background check for prior arrests and convictions on top of asking the defendant |
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Tony Soprano is on trial for assault of an elderly woman. In court, he looks like a clean, upstanding, professional man. The prosecutor, however, has his “rap sheet” which shows: 6 prior arrests for robbery 3 prior convictions for assault 2 prior convictions for perjury.
May the prosecution, as part of his case-in-chief show Tony’s criminal background? |
What purpose it is being offered for? To prove character in conformity (purpose #1)?No! Excluded under general rule of FRE 404(a)
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May the prosecution show Tony’s criminal background or any part of it if he takes the stand and denies involvement in the crime?
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No! He hasn’t opened the door! He didn’t offer any good character evidence. He only took the stand denying involvement.
What about to show Tony’s disposition to be violent? NO! Same thing! To impeach his credibility [purpose #3]?Yes, but only the conviction that shows lack of truthfulness (perjury convictions) |
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Same facts, but instead of taking the stand denying responsibility, Tony stays put. Instead, his attorney calls his neighbor, Niki, to testify that he has a good reputation in the community.
Admissible? |
No, b/c it’s not a specific “pertinent” character trait to the crime charged.
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Ok…instead, his neighbor testifies to his reputation as a peaceful person in the community.
admissible? |
Purpose? Character in conformity which is generally inadmissible.
Any exceptions apply? Yes! The “Mercy Exception”, but he now opened the door! What method can he use to bring it in?Opinion and Reputation only! |
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Now what can the prosecutor do?
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he can cross examine Tony’s neighbor by pointing to specific acts of misconduct by phrasing them as:“Did you know Mr. Soprano had 3 prior convictions for assault?”BUT, stuck with answer (no extrinsic evidence is allowed to prove it up)
He can call his own witness to testify that Tony has a bad reputation and/or opinion for violence, but he can’t ask about specific acts. |
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other use of character
from the rule book, in english |
1. Character of the accused-defendant can bring up his character and prosecution can only rebut if d opens the door, or if d brings in character of the victim and its allowed in then prosecution can use that same character trait o the accused
2. Character of alleged victim- defendant can bring up victim was violent person if hes claiming self defense. If that’s allowed in prosecution can show victim was a peaceful person, or show the defendants a violent person. Opens the door to violence of the defendant. |
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character and self defense
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general rule: In a criminal case, where a defendant claims self defense, evidence of a “pertinent” character trait of the victim is admissible, but only after the defendant “opens the door” by taking the initiative to show the character of the victim “violent” as circumstantial evidence to infer that the alleged victim was actually the first aggressor in the situation.
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method of proof for character and self defense
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(the same method for presenting opinion and reputation evindence as under the “Mercy Rule” ).
Defendant can ONLY show the victim’s “violent” character by Reputation and Opinion NO specific acts of misconduct is allowed |
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how would prosecution respond?
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Prosecution can then respond in rebuttal with: Prosecutor can present his own witnesses to show the victim’s “good” character for peacefulness, but it is also limited to only: Reputation and Opinion.
Prosecution can also now call his/her own witness to present “bad” character of the defendant’s for being violent, even though the defendant didn’t put his character at issue! BUT is limited to only: Reputation and Opinion. |
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404(a)(2) Special Rule that ONLY applies to homicide cases:
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If defendant introduces any kind of evidence showing the victim was the first aggressor (not limited to character evidence), the prosecutor can rebut on cross examination with specific acts showing victim’s “peaceful” character, BUT it is limited to:“Have you heard?” or “Did you know?”AND Prosecution can then rehabilitate the character of the victim when it’s been attached but only with:Reputation Opinion.
This only applies to homicide cases because the victim is dead and can’t contradict what the defendant said |
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FRE 412 rape shield- for assault cases ONLY. If trying to get in civil case, must use balancing test
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General rule-Evidence of past sexual behavior and predisposition of a victim is NOT admissible in a criminal or civil proceeding involving sexual misconduct (an alleged sexual assault or child molestation)
For public policy reasons we don’t allow the d to say bad things about the victim to make her look like a slut, otherwise victim would never press charges. However, d must have a chance to defend himself since he also has a lot on the line As a compromise, there are exceptions to the rape shield |
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rape shield and criminal cases
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In a criminal case, you can show:
i. The victim has slept with other people if your trying to show d is not source of semen, injury, or physical evidence OR ii. Prior dealings between the two that put consent into issue iii. Evidence which if excluded would violate the constitutional rights of the d (due process) |
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rape shield and civil cases
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In a civil case, evidence offered to prove sexual behavior of the victim is admissible if it is otherwise admissible under these rules and the probative value substantially outweighs the danger of harm to any victim and unfair prejudice to any party.
i. evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim |
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to use these exceptions,
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i. file a written notice at least 14 days before trial specifically describing the evidence stating the purpose for which it is offered unless the court requires a different time for the filing or permits it during trial AND
ii. serve the motion on all parties and notify the alleged victim, or when appropriate, the victims guardian or representative |
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FRE 413 evidence of similar crimes in sexual assault cases
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These are special rules enacted by Congress in 1994 and adopted in 1995, that are exceptions to the general rules set forth in FRE 404 and (405) and lift the ban against using character evidence to show propensity
These rules allow admission of defendant’s prior sexual acts to prove character in conformity (that he is the sort of person that due to his past, would engage in future sexual misconduct) Basic Rule: In civil or criminal cases, prior similar acts of misconduct are admissible to show propensity [purpose #1- character in conformity] in: Sexual Assault Cases -FRE 413 addresses use in criminal cases, FRE 415 addresses use in civil cases |
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Child Molestation Cases (FRE 414)-
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FRE 414 addresses use criminal cases, FRE 415 addresses use in civil cases
Most circuits require a 403 balancing test before sexual misconduct is admitted based on the notion that admitting any character evidence to show propensity is generally frowned upon b/c it almost certainly guarantees a conviction, which is unfairly prejudicial. Difficulty in prosecuting and convicting defendants of sexual assault and child molestation, especially when the only witnesses were the defendant and victim Victims of such charges are often reluctant to file charges and testify in these cases, especially children. Justified by the notion of history of repeat offenders for these types of charges and the notion that such defendants who commit these types of crimes are much more likely than the average criminal to repeat their crimes |
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sexual misconduct
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These rules do NOT require that sexual misconduct results in a conviction AND witnesses who testify are allowed to testify about the details of the offenses so the court and jury can decide how relevant they are to the sexual misconduct at issue in the case.
These rules were not intended to limit the admissibility of sexual misconduct evidence under other rules either, which is noted in subsection (c) of each rule. This means that evidence of a defendant’s prior sexual misconduct also might be admissible under other rules, such as 404(b) to show defendant’s criminal intent in a case (more later) |
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more info on sexual misconduct
what can be brought up |
basically- cant show propensity for being bad. If sexual assault or child molestation case, you can
One of the very few times can bring in things done in the past to show that they committed this particular crime In criminal case where d is accused of sexual assault, evidence that d committed another sexual offense is admissible and may be considered for its bearing on any matter to which it is relevant Government shall disclose the evidence to the d, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered at least 15 days before the scheduled date of trial |
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FRE 414 evidence of similar crimes in child molestation cases.
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SAME AS ABOVE, BUT DEALS WITH CHILD MOLESTATION
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FRE 414 similar acts in CIVIL cases concerning sexual assault or child molestation
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Same as above, except instead of government having to offer evidence that is going to be used, the party who intends to use it must disclose to the other side
General rule, character cannot be used to show conduct for a time in question or conformity |
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MIAMICOP
404b |
Says that evidence of other crimes, wrongs, or specific acts is not admissible to prove the character of a person in order to show action in conformity therwith.
other acts can be used to show miamicop |
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miami cop
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motive
identity absense of mistake intent common place or scheme opportunity preparation |
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motive
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John on trial for killing d. can we bring up hes killed in the past? No this would show he has a propensity for murdering people. This is not ok.
But if john was on trial 3 yrs ago for murder, and prosecution wants to bring up john was on trial for murder and this person is star witness. He would have had a motive to kill this person. Ex: Defendant was charged with stealing drugs (Demerol) from the hospital where she worked as a nurse. Evidence that she was addicted to Demerol to show her motive to steal the Demerol to feed her addiction was admitted. The motive was relevant (“at issue”) because only 5 nurses had access to the cabinet where the drug was located, and there was no evidence that the other 4 had a motive to steal the drug. |
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identity
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The fact that someone was accused in the past if your trying today to prove someones identity.
Running water killer- john accused of being this person. Today, someone is dead and water was running. Can we bring in the accusation? Can bring it in, but not to show he killed. Ex: A victim was found murdered with the murder weapon, which was a .45 caliber pistol, next to the body. The pistol was registered to the mayor of Lansing, but had been stolen in a burglary 3 years ago. Tony Soprano is charged with the murder but claims he didn’t do it.The prosecution wants to offer evidence that Tony had been charged in the burglary of the mayor’s house 3 years ago where the gun was stolen. Admissible?Depends on the purpose!To show character in conformity [purpose #1]?NO! Violates FRE 404(a). To identify the Tony?Yes! Under 404(b) b/c we’re NOT offering his prior bad act to show criminal propensity. Instead, we are offering it for a non-character purpose to identify him as the murderer, which is allowed |
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absense of mistake
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John caught with weed, john says it’s a joke and its oregano. Its weed. John on trial. John argues mistake- oregano.
Can it be brought up 2 years ago he was charged with possession of pot? Yes- bringing it in to show absence of mistake. You’ve had weed before! This negates your mistake defense. If mistakes not an issue, cant bring it in. |
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intent
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John has stolen bikes before, and you want to show he stole before. you can show that he stole bikes before if you are trying to show intent (he says he took it thinking it was his).
typically certain repeated occurrences of specific unusual events make it unlikely that any of those prior acts happened by mistake or accident. Sometimes intent is referred to the person’s “state of mind” which proves up the intent element. |
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common plan or scheme
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John on trial for shooting today. Was accused for shoplifting a gun. Can only bring it in to show he stole it to prove he murdered someone with it.
Can only show the evidence relates to what hes on trial for today (he stole the gun, and this is the gun he used). Ex: Defendant is charged with bank robbery. May the prosecutor show that the defendant stole a truck the day before the bank robbery? By itself, NO b/c it’s being offered to show as circumstantial evidence of criminal disposition to prove character in conformity which is prohibited under FRE 404(a). What if the truck was used in the bank robbery?Yes! Now it could be offered for a non-character purpose to show common plan or scheme. |
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combination of identity and plan?
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Other act evidence that is relevant to show a same or similar common scheme as the crime charged
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3 typical situations
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1. *Prior acts shows there’s a broader plan or scheme to the charged offense, which are admissible under 404(b) if they survive the 403 balancing test. Criminal steals a car to use in a robbery
2. *Prior acts are proof of the charged crime that includes a plan or scheme element .If the prior act evidence is merely shows the full context of the crime, it’s called “intrinsic evidence” and not governed by 404(b). If it’s offered as “direct proof” of a charged crime (i.e., conspiracy), 404(b) allows its admissibility to prove the plan or scheme element 3. *Sometimes this plan evidence can be used to also establish the identity of the defendant b/c the prior acts and the crime in question were committed by such unique and similar methods. Identity typically becomes at issue when the defendant claims, “It wasn’t me”If so, then anything connecting him to the crime that shows he did do it is admissible (subject to 403) |
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modus opernadi
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this is the name sometimes used to prove identity when the prior acts and the current charge crime were so unique (i.e., “signature”) it identifies the defendant.
Ex: prior 2 murders were committed by stabbing with a pitch fork through the stomach and the victim’s were laid out with their hands crossed over them. Same as current charge |
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Defense schemes to remove the sting of 404b
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No doubt, if other crimes, wrongs or acts are admitted under 404(b), it is devastating to the defense. Despite the limiting instruction, it’s difficult for juries to put the prior bad acts out of their minds
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defense Strategies: Offer to Stipulate
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defense attorneys may try to take intent out of the issue by stipulating to their client’s intent, but most cts reject these arguments on the basis that the prosecution have a right to prove its entire case.
Ex: Defendant was charged with receiving stolen goods and claims he was unaware the goods were stolen. Prosecutor offers evidence that the D had received stolen goods on 5 prior occasions from the same thief involved in this case? Admissible to show he stole the goods in this case? NO! B/c it’s being offered to show propensity (character in conformity – purpose #1), which is inadmissible under FRE 404(a) Admissible for any other purpose?Yes! To show intent or absence of mistake |
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dont forget 403!
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Remember to use the 403 balancing test first! They may be admissible even though other acts usually are not admissible, but remember they MAY be overly prejudicial. Balance prejudice v. probative value
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huddleston
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evidence can be brought up even if the person was acquitted of the crime, is a reasonable juror could believe that it happened.
VERY LOW STANDARD |
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If you use 404b,
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d can make a request, and you have to tell them what your goig to bring up
Ex: d is on trial, he can bring up fact his brother has been accused fo smoking weed if hes trying to show his brother smokes weed. Used as a defense by d, but used by prosecution to show that d did it. |
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REMEMBER
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In a criminal case, the prosecution can NOT offer prior misconduct of the accused (defendant) to show criminal disposition (under FRE 404(a)) UNLESS the defendant opens the door to the Mercy Exception by offering evidence of his “good” character.
BUT, the prosecutor CAN offer such prior misconduct IF s/he can show it’s relevant for another NON-character purpose to show MIAMI KOPP (sometimes referred to as “Mimic”) under FRE 404(b)! motive, intent, absence of mistake, identity, knowledge, opportunity, preparation, or plan |
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In order for the evidence to be admissible under FRE 404(b)
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the party offering character evidence for a “non-character” purpose must satisfy 3 Requirements:
1. Identify a fact at issue to which the specific act is relevant. 2. If the opponent objects under FRE 403, s/he must convince the court that the counterweights listed do not substantially outweigh the probative value of the evidence. 3. Prove (by evidence) that the person whose specific act is in question did actually commit the act. |
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WITNESS QUALIFICATIONS
Qualification of a Fact (Lay) Witness |
1. NOT a weight/credibility issue
2. NOT an admissibility issue 3. Qualification means “competency” 4. Competency refers to the qualification of a person to be a witness at all. 5. Who determines this? - the judge decides whether the witness will be permitted to take the stand Most of the time -- the answer is YES b/c it’s very low threshold |
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FRE 601 General Rule of Competency
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Under FRE, the presumption is that EVERYONE is competent
1. Historically, at common law, witnesses were automatically disqualified for: i. Lack of Religious Beliefs ii. Infancy (Minors) iii. Prior Convictions iv. Mental Incompetency Not anymore! These can now only be used to attack a witnesses credibility, but they are no long automatic disqualifications! Anyone can be a witness, and even fi we don’t believe them, we will impeach him |
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Current Requirements under FRE to Permit a Witness to Testify
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Presumption of Competency (FRE 601) when a witness is:
i. Oath (FRE 603 – Requires all witnesses to be under oath) ii. Perception (FRE 602 requires that the witness has personal knowledge and PERCEIVED something relevant) iii. Memory – witness can recollect/remember what was perceived iv. Communication – witness is able to communicate what was perceived v. Veracity – witness can demonstrate his/her appreciation to understand the duty to tell the truth |
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EXCEPTION to witness testify
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i. For diversity-based claims (Erie), state law controls -- it’s “substantive” law)
ii. Ex: State Dead Man’s Act. Excludes the testimony of a dead guy under certain conditions |
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In testimony area, there are 2 types of objections a party can make:
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form of question (leading, argumentative)
and the response requested (hearsay, privilege) |
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Before evidence is allowed, party seeking to introduce it must
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lay the foundation (set the mood o the evidence) by showing its relevant, evidence is authenticated, confirm witness recognizes it, confirm iwitness observed it at the relevant time, and confirm that the evidence is now in substantially the same condition was when the witness first saw it
Even after this si done, they must prove that the evidence is the real thing (authenticating evidence). Proponent must confirm that the exhibit is what it purports to be, show its in the same condition it was in earlier (not tampered with), and show chain of custody which traces the evidence though the ipossession of everyone who had access to it |
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mentally incapacitated witnesses
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Witnesses are not “disqualified” from testifying for their past psychological condition. So she is “qualified” to take the stand, BUT -- she is then subject to cross-X
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intoxicated informer
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Is a former LSD drug addict, incarcerated felon who occasionally hallucinates competent to testify? Keep in mind, LSD confuses perception, and the witness admits drug use. Witness will be permitted to testify!
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Competency is within Trial Court’s Discretion and standard is very low
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United States v. Lightly - Reversed trial court who ruled witness incompetent b/c she was adjudicated insane. Appellate court held that there was evidence that she could remember events, understand the oath, and communicate what she saw.
Point: we give everyone a chance! Even if your are legally insane -- you are still competent to testify |
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child witnesses- how to determine competency
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1. No set age.
2. Generally, a child witness must be able to: tell the difference b/n truth and a lie (can appreciate the difference) and remember and coherently tell the story. 3. Wheeler v. United States- 5 yr. old shown he had the “capacity and intelligence” to know the difference between fact and fiction & could appreciate the duty to tell the truth |
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18 USCA §3509 – Regulates Child Testimony in Federal Court
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i. creates a presumption that children are competent witnesses and permits excluding their testimony only for “compelling reasons” other than age of child.
ii. also allows a child to give live testimony in court via closed circuit TV if the judge finds it necessary. |
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Previously Hypnotized Witnesses
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1. Sometimes witnesses may have been hypnotized to help refresh their memories.
2. Inherent problems with hypnosis i. Hyper-suggestibility ii. Often highly motivated to please iii. May have pseudo-memories of facts not experienced but suggested by hypnotist. |
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Hypnotically Refreshed Memory - Should they be allowed to testify?
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1. No per se rule excluding this type of evidence.
2. Jurisdictions take different approaches. Some states don’t allow it other than testimony given by a criminal defendant b/c it’s not scientifically reliable enough. Others allow it if procedural safeguards for reliability are in place. |
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arguments for/against hyponosis
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i. Hypnosis is subject to failure, not really understood, and open to “suggestion” of hypnotist.
ii. Why not let opponent cross-x and let jury decide? cross-x has to be “meaningful,” very hard to shake “restored” memory. iii. But again, why not let jury decide? But would jury be “deciding,” Or just be “guessing”/speculating? |
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rock v. arkansas
hyponosis case |
- Criminal defendant not allowed to testify in lower ct b/c her memory had been refreshed by hypnosis (she remembered her finger was not on the trigger when it discharged, killing her husband). Lower Court held that under Arkansas law, per se rule that hypnotically refreshed testimony is inadmissible. Petitioner/Defendant appealed that pronouncement claiming it violated her constitutional right to testify in her own defense.
Holding: A defendant gets her day in court to tell her story (even if hypnotically refreshed). It would be a denial of her constitutional rights not to allow it. |
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fRE 610 A Witness’s Religious Beliefs
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1. At common law, atheists and agnostics were incompetent to testify
i. Rationale: Only those who believed in a deity who punishes false testimony would testify truthfully. 2. FRE 610 - Evidence of religious beliefs or opinions are not admissible to show that for that reason, the witness’ credibility is impaired or enhanced. 3. In other words, evidence of religious beliefs, or lack thereof, is admissible but not to bolster or attack a witness’s credibility. 4. Rule: FRE 610 precludes inquiry into religious beliefs or opinions for the purpose of showing character for truthfulness, but not for other reasons, such as bias. |
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exceptions to 610
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i. Presiding Judges cannot testify in that trial (FRE 605)
ii. Jurors cannot testify as a witness in a trial in which they are sitting on (FRE 606(a)) iii. Jury Misconduct Exception (FRE 606(b)) if: a. Extraneous prejudicial info was improperly brought to the jury’s attention b. Whether any outside influence was improperly brought to jury’s attention c. Whether there was a mistake in entering the verdict onto the verdict form. Note: These three exclusions to the exceptions can be broken down into 2: i. Extraneous prejudicial info (incorporates the first 2) ii. Clerical or other mistake in the verdict itself |
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rule 605
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1. Although juries can see a “view,” a judge should not conduct her own view without the parties
2. Remember that a a judge can “comment” on the evidence in the case to the jury 3. Usually a judge should not do this, but they have the power to do so |
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rule 606a
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i. Sitting juror may not testify
ii. Objection outside the jury presence iii. To later impeach Verd. or Indict. |
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rule 606b
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i. Juror may not testify (live or affidavit)
a. matters/statements in deliberations b. mental processes in deliberations ii. But can testify about “extraneous prejudicial/outside influences (2 exclusions to the exception that allow jurors to testify if met) |
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Tanner v. U.S. -Juror reports jury misconduct. Tells Tanner about partying jury (beer, sleeping and Juror Hardy -- mixed drinks, marijuana, cocaine, etc.)
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a. 606(b):juror cannot testify re verdict. Drugs, alcohol, etc., are merely “INTERNAL INFLUENCES” (e.g., a bad pizza, boredom, headache, etc.)NOT “EXTERNAL” (e.g., bribe, threats, personal viewing of non-admitted evidence, etc.)
b. Just because they drank/smoked/ slept, is that necessarily bad for defendants? Maybe they missed the “worst” evidence against the defendants c. POLICY justification for 606(b)? Don’t want jurors to be harassed, and Finality, “respect” for verdicts |
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Only other exception, besides external influence?
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To correct a clerical error
Not all errors are merely “clerical” typo as opposed to discounted (wrong) math |
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attorney witnesses
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1. Attorneys cannot also be witnesses in the case!
2. What do you do if you are the attorney of record and you now have come into information as a fact witness? Must withdraw and be a witness only OR, in the judge’s discretion, if it is really a compelling case, the attorney might serve in both capacities, but better to avoid it |
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dead man statutes
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If one of the two litigants dies (and therefore cannot testify at trial), the remaining litigant cannot testify
He cant testify to issues dead party could have contradicted POLICY GOAL: EQUALITY (advantage of being alive is that you can testify, dead person can’t) , Don’t “speak ill of the dead,” for your own gain , A way to avoid FRAUDULENT claims, and Other Prerequisites to Testifying |
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oath
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There is no “standard oath” – instead, the court merely has to be persuaded that the witness appreciates the duty to be truthful/not lie/penalty of perjury
If the witness does not want to say “truth,” but will substitute “fully integrated honesty” – as long as the judge is satisfied the witness appreciates the duty to tell the truth – then the judge ought to allow. |
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"Xos” believes he is from Planet X, he will not say: “I swear to tell the truth, the whole truth, and nothing but the truth, so help me God”. He doesn’t believe in “the God of your world,”
can he testify or incompetent because of the oath? |
YES -- if he understands the duty to tell the truth (atheists can testify) up to judge to revise oath
As long as witness understands the duty to tell the truth, that is all that is needed, no need to “swear to God” (cross my heart, hope to die) |
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603 Oath v. 610 Religious Beliefs
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Bailiff administers oath but witness says “It doesn’t matter because I am an atheist and will not be punished if I lie anyway”
610 competent, but 603 “appreciates importance of telling the truth”?. If he is allowed to testify, can he be cross-x’d about atheism? NO-610-unless another purpose (prove he would not have been in church if his alibi). 610/603 are not the same |
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rule 602 competency/perception
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Rule 602
Witness may not testify, unless evidence introduced that shows: sufficient to support a finding, witness has personal knowledge (witness’ own testimony can establish personal knowledge) |
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- Murder case. W: “I saw D shoot V”--but W was not wearing his glasses (20/500), vision blocked by a large tree, and sun was in his eyes”
Incompetent to testify (Lack of personal knowledge)? |
NO-perception need not be “perfect” credibility issue for jury to decide--problems go to weight not to competency
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Auto Collision Case- P calls W: “D was speeding and D appeared to be drunk when he got out of his wrecked car”. D objects--Incompetent to testify because Lack of personal knowledge--witness did not actually see the speedometer, not a doctor who gave an intoxication test--good objections?
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NO-still within witnesses perception
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trial: who starts?
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1. Follows opening statements.
2. Party with the burden of proof (BOP) 3. Criminal Case = Prosecution Civil Case = Almost always the Plaintiff 4. Protocol: Party calling witness does direct. Opposing party cross exams the witness. Original party may thereafter conduct a redirect examination. Opposing party may re-cross |
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direct exam
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Purpose? The function of direct is to present a mosaic of the facts which tell a coherent story through the witness’s testimony (not the attorney’s).
Governed by FRE 611 Techniques: Clever attorneys set up and direct a witness to slowly draw out a story piece by piece, not all at once. They present testimony in a logical, understandable, and organized manner, and may occasionally summarize important testimony for emphasis. They use short, open-ended questions that ask for short, factual answers. Typically, non-leading questions begin with “who,” “what,” “where,” “when,” and “how.” |
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with witnesses on stand for direct examination
F.O.R. |
first time on the stand
witness can only give opinion or reputation |
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with witnesses on stand for x exam
S.S. |
2nd time on the stand
witness specific instance only |
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how to open door
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bring witness to testify about your character
talk about victims character (talk about your traits) |
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OPENING STATEMENTS DO NOT OPEN DOORS
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!!
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CIVIL CASES
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no character can come in for circumstantial evidence in a civil case
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leading questions
when can/cannot be used |
1. A leading question SUGGESTS THE ANSWER in it, while an open-ended question does not.
2. Generally not allowed on direct. Typically only ask direct, non-leading open-ended questions on direct examination. 3. Can you ever ask a leading question on direct? Yes. (FRE 611(c)) Hostile Witness or Adverse Party, Direct as to Preliminary Matters (i.e., address, job, etc.)Difficulty in getting testimony b/c the witness is old, immature, dumb, forgetful, etc. 4. Leading questions (you beat your wife, don’t you?)- should NOT be used on direct exam unless necessary to develop testimony or for undisputed background matters. May be necessary with adverse parties, hostile witnesses. Ordinarily ok on cross exam 5. Narratives are NOT allowed |
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scope of cross exam
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should be limited to subject matter of the direct exam or matters affecting the credibility of the witness.
Court can allow in its discretion inquiry into additional matters under rules similar to those for direct exam |
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scope of cross exam continued
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Under 611(b), you can’t ask questions on cross-x that go beyond the scope of the direct (unless the judge says it’s o.k. in her/his discretion)
Witness Credibility is ALWAYS within the scope of direct examination Under FRE 611(b,c)– can always attack the witnesses credibility on cross-x, and you do so by “impeaching” the witness’s credibility. What can the opposing party then do? Rehabilitate the witness on re-direct to explain answers (attempt to support the character of the witness after impeachment ) But what about the other side? They may re-cross- but it’s limited to scope of re-direct (611(c)) and up to the judge’s discretion. |
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P on direct of witness: “Who ran the red light?” Witness: “The Defendant did.” D on cross-x of W: “You and defendant had a business that went bankrupt didn’t you?”P: “Objection! This is beyond the scope.”
Is it beyond the scope? |
NO, b/c it goes to credibility (bias against D)
But, assume the judge disagrees and says it is beyond the scope – What should D now argue to allow the question? Judge, the witness will not be here next week during D’s case-in-chief, can we take testimony now? Judge has discretion to say yes |
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FRE 612- refreshing a witnesses memory
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1. When a witness’s memory fails (either prior to testifying at trial or at trial), any writing can be used to jog the memory, BUT it is only shown to the witness; it is NOT submitted as substantive evidence.
2. Does it have to be reliable? NOPE! Not shown to the jury. Only purpose is to refresh the memory. 3. Can use leading questions or something which lists items 4. DO NOT LET WITNESS READ THE WRITING TO THE JURY! 5. What if it’s hearsay (i.e., a writing)? It doesn’t matter b/c the only purpose is to refresh the memory (it’s not being offered for its truth). |
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Witness says, “I can’t remember!” (only foundation required). Proponent of the evidence shows the writing to opposing counsel and waits for an objection. If no objection, or all objections are overruled, the item is shown to the witness to read silently.After reading, proponent instructs the witness to put the item face down or return it.
Is the writing be admissible as substantive evidence? |
No
Can opposing counsel use it as substantive evidence?Yes (assuming it survives other objections), if it’s used to refresh prior to trial, opposing counsel has the absolute right to have a copy of it, can use it on cross examination and even admit those portions related to the witness’s testimony for impeachment purposes, even though the proponent can’t under FRE 612(2). Why? Prevents counsel from sneaking a note to the witness telling him/her what to say/do! |
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What if opposing counsel objects, claiming that the writing is not at all related to the subject matter of the testimony?
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Court examines the writing in camera and may excise any unrelated portions, but may within its discretion allow other parts.Any portions withheld over objection are preserved for appeal.
Judge has broad discretion in determining whether a witness is using a writing to refresh memory or offering a writing for the truth of something the witness no longer can remember at all. |
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FRE 803-past recollection recorded
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1. Where w cant remember
2. This is Hearsay (out-of-court statement being offered for the truth of the matter asserted) BUT, it falls under one of the exceptions listed under FRE 803 3. Rule: If a witness is unable to remember all or part of the details of a transaction about which s/he once had personal knowledge of, his/her own writing that is shown to be reliable may be admitted in place of her testimony. 4. Fundamental difference is that here, the writing substitutes for the witness testimony, while with refreshing recollection, it simply jogs the witness’s memory who then testifies to what he remembered. |
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recorded recollection requirements
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A record regarding:
i. A matter about which a witness once had knowledge ii. But now can’t remember (612 no help) iii. Made or adopted by witness (“declarant”) iv. When matter was fresh in mind as made v. That accurately reflects knowledge vi. Admissible, but can ONLY READ vii. Unless adverse party offers it viii. SHOW W HAD PERSONAL KNOWLEDGE AT ONE TIME, WIRITNG WAS MADE SUPERVISED OR ADOPETED BY W, WRITING WAS TIMELY MADE, W MUST VOUCH FOR RELIABILITIY OF THE WRITING, AND W MUST BEUNABLE TO REMMEBER ALL OR PART OF THE DETAILS How does it come in? read to jury. Ex: attorney interviews w and takes notes. Can be used to refresh ws memory |
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FRE 602 lack of personal knowledge
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1. Witness can testify only to his personal knowledge
2. Evidence that testimony consists only of personal knowledge is required 3. Witness had opportunity to observe, and actually did observe |
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FRE 701- Opinion testimony by lay witnesses
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If witness isn’t a testifying as expert, testimony as to opinions or inferences is limited to those that are rationally based on the perception of the witness, and helpful to a clear understanding of the witness testimony or the determination of a fact or issue
Opinion must be a rational inference from personal knowledge AND the kind of inference a layperson is considered qualified to make Ex: I saw d driving, in my opinion, he was going 25 mph. opinion which doesn’t help the jury: in my opinion, f was grossly negligent. Too conclusive |
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expert testimony
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Subject matter must be appropriate for expert testimony and the opinion must be reliable enough to help the trier o fact
W must be qualified as an expert Expert must poses reasonable certainty regarding his opinion (must be more than a mere guess) Opinion must be supported by proper factual basis (personal knowledge of expert, hypothetical given to expert, opinion based on facts which arent in evidence as long as facts on which opinion is based are on the type which the expert would regularly make of these facts if they went in court Modern rules- to get a text or treatise in, you dont have to wait for opponent expert to go to the stand. Your own expert can do it Once text is found reliable, its allowed into evidence. Now it will come in for its truth and to support your expert, but there must be an expert on the stand, and be read to the jury |
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fre 615 exclusion of witnesses
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A party may demand that witnesses be excluded from the court while not testifying so as to prevent them from hearing other testimony
Doesn’t apply to the parties themselves, representative of a non person party, persons whose presence is shown by a party to be essential to his presentation of his case Cops in charge of an investigation or an expert are often allowed under this :essential” category |
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General Guidelines on Impeachment
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1. Impeachment typically occurs when an attorney is going after the adversary’s witness. It can be done either on Cross Examination or Calling your own witness to impeach on direct
2. Focus on witness. Its An attempt to attack a witness’s honesty in some manner (i.e., prior convictions, prior inconsistent statements, bias, etc.). 3. Almost a trial w/in a trial b/c your no longer trying to prove or disprove the substantive truth. 4. The Scam!-Using “impeaching your own witness” for the sole purpose of getting in otherwise inadmissible hearsay |
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impeaching your own witness
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It’s OK to impeach your own witness when s/he turns hostile/adverse, but you cannot do so for the sole purpose of getting in otherwise inadmissible evidence.
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bolstering
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very important, you cannot Bolster/Accredit Your Own Witness’s Credibility until it has first been attacked.
This means you can’t offer evidence solely to enhance a witness’s credibility on direct. The only time you can is AFTER the witness’s credibility is attacked on cross. |
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in general
how do you impeach a witness? |
Impeach for truthfulness (608),
or if convicted of felony/crime involving dishonesty (609). |
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Always remember that generally Character Evidence is NOT admissible to prove conduct in conformity (FRE 404(a)).
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This means that generally speaking, you can’t use someone’s character (personality traits) to prove they acted that way in the present case.
Exceptions: Character is directly at issue (element of crime, defense, etc.) IMPEACHMENT – character for truth may be admissible to impeach. Remember…must look at the PURPOSE for which you want to bring the character evidence in. |
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what can you attack when impeaching a witness?
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1. Sincerity (witness may have lied)
2. Narration (witness may not have said what he really meant) 3. Perception (witness may have misperceived the events he testified about) 4. Memory (witness may have forgotten some or all of what happened) 5. Bias (reason to favor the other party) |
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FRE 607 Who may impeach a witness
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1. anyone
2. you can impeach your own witness 3. Not usually happy about it, but common law prohibition from impeaching your own witness is no longer valid. BUT there are limitations within the Judge’s discretion 4. Only do this when your client messes up his testimony and sounds like an idiot, or screws you over |
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FRE 608
basic impeachment techniques |
1. Prior Convictions of the Right Type of Crime- limited. What you can say is limited. Extrinsic evidence is allowed
2. Character for truthfulness- reputation and opinion; specific acts on cross exam only. EXTRINSIC EVIDENCE NOT ALLOWED 3. Contradictions- extrinsic evidence allowed if not collateral 4. Capacity- extrinsic evidence allowed (witness ahs poor eyesight or poor memory) 5. Use of a Prior Inconsistent Statement. Extrinsic evidence is allowed; hearsay exception if it meets two criteria: provided it is substantive and not collateral 6. Showing of Bias, Interest, or Motive to Misrepresent. Extrinsic evidence is allowed 7. **Bad Reputation or Opinion for Truth & Veracity 8. **Specific Acts of Deceit or Lying (may be inquired into on Cross) |
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truthfulness under 608
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1. Bringing up evidence of character of truthfulness
2. Truthfulness is the only character trait that can be attacked for impeachment under FRE 608. 3. (FRE 608 and 609 dictate HOW (what methods) can be used to attack the character) |
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3 Methods of Proving Character:
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Opinion (witness’s own opinion of truthfulness)
Reputation (in community for truthfulness) Specific Instances (Acts) of Conduct , and prior convictions for the right crime (Any Felony, subject to judge’s discretion (balancing test) Felony or Misdemeanor involving dishonesty or false statement (automatically coming in! No discretion) |
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both opinion and reputation can be used to attack or support a witness’s credibility, subject to these 2 limitations:
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i. Opinion/Reputation can only be about UNtruthfulness (not general character traits such as violent/peaceful – 404(a))
ii. Opinion/Reputation of truthfulness can ONLY come in AFTER the witness’s character has first been attacked! (otherwise it would be bolstering, which isn’t allowed!) |
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Criminal D takes stand to testify. Prosecution then calls one of its own witnesses (“W2”) and W2 says that D is a liar in his opinion and he would not believe D. Ok?
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Yes, but why is it O.K. to attack the D’s character, when D has not yet “opened the door” on his character? The door hasn’t been opened on his general character say for peacefulness (404(a)), but the door has been opened on his character for truthfulness (608(a)) because D opened it simply by testifying. (D put his credibility out there when he took the stand.) How can D respond? Cross W2, or call another witness to put on good character evidence for truthfulness
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opinion v. reputation
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Opinion – requires the character witness to personally know the testifying witness’s character forhonesty.
Reputation – requires the character witness to be sufficiently acquainted with the testifying witness’s reputation for honesty in the community where that witness lives.More stringent standard than opinion |
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Automatically under 608, witness taking the stand makes your character for truthfulness come into play
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makes your character for truthfulness come into play
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FRE 608
foundation requirement |
1. requires that a foundation be laid in order to keep unreliable evidence from being heard by the jury.
2. It’s a short, straightforward, and general requirement to prove reliability based on questioning the witness in terms of how they acquired his/her knowledge (i.e., “how do you know,” “how long have you known”, etc.) |
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FRE 608
specific acts of dishonesty |
1. provides that a testifying witness may be challenged on cross with the witness’s own specific acts of dishonesty, even if they didn’t result in a conviction! BUT… no extrinsic evidence is allowed to prove the specific act of dishonesty occurred.
2. Extrinsic Evidence is anything other than the testimony given on cross. This means, you are stuck with the answer given on cross, even if it isn’t true! 3. Requirements: Specific Acts (“instances”) must be probative of truthfulness or untruthfulness. And Can only be done on CROSS which must concern:Witness’s character for truthfulness ORThe character for truthfulness of another witness as to whom the witness testified. |
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FRE 609
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Prior Convictions of the right kind of crime may be admissible
Trial judge decides whether the acts are sufficiently probative of dishonesty to be admissible |
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At common law, extrinsic evidence was banned to:
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a. prevent confusion of issues and waste of time due to proliferating (extending) testimony on minor matters
b. Prevent unfair surprise due to false allegations of improper conduct. |
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exception to the ban
An admission to the act of dishonesty |
i. A court within its discretion may allow a cross examiner to ask more questions on details of the conduct and even use extrinsic evidence.
Ex: Carter v. Hewitt, (from Ch. 3, p. 46), where plaintiff prisoner wrote a letter to another prisoner encouraging him to file false prison complaints. Since plaintiff admitted to writing the letter on cross when it was shown to him (when he previously denied writing it), the letter was admitted to show he fabricated his own claim (for its truth as a party admission). AND the court also allowed it for impeachment purposes, as an exception to 608(b) ban on extrinsic evidence. The court reasoned that since the letter was already in evidence, questioning the witness on it for impeachment purposes did not waste the court’s time nor divert the jury’s attention from the issues in the case. |
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under 608,
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cannot use extrinsic evidence for a specific instance of conduct (except for a 609 conviction).
But what about the other impeachment techniques – is extrinsic evidence allowed? YES! Using extrinsic evidence is exactly HOW you impeach the witness – by confronting them with the extrinsic evidence on if using to impeach generally – perception, memory, communication, prior inconsistent statement, contradiction, bias? |
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collateral matters
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Collateral matters: side issues that are relevant but not material to the outcome of the case.
Extrinsic Evidence: CANNOT use if the issue to be proved is “Collateral” (if non-collateral, extrinsic evidence O.K)- Stuck with answer! Collateral example : Assume you eyewitness an accident and are called to testify Q: Did you see the accident? A: Yes, I saw it clearly Q: Why were you at the intersection anyway? A: I was stopped there on the way home from the Omar’s Movie Theatre after I saw “Twilight” NEW WITNESS CALLED (extrinsic evidence?) Q. Who are you? A. The owner/manager of the Omar’s Movie Theatre Q. Has “Twilight” ever played there? A. No, we only show X-rated movies! So that would be impossible, it has never played there Collateral, not the main issue Is it relevant what movie he saw? Isn’t credibility ALWAYS relevant ? How can it be relevant AND “collateral”? It can have a tendency to make a fact more or less likely than without it (FRE 401), but not be MATERIAL to the |
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fre 609
impeaching witness with prior conviction |
1. Not impeaching for character, impeaching for fact he was convicted of a crime.
2. Civil and criminal, party and non party witnesses 3. In a nutshell: FRE 609 (a) allows prior convictions of the following for impeachment purposes only (i.e., to attach character for truthfulness): a. Evidence of any felony (crime punishable by more than 1 yr) of a witness, other than the accused, not involving dishonesty or false statement, subject to judge’s discretion under FRE 403. b. Any crime (felony or misdemeanor) involving dishonesty (meaning “deceipt”) or false statement (i.e., fraud, larceny by trick, embezzlement, perjury, but not robbery or ordinary larceny b/c no deceit or false statement) SHALL be admitted NO 403 discretion by judge allowed here. If there’s any kind of conviction for dishonesty or false statement, it’s coming in! |
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why are these felony convictions allowed?
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Theory: any serious crime has probative value to show dishonesty. If you’re willing to violate the law that seriously, you may be willing to violate it again by not telling the truth (committing perjury)
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Johns elements under 609 to attack the credibility of a witnesss
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i. if witness is NOT the accused, you can bring up fact they were convicted of felony. However, it is subject to the 403 balancing test. (john on trial, jim takes stand. how probative is the fact jim raped someone 4 years ago to jims truthfulness? Not very truthful. Weighed against prejudicie to john. Depends)
ii. if witness is the accused, conviction of felony is admissible only if court determines probative value of admitting evidence outweighs the prejudicial effect to the accused. Subject to 609 balancing test iii. (probative value of this conviction ot this persons truthfulness) iv. For any witness (accused or not), convictions of crimes involving dishonesty or false statements will be allowed. No balancing test. v. Crimes cannot be more than 10 yrs old from date of conviction or release from confinement.. whichever comes later (23 yrs ago murdered, did 20 yrs, released 3 years ago. Concition is 3 yrs old) . see below for details vi. If crime has been pardoned or annulled, the conviction does n |
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glaziers version of 403 v. 609
balancing tests |
1. To impeach a witness other than a criminal defendant, conviction’s probative value for dishonesty must not be substantially outweighed by the conviction’s unfair prejudice.
2. Favors admissibility of conviction for witness 3. To impeach a criminal defendant, the conviction’s probative value for showing dishonesty must outweigh the conviction’s unfair prejudice to the defendant. 4. Weighed against admitting the conviction for a criminal defendant. |
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fre 609
10 yr time limit on convictions |
Subject to 403 discretion- In other words, a judge has the discretion to admit a conviction older than 10 years if s/he determines its probative value substantially outweighs its prejudicial effect.
BUT, if so, then there’s an added Notice requirement: Proponent of conviction more than 10 yrs old must give adverse party sufficient advance written notice of intent to use it so other side has a fair opportunity to prepare to contest its use. |
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what qualifies as a crime of dishonesty
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1. Crimes where acts of dishonesty or false statement are statutory elements are automatically admissible w/out judicial discretion.
2. Perjury, subordination of perjury, embezzlement, criminal fraud, acts of false statements or false pretenses 3. What about crimes that don’t have dishonesty or false statement as elements of the crime, but the crime was committed using dishonesty or false statement?Are they admissible under FRE 609(a)(2)? Sometimes – US v Hayes, p. 134 4. Hayes (D) didn’t take the stand b/c they were allowing a prior narcotics conviction to impeach. He appealed conviction claiming court erred in refusing to suppress the conviction, and if they would have, he would’ve testified. COA upheld ruling saying that where title of offense leaves room for doubt whether it is one involving dishonesty or false statement, the prosecution must demonstrate that the prior conviction was based on facts warranting the dishonesty or false statement to take advantage of the automatic exclusion under |
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FRE 609 Effect of Pardon, Annulment, or Certificate of Rehabilitation
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1. If any of these occur, the evidence of the conviction is not admissible if it occurred based on a finding of innocence.
2. If any of these occur, even if no finding of innocence, the conviction will still not be admissible, as long as there hasn’t been any subsequent felonies. 3. Juvenile Convictions Generally, not admissible Exception: in a criminal case, it may come in if the conviction of the offense would be admissible to attack the credibility of an adult AND the court determines it is necessary for the determination of guilt or innocence. What if the conviction is awaiting appeal? Too bad! It’s still coming in (FRE 609(e)), but so is evidence of the pendency of the appeal for that the conviction. |
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FRE 613- impeaching witness with prior inconsistent statements
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The credibility of a witness may be impeached by showing that on some prior occasion the witness made a statement different from and inconsistent with a material portion of the witness’s present in court testimony (FRE 613(b))
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4 limitations for impeaching witness with prior inconsistent statements (fre 613)
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i. Generally admissible ONLY to impeach, not for its truth as substantive evidence b/c it’s hearsay, unless it falls into a hearsay exclusion or exception (i.e., prior inconsistent statement made under oath at a trial, hearing, or other proceeding, or party admission).
ii. Extrinsic Evidence is NOT allowed to prove the prior inconsistent statement, UNLESS a foundation has occurred. a. Foundation Requirement: the other party must be given an opportunity to explain or deny it, followed by the other party being able to interrogate the witness thereon. BUT, the FRE doesn’t say when! So, could resort to using the extrinsic evidence followed by the foundation. b. This means the lying witness is not warned about the fact that s/he made a false statement! iii. Upon request, you must give opposing counsel the written statement or disclose the contents of an oral statement to opposing counsel before questioning begins (FRE 613(a)).This part of the rule removes the danger of a lawyer bluffing with the witness |
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Why isn’t the prior inconsistent statement hearsay?
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B/c it’s not being offered for the truth of what it says, it’s only being offered to show the witness is a liar (i.e., to impeach his/her credibility).
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impeaching a witness by showing bias
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1. Describes a person’s tendency to be prejudiced either for or against someone which interferes with a person’s ability to be impartial.
2. Infinite number of ways a witness could be biased- Love, hate, financial interest, employment, family, membership, racial, gender,etc. 3. Extrinsic Evidence is allowed to prove bias because witnesses seldom directly admit their biases, so they often must be proven via circumstantial evidence. |
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fre 801
definition hearsay |
1. “’Hearsay’ is a statement, other than one made by the declarant while testifying at trial or hearing, offered into evidence to prove the truth of the matter asserted.”
2. This means it’s a statement made out-of- court that is being offered in court for the purpose of establishing the truth of what it says. |
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how the fre deals with hearsay
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1. FRE 801 defines what constitutes hearsay and what does not (gives exclusions)
2. FRE 802 excludes evidence that falls within the definition of hearsay under 801 3. FRE 803 and 804 provide exceptions to hearsay that allows the evidence in. 4. Why is Hearsay Excluded? The person making the statement was not under oath when it was made, and it denies the opponent the opportunity to cross-exam the person whose perception, memory, and sincerity are in issue. 5. In other words, it’s inherently unreliable! BUT, the law has carved out some exclusions and exceptions to the rule in situations where reliability isn’t at issue. |
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2 steps to follow for hearsay
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Step #1: Does the statement being offered fit into the definition of hearsay under FRE 801?
Since hearsay is an exclusionary rule, obviously, the first step is to see if the statement is hearsay to begin with. If yes, go to step #2 If no, see if there are any other rules to exclude it. If not, it comes in! Step #2: If the statement is hearsay, do any exclusions or exceptions under FRE 803 or 804 apply to allow it to come in. |
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hearsay attack
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1. Define hearsay
2. Analysis of statement to see it if fits in the definition of hearsay 3. If ti doesn’t meet definition, tis not hearsay 4. If it does meet the definition, is it an 802 exemption? 5. If not, look to see if declarant is available 6. If he is, then 23 exceptions and a residiual exception may apply 7. If he is not available, 27/28 exceptions and a residual exception apply |
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hearsay broken down
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1. “Statement” is: (FRE 801(a)) (1) an oral or written assertion or (2) non-verbal conduct of a person, if it’s intended as an assertion.
2. “Declarant” is as the person who makes the statement (FRE 801(b)) 3. Assertion- Oral or written words intended to communicate ideas through the use of language |
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direct assertions
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are straightforward and clear, but some may by hidden and not so obvious. Both are still assertions and subject to hearsay
i. “She just ran the red light” = direct assertion ii. “That car is really sweet!” = hidden assertion |
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indirect assertions
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Indirect Assertions is an assertion intended with the words spoken but is not reflected by the words spoken (i.e., the speaker probably didn’t mean what was indicated by literal words). Still assertions and subject to hearsay.
i. I see Dean Cercone run a red light at an intersection and say to my son, “I can’t believe how many people run lights these days, he could’ve injured someone.” => indirect assertion could be made that Dean Cercone ran the red light. |
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misc info about hearsay
nonverbal conduct |
Linked, Vicarious, and Implied Assertions still may be assertions and subject to hearsay, but it depends
Non-Verbal Conduct- A person’s actions may be regarded as a “statement” for purposes of the hearsay rule. Ex: Pointing a finger at a suspect in a line-up With declarants, just remember computers or automated machines are NOT a declarants, but it may depend on how the information is put in (If data is entered by a human, it may implicate hearsay) |
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hearsay broken down and summed up
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1. “Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.”
2. Let’s break this statement into parts: Statement, Out of court, Offered for the truth of the matter asserted. 3. “Statement”: put quotes around whatever the assertion or non-verbal conduct is. If it’s not a “statement”, hearsay doesn’t apply! 4. “Out-of-Court”: Obviously, the statement must be made out of court to qualify, BUT be careful not to confuse this with believing that if the declarant restates in-court something he or said out of court is not hearsay. |
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“Offered to Prove the Truth of the Matter Asserted” – The KEY
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i. What purpose are the statements (assertions) being offered for is typically the key to ultimately determining if the statement is hearsay or not!
j. This is when FRE 801(c) kicks in! k. IF the statement is NOT being offered to prove the truth of what it says, it is NOT hearsay! l. If it IS being offered for it’s truth, then it will be excluded unless it fits within one of the exclusions or exceptions. Take the statement and see if there is a match between what the party offering the evidence seeks to prove and what the declarant has asserted in the statement. Ask 2 questions: i. What purpose is the statement being offered for? if it’s not being offered for it’s truth, it is “Non-Hearsay” iii. What was the declarant’s intent when making the statement? |
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specific non hearsay situations
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Non-exclusive List of “Non-Hearsay” situations where the evidence is being offered for some other reason (i.e., purpose) besides it’s truth:
Impeachment of a Witness Effect on the Listener (or reader) Verbal Acts or Legally Operative Facts Circumstantial Evidence of State of Mind, Memory or Belief of the Declarant RECAP 6 impeachment techniques, and know that they are ALL NON-Hearsay b/c we are NOT offering the info up for their truth! We are only using it to impeach the credibility of the witness on the stand (i.e., using it for another purpose besides its truth) |
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effect on listener or reader
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1. Out-of-Court Statement is being used, not for its truth, but to show notice, good faith, reason for action or inaction, or whatever other effect the statement had on the person who heard or read the statement.\
2. McClure v State - Defendant was on trial for killing his wife. Testimony reflecting that the defendant was told his wife had slept with 3 other men was excluded as inadmissible hearsay. COA held that it should have been admitted, b/c it wasn’t being offered for its truth, but to show the effect the info had on him (i.e., showed knowledge and gave reason for him to be crazed and act in heat of passion in support of the defensive theory that he was guilty only of manslaughter) 3. Relevance of False Statements (What if the evidence is false?) Still admissible b/c it’s NOT being offered for its truth. It’s being offered for the effect it had on the person, whether true or not. |
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: Cop testifies that victim told her that “My ex-boyfriend, Joe Schmo, raped me!” It’s being offered to show the cop had probable cause to make an arrest. Hearsay?
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Nope! It’s not being offered for its truth, it’s being offered to show WHY the officer arrested him (statement supplied probable cause for arrest)
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Plaintiff suffered from bursitis in her right shoulder and received a series of x-ray treatments from defendant, Dr., which caused her shoulder to become blistered and raw. Lawyer referred her to dermatologist who told her to get her shoulder checked every 6 months to see if it were cancerous. Plaintiff sued Dr for malpractice, and at trial, Plaintiff wants to testify to what the dermatologist told her.
What if it were being offered to show a reasonable basis for Plaintiff’s mental anguish about contracting cancer? hearsay? |
No! Now it’s being offered to show its EFFECT on P’s mind, which is a non-hearsay purpose!
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What about the jury? How do you keep the jury from not using a hearsay statement for its truth, rather than just for the other “non-hearsay” purpose you got it in for?
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FRE 105 limiting instruction where the judge explains to the jury they are ONLY to use it for the purpose it is offered, and not for it’s truth
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verbal acts or legally operative facts
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1. Where the words spoken or written have relevant legal significance in the case simply by virtue of being spoken or written
2. Words of offer, acceptance, defamation, conspiracy, bribery, cancellation, misrepresentation, waiver, permission, etc. 3. Only want to know if the words were spoken, b/c if so, they have legal significance by themselves 4. A mechanical application of the definition of hearsay doesn’t work here b/c the words are being offered for the truth. BUT b/c the particular words have legal significance on their own, they are considered “non-hearsay” |
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Witness seeks to testify that she hear the declarant said, “I accept your offer” as evidence to prove an oral contract. Hearsay?
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NO! B/c the words constitute a verbal legal act
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Witness seeks to testify that she overheard the declarant say to his insurance agent, “cancel my insurance” in order to prove that the policy was cancelled. Hearsay?
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NO…as long as an oral statement is actually an effective way to cancel the insurance contract. Why? b/c the words constitute a legal verbal act of cancelation and therefore are not considered hearsay.
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Witness seeks to testify on behalf of the defendant in a criminal trial for grand theft auto that he heard the accuser say to the defendant “Take my car and go to Miami for the weekend.” Hearsay?
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Not if it’s used to prove declarant gave permission to use his car, b/c permission constitutes a legal verbal act.
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Joe is suing Amy for defamation. Joe wants a witness to testify that Amy told her, “Joe is a thief. He embezzled $10,000 from his last employer.” Amy’s atty: “Objection! Hearsay!”How should Joe’s atty respond?
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Joe’s atty: “Your honor, I’m not offering the statement for its truth, I’m offering it as a Verbal Act merely to prove that is WHAT Amy said and that her speaking those words by themselves constitute a legally operative fact supporting defamation.”
Judge’s response?“Overruled, I will allow it, but be careful counselor! I will also issue a limiting instruction to the jury to only consider it for that purpose.” |
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Circumstantial Evidence of Declarant’s State of Mind, Memory, or Belief
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1. An out-of-court statement is used, not for its truth, but to provide the fact-finder with a basis to draw an inference regarding the declarant’s state of mind, memory, or belief
i. Belief or fear of something ii. Knowledge or lack thereof iii. Lack of Predisposition to Commit a Crime iv. Motive v. Notice |
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Defendant is charged with murder and his defense is sanity. A defense witness is called on direct to testify that on the day before the killing, he heard the defendant say, “I am the Pope.” Hearsay?
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Depends on the PURPOSE it’s being offered for
i. No, if offered to show his state of mind as insane ii. Yes, if offered to show the defendant is in fact the Pope iii. Relevance is crucial here b/c if insanity was not a defense, this would be kicked as not relevant, regardless of whether it’s hearsay or not! |
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Plaintiff sues a store owner for negligence for injuries when she fell down the store steps. Plaintiff calls a witness to testify that two days before the Plaintiff’s fall, the witness heard another customer tell the store manager, “Your stairs are defective, and someone is going to fall and hurt themselves.” Hearsay?
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i. If it’s offered to show the steps are defective? YUP! It’s being offered for it’s truth = Hearsay
ii. If it’s offered to show the store owner had notice of defect? Nope! Now it’s being offered for the EFFECT the statement had on the owner…he was on notice of defect. |
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Wife made derogatory statements about her husband in a will she executed shortly before she died, which left her husband only $1.“While I was faithful, dutiful, and loving wife, you were cruel, failed to support me, and were a complete JERK!”Hearsay?
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Depends on purpose…any non-hearsay purpose?
i. Yes! As circumstantial evidence to show her state-of-mind (feelings toward and relationship with her husband, whether they are true or false) for why she only left $1 = non-hearsay ii. What if it was offered to prove that her husband was cruel and didn’t support her? HEARSAY! Now its being offered for its truth. |
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so what if it is hearsay?
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What if your answer to step #1 is that it IS hearsay under the FRE (i.e., it’s an out-of-ct statement being offered for its truth), then what?
ask: Does it fall within any of the exclusions or exceptions under FRE 801(d), 803, 804. Note: A supreme irony of the hearsay doctrine is that a vast amount of hearsay is actually admissible b/c it falls under one of the many exclusions or exceptions! If you get to step two, be sure to break it down into: is it an exclusion, or an exemption? |
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4 exemptions from hearsay
"not hearsay even though they really are" |
*Prior Inconsistent Statements given under Oath at a trial, hearing, or other proceeding or deposition
*Prior Consistent Statements to Rebut a Charge of Recent Fabrication or Improper Influence or Motive *Prior Statement of Identification made by a Witness *Admission by Party-Opponent These are statements that do fall within the definition of hearsay and are being offered for their truth BUT the Federal Rules EXCLUDE them from the definition of hearsay due to their inherent reliability by nature. |
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exemption #1
Prior Inconsistent Statements given under Oath at a trial, hearing, or other proceeding or deposition |
1. Remember, prior inconsistent statements are generally ONLY admissible to impeach (b/c it’s NOT being offered for it’s truth, the purpose is to show the witness is a liar!)
2. BUT 801(d)(1)(A) has carved this exclusion to allow a prior inconsistent statements given under oath at a trial, hearing, or other proceeding or deposition in for its truth. 3. BTW…this can ALSO be used to impeach! Why? None of the reliability issues indicative of hearsay are present since the prior statement was made: Under oath, AND The declarant was subject to cross examination. |
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prior inconsistent statements continued
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The prior out-of-court statement must be inconsistent statement with the testimony given by the witness who is now testifying in court.
judge decides if inconsistencies exist |
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exemption #2
Prior Consistent Statements to Rebut a Charge of Recent Fabrication or Improper Influence or Motive |
Under this rule, a prior consistent statement that supports the witness’s in-court testimony is admissible for its truth, but only to rebut a charge of recent fabrication or improper influence or motive to lie or exaggerate.
Limitation: Must be a PRE-MOTIVE statement. This means the prior consistent statement must have been made BEFORE the motive to lie or exaggerate happens |
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Defendant (father) accused and convicted of sexually assaulting 4 yr old daughter that he had jt custody of. Defendant’s defense was that the mother made up the allegations to try to keep her child from going back to him after losing a petition to get full custody. Lower court allowed the daughter plus 6 witnesses to testify to statements the child told them about the sexual assault over objection under FRE 801(d)(1)(B). D was convicted and appealed claiming the court erred in allowing all of the statements.
Were these statements inadmissible under FRE 801(d)(1)(B) because all were made AFTER a motive to fabricate arose? (In other words, they were NOT pre-motive statements). |
Yes! The Supreme Court reversed and remanded.
Rule from case-FRE embodies common law “pre-motive” requirement, and therefore, in order for prior consistent statements used to rebut a charge of recent fabrication or motive to lie to be admissible under FRE 801(d)(1)(B), the statements MUST be made BEFORE the motive to lie occurred. |
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My client is on trial for armed robbery, and his defense is he didn’t do it. I call a witness to testify as an alibi on his behalf to prove that he was bowling on the date and time of the armed robbery because she worked at the bowling alley and saw him there. On cross, opposing counsel implies that she had a motive to lie because the two are currently dating. I now offer to show that 4 months ago, before the witness and defendant actually met at a deposition and started dating, the witness gave a statement to the police that is perfectly consistent with her current in-court testimony (she saw him at the bowling alley).
Admissible to bolster or rehabilitate my witness? |
Yes! Her credibility was attacked, so we can now use a statement to rehabilitate her.
BUT, is it admissible for its truth? YUP! This is FRE 801(d)(1)(B). The prior consistent statement rebuts a charge of a motive to lie, AND it was made pre-motive to lie!This means it comes in for BOTH reasons (to impeach AND as substantive evidence of its truth)! |
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exemption #3
Prior Statement of Identification made by a Witness |
1. This exclusion to the hearsay definition allows in a prior out-of-court statement of identification made by a witness who is testifying at trial
2. Of course, the witness must be available at trial 3. Most common example is a pre-trial identification from a police line-up or photo array. Why is this an exclusion/exemption from hearsay? Prior identification is closer in time to the incident, and likely more reliable 4. In court identification may be affected by: How the defendant has changed his appearance for court.Witness could identify defendant in court b/c the defendant always sits at counsel table next to defense counsel |
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Additional 6th amendment constitutional requirements in criminal cases:
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While this is an exemption, the 6th Am is implicated in criminal cases b/c under the 6th Am a defendant has a right to counsel at any stage of an adversarial criminal proceeding. This right extends to police line-up identifications, but not to IDs made as a result of photo arrays.
T/f, failure to permit counsel to be present at a line-up or other proceeding where defendant is identified may be used as a basis for a motion to suppress the out-of-court statement of identification, even though it is allowed under the FRE. |
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A victim is mugged. Short thereafter, at a properly conducted police line-up, in the presence of a cop, the victim identifies the defendant as the mugger. At the defendant’s trial, 6 months later, the victim also identifies the defendant as the mugger in court.Can the victim also testify that he picked defendant out at the pre-trial line-up?
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Yes, under FRE801(d)(1)(C). Any other objections?Maybe 6th Am right to counsel
Same case, but instead of the victim testifying to the lineup identification, can the cop who was present at the line up testify that the victim picked the defendant as the mugger? YES! Anyone who was there could testify to the victims prior statement of identification under the FRE. Same case, except this time, the victim is confused at trial and testifies that he doesn’t recognize the defendant now as the mugger. Can the cop now testify that the victim picked him out at the line-up? YES! Although it’s no longer a consistent statement of identification, it’s still ok under the FRE. |
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4th exemption
admission by party opponent |
This is an out-of-court admission by a party that is being offered AGAINST that party
Essentially, it’s a prior statement of admission by a party that is inconsistent with the party’s present position. The prior admission is now being used AGAINST that party WATCH OUT for a party admission that’s being offered to support the present position, b/c that does NOT qualify as a party admission under this rule. WHY is this allowed as an exclusion/exemption? No issue of reliability since:It’s the party’s own statement and s/he is now in court under oath and can explain it. Why would you confess to something you didn’t do? |
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admissions by party opponent
requirements |
a. Out-of-court admission. CAN be in the form of a legal conclusion. Ex: “I was negligent.” This is OK!
b. Made by one of the parties to the case. If it’s someone else, it’s NOT a party admission c. Offered AGAINST that party. If it supports that party’s admission (i.e., it’s a “self-serving statement”), then it’s out! d. It does NOT need to be against the party’s interest at the time it was made. Ex: Defendant brags to neighbor that he made $2 million in 1999. This is admissible as a party admission in a tax fraud prosecution today. e. It does NOT need to be based on personal knowledge. Ex: After being told that a neighbor was bitten by a dog, the defendant says, “It must have been my dog that did it!” This is ok! |
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adoptive admissions
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1. This occurs where a party expressly or impliedly adopts someone else’s statement as his own, and is admissible as an adoptive admission!
2. Essentially, this is where the speaker’s statement “becomes” the statement of the declarant based on his/her express or implied statement or even lack thereof. 3. Ex: I was driving along with my friend, who said, “you just ran that red light.” I said, “Who cares!” My statement effectively “adopted” my friend’s statement as my own. |
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adoption by silence
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can count!
A party may adopt another’s statement by remaining silent if a party: a. Hears the statement b. Understands the statement c. Has knowledge of the matter stated d. Circumstances were such that s/he would have likely replied if s/he disagreed with the statement made. e. ***BUT, this is subject to the judge’s discretion who will take into consideration physical or mental issues that contributed to the silence, whether the silence was in response to cops (where it can’t be used against you), etc. |
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I ask my neighbor, a professional painter, to paint my kitchen, and he does. I don’t pay him, and one day, on my way home from work, he stops me and says, “Hey, you owe me $500 for painting your kitchen!” I don’t say anything in response. Later, he sues me. Can my silence to his accusation be used against me?
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Probably! My silence could be considered an adoptive admission, because if I didn’t owe him that money, I would have certainly objected!
What if its unclear? With adoptive admissions, in some cases, a party’s words or conduct that allegedly adopts the truth of another’s statement may be susceptible to more than one interpretation. Ex: I say to my neighbor, “I know you ran over my dog!” My neighbor responds by saying, “I’m sorry.” This could mean he’s sorry the dog died, or he’s sorry he ran it over. Rule: Where it is unclear, the issue then becomes a question of conditional relevance under Rule 104(b), and the judge decides! |
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vicarious admissions
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1. A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, and made during the existence of the relationship.
2. Often times this is a post-accident statement of an employee 3. Limitation: It must be made during the existence of the relationship 4. Watch out for a trick where they have an employee making the statement after s/he has been fired or quit. This doesn’t count! |
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hearsay exception attack
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1. Hearsay Exceptions, Divide into 2 categories:
a. HS Exceptions where witness availability doesn’t matter = FRE 803 (p. 884). There are a whole bunch of them = 23! b. HS Exceptions that apply ONLY when the declarant is NOT available = FRE 804 (p. 915). There are only 5 of them: c. former Testimony (FRE 804(b)(1)) d. Dying Declaration (FRE 804(b)(2)) e. Statement Against Interest (FRE 804(b)(1)) f. Statement of Personal or Family History (FRE 804(b)(4) g. Forfeiture by Wrongdoing (FRE 804(b)(6)) 2. Residual “catch all” exception of FRE 807 |
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fre 805
hearsay within hearsay |
1. statements that contain more than one hearsay statement (i.e., there is more than one layer or level of hearsay)
2. Such statements MAY still be admissible, but only if each hearsay statement independently meets an exception of exclusion to the hearsay rule. |
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I told my secretary, Carol, “I saw Dean Cercone run a red light this morning.” She told his secretary, Virginia, “Holly told me that Dean Cercone ran a red light.” Virginia testifies at his trial that she was told he ran a red light. His attorney shouts: “Objection! This is hearsay within hearsay!Is it?
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Treat each hearsay statement separately to determine if there is an exception or exclusion that applies.
Hearsay Level 1 = I told Carol, “I saw Dean Cercone run a red light.” Hearsay? Yup! It’s an out of court statement being offered for the truth of the matter asserted, and no exclusions or exceptions apply. Why isn’t it a party admission?I’M NOT A PARTY! It would only work if HE said it. Hearsay Level 2 = Carol told Virginia, “Holly told me that Dean Cercone ran a red light.” Hearsay?Yup! It’s an out of court statement being offered for the truth of the matter asserted, and no exclusions or exceptions apply. Judge’s ruling?“Objection sustained! This is not coming in b/c it’s hearsay within hearsay!” Hearsay within hearsay often occurs in the form of documentary evidence, where the document itself is hearsay. Where there are statements within the document by third parties, this is another level of hearsay. |
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hearsay within hearsay
documents |
Keep in mind that when documents contain multiple levels of hearsay, sometimes some of the statements will be admissible (i.e., b/c they meet an exception/exclusion to hearsay and so does the document itself) and others will not.
If this occurs, the inadmissible statement are excluded by “redacting” them from the document and then admitting the document in the “redacted” form. |
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fre 803 hearsay exceptions
most important ones |
They DO fit the definition of hearsay but…
1. Present Sense Impression 2. Excited Utterance 3. Then Existing Mental, Emotional, or Physical Condition 4. Statements for the purposes of Medical Diagnosis or Treatment 5. Recorded Recollection 6. Business Records 7. Absence of Business Records exception 8. Public Records and Reports 9. 1-4: These ARE hearsay statements, but the drafters decided to make them exceptions to hearsay, and the declarant does not even have to be unavailable to testify. 10. WHY is availability of the witness immaterial? because the law regards the prior statement as being at least as reliable as the present in-court testimony. We don’t care whether or not declarant is available or not (first 4=spontaneous statements). |
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exception #1
present sense impression |
As your witnessing something, your explaining it. Or immediately thereafter, while its still fresh in your mind. 5 minutes later is NOT present sense impression
This is a statement that: Describes or explains an event/condition . It can’t be a calculated narration…it’s spontaneous. And The scope is limited to a description or explanation of the event or condition. Speaker personally perceived the event or condition |
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immediacy requirement
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The statement must be made while the declarant was experiencing the event/condition or immediately thereafter. The statement must be made almost precisely contemporaneously with the event (there can be no appreciable time lapse). There can be no time to deliberate about what to say
Ex: sports announcer giving play-by-play as s/he watches the game. Advisory Committee’s Notes say “immediately thereafter” permits only a “slight lapse of time” so there are no issues of defects or memory or sincerity. |
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exception #2
excited utterance |
This is a statement About a startling event/condition .
Language used must be that of excitement (i.e., “shouted,” “exclaimed,” “yelled,” etc.)Look for an exclamation point! Made while the declarant was under the stress of excitement There is no specific time limit, as long as it is made while the declarant is still under the stress of the excitement. So, a time lapse may be ok, but it depends on what is going on during that time lapse (i.e., is the stress and excitement still there, or is there a cooling off period followed by an excited statement) Concerns the facts that caused or were related to the event/condition If the statement is unrelated to the startling event/condition, it’s out. BUT unlike present sense impression, here, the statement only needs to “relate” to the startling event or condition, which grants a broader scope of subject matter coverage Note: Present Sense Impression Exception is more limited in scope and only allows in statements that actually describe the e |
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As I was waiting to cross Capitol Ave to get some lunch a CATA bus ran a red light and hit someone, and I shouted, “Oh no! The bus ran the light and blasted that guy!”
9. What if a few minutes later, a cop came up to me and asked me what happened. I was crying and said, “It was terrible! The bus ran the light and blasted that person!” Admissible? |
Probably still ok b/c although there was a time lapse, the stress and excitement of the event was still right there. This would be up to the judge though.
What if two hours later, back in my office, I was telling my secretary what happened and shouted, “It was just awful! I can’t believe that bus ran the light and blasted that person!”. Admissible? Not as an excited utterance b/c of the time lapse. I had a cooling off period and time to think. |
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Excited utterance v. present sense impression
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1. Nature of the Event or Condition: An excited utterance requires a startling event or some kind of excitement. But a present sense impression does not. Virtually any event or condition may suffice.
2. Time Lapse: The event for an excited utterance does not have a time limit.Unlike the “immediacy” requirement of present sense impression (there can’t be any appreciable time lapse) 3. Scope of Subject Matter of Statement: An excited utterance has a broader scope of subject matter coverage than a present sense impression b/c the statement only needs to “relate” to the startling event or condition. Under present sense impression, the scope is limited to a description or explanation of the actual event or condition |
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A victim is killed in his apartment on a Sunday night. The defendant, Tony Soprano, is charged with the murder. The prosecution wants a witness to testify that on Sunday night, the witness called the victim, and the victim said, “Tony Soprano is here.”Tony’s attorney objects based on hearsay. Is it hearsay????
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Step #1: Does the statement being offered fit into the definition of hearsay under FRE 801? Is it an out-of-court statement offered for the truth of the matter asserted?Yes!
Step #2: Do any exclusions or exceptions under FRE 801(d), 803 or 804 apply to allow it to come in.Break this step into 2 parts: Does it fall within any of the FRE 801(d) EXCLUSIONS or EXEMPTIONS? Prior Inconsistent Statements given under Oath at a trial, hearing, or other proceeding or deposition, Prior Consistent Statements to Rebut a Charge of Recent Fabrication or Improper Influence or Motive, Prior Statement of Identification made by a Witness, Admission by Party-Opponent? NOPE! Does it fall within any of the Hearsay Exceptions under FRE 803? Present Sense Impression?YES!!!! The statement was describing an event/condition while the declarant was experiencing it. Excited Utterance? No, b/c there wasn’t a startling event. |
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exception #3
Then Existing Mental, Emotional, or Physical Condition |
These are hearsay statements of the declarant’s then existing (at the time the statement was made):
State of Mind. Intent, Plan, Motive, Design Emotion. Angry, Sad, Happy Sensation. Pain, Loud, Bright Physical condition. Bodily health (headache) These are statements similar to present sense impressions, but instead of describing “external” situations as they happen, they describe “internal” situations the declarant is actually thinking or feeling. Anyone who heard it can testify to it. It does NOT include statements which refer to past matters of memory (to prove the fact remembered) or belief (to prove the fact believed) |
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exception to exception #3
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Statements which refer to past matters ARE admissible if they relate to statements about the declarant’s will (relating to the execution, revocation, identification, or terms of the declarant’s will)
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Victor the victim was killed, and Tony Soprano was charged with his murder. Tony Soprano announced one day to his buddy, “Next Sunday, I am going to meet with Victor.” The prosecution wants to call his buddy to the stand to testify to this statement to prove that Tony did in fact meet with Victor on Sunday. Is it admissible? Hearsay?
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Hearsay? Yup!
exemptions? NOPE (Prior Inconsistent Statements given under Oath at a trial, hearing, or other proceeding or deposition Prior Consistent Statements to Rebut a Charge of Recent Fabrication or Improper Influence or Motive Prior Statement of Identification made by a Witness Admission by Party-Opponent) Exceptions? Yup! This is a declaration of his existing intent to do something in the future being offered to infer that the intended future act done = Hearsay exception 803(3) |
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exception #4
Statements for the Purpose of Medical Diagnosis or Treatment 3 requirements |
Statements were made for purposes of medical diagnosis or treatment AND
It describes any of the following: Medical history OR Past or present symptoms, pain, or sensations OR The general character of the cause or external source of the symptoms |
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limitations to exception #4
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The statement must be “reasonably pertinent to diagnosis or treatment.” If the statement does not relates to diagnosing or treating the reason the person is seeking treatment, it’s out.
So…identifying a person as the one at fault for causing an accident is NOT “reasonably pertinent to treatment”, and would therefore not be admissible. |
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exception #5
past recorded recollection refreshing recollection RECAP |
Refreshing Recollection (FRE 612) When a witness’s memory fails (either prior to testifying at trial or at trial), any writing can be used to jog the memory, BUT it is only shown to the witness; it is NOT submitted as substantive evidence.
recorded recollection- Rule: If a witness is unable to remember all or part of the details of a transaction about which s/he once had personal knowledge of, his/her own writing that is shown to be reliable may be admitted in place of her testimony. Fundamental difference is that here, the writing substitutes for the witness testimony, while with refreshing recollection, it simply jogs the witness’s memory who then testifies to what he remembered. |
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recorded recollection requirements
recap |
A record regarding:
1. A matter about which a witness once had personal knowledge 2. But now can’t remember (612 no help) 3. Made or adopted by witness (“declarant”) 4. When matter was fresh in mind as made 5. That accurately reflects knowledge 6. This may be demonstrated if the witness testifies that she remembers making an accurate record of the event, but can’t remember the facts. 7. Admissible, but is ONLY READ. Unless adverse party offers it |
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exception #6
business record exception |
Generally speaking, this exception allows in any kind of record (not limited to written records), BUT they must be kept in the course of regularly conducted business activity
This limitation severely restricts the admissibility. Requirements: Evidence must be a memo, report, record, or data compilation in any form Evidence must be proffered by a witness who is the custodian or other qualified witness The record must have been made by a person with knowledge of the facts or was made from info transmitted by a person with knowledge of the facts; (This means personal knowledge is NOT required, but if the one recording it doesn’t have personal knowledge, then the person giving the info that is being recorded must have personal knowledge) The record must have been made at or near the time of the acts, events, conditions, opinions, or diagnoses appearing on it. doesnt define near The record must have been made as part of the regular practice of that business activity This means the record must be one t |
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Trustworthiness Limitation
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If the court believes that the source of info, method of preparation, or any other circumstances that indicate a lack of trustworthiness, the court may refuse to admit it.Why? Employees are under a business duty to be accurate in observing, reporting, and recording business facts
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problems with business records?
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determining whether or not the record germane to the business,
and Hearsay within Hearsay |
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The Business Records Exception overlaps with the Public Records Exception contained in FRE 803(8)
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but the Public Records Exception is more specific than the Business Records Exception.
Where a conflict exists, a public record NOT meeting the more specific requirements of FRE 803(8) should NOT be admitted under the Business Records Exception FRE 803(6), BUT It may be admissible under another hearsay exception such as Recorded Recollection (FRE 803(5)) or the Absence of Public Record (FRE 803(10)) or the “residual” catch-all exception of FRE 807. |
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19. While the business record may be admissible as an exception to hearsay, it may be excluded if:
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Lacks Authentication under FRE 901(b) which requires that a foundation be laid showing the record is what it purports to be,
and/or Violates the Best Evidence Rule under FRE 1002 if it’s not the original, unless a duplicate will suffice under FRE 1003. |
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fre 901
authentication |
Authentication is the process of proving that a particular piece of “non-testimonial” evidence is what the proponent claims it to be “Non-testimonial” – many forms.
Written Documents: letters, contracts, receipts, memos, reports, emails, faxes, etc. Exhibits: Tangible Items: murder weapon, keys, clothing, fingerprints, hair, fiber samples, drugs, etc. Demonstrative Exhibits (Illustrative): diagrams, charts, drawings, photos, maps, floor plan, timeline of events, etc. General Rule:A writing is NOT admissible until it has been authenticated So…authentication is a condition precedent to admissibility |
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Quantum of Proof for authentication
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sufficient evidence so a reasonable jury would find it genuine.
VERY low standard. Rarely challenged b/c it is easily satisfied. |
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fre 901 authentication requirements
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Authentication is a condition precedent to admissibility.
This condition is satisfied by evidence which supports the finding, AND The finding must be that the matter in question is what the proponent claims it to be. |
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methods of authentication
Direct Evidence in the form of: |
1. Eyewitness Testimony (FRE 901(b)(1)) from a witness with knowledge that the evidence is what it claims to be 2. Handwriting Proof (FRE 901(b)(2)&(3)) 3. Lay Witness Opinion (non-expert) (FRE 901(b)(2) Any witness who is familiar with the signature or handwriting as long as they didn’t become familiar with it solely to testify 4. Expert Witness Opinion (FRE 901(b)(3)) Compares handwriting sample to document 5. Jury Comparison (FRE 901(b)(3)) Compares handwriting sample to document The standard is so low, even the jury can do this Distinctive characteristics in the appearance, contents, substance, internal patterns, or other distinctive characteristics. (FRE 901(b)(4))Call a witness who can identify unusual characteristics (special paper, letterhead, etc.) When photo speaks for itself as substantive evidence, you need more to authenticate it. You need to show:Camera was functioning properly at the time of the event. Film was developed properly. Chain of C |
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chain of custody required?
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Sometimes, but not if the evidence cannot be easily altered or substituted and is specifically unique and identifiable on its own. Chain of custody will only go towards the weight the jury gives the evidence, not to the issue of admissibility
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method of authentication
Circumstantial Evidence in the Form of: |
Ancient Document Rule (FRE 803(16)) hearsay exception and presumed authentic if: 20 or more years. Found to be regular on its face. Found in a place of natural custody. Presumed authentic without any more foundation.
Solicited Reply Doctrine proof that a disputed document came in response to a prior communication |
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self authenticating documents
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General Rule: documents are NOT self-authenticating. BUT there are exceptions where certain writings are admissible without a foundation or testimonial sponsorship
Exceptions: (there are 12, but these are the most common) Certified copies of Public or Business Records. Certified copy of birth certificate, mortgage, etc. Official Publications. Pamphlet from Secretary of State Newspapers and Periodicals. Even copy of the National Enquirer! Trade Inscriptions or Labels that indicate ownership or control. Acknowledged Documents (notarized). Signatures on Certain Commercial Documents as provided by the UCC or other statute or rule |
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On my way home from class, I get in a car accident. At the hospital ER, on top of telling the nurse about my symptoms, which she records in her medical record, I tell her, “The accident was all my fault. I was grossly negligent when I was speeding and ran that light.” The nurse records this in my medical record.Later, the other driver sues me for negligence, and I deny that it was my fault. At trial, can he call the nurse to testify to what I said in the hospital?
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Step #1: Hearsay? Yes! It’s an out of court statement being offered for its truth
Step #2: Any exemptions apply? Prior Inconsistent Statements given under Oath at a trial, hearing, or other proceeding or deposition Prior Consistent Statements to Rebut a Charge of Recent Fabrication or Improper Influence or Motive Prior Statement of Identification made by a Witness Admission by Party-Opponent *I’m a party to the case, and it’s a prior statement of admission inconsistent with what I’m saying in court. Would it also be admissible as a Recorded Recollection under FRE 803(5)? NO! Why?B/c this info was NOT germane to hospital business. If the info was about my symptoms, my vitals, etc., then it would fall under the exception, but instead, the content was about who was at fault which has nothing to do with hospital business. |
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I was at Best Buy, and on my way out, I saw another customer slip and fall in their parking lot and break her leg. Being a good citizen, I called 911, and went into Best Buy and told the manager what happened. The manager filled out an accident report and included my statement about what happened in it.Would this accident report be admissible if the customer sued Best Buy for negligence?
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yes! its hearsay within hearsay
the document, the statement in the document we must separate each statement to determine if each is admissible on its own. The document: Business Record Exception? Is an accident report germane to the business and a record regularly kept in the regular course of business? NO! It’s out! My statement in the document: Doesn’t matter really b/c the document is out, but what if it wasn’t? Hearsay?Yup! Any exceptions? Possibly excited utterance, if it could be proven that I was “startled” and still under the excitement of the startling event, but not likely. Presence Sense Impression? No b/c of the time lapse. I didn’t make the statement while I was perceiving it. Any other way to get the info from what I saw in? Call ME as an eye witness to testify to what I saw, NOT to what I said I saw to the manager, b/c NOW it’s NOT hearsay!Instead, I am testifying in court to what I actually saw, rather than a statement I said out-of-court. |
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exception #7
Absence of Business Records |
The lack of a business record that falls within the rules of FRE 803(6) Business Record Exception, may be a record!
In other words, when a matter is not recorded that normally would be in the regularly conducted business activity, that non-recording of the matter may be offered to prove the non-occurrence or non-existence of the matter as an exception to hearsay. |
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exception #8
public Records and Reports Exception |
Remember that this is similar to Business Records Exception, but is more specific:
Requirements: **Public official who is under an official duty to furnish and record information re: -The activities of the office or agency OR -Matters observed pursuant to the duty, OR Exception: In criminal cases, matters observed by cops and other law enforcement personnel . Ex: Police Reports. In civil cases AND in criminal cases against the Government, factual findings resulting from an investigation made pursuant to authority granted by the law In civil cases, this allows public officials charged with making findings of fact to include their conclusions in the report. **Trustworthiness Limitation: The Record is admissible UNLESS the sources of information or other circumstance indicate lack of trustworthiness. FINAL EXCEPTION: BIRTH CERTIFICATES, MARRIAGE CERTIFICATES, DEATH CERTIFICATES |
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fre 804 where declarant must be unavailable
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5 Hearsay Exceptions that Require that the declarant be UNAVAILABLE to testify in Court:
Former Testimony (FRE 804(b)(1)) Dying Declaration (FRE 804(b)(2)) Statement Against Interest (FRE 804(b)(3)) Statement of Personal or Family History (FRE 804(b)(4)) forfeiture by Wrongdoing (FRE 804(b)(6)) |
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former testimony exception
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1. Testimony given in an earlier proceeding by a person who is now unavailable is admissible IF (2):
**There was a meaningful opportunity to cross examine the party against whom the testimony is being offered, AND Same issue and motive on cross in previous proceeding as the present Some identity of the party. The party the statement is being offered against must have been a party in the first proceeding or, in a civil case, at least in privity with the party in the first case. **The declarant is UNAVAILABLE |
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“Opportunity and Motive Test”
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The party the statement is being offered against must have had an meaningful chance to challenge the truthfulness at the first proceeding.
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Meaningful Opportunity and Similar Motive
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Not always, but most of the time this happens during cross examination AND quite often it comes down to requiring that it be the same issue and the same motive to really fit the exception
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"Predecessor in Interest”
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In civil cases, the former testimony can be used against someone who was not a party in the former proceeding, as long as that party’s “predecessor in interest” was a party in the former proceeding and had the same motive and opportunity to develop and confront that testimony
Essentially, this means the party in the present proceeding that the testimony is being offered against was at least in privity with the party in the first proceeding. |
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: A bus driver falls asleep at the wheel, leaves the highway and crashes into a tree injuring two passengers, Vicki and Lindsey. Niki was another passenger who was not injured but witnessed the whole thing. Vicki sues the Bus Co. and Niki testifies live that she saw the bus driver fall asleep and veer off the road. A couple of weeks later, Lindsey filed a separate lawsuit against the Bus Co., but Niki had died two days before from a heart attack.
a. Can Lindsey use Niki’s former testimony in the Vicki’s lawsuit against the Bus Co. in her own case? |
Yes! The Bus Co. was a party in the first proceeding (i.e., was a predecessor in interest), and the lawyer for the Bus Co., had the same motive and opportunity to develop the testimony in cross examining Niki in the prior proceeding.
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Can the Bus Co. use Niki’s testimony against Lindsey?
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NO! Lindsey was NOT a party in the first proceeding (i.e., was not a predecessor in interest) and had no meaningful opportunity to cross examine Niki on any testimony she may have given that could be used against Lindsey’s case.
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unavailable
(where court exempts declarant from testifying due to:) |
1. Privilege
2. Declarant refuses to testify under the 5th Am., privilege, or some other reason 3. Memory fails 4. Death or Illness 5. Proponent of statement cannot find the declarant by process or other reasonable means 6. This means, the declarant could be on the stand and still be “unavailable” |
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dying declaration exception
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This is a statement made under a sense of impending death, but there are specific requirements that must be met for it to be admissible.
4 Requirements: State of Mind – made under a sense of impending death (i.e., declarant must be aware his/her death is imminent) Unavailability – declarant need not die, but s/he must be unavailable to testify at the time of trial. Type of Case – ONLY admissible in a: Homicide orCivil Case Content Limitation – must concern the cause or circumstances of impending death If it’s about anything else, it’s out! |
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As I leave Cooley late one night, I am mugged and shot 4 times in front of the parking garage. As I lay on the ground, fighting for my life, a student stops to see what’s happened. I croak, “I’m dying! I know I’m dying! Please tell the court that I forgot to change the beneficiary in my life insurance to my kids to be split evenly!” I die. In a lawsuit against the insurance company who distributed my life insurance to my sister, the named beneficiary, instead of my kids who I intended but forgot to make the change, is my statement admissible?
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Hearsay? Yup! exemptions or Exceptions?
Dying Declaration (FRE 804(b)(2))? Nope! It didn’t concern a cause or circumstance of impending death. Excited Utterance FRE 803(2)? Nope! It didn’t relate to the cause or circumstances surrounding the startling event. Then Existing State of Mind under FRE 803(3)? Possibly! In this type of action, proof of the my intent (existing state of mind) is at issue to prove who I really wanted to be my beneficiary, BUT this would likely be excluded under Contract law |
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What if instead, I said, “I was mugged and shot by Tony Soprano!” Dying Declaration?
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Based solely on these facts (and on the MBE), no. Why? The facts do not say I was under the belief of impending death. The facts have to tell you this.
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12. Change the facts again. Let’s say that I said, “I’m dying, I know I’m dying! Tony Soprano mugged and shot me!” But…I survive!Dying declaration?
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Yes, but only if I am unavailable to testify for some other reason.
Under the FRE, you don’t have to actually die, but you must be unavailable to testify presently in court. |
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statement against interest exception
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This is a statement made by a person who is now unavailable:
i. Against that persons’ pecuniary, proprietary, or penal interest OR ii. A statement which would expose the declarant to civil liability, OR iii. A Statement which would tend to defeat a civil claim by the declarant At the time the statement was made. |
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4 requirements for statement against interest exception
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i. Timing – Statement must be against the interest at the time it was made
ii. Unavailability – declarant must be unavailable to testify at the time of trial. iii. Anyone can testify to it that heard it – it doesn’t have to be the person (declarant) who said it. iv. Personal Knowledge – declarant must have personal knowledge of the situation |
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statement against interest limitation
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If the statement tends to expose the declarant to criminal liability, and it’s offered to exculpate (release) the accused, it is NOT admissible, UNLESS there are corroborating circumstances (i.e., other evidence besides a 3rd party confession) that clearly indicate the trustworthiness of the statement
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Statement Against Interest (FRE 804(b)(3)) vs. Admission of Party-Opponent (FRE 801(d)(2))
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They ARE similar, and sometimes may overlap, BUT here are the differences:
Statement Against Interest must be against the interest at the time it was made. A party admission does not Statement Against Interest may be made by ANY person, not necessarily the party. A party admission can only be made by a party to the case Statement Against Interest requires personal knowledge. A party admission does not Ex: I hear my neighbor is bitten by a dog, and I say, “It must be my dog who bit her, I’m sorry!” Ok for party admission, but not Statement Against Interest Statement Against Interest requires UNAVAILABILITY of the witness. Obviously, this is a BIG difference, as with a party admission, the party is in court! |
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AUTHENTICATION CONTINUED
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Authentication merely requires that the judge’s views the evidence only to see if there is sufficient evidence so a reasonable jury could find that the evidence is what it is claimed to be.
If the judge so decides, it is authenticated and then presented to the jury to determine the WEIGHT it is given. In other words, the jury now decides if it is legitimate or not, and if so, what value to assign to it. |
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AUTHENTICATION CHAIN OF CUSTODY**
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Typically no, unless the evidence can be easily altered or substituted and is specifically unique and identifiable on its own. Then it might be required.
BUT the chain of custody is a strong means of authenticating an item While a chain of custody is not always necessary for authentication, when it is established there is “presumption of official regularity” that satisfies the authentication requirement. BUT absent evidence of substitution or alteration, failure to establish the chain of custody generally only goes towards the weight given to such evidence rather than its admissibility. |
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901 METHOD OF AUTHENTICATION
telephone of voice identification |
Although not a physical or tangible piece of evidence, same requirements apply to authentication, or laying a foundation.
A witness familiar with the recorded voice can testify to the identity of the speaker, even if s/he never met the speaker in person. |
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HOW TO AUTHENTICATE A PHOTO
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Do you have to call the photographer?No!
Any witness who can testify that the photo is a fair depiction of the evidence suffices when a photo is being offered for demonstrative purposes |
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what about authenticating an email?
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Authenticate just like traditional notes or letters, but can become more complicated due to the metadata (reveals telling hidden info).
Distinctive characteristics. Jury comparison |
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computer generated demonstrative evidence
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Demonstrative Evidence is typically visual aid evidence to help the jurors understand what’s going on.
Technology has made demonstrative evidence even more popular at trial, but brings with it new issues when it comes to computer generated exhibits. |
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2 categories computer generated demonstrative evidence:
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animation and simulation
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animation
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Where computer is used to create visual aids to illustrate an opinion
If it falls in this category, cts do not require proof that the exhibit was produced by a scientific or technologically valid method. Instead, standard is whether it fairly and accurately represents the evidence |
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simulation
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Where a computer is used to analyze data and help form opinions and conclusions
“Alberico” test that requires that before scientific evidence is admitted that the validity and soundness of the scientific method used must be proven beyond just general acceptance in the particular field. The ct should also examine the relationship b/n the technique used to generate the evidence and established scientific techniques and the availability of specialized literature addressing the validity of the technique. |
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3 REQUIREMENTS FOR LAY WITNESS
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1. Rationally based on Witness’s Perception.
This requires that the witness actually perceived something first hand Essentially this is an extension of the FRE 602 “personal knowledge” requirement. 2. Testimony is Helpful to the Trier of Fact to acquire a “clear understanding of the witness’s testimony or determination of a fact in issue.” This requires that the opinion is helpful, and sometimes even necessary, way to relate to the fact finder what happened. If the opinion testimony is not helpful and simply amounts to a factual inference or legal conclusion of the witness that the jury/judge could make on its own, it is inadmissible (it’s said to be “not helpful”). So, keep in mind that there may be situations where facts meet the first requirement and are rationally based on the perception of the witness, but NOT helpful to the trier of fact. 3. Testimony is NOT based on Scientific, Technical, or Other Specialized Knowledge |
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SCOPE OF LAY OPINION
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All 3 requirements working together define the scope:
Non-scientific or non-technical opinions or estimates based on what a witness actually perceived that are helpful to the trier of fact (judge/jury) Include: Speed and other measurements Physical states of intoxication or injury You could have an expert toxicologist qualified as an expert give his/her opinion, but a lay witness who also witnesses intoxication can also issue a lay opinion Personal emotions of others (angry, shocked, upset, surprised, etc.) Sensory descriptions (hot, cold, etc.) Value of one’s own land Sanity of the testator (“he was nuts!”) Note: it seems some of these are scientific, but b/c they are generally known approximations, and the fact that for some things, a lay opinion is the best shorthand and most descriptive way a witness can communicate to the jury what s/he perceived. Also, remember that the witness is subject to cross examination so the credibility can be challenged, and a jury actually decides the weight to giv |
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EXPERT TESTIMONY GENERAL RULE
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General Rule: Under FRE 702, expert opinion testimony is permissible when the witness is a qualified expert in a legitimate scientific, technical, or other specialized knowledge area that is helpful to the average fact finder to better understand the factual issues in the case (who wouldn’t ordinarily be familiar with that area of expertise).
BUT, unlike FRE 701 lay opinion testimony, there is no personal perception requirement. |
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FUNDAMENTAL BASIC REQUIREMENTS UNDER 702 EXPERT TESTIMONY
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1. Qualifications
2. Testimony is about the Appropriate Subject Matter for Expert Opinion that is Helpful to the Trier of Fact It must be something the jury doesn’t ordinarily know about and the testimony helps them understand the facts 3. Expert Opinion is supported by a Proper Factual Basis – FRE 703 Testimony is based on Sufficient Facts or Data 3 Factual Bases for Expert Testimony Personal Knowledge Facts presented to expert made known to the expert at or before the hearing usually in the form of a hypothetical Facts are of a type that experts in that field would “reasonably rely on in a particular field” to form opinions or inferences from (make professional decisions) 4. Expert’s Opinion is Based on Reasonable Certainty or Probability. This means it’s not just mere guesswork |
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BOP for expert qualifications
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preponderance of evidence
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history of reliability
frye v. daubert |
Historically, (Frye v US, p. 529) set forth the original “general acceptance” test: “Sufficiently established to gain ‘general acceptance’ in the particular field in which it belongs”
Problem with Frye test: Time lag b/n new state of the art or cutting edge technology becomes “generally accepted” to be admissible under Frye. Handed over the judge’s “gatekeeping” job for determining admissibility from judge to scientists and experts in the field. Although some judge’s liked this b/c they didn’t want to be the expert on deciding science and liked leaving it to experts Finally, after 70 years, the Supreme Court changed things in Daubert in a couple of fundamental ways: It made the Frye “general acceptance” test only one of the several factors to be considered in determining reliability, which removed the time lag problem AND Returned the “gatekeeper” role back to the trial judge to decide the relevance and reliability of an expert’s opinion was based on valid specialize |
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other reliablity factors beyond daubert
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In 2000, the Advisory Committee Note to Rule 702 added other reliability factors to determine whether expert testimony is sufficiently reliable, including:
1. Whether experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of litigation, or whether the opinion was developed only for the purpose of testifying. 2. Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion 3. Whether the expert has adequately accounted for obvious alternative explanations 4. Whether the expert “is being careful as he would be in his regular professional work outside his paid litigation consulting.” 5. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion given by the expert |
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expert v. lay opinion
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Some lawyers who can’t qualify a witness as an expert will sometimes attempt to admit expert testimony as a mere lay opinion under FRE 701
BUT FRE 701 was amended to eliminate this risk by adding FRE 701(c) which states that a lay opinion cannot be based on scientific, technical or other specialized knowledge within the scope of FRE 702 This amendment focuses on the testimony rather than the witness and t/f doesn’t distinguish b/n an expert and lay witness, but instead b/n expert and lay testimony. T/f, it IS possible for the same witness to give both lay and expert testimony in a single case. |
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I injure my knee while working out at the YMCA and sue the Y for negligence. My Dr. refuses to testify as an expert, so I hire a known expert in knee injuries to testify as an expert at trial about the extent of my knee injury. He did not personally examine me or view the MRI image itself, but based his opinion in part on the radiologist’s report of what the X-ray revealed.
May the Expert give his opinion? |
Yes
Based on factual basis #3 b/c the Dr. is basing his opinion on the radiologist’s report, which is common in the field as something a Dr. can reasonably rely on to make professional decisions. Any other objections? Hearsay? Yes! Exceptions? Yes! Business Record Exception FRE 803 BUT Even if there were no applicable exceptions, an expert can rely on an otherwise inadmissible report in forming his opinion, even though the document might be inadmissible Best Evidence Rule? No b/c there are facts independent of the MRI report itself to prove the extent of the injury. Notice the facts that say his opinion was based “in part on the radiologist’s report”. Therefore, his knowledge did not solely come from the contents of the report. BUT again, even if it did violate the BER, while the MRI report wouldn’t be admissible unless it survives a reverse 403 test, the expert’s opinion that is based on that report to reach the conclusion is allowed under FRE 703 |
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court appointed experts
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Under FRE 706, a court can by request or on its own motion appoint an expert
These experts often have a high degree of credibility b/c they are considered “neutral” without any specific agenda |
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scientific evidence
hard v. soft |
There is not specific rule that addresses the admissibility of scientific evidence. Instead, admissibility is regulated by the expert testimony rules.
Hard Science – areas of science that rely on objective criteria (tests, experiments, formulas, etc) such as math, physics, orthopedics, etc. Usually fit neatly into the Daubert models for reliability Judges are more comfortable in determining relevancy and reliability Soft Science – areas of science that rely in a large part on subjective criteria for evaluation, such as psychology, psychiatry and other mental health sciences Does not typically fit well into the Daubert paradigm, and there is more room for interpretation and possible manipulation than hard science evidence. While more difficult, it still requires a judge to faithfully apply the Daubert standard to fulfill the judge’s “gatekeeping” role. |
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back to statement against interest section
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all above must be appropriately placed
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Is it accurate to say that a party admission always qualifies as a statement against interest?
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No! You can have a any person make a statement against interest, but with a party admission, only the party can make it
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On my way home from work, I am hit by a car and killed. The driver of the car later confides in her friend, Niki, “It was all my fault. I ran the red light, and I will never forgive myself.”My kids bring a wrongful death action against the driver and call Niki to testify to what the driver said. Admissible?
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i. Hearsay? Yup, if being offered for its truth!
ii. Exceptions or Exclusions? Party Admission?Yes! Driver is a party, and the statement is against her interest. Statement Against Interest?ONLY if the driver is unavailable at trial to testify. Change the facts. Say that I survive, but the other driver is injured but still makes the statement to Niki admitting fault. But the driver later dies as a result of the injuries. The driver’s next of kin sues me for wrongful death claiming I was at fault in the accident. Can Niki testify to what the driver told her about it being her fault? Party Admission? NO! The driver isn’t a party! Statement Against Interest?Yes!!! This exception allows any person to make the statement |
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forfeiture by wrongdoing
FRE 804 |
1. If a party is involved in, or responsible for a declarant’s unavailability, then any statement that declarant made can be used against that party, so the party can’t profit from the misdeed.
2. Think mafia and them killing off a witness so s/he can’t testify. Any statement that witness said that is against that party, will be admissible under this exception. 3. Requirements: i. Defendant engaged or acquiesced in wrongdoing ii. That was intended to render the declarant unavailable (at any trial) iii. It did render the declarant unavailable as a witness BUT you must watch out for 6th Am. Confrontation Clause Constitutional considerations |
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FRE 807 Residual or “Catch All” Exception
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1. This is a relatively new rule (Dec. 1 1997) that consists of former rules 803(24) and 804(b)(5)
2. It’s essentially the “catch all” exception that allows in other statements that are NOT covered by 803 or 804 IF the court determines: i. The statement is offered as evidence of a MATERIAL fact AND ii. The statement is the BEST EVIDENCE that the user can obtain through reasonable efforts AND iii. Admitting the statement will best serve the general purpose of these rules and the interests of justice AND iv. The evidence has an equivalent “guarantee of trustworthiness” as the other exceptions in FRE 803 and 804 AND v. The user of the evidence notifies the adverse party in advance (to provide a fair opportunity to prepare) of the: Intention to use the statement, and Specifics of the statement, including the declarant’s name and address. These 5 criteria, which all must be met, serve the purpose to show that although the evidence is inadmissible under any of the other exceptions, it is stil |
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recap FRE 803 exceptions where declarants availability is immaterial
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1. Present Sense Impression
2. Excited Utterance 3. Then Existing Mental, Emotional, or Physical Condition 4. Statements for the purposes of Medical Diagnosis or Treatment 5. Recorded Recollection 6. Business Records 8. Public Records and Reports 16. Ancient Documents 18. Learned Treatise 22. prior convictions |
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fre 803
ancient document exception |
1. This exception presumes reliability of a document that is: At least 20 years old, Regular on its face, and Is found in a place of natural custody.
2. If these requirements are met, it is not only admissible for its truth, but it is also presumed to be authentic without any foundation 3. Rationale: Statements were likely made prior to the controversy in question, so they are presumed to be reliable. And its Unlikely there is a witness who is available with first-hand knowledge of the contents within the ancient document who can testify live today. |
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fre 803
learned treatise exception |
Basic General Rule: This allows the contents of a learned text, treatise, or article concerning a relevant discipline to be admissible as an exception to hearsay IF it is established to be a reliable authority by:
a. Relying on an expert testimony on direct, OR b. An admission on cross by an opposing expert, OR c. Testimony of any other expert in that field, OR d. Judicial Notice LIMITATION: It’s ONLY READ to the jury. The text itself is not received into evidence. |
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learned treatise exception
requirements |
a. An expert witness must testify
b. Treatise has to first be established as a reliable authority (this is laying the foundation that it is authoritative) by one of the four ways: i. Relying on an expert testimony on direct, OR ii. An admission on cross by an opposing expert, OR iii. Testimony of any other expert in that field, OR iv. Judicial Notice c. Statements are only READ to the jury by the expert witness |
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Victor sues Tony Soprano civilly for Assault and Battery for his serious injury from Tony allegedly shooting him in the head, which resulted in a hole in his head. Plaintiff wants to admit a portion of the text in “Gray’s Anatomy” that essentially states that having a hole in your head is not good for your health. Can the Plaintiff start out by reading the text to the jury?
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NO! B/c it is hearsay and it’s being offered for its truth
What must first be done? The treatise must be established as authoritative in one of the 4 ways: a. Relying on an expert testimony on direct, OR b. An admission on cross by an opposing expert, OR c. Testimony of any other expert in that field, OR d. Judicial Notice |
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May the text be used to impeach any contrary opinion by a defense expert?
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Yes! A learned treatise can always be used to contradict what your opponent’s expert is testifying to.
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Can you use a learned treatise to support your own expert’s opinion?
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yes
Although typically, you are not allowed to bolster your own witness under the FRE, you can do so under this particular exception without first waiting for your opponent to attack. Can a learned treatise also be used for its truth? YES! It IS an exception to hearsay, so it can be used for its truth and to impeach! Note: At common law, the learned treatise was only admissible to impeach, but under FRE 803(18) it is also admissible for its truth as substantive evidence. |
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fre 803
prior convictions exception |
1. Just know that this is DIFFERENT than using prior convictions to impeach.
2. This rule allows for the admissibility of previous felony convictions (crimes punishable by death or imprisonment exceeding year), after a final judgment entered after a trial, OR upon a plea of guilty, but does NOT include a plea of nolo contender, to be used to prove a fact essential to sustain the judgment. 3. Civil Cases: can be uses to prove an essential fact in present case, regardless of who was convicted (one of the parties, a witness, or anyone else) 4. Criminal Case: By Defense: to prove an essential fact, regardless of who was convicted. By Prosecution: to prove an essential fact ONLY if the person convicted is also a defendant in the current case. 5. Pendency of Appeal: It’s still allowed, but the party adversely affected by the evidence may inform the jury of the pendency of appeal. Key Points: There is no need to look for an exception or exclusion until you first determine whether the statement is in fac |
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hearsay and constitutional issues
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Sixth Am. Confrontation Clause of the US Constitution states that “in all criminal prosecutions, the accused shall enjoy the right . . . To be confronted with the witnesses against him.”
How does this impact the FRE? So, even though an out-of-court statement qualifies as an exception to the rule against hearsay, a literal application of the 6th Am. Confrontation Clause would prevent the prosecution from admitting any hearsay statement that doesn’t allow the defendant to confront the declarant who made the statement. BUT, the US Supreme Court has never adopted such an extreme position. Instead, such statements MAY render the statement inadmissible when it is offered AGAINST the accused in a criminal trial under the 6th Am Confrontation Clause unless certain criteria is met that has been established by the US Supreme Court. |
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the US Supreme Court outlined 4 specific factors that must be met in Crawford v Washington to render statement inadmissible:
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i. The out-of-court statement is offered against the accused in a criminal case, AND
ii. The declarant is UNAVAILABLE at the trial, AND iii. The out-of-court statement was “TESTIMONIAL”, AND iv. The accused had NO OPPORTUNITY TO CROSS-EXAMINE the declarant’s “testimonial” statement that was made UNLESS: the prosecution demonstrates that the defendant has forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial. |
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6th amendment provides
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The 6th Am. Confrontation Clause of the US Constitution states that “in all criminal prosecutions, the accused shall enjoy the right . . . To be confronted with the witnesses against him.”
Several Aspects to this constitutional guarantee: 1. Right of the accused to be present at trial 2. Right to face adverse witnesses (“face-to-face” confrontation) 3. Right to cross examine these witnesses So, any significant limitation on this right raises 6th Am. confrontation issues |
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In Ohio v. Roberts, p. 297, the Supreme Court identified 2 values underlying the Confrontation Clause:
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The Framer’s preference for “face-to-face accusation”
An underlying purpose to augment accuracy in the fact finding process. From these values, the Court created the “Roberts” two pronged test to determine whether hearsay statements by non-testifying declarants, while admissible under the FRE, violated the Confrontation Clause of the 6th Am. |
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“Robert’s Two Prong Test” to Restrict the Range of Admissible Hearsay
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1. Unavailability of Declarant made testimony necessary
i. Prosecution must either produce or demonstrate unavailability of the declarant AND 2. Reliability (i.e., trustworthiness) i. Even if unavailability is proven, the statement is only admissible if it bears adequate “indicia of reliability” which: 1. Can be inferred, without more If the evidence falls within a “firmly rooted hearsay exception,” OR 2. Bears “particularized guarantees of trustworthiness” The US Supreme Court overruled Roberts by rejecting reliance on reliability as a relevant factor. Instead, the SC focused on cross-examination as the determinative consideration when hearsay statements have a “testimonial” component. |
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crawford v. washington
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1. Defendant was charged with assault and attempted murder for stabbing the victim (Lee) when he and his wife had gone to look for him. D was upset over Lee’s earlier attempt to rape his wife. Defendant claimed self defense saying that he thought he saw something in Lee’s hand, which is why he stabbed him.His wife, generally corroborated his story when interrogated later at the stationhouse by police, except that she said she didn’t see anything in Lee’s hand.She refused to testify, however, at trial, asserting spousal privilege. Prosecution wanted her statement in arguing it was admissible as the hearsay exception statement against penal interest.Defense objected arguing that admission violated his 6th Am Confrontation Clause Rights which gave him the right to confront witnesses against him.
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crawford held
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2. US Supreme Court Held: The statement violates the Confrontation Clause because it was “testimonial”, and the defendant had no opportunity to cross-examine the declarant (his wife) This overruled the Roberts 2-prong test. Justice Scalia stated that the Roberts test was too unpredictable, too amorphous, and too subjective. AND it allowed juries to hear evidence that was untested by the adversary process, based on a mere judicial determination of reliability.
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new crawford test
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New “Crawford” test to determine reliability focuses on: Cross Examination and Whether the statement was “testimonial” or not.
If it is “testimonial,” then it is out as violating the 6th Am. The Court noted that the results and even rationale of most of the past cases, under this new approach were still consistent with the past holdings. Problem: The Court did not specifically define what was meant by “testimonial” in Crawford |
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SC set forth a definition of “testimonial” based on a “primary purpose” test: Statements are:
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ii. “Nontestimonial” when made in the course of police interrogation objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
1. If so, they are admissible b/c they don’t violate the 6th Am iii. “Testimonial” when circumstances objectively indicate there in such ongoing emergency, and the primary purpose of the interrogation is to establish or prove past events that are potentially relevant to a later criminal prosecution. 1. If so, they are NOT admissible b/c they do violate the 6th Am |
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do the primary purpose test!
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1. Nontestimonial if primary purpose is emergency
2. Testimonial if primary purpose is for prosecution, AND 3. The accused had NO OPPORTUNITY TO CROSS-EXAMINE the declarant’s “testimonial” statement that was made |
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testimonial defined
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1. A hearsay statement is testimonial if the declarant makes the statement that s/he anticipates will be used in the prosecution or investigation of the crime.
This includes: 1. Witness statements made to the police or other law enforcement in response to police questioning 2. Any testimony given at a formal proceeding (preliminary hearing, grand jury, motion to suppress, etc.) 3. Guilty plea allocutions of co-conspirators to prove that a conspiracy existed 4. Forensic lab reports revealing drugs, fingerprints, firearm evidence, blood, DNA 5. Etc. |
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considerations in Determining Whether Statements are “Testimonial”
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1. Likely motivation and intent of the declarant making the statement (to get help or provide evidence?)
2. Likely motivation of the interrogator (to safeguard a victim or secure a scene or to get evidence?) 3. Type of event (ongoing emergency or description of past events?) 4. Identity of person eliciting the statement (cops vs acquaintance/relative of the declarant?) 5. Degree, amount, circumstances and location of the interrogation (preliminary on-scene questions, or structured questioning?) |
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Tony Soprano and his cousin are charged with murder of Victor. After being given Miranda warnings, his cousin tells the police, “Tony and I killed Victor.” His cousin later pleads guilty, but then refuses to testify against Tony in his murder trial, pleading the 5th Am.The prosecution wants the cop to testify to his cousin’s statement (“Tony and I killed Victor.”)
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Hearsay? Yup! Out-of-court statement being offered for its truth
exemptions/exceptions? iii. Party Admission?Nope! The cousin isn’t a party to this murder trial iv. Statement against interest? 4 Requirements: 1. Timing – Statement must be against the interest at the time it was made Statement was against his cousin’s interest when it was made b/c he confessed to killing someone. 2. Unavailability – declarant must be unavailable to testify at the time of trial. He is pleading the 5th 3. Anyone can testify to it that heard it – it doesn’t have to be the person (declarant) who said it. 4. Personal Knowledge – declarant must have personal knowledge of the situation As long as the judge finds the statement is reliable and trustworthy Any other objections? Yes! It violates Tony’s 6th Am Confrontation Clause b/c he isn’t given the right to confront his witness (cousin)! Let’s see by applying the Crawford 4 part test (if met, it will allow the admission of the hearsay statement |
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judicial notice
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1. Basically saying lets not spend time proving things the judge already knows, or capable
2. Something that cant really be disputed 3. If either party has a problem with judge tasking or refusing judicial notice, they can object 4. Any stage of the proceeding 5. Civil cases- jury should be instructed to accwpt as cnoncluvie anything judicially noticed. BOUND basically 6. Criminal- may but are not required to accept as conclusive facts judicially noticed |
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presumptions
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1. BOP never switches. P by a preponderance of the evidence. Even though burden fo production switches, bop never changes
2. Use state law, there is no FRE |
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FRE 501
PRIVILEGES use it or lose it! |
general common law privileges:
Lawyer client- client sues attorney for mapraictce. Can bring up wht they talked about. Confidential communications between an attorney and client made during professional legal consultation are privileged from disclosure UNLESS waived by the client or representative of the deceased client Doctor- patient has privilege of disclosure. If ct orders psychic evaluation, you wont be covered. Court hired him so no privilege. Psychotherapists: The patient has a privilege against disclosure of confidential info acquired by the physician/psychiatrist in a professional relationship entered into for the purpose of obtaining treatment, UNLESS it is waived. Note: there is no federal common law “Dr.-patient” privilege Spousal: must have valid marriage. spousal immunity- spouse cant testify against partner in criminal case. Need not be confidential matter. Confidential marital relations: tell wife secret, shouldn’t be allowed to disclose. Must be confidential info. Must be married a |
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privileges in general
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In general, privileges protect individuals from disclosing certain confidential communications between people who have certain legally recognized relationships
These privileges exclude evidence at all stages of the judicial proceeding, and they can be asserted by people other than the parties. Problem: sometimes VERY relevant evidence is suppressed. Trade off: it’s thought that protecting the relationship is more important that disclosing the truth about these facts. |
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In cases (civil or criminal) involving a federal question,
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federal common law dictates privileges
In diversity actions in civil court, privileges are dictated by state privilege law where there is a state law claim. Erie Doctrine applies to avoid forum shopping. |
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3 exceptions that negate all professional privileges:
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ii. Future Crime or Fraud Exception. No privilege if a client or patient communicates an intent to commit a future crime or fraud
iii. “At Issue” Exception. No privilege if the client or patient raises the communication as an issue in the matter. iv. Disputes Between the Parties to the Professional Relationship (i.e., malpractice or fee actions).No privilege if the parties are suing each other for fees or malpractice |
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best evidence rule
in general |
1. In English- Requires that a party seeking to prove the content of a writing (includes films, photos, X-rays, and recordings) must either: Produce the original document OR Account for the absence of the original with a reasonable explanation for its absence.
2. If a reasonable explanation is provided, the foundation has been laid to allow in secondary evidence, such as a copy, or oral testimony to prove the content of the original. 3. When theres a writing very important to a case (title when suing for conversion),. We want the original writing, not some photo copy or testimony 4. If you don’t bring in the original, you might not be able to bring photocop either 5. wItness only knows what they know because of the writing? If not, best evidence doesn’t apply. If yes, witness must have original document 6. substitute is ok like copy, roal testimony if theres good reaon for not having original 7. best example: created a will. Cant prove will with copy. Will burned in fire. Will allow copy 8. only |
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best evidence rule continues
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Label is misleading, b/c there is no requirement that the party must always offer the best most reliable evidence.
Instead, FRE 1002 only requires a preference for the original writing, recording, or photograph, and only requires an original in limited circumstances if the contents of the item is at issue. This rule is really very limited. It only applies where the goal is to prove what the content of the item says If you are only using it to show there was an agreement, the BER doesn’t apply Purpose- to prevent fraud or inaccuracy |
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best evidence attack
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1. With a writing, look at if authenticated
2. Best evidence 3. Hearsay 4. Relevance 5. Public policy |
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best evidence in detail
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1. FRE 1001- Provides definitions of items covered under the rule
2. FRE 1002 – states the rule 3. FRE 1001-1004 divide writings, recordings and photographs into 3 categories: ii. Originals – Obvious, but keep in mind it doesn’t have to be the first item of its kind. A triplicate carbon of a complaint for example would be considered 3 originals. Also, often there are 2 or 3 copies of an “Original” contract, will, trust, etc. iii. Duplicates- a copy produced by any technique that reproduces the same impression as the original and avoids casual errors and “accurately reproduces the original.” 1. Carbon copies, Xerox, microfilm, faxes, reprints, enlargements, etc. iv. Secondary Evidence – any evidence other than originals or duplicates that is offered to establish the contents of a writing, recording or photograph. |
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with secondary evidence,
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Remember, since its limited, it only applies when the content of the document is at issue.
This happens in 2 situations: i. Legally Operative Documents: Documents that by their mere existence create or destroy a legal relationship that is at issue in the dispute Ex: deed, divorce judgment, will, contract ii. Witness’ Sole Knowledge Comes from the Contents of the Document Essentially, the witness has no independent knowledge other than what’s in the document and wants to recite orally what he read. This is the most common situation where the BER kicks in. |
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when is content an issue for BER
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Contents are not at issue when a writing, photo, etc. is brought in for demonstrative purposes to illustrate or explain the witness’s testimony. The BER doesn’t apply to this situation
Contents ARE at issue when the witness’s sole knowledge comes from what is said in the document or what is seen in a picture, video, X-ray, etc. This is where the BER kicks in. US v Bennett, p. 494, BER did apply to a GPS unit which was used to “back track” the journey of a boat loaded with marijuana. There was no other proof other than the GPS, and the gov’t did not have the GPS or even give a reasonable explanation for its absence. T/f, it was excluded for violating the BER. |
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BER does NOT apply to
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1. Facts that can be proven INDEPENDENTLY of the writing
*Watch out for this one. Remember, the BER only applies when you need to prove the contents of the writing. If there are facts independent of the writing itself to prove what it says that a witness has personal knowledge of that just so happens to also be described in a writing, then there is no need to produce the original writing or explain its absence b/c the facts are proven independently. Ex: You don’t need a birth certificate to prove you were born (same for marriage license, death certificate, receipt, etc.). You also don’t need a receipt to prove something was purchased. 2. FRE 1004 (enumerated conditions that excuse the production of the original) Originals are lost or destroyed Originals are not obtainable Original is in the possession of the opponent Collateral Documents. The BER does NOT apply to writings of minor importance that are not closely related to a controlling issue |
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collateral matter example
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If Niki testifies that she is divorced in a personal injury damage claim, and her treating dr. testifies that he is licensed to practice medicine preliminary to giving his expert opinion, there is no need to produce the divorce judgment or his medical license. These are collateral matters).
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Substitutions (Modifications) to the BER:
Situations where you can substitute other things for the original document |
1. These are the exceptions of FRE 1002, in the last sentence that states, “except as otherwise provided in these rules or by Act of Congress”)
2. Public Records – certified copied are admissible in place of originals 3. Summaries of Voluminous Documents (FRE 1006) – If the originals are too voluminous to be produced in court, summaries, charts, or calculations are admissible in place of originals as long as 2 requirements are met: 4. Originals would otherwise be admissible if offered (they don’t violate hearsay, or other rules) 5. Originals are made accessible to the opposing party at a reasonable time and place |
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fre 1003
duplicates |
1. Duplicates – can be used in place of the originals, even without explaining the absence of the original UNLESS:
2 Exceptions: A genuine question is raised about the authenticity of the original OR It would be UNFAIR to admit the duplicate in lieu of the original So, in practice, if a duplicate is offered, you can’t just object under the BER, b/c a duplicate is just as good as the original UNLESS one (or both) of the two exceptions apply |
