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296 Cards in this Set

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  • Back
FRE 606
Juror Competency as a witness-
(a) juror can not testify at the trial
(b) can't testify about the deliberation process unless talking about extraneous prejudicial information
US v Tanner
Jurors who were drunk and stoned during deliberation were not subject to outside influence. Influence came from within te jury.
FRE 401
Definition of Relevance-"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
FRE 402
admissible All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Two aspects of the relevance analyss
i.Probative- Does the evidence make some fact about the case more or less probable?
ii.Materiality- Is the fact of consequence to the determination of the action
US v James-
Woman who claimed to kill her mother's boyfriend in self defense. Whether the V had convictions for violente offenses was relevant to determining that the woman had a reasonable belief that he was going to harm her
FRE 104(b)
Conditional relevance- When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
Does evidence considered under 104(b) have to be admissible?
FRE 403
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time- Although relevant, evidence may be excluded if its probative value is substantially 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.
State v Bocharski
1.State could introduce some of the pictures to show that the V was killed by a knife, but pictures with the top of the head cut off were not necessary and were inflammatory.
a.State claimed that it was to show the angle of the knife, but they elicited no T about the knife angle
2. However, b/c the jury had already been desensitized by the previous exhibits it was harmless error to introduce the pics.
4 step FRE 403 analysis
i.Evidence must be relevant in some way
ii.Articulate what the relevance is, how strong it is, how probative is the fact;
iii.Identify the argument against admission (e.g., unfair prejudice, misleading of the jury, waste of time, etc.)
iv.Harm must be substantially outweigh the probative value (make sure to use the word “substantial”)
4 inferences in flight evidence
1.From the defendant’s behavior to flight
2.From flight to consciousness of guilt
3.From consciousness of guilt to consciousness of guilt concerning the crime charged
4.From that consciousness to actual guilt of the crime charged
Can failure to flee show not consciousness of guilt
Yes, Hard to show that there is unfair prejudice to the state for introducing this E, so it will generally come in
Is probability evidence admissible?
- Estimates and mathematical odds are not admissible SO LONG AS THE VALIDITY OF THE ESTIMATES HAVE NOT BEEN DEMONSTRATED
People v Collins
Court rejects the use of probability testimony given by the ∏ b/c the basis for coming up with the numbers is not valid. ∏ essentially was trying to wow the jury with a bunch of fancy math
What effect do stipulations have on the 403 balancing?
If the ∆ can avoid prejudice by stipulating to an element then the court may require the ∏ to accept the stipulation
US v Jackson-
- ∆ agreed to stipulate that he was in another state and used a false name in order to avoid the ∏ allowing testimony about it. Court finds that it is an abuse of D not to allow the ∆ to do this- risk of UFP was high
Old Chief v US-
∆ is charged with being a felon in charge of a firearm. ∆ wants to stipulate that he was a felon. ∏ wants to introduce the sentence which says that ∆ was convicted of assault with a deadly weapon. TC allows the evidence to come in
1.SCOTUS overrules saying that even though the facts of the conviction are relevant, the risk of unfair prejudice is too high
a.Court rejects a res gestae argument holding that a break in res gestae in such a small matter is not enough
FRE 407
Subsequent Remedial Measures-When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
What other things can be proven by introduction of subsequent remedial measures.
Proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Tuer v Mcdonald
TC excluded evidence that the ∆’s changed their protocol about the use of heparin before coronary surgery. Court finds that the doctor did not contest feasibility, or testify in such a way that the information could come in though impeachment
Are 3rd party remedial measures allowed in?
Under Rule 407 probably, but there is a relevance problem if trying to prove N on the part of the original D.
FRE 408
Compromise and Offers to Compromise-Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible
What are the other purposes to which compromise offers can be used?
This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Bankcard v Universal Bancard
∆ in a breach of K action wants to get in that the reason they breached the K was b/c they had entered into settlement talks with the ∏ and thought that they would be ok
i.Court says that this is a reason for the breach of the K, not to show that the ∏ was liable.
FRE 409
Payment of Medical and Similar Expenses-Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
FRE 410
: Inadmissibility of Pleas, Plea Discussions, and Related Statement
a. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions
i. (1) a plea of guilty which was later withdrawn;
ii. (2) a plea of nolo contendere;
iii. (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
iv. (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
Excpetions to FRE 410
such a statement is admissible
i.(i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or
ii.(ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.
When does a defendant become protected by FRE 410
Once plea negotiations are underway.IF the ∆ begins to reveal the information with no reason to think that plea discussions are underway, then they are not protected. IF the person that they are talking to does not have authority (even if they seem to ) then plea negotiations are not underway. 5th circuit will allow this E in if there is a subjective belief on thepart of the ∆ that negotiations are underway
US v Biaggi-
Δ spurns an offer for IMMUNITY and then wants the court to allow E that he did this. Relevant b/c it shows that ∆ had no consciousness of guilt. ∏ argues that this is barred by 410. No indication in the rule that 410 applies the other way. This is not the typical plea deal, this is an offer for immunity
Difference between FRE 408 & FRE 410
i. Statements made in plea negotiations are not admissible in civil trials, BUT statements in settlement talks could be admissible in a criminal trial
fre 411
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully
Acceptable uses of proof of liability insurance
Proof of agency, ownership, or control, or bias or prejudice of a witness.
Williams v McCOy
Defense to a lawsuit is that the ∏ is overly litigious. ∆ claims that the ∏ went to her attorney before she went to a doctor. ∏ wants to get in E that the only reason she did this was b/c she had been visited by ∆’s claims adjuster. ∆ objects on Rule 411 grounds. Court allows the T. ∏ was offering the evidence to refute the claim that the ∏ was overly litigious, not to show fault by the ∆.
FRE 404(a)
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion,
Exceptions to the FRE 404(a) ban on character evidence
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.
Acceptable other uses for character evidence
Proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident
People v Zackowitz-
State is not allowed to introduce evidence that the ∆ had multiple guns at his house in order to show that he shot someone. Fact that he owns multiple guns does not make it more likely that the ∆ shot someone without going through the propensity box.
Proof of Knowledge
The knowledge must be a specialized one-
1.Court is unlikely to say that fact that a person sold drugs before meets the requisite knowledge requirement-
2.Proof that the ∆ previously hacked into a complicated computer system may get you there
Proof of MO-
- Key word is “idiosyncratic”
In order for this to come in the similarities between the two crimes must be such that the inference that nobody else could have committed this crime overcome's the jury's temptation to weigh it as character evidence
US v Trenkler
-∆ has previously admitted to building a bomb for a friend. Court allowed the E in after T from an expert that bomb makers are very habitual and that there were a lot of similarities between the two bombs. Counter was that the most important thing (type of explosive) was different
Proof of motive-
May be probative of the identity of the criminal or to show malice or specific intent.
Narrative integrity
Court may allow something in that goes to propensity if failure to use it may make the story too hard to understand. 2. This rationale should only be applied when reference to the other crimes is essential to a coherent and intelligible description of the offense at bar.
Common plan
1. This will only work if the ∏ can show that the two incidents were part of the same series of connected crimes
2. Reasonably hard to meet this standard
3.Mere similarity is not enough
Two possible definitions of common scheme or plan-
a.Weak version- Acts must show a plan rather than a series of events, but they need not be distinctive, unusual or necessary
b.Strong version- Crimes must be part of an overall plan, each part must be necessary
State v Kirsch
Court refused to allow in testimony of previous similar molestations by a church group leader, b/c they were merely similar, not necessary parts of the chain of events.
Absence of accident/doctrine of chances
- Applies when the defense is chance or accident and the ∆ has been involved in something very similar before
Rex v Smith-
Court allows evidence in that a man had previously lost 2 wives by drowning in the tub in his trial for the death of wife #3.
When can the D use propensity evidence of another person to show that they were not the perpetrator
D can use this as long as the evidence passes a 403 analysis for waste of time or confusion of the issues. Prejudice is not a factor.
US v Stevens
∆ is fingered for a robbery. 2 weeks later a very similar robbery occurs and V fails to ID ∆. ∆ wants to get in E of the failure to ID and the fact that there was a similar crime-
a.Court allows in the evidence holding that the purpose of the Rule was to avoid prejudice and there is little chance of prejudice in this case
what is the standard to decide if the D was guilty of the previous acts for non-propensity uses
In order to get in evidence of previous acts for non-propensity uses the ∏ need only put forth enough facts that A REASONABLE JURY COULD FIND BY A PREPONDERANCE OF THE E THAT THE ∆ HAD COMMITTED THE PREVIOUS ACTS-
Huddleston v US
- Court held that there was enough E to show that the ∆ had previously bought/sold stolen property b/c the property was very cheap, there was a large volume of it, there was not bill of sale and evidence that the ∆’s suppliers had been involved in the sale of stolen TV’s before.
FRE 406
- Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice
Stadard for habit evidence
Must be something done almost unconsciously. Must be done with invariable regularity
Halloran v Va chemicals
-∏ had the habit of heating up Freon when he used it. If the Freon got too hot the can would explode. Court allows in E that the ∏ tended to do this in order to show that the ∏ likely did it on the day in question.
FRE 413(a)
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
FRE 414(a)
a. (a) In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
a. (a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.
Do the other rules of Evidence apply to rules 413-415
Yes. i. There is some difference as to the standard that is applied
1.Some courts give a lot of deference
2.Other courts use 403 to exclude this type of E in most cases
US v Guardia
Court rejects the argument that Rule 403 was not meant to apply to 413-415. In this case, Court holds that E of previous abuse of patients will not come in b/c it is too likely to confuse the jury.
What are the three affirmative uses of Character evidence?
i. Evidence of the ∆’s relevant character traits if offered by the ∆
ii. Evidence of the V's character traits if offered by the ∆
iii. Evidence of the v's character for peacefulness if the ∆ has raised the defense that the V was the first aggressor
Besides affirmative uses what are the other two uses of character evidence
i.Evidence of a character of the D if the D has put that character trait at issue
ii.If the D has put on character witnesses to say that the victim has a certain character trait-Pros can put on witnesses as to the same character trait for the D-
Two ways to prove character
i.Reputation- Do you know the ∆? Do you know his reputation? What is it?
ii.Opinion- Do you have an opinion as to the character of the ∆?
When can the prosecution offer specific instances of the D's character
to rebut R/O T Or under 405(b) to show past instances that reflect a character trait at issue in the trial
Can a person use character evidence in civil cases?
Could apply in quasi criminal cases
Perrin v Anderson-
Court allowed CE about the ∏ in a §1983 case alleging that cops killed someone. Court allows the use of the evidence since the case is quasi criminal.
1.However, Court rejects the use of specific instances of ∏’s conduct.
2.Character E was admissible against the ∏ but not specific instances of conduct
Sec v Towers Financial Corp-
Court refuses to extend 404(a) to civil case ( fraud) that does not include wrongful death
Pertinent character traits
ii.The other 2 categories-
1.Honesty to the extent that the alleged crime is one of dishonesty
2.Peacefulness- In cases of violence
FRE 405
Methods of Proving Character
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
What are the three types of cases that would fall into the specific instances exception of rule 405
1.Entrapment- If the ∆ offers a defense of entrapment, then the ∏ can offer proof that the ∆’s have done this similar crime in the past
2.Libel- Truth is a defense to Libel, so if the ∆ calls Madonna a slut, then they can show past instances of the behavior to show that she was
3.Child custody case
Rule of thumb for 405(b)
If you had to guess then 405(b) will not apply
Michelson v. US
- Court allowed the prosecutor to introduce evidence of ∆’s specific instances of conduct that had occurred 27 years earlier. ∆ had called the character witnesses, and both had known the ∆ for 30 years.
i.When offering specific instances of past conduct, ∏ must have a good faith belief that the event happened. ∏ can not just take potshots at the ∆.
FRE 607
Who May Impeach- The credibility of a witness may be attacked by any party, including the party calling the witness
when can you put up a witness about your own witnesses credibility
Only after the other side has attacked their credibility
FRE 608(a)
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise
FRE 608(b)
Specific instances of conduct (b) Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
When you can rehab your own witness
After the other side:
i.Shows evidence of past felonies or crimes of dishonesty under 609
ii.Bring opinion or reputation evidence about the witness’ bad character for truthfulness
iii.Evidence of specific acts on cross-ex under 608(b)
Two other times that a person can rehab a witness
If in the court’s discretion they constitute a broad based attack on the witness character for truthfulness
i.Contradiction by past inconsistent statement
ii.Contradiction by inconsistent evidence
FRE 609(a)
. (a) For the purpose of attacking the credibility of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonestly or false statement, regardless of the punishment.
FRE 609(b)
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
FRE 609(c)
Evidence of past conviction is not admissible if it has been pardoned, anulled, or the person has been rehabbed
FRE 609(d)
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
Which 403 standard applies to crimes of honesty?
i. Crimes not subject to balancing- Crimes of honesty- Any crime of dishonesty will come in subject to the time limit.
Which 403 standard applies to non-honesty felonies offered against a witness within the time limit?
Regular 403 balancing
Which 403 standard applies to non-honesty felonies offered against a D that is within the time limit?
Probative value must outweigh the prejudicial effect
Which 403 standard applies to crimes more than 10 years old?
Any prior conviction that would otherwise be admissible that falls outside the ten-year time limitation in 609(b) is only admissible if it passes a reverse 403 standard: the probative value must substantially outweigh the risk of unfair prejudice.
Which 403 standard appplies to juvenile crimes
These are pretty much never admissible
What is included in the 10 year period for rule 609(b)
i.Will include any time on probation
ii.SOA on whether the parole time comes in
1.Some courts count it only if the parole was revoked
Us v Brewer
D was paroled more than 10 years ago, but he violated his parole and was reconfined
When is the end of the 10 year period for rule 609(b)
1.The date that the indictment is filed
2.The date the witness testifies
What is required to show a crime of dishonesty after the 2006 amendment takes effect?
∏ must show that “establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness
Two previous ways to show that a crime was a crime of dishonesty
1.Per Se rule- If the pros has to prove dishonesty then it can come in
2.Facts of the case type anlaysis- Look to the facts of the case to determine if it should come in
Five factor test for determining admissibility for a crime of dishonesty
1. Nature of the crime
2.Time of conviction and the witnesses subsequent history-
3. Similarity between the past crime and the charged crime
4.Importance of the D's testimony-
5.Centrality of the credibility issue-
When can a D protest about a judge's decision to allow in impeachment through prior conviction?
If they in fact testified and were impeached
Luce v US
- Judge tentatively rules that a past conviction would be admissible. B/C of this the ∆ did not testify. Court held that the ∆ could not appeal this, b/c the evidence was not actually admitted against the ∆.
Ohler v Us
∆ tried to head off the introduction of past crime by bringing it up sua sponte in his testimony. Court held that he could not appeal the intro by the pros of the bad evidence b/c he had waived his rights
FRE 412(a)
a. Evidence generally inadmissible. (a) The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
i. (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
ii. (2) Evidence offered to prove any alleged victim's sexual predisposition.
FRE 412(b)(1)
In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
(C) evidence the exclusion of which would violate the constitutional rights of the defendant.
FRE 412(b)(2)
) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim
Olden v KY-
T inferring that accuser was having an extramarital affair was allowed in to show her motive to lie and allege rape in order to keep from her boyfriend the fact of her ex with the ∆. The CC protected this otherwise excluded defense.If the entire defense rests on the idea that the V has a motive to lie, then the ∆ has a better chance of winning a CC argument
State v Smith
Prior false accusations of sexual assault by the victim do not constitute “past sexual behavior: for purposes of the rape shield law. Question for the court is whether the jury could find that the victim had made prior false accusations
Stephens v Miller-
- ∆ wants to get in that he intimated that the V had doggy style sex with another man during sex and this is why she got mad and falsely accused him of rape.
US v Knox
∆ sought to testify that accuser had a reputation for group sex that was well known in order to show that he could have believed that she was consenting to sex with him and her boyfriend in the room. Court does not allow this E. This is not allowed under Rule 412. 412 is read very broadly
Doe v US-
4th circuit is the one circuit that has allowed in testimony about specific instances of sexual relations that the ∆ knew about in determining state of mind at the time of the trial.
FRE 601
General Rule of Competency-Every person is competent to be a witness except as otherwise provided in these rules.
FRE 602
. Lack of Personal Knowledge-A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
Factors for competency of child witnesses
i.Whether the child can perceive and remember events accurately
ii.Whether she can communicate them intelligibly
iii.Whether she understands the difference between truth and falsehood
iv.Whether she understands the importance of telling the truth
v.Whether she can respond intelligently to questions posed on cross-examination
FRE 801
Hearsay definition
FRE 801(a)
Statement. (a) A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
FRE 801(b)
Declarant. (b) A "declarant" is a person who makes a statement.
FRE 801(c)
Hearsay. (c) "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
3 steps to determine if something is hearsay
1.Is there an assertion?
2.Was it made at some other point than in front of the jury?
3.Is it being offered to prove the truth of the matter asserted?
FRE 801(d)
Statements that are not hearsay
FRE 801(d)(1)
Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or
Can a prior inconsistent statement come in if it was not given under oath?
Yes, under FRE 613, it can come in IF ONLY TO IMPEACH THE WITNESS
Are prior inconsisitent statements offered to impeach offered for the truth of the matter asserted?
No, they come in only to show impeachment
Can a person impeaching through prior inconsistent statements under FRE 613 use extrinsic evidence to show the statement?
Yes, unlike specific instances of untruthfulness,extrinsic evidence can be used, but it is subject to a 403 balancing test. The Court must determine that the statements are actually inconsistent
US v Ince
Main witness for the pros says that she can not remember that she told a cop that she saw a guy shoot a gun. At the second trial, the pros puts her up and then tries to impeach her with her previous T. Court rejects this use under 403 as a subterfuge. The second testimony is not inconsistent with the first
Prior Consistent statements-
These are admissible to rebut a charge of recent fabrication or story change
What is the requirement for admission of prior consistent statements to rebut a charge of recent fabrication?
They must have been made prior to the time when the m otive to lie arose
US v Tome-
∆ is charged with molesting his daughter. ∆ attacks the daughters credibility, ∏ puts up witnesses who testify that the V had told them the same story that she told the court. Court excludes the E b/c V told the people the stories after she already had developed the motive to lie.
When can you rehabilitate a witness with a prior consistent statement?
Only if the other side has made a claim that the witness has a motive to lie. Reputation evidence will not be enough. Must be to rebut a charge of recent fabrication or story change
Does a statement of ID come in for the truth of the matter asserted?
Commonwealth v Weichell-
- Court says that there is no reason not to admit the drawing when it is based on the T of the W or V.
Does it violate the confrontation clause when the court admits an out of court ID and the person who gave it can not remember the events that gave rise to the ID?
As long as the person who made the out of court ID testifies, the CC is not violated. The court uses a very loose definition of available for cross examination.
US v Owens-
Court allows the admission of an out of court ID even though the cop who gave it could not remember the attack. Court says that this does not violate the CC b/c the ∆ can cross the W.
FRE 801(d)(2)
Admission by party-opponent
Is there a personal knowledge requirement for a statement of a party opponent?
Can the defense get in a statement by a party opponent?
No, they need to put the witness up on the stand. THe other side can get it in
FRE 801(d)(2)(b)
a statement of which the party has manifested an adoption or belief in its truth,
4 step analysis for adopted admission by silence
1.Statement must be heard and understood
2.Party must be at liberty to respond
3.Circumstance must have called for a response
4.Party failed to respond-
Silence/adopted admission and Miranda
1.Pre arrest-pre miranda- Courts are more likely to find that a ∆’s failure to try and rebut an accusation as an adopted admission
2.Post arrest-pre-Miranda- This is arguably getting closer to the liberty to respond prong since most people know that you have the right to remain silent
3.Post-Miranda- SOA on whether this will come in as an adopted admission-
5 ways to get to a statement by a party opponent
1. Statement by opponent
2. Adopted statement
3. Statement by a person authorized to make a statement
4. Statement by a party's agent concerning a matter within the scope of the agency or employment and made during the relationship
5.Statement of a co-conspirator
FRE 801(d)(2)(d)
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
Mahlandt v Wild Canid Center-
- Owner of a wolf leaves notes saying that his wolf bit someone. ∏ wants to get the note in against Owner and the company. Also wants to get in notes from a board meeting saying that the wolf had bitten someone.
1.Note will be admissible against owner and company- Even though the owner did not have personal knowledge this is not necessary for statements of a party admission. Owner was the agent of the wildlife center and he watched the wolf as part of his official capacities.
2.Minutes of the board meeting are admissible against the board but not the owner- Comes in against the board as a statement of a party opponent, but the board is not an agent of the owner so it won’t come in against him.
What must the statement be in order to be a statement by a co-conspirator
Statement must be made during the course of the COn and in furtherance
Steps to establish that a statement is one of a co-conspirator
1.Show that there was a con
2.Show that the ∆ and the declarant were part of the con
3.Show that the statement was made in furtherance of the con
What can the court look to in determining that the statement was on by a co-conspirator?
They can look at all evidence, but there must be other evidence besides the contested statement
Us v Bourjaily
-Court holds that all of the E, whether admissible or not, can be used to establish that there was a conspiracy and that the statement was made in furtherance of the Con.
FRE 802
. Hearsay Rule-Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.
FRE 803
Hearsay Exceptions; Availability of Declarant Immaterial-
FRE 803(1)
Present sense impression
Three conditions to get to present sense impression
a.Statement must describe/explain event/condition
b.Must be made while/immediately after declarant perceives event or experiences condition
c.Must be personal knowledge
FRE 803(2)
Excited utterance. (2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Four requirements for an excited utterance
a.Must be a startling event/condition
b.Statement must relate to the startling event or condition
c.Statement must be spoken while still under the stress of excitement that is caused by the startling event
i.Longer period of time that has passed the less likely to be an EU
ii.Although the severity of the event may affect the length of time that make it startling
d.Declarant has to have personal knowledge as to whatever they are saying
FRE 803(3)
iii. Then existing mental, emotional, or physical condition. (3) A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
Mutual Insurance v Hillmon-
Wife’s husband is dead and the insurance company says that the body was someone elses. Walters writes a letter saying that he is going to travel with Hillmon.
a.Court calls it a present sense impression but it actually reflects some past events. That he met Hillmon and agreed to travel with him.
b.Could get in that he was going to travel out west but this is not that relevant without showing that he was traveling with Hillmon
Shepard v US-
Gov’t wants to get statement that her husband poisoned her to show that she was not suicidal. Evidence might be admissible just to show a state of mind, but the gov’t actually put it in to show that the ∆ killed her. This is unacceptable under 403.
FRe 803(4)
Statements for purposes of medical diagnosis or treatment. (4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
US v Iron Shell
Two part test for admissibility
a.Is the declarant’s motive in making the statement consistent with the purpose of the rule?
b.Is the statement the kind that would be reasonably relied upon in the medical field?
FRE 803(5)
Recorded recollection. (5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
What must you show to get in a recorded recollection
a.The witness had firsthand knowledge of the event
b.The written statement must be a memorandum made at or near the time of the event while the witness had a clear and accurate memory of it
c.The witness must lack a present recollection of the event
d.The witness must vouch for the accuracy of the written memorandum
What do you get if the court allows a recorded recollection into the record?
You get the witness reading the report into the record
JOhnson v State
Witness claims to not remember what it was that he said. When the prosecutor tries to get the statement read into the record the D objects and is overruled.
i.Court says that this was error. Prosecutor never laid the foundation that Taylor would not have signed the statement unless it was true.
FRE 612
Writing Used to Refresh Memory
What do you have to establish in order to refresh memory?
Have to establish that the witness has a failure of recollection AND That there is something that would help refresh the recollection
FRE 803(6)
Records of regularly conducted activity. (6) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness
Palmer v Hoffman-
Man is killed by train. A few days after the accident the engineer is interviewed about the accident. Later he dies, and the ∆ wants to get the record in as a business record.
i. This is not admissible b/c this was not part of the regular activity, but is more for preparation for litigation.
ii. If the court allowed this to come in then people could subvert the rule and get in statements by putting into place a system to report on accidents right after they happened.
iii. This falls into the UNLESS the circumstances indicate lack of trustworthiness category
US v Vigneau
- ∆ is accused of laundering money and the ∏ wants to get in WU sheets with his name on them.
i.Here there is a personal knowledge problem. The clerk did not check ID and just took it at the person’s word that they were the person they said they were.
ii.Different story for the one’s found in the van. They had the ∆’s name on them and they were in his possession.
1.These would come in as a statement of a party opponent
FRE 803(7)
Absence of entry in records in accordance with (6)- Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
Fre 803(8)
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
IS it ok if the Public record includes factual findings?
YEs, but the judge must assess the trustworthiness of the report
Four part test to decide if a public report is trustworthy?
i.Timeliness of the report
ii.Investigator’s skill/expertise
iii.Whether a hearing was held
iv.Possible bias that would result if the reports were prepared with an eye towards litigation
Beech Aircraft v Rainey-
JAG conducts its own investigation of an airplane crash. In the civil wrongful death suit the ∆ wants to get in the report with all of its findings.
a.There was a split in the legislative history as to whether the courts should allow in reports that have factual findings BUT the advisory committee notes do not mention it so the court allows it in.
b.Here the four factor trustworthiness test is met for the most part
i.There was no hearing but the court allows the report in
FRe 803(16)
Statements in a document in existence twenty years or more the authenticity of which is established.
FRE 804
Hearsay exceptions: Declarant unavailable
FRE 804(a) Defintion of unvavilable
"Unavailability as a witness" includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.In civil cases make sure that you document how you tried to get them into court
Exception to the definition of unavailable
6. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement
FRE 804(b)(1)
Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination
US v DiNapoli-
∆ wants to get in T that he was not involved in bid rigging that came out in GJ testimony. Court rejects this argument b/c the prosecutor did not have a similar motive in trying to elicit the testimony. GJ already had enough to indict, and the ∏’s thought that the ∆ had coerced these people into not testifying
Lloyd v American Export Lines-
Court holds that there is enough of a similar motive between an air force examiner and a person trying to prove that a company was N in hiring a person. CG wanted to prove that the ∆ should be discharged from the CG and the present guy wants to show that ∆ should not have hired the guy.
Can there be a predecessor in interest in terms or previous cross examination for a criminal case?
no, CC clause guarantees each D the opportunity to confront their accusers
FRE 804(b)(2)
Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Two part analysis for statement of impenging death
i.There must be a settled hopeless expectation
ii.IS it the expectation of impending death
Shepard v US
Women says tells nurse that her husband poisoned her.
i. Court says not a dying declaration- Women was actually getting better at the time of the statement
ii. Also there is no personal knowledge- Even with HS the declarant has to have personal knowledge-
What kind of statements can come in under the statements under belief of impending death?
They must relate to the cause or circumstances of what the declarant believed to be impending death
FRE 804(b)(3)
Statement against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Williamson v US-
- Court rejects an all or nothing rule for statEments against interest. Pulls the statement apart to only include those statements that were really against interest
Hashi's rule for statements against interest?
would the ∆’s attorney be happy about them making the statement?
FRE 804(b)(6)
) Forfeiture by wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.
US v Houlihan
- When a person procures the absence of a witness through wrongdoing he has waived his rights under the Confrontation Clause
i. Here the Pros's showed through clear and convincing evidence that the D's conspired to bump off the witness
FRE 806
Attacking and Supporting Credibility of Declarant-When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.
FRE 807
-Residual Exception-A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that
i. (A) the statement is offered as evidence of a material fact;
ii. (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
iii. (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
Dallas County v Commercial Union Assistance
- Court wants to admit a 58 year old document to show that damage to a clock tower was caused by an old fire.
a.Can’t come in under the ancient documents exception- No evidence that the person who wrote the article saw the fire. If he was a witness it would come in under ancient documents-
b.However there are plenty of things to show that the document is trustworthy- No reason to think that there is a motive to lie, no further articles issuing a retraction of the story
US v Laster-
TC allows a person who was not familiar with the business practices of a certain business to testify that they looked like normal business records.
i.Court adopts the close enough theory- These look a lot like business records and there are things that make them seem trustworthy
ii.Dissent- Argues that close enough is not a good theory instead the residual exception should only cover those thing that are not already covered by an enumerated exception.
When does a CC problem arise?
In a criminal case what objection should the D's attorney make at the same time that they make a hearsay objection?
Confrontation clause
Pointer v Tx
Confrontation clause is incorporated by the 14th amendment and therefore applicable against the states
Ca v Green
Juvenile testified against the D at a preliminary hearing and then at the trial they testified differently. At the trial the state read the excerpts of the previous statement
1.Court rejected the notion that the Con clause was merely a codification of the rules of hearsay and their exceptions
2.If the declarant is present at the trial and testifies and responds to questions about the previous statement then the out of court statements are admissible under the CON clause, regardless of whether the statements were made under oath or subject to cross
3.If the prosecutor has made every effort to obtain the out of court declarant and they are not available but the statement was made under oath and subject to cross examination then the CC does not bar admission
Ohio v Roberts
1.The Declarant must be unavailable
2.Statement must bear an adequate indicia of reliability
1.Court would usually find this by showing that the information fits into a normal hearsay exception
3.Analysis began to turn on whether the HS exception was firmly rooted
1.Court found that all of them were except
1.Statements against interest
2.Residual exception
US v Inadi-
Court held that the Roberts rule of necessity (i.e. that the declarant was unavailable does not apply to co-conspirators statements
1.Pros just needs to show that the statement was made in furtherance of the conspiracy
Maryland v. Craig
Court allows a kid to testify behind a screen-
1.Important that the court made an individualized finding that not allowing the kid to be behind the screen would cause the kid to suffer harm
2.Scalia dissent- This violates the basic tenet of the CC b/c it does not allow the D to confront the person making the accusations face to face
Idaho v Wright-
Court held that the court could only look to the statement in order to get to the indicia of reliability necessary to get the statement in
White v Illinois-
- Court allowed 4 year old statements about sexual abuse to come in b/c they were made shortly after the occurrence of the abuse
Crawford v Wa
Wife and husband give differing statements and the pros wants to get in the wife’s statements at trial when the spousal testimonial privilege blocks her testimony
1.Scalia says in the 7-2 decision that the founders made the decision that the best way to test the reliability of statements was through cross-examination so all testimonial statements must be kept out
2.Court did note that dying declarations might be an exception to this rule-
1.Recognized at the time of drafting of the Con that these were considered reliable enough to come in
What is the dividing line on whether a statement violates the CC after Crawford?
IF the statement was testimonial then it will not come in
Definition of non-testimonial statements
1. Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency
Definition of testimonial statements
2. They are testimonial when there is no on-going emergency and that the primary purpose is to establish or prove past events potentially relevant to later prosecution
Davis v Wa
Women calls 911 while she is being beaten by her boyfriend.
1.Court says that the part of the 911 call where the boyfriend is still there is non-testimonial
1.Was offered voluntarily, 911 operator is not a cop, women was seeking help not trying to establish facts for later trial
2.Once the attacker leaves and the women continues talking then the statements begin to get testimonial .
1.Emergency is no longer ongoing-
Hammon v Ind-
- Police come to a disturbance call. Man/woman are separated and the police are talking to them in separate rooms.
1.The wife’s statements here are testimonial
1.Emergency was no longer on-going, police were asking questions primarily to determine what was going on
What happens once a statement is deemed testimonial?
1.If the declarant testifies in court there is no CC prnoblem
2.If there was a prior opportunity to cross, declarant was under oath, and they are now unavailable then there is no CC problem
3.Dying declarations are probably ok
4.No CC problem if not being offered for the truth of the matter asserted
5.IF the declarant is unavailable b/c of actions taken by the ∆ then the CC is not implicated-
What happens if the court deems a statement to be non-testimonial?
1.Unclear whether Ohio v Roberts would still apply
2.Definitely make the Ohio v Roberts argument if the HS exception is not firmly rooted
1.Statements against interest/Residual exception
When is there a Bruton problem
Bruton v US
- Court allowed the co-∆’s confession in with a limiting instruction not to consider it against Bruton-
1.Court overrules Delli Paoli ( which had held that juries would be able to follow limiting instructions) and says that allowing the statement in violates the CC
1.Court looked to Jackson v Denno where they held that a jury could not be trusted to disregard the ∆’s own confession if it found it to have been made involuntarily so that a judge should make the determination before the jury hears it
Cruz v NY-
- Court rejects the theory that since the statements admitted against one ∆ interlocked with other statements made by the other ∆ that the admission was harmeless error under Bruton-
1.Did not matter that each ∆’s own confession was admitted against that ∆
2.The interlocking nature of the confessions actually probably made the admission of the statements more harmful
How incriminating does the statement have to be in order to get to a Bruton problem ?
1. IF the statement is not incriminating on its face, but it becomes so after the ∆ testifies, then there is no Bruton problem
2.If the statement contains obvious redactions such as the words deleted/omitted/redacted etc... then there will still be a Bruton problem
Richardson v Marsh-
Pros gets in the confession of one ∆ that says that he and another person had discussed a murder while riding in a car. There was not mention of the co-∆ in the statement. Later the co-∆ testifies that he was in the car. Court finds no Bruton problem- Statement did not incriminate the ∆ until they placed themselves in the car with the other ∆
Gray v Md-
- Court allows in one ∆’s statement that said that he, and deleted, deleted and deleted killed the V. Pros then asked whether the cop then arrested the other ∆ after hearing the statement.
1.Scotus says that the obvious inference for the jury if that the co-∆’s are the people who are referred to in the statement so the Bruton doctrine is implicated.
2.Deletions function the same way grammatically
3.Even though this also required an inference (like Marsh) the inference here referred directly to someone putting the jury in the position of inferring that it was the ∆’s
4.Statement would have been ok if it said me and a few guys killed her
What is the basic compulsory process/due process analysis?
a.How necessary is it to the ∆’s case?
b.What are the indicia of reliability?
In order to overcome a privilege what must you argue to win a CP argument?
Have to make an argument that there is not an interest in the application of the privilege under these circumstances and that the privilege is not as compelling as the rights of the ∆
Washington v Tx
- Tx has a rule that barred co-participants from testifying at the trial.
a.Scotus holds that the compulsory process clause of the 5th amendment is applicable to the states
i.Application of arbitrary rules will violate the ∆’s right to compulsory process
ii.Tx was alone in the use of this rule
Rock v Araknsas
Court held that a court could not exclude hypnotically refreshed testimony by the ∆ without violation the compulsory process clause
Chambers v Mississippi-
∆ is convicted of shooting a cop. Another person confesses to several other people that he was the shooter, but then later repudiates the testimony. ∆ was allowed to get in some E showing that the other guy had shot the cop, but for the most part he was barred by hearsay rules in getting in the other confessions-a. Court looks to the reliability of the out of court statements and to whether they were necessary to the ∆’s defense—
i. Here the statements were very close to statements against penal interest and were repeated several times. Also corroborated by statements of other witnesses
ii. Statements were very necessary
b. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the HS rule may not be applied mechanistically to defeat the ends of justice
Green v Ga
- SCOTUS holds that exclusion of co-∆’s confession to shooting the V violates the DP clause-
i.Ga had no exception for statements against interest
Crane v Ky-
Court says that whether it is rooted in the CP or DP rationale, the Con guarantees the ∆ a right to present a defense-
i.Court finds that a confession where a 16 year old confesses to crimes that happened before he was born is voluntary and then refuses to allow the ∆ to get in the circumstances of the confession. SCOTUS says this is a violation of CP/DP
FRE 701
Opinion testimony by lay witnesses-If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
US v Figueroa-Lopez-
Court allows a cop to testify about watching a drug dealer do certain things and why that made him think that he was an experienced drug dealer-
1. Court says that observations like the ∆ was involved in counter-surveillance driving, using code words about that were commonly used in narcotics trafficking, were all testimony that should have been given by experts-
2. Even though the witnesses who testified would probably have been accepted as experts the E needs to be excluded
5 step expert witness analysis
1. Proper qualifications
2. Proper topic
3. Sufficient basis
4. Relevant and reliable methods
5. Rule 403 challenge-
EWT-Proper qualifications?
- The witness shall be qualified as an expert by knowledge, skill, experience, training or education
EWT-Proper topic-
In general, the expert’s testimony must concern a topic that is beyond the ken of the jurors. Moreover, the expert may not simply tell the jurors what result to reach in the case and may not intrude on the judge’s role as a legal expert. The expert’s testimony must assist the jurors by supplying information or insights the otherwise would lack
EWT-Sufficient basis
The expert must have an adequate factual basis for her opinions
EWT-Relevant and reliable methods-
- The expert’s testimony must be the product of reliable principles and methods reliably applies to the facts of the case
Rule 702
Testimony by Experts-If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Us v Johnson
Court says that a pothead who had smoked many times was qualified to identify that the substance was marijuana from Colombia
1.Had smoked/sold Colombian weed before. Court said that it was within the discretion of the court to allow him to testify
2.∆ was able to offer his own expert-
Jinro America v Secure Investments, Inc
Witness was probably qualified to testify about the business practices of Korean companies, but he went too far in his testimony-
1.He essentially said that because of the prevalence of corruption it was likely that this deal was corrupt-
2.This was too much like propensity evidence and this should not be ok-
Old test for reliability of EWT?
Frye test- If the method was generally accepted then it was ok
Frye v United States
Court used a test of general acceptance in order to determine if the EW was reliable. Here it was an early polygraph that the court says was not generally accepted and could not be admitted-
a.This is still part of the analysis under Daubert but it is not the end of the question.
Two part test for admissibility of expert testimony
Must be reliable ( daubert) and must Fit the facts of the case so it will assist the trier of fact in understanding some aspect of the case-
5 factors from Daubert
a.Has the theory or technique been tested ( or is it possible to test)
b.Has it been subjected to peer review and been published
c.Is there a way to test the rate of error in the study
d.Are there standards to control the way that the test is applied
e.Is the theory widely/generally accepted
What was probably the most dispositive factor for reliableness in the Daubert remand?
Whether the scientists had undetaken the research solely for the litigation
Does the Daubert test apply to technical testimony?
Kumho Tire v Carmichael-
Court held that there is no distinction between scientific and techical knowledge and that the Daubert test should apply to an expert on tire blowouts-a. Also holds that it is in the Court’s discretion to look to other factors than those relied upon by the court in Daubert-
i. Too much depends on the factors of the individual case for the Court to say that the factors are exhaustive. Judge must have leeway in determining whether expert T is reliable.
FRE 703
-Bases of Opinion Testimony by Experts-The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Proper basis for EWT
i.Personal knowledge- Facts perceived before the hearing
ii.Evidence that is made known at the time of the hearing-
1. Expert can sit and watch the trial and then testify about what they have witnessed=
iii.Evidence that is made known before the trial and is otherwise inadmissible
What is required to get in inadmissible evidence that was used to form the basis for expert witness testimony?
The inadmissible evidence will not come in UNLESS it passes the reverse 403 standard- The probative value must substantially outweigh the prejudicial effect-
FRE 704(a)
Opinion on Ultimate Issue
(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
FRE 704(b)
) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
Hygh v Jacobs
∏’s EW says that the use of a flashlight was deadly force and not called for in this case, and that the cop used too much force in general-
i.Court says that drawing the legal conclusion that the cop had acted with excessive force was too much of an ultimate issue, but that it was harmless error to allow it in b/c it was buried in the midst of otherwise admissible E.
ii.Also was error to allow the witness to testify about the legal standard of deadly force
US v Batangan-
EX testifies about a pattern that sex victims exhibit that involved recanting their testimony and then says that the victim here was believable-
a.The first part is ok. It will help the jury to assess the credibility of the witness BUT
b.The witness should not draw any legal conclusions as to the credibility of the witness
Can an expert allow in testimony concerning the reliability of identifications?
Judges are starting to allow in testimony about the problems of cross racial ID’s and their decreased accuracy-
1. US v Hines- Court allows in a scientist who had done tests on the decreased accuracy of cross racial ID’s. This should be ok as long as the EW does not draw any conclusions about the reliability of the particular witnesses testimony
FRE 705
Disclosure of Facts or Data Underlying Expert Opinion-The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination
FRE 901
Requirement of Authentication or Identification
a. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims
Some illustrations of ways to authenticate
1. Testimony of witness with knowledge
2. Nonexpert opinion on handwriting.
3. Comparison by trier or expert witness.
4. Distinctive characteristics and the like.
5. Voice identification.
6. Telephone conversations.
7. Public records or reports
8. Ancient documents or data compilation.
9. Process or system.
10. Methods provided by statute or rule.
Can a self ID be enough to authenticate a phone call?
Way to authenticate that it was a certain person on the other end of the phone?
2. Yellow Pages dial: An adequate showing can be made by
a. Placing a call to a number listed in a phone directory as belonging to the person whose identity you’re trying to prove,
b. Coupled with an unforced acknowledgment that the one answering is the person whose name was listed
3. Substance of the conversation: The substance of a conversation itself can furnish adequate identification of the party on the other line.
People v. Lynes
a card left with a defendant’s brother that resulted in a purported phone call from the defendant in which the defendant tacitly acknowledged crimes that only he would know about was sufficient evidence of identity to get the call in against the defendant
US v. Stelmokas,
an expert in holocaust documents was allowed to identify records of a Lithuanian anti-Semite group in the citizenship-revocation trial of a member of that group. He testified that he was familiar with such documents and that the documents before the court did indeed resemble them.
What should you ALWAYS remember about the authentication analysis?
It is seperate from the HS analysis and should be conducted in addition.
Which standard applies for authentication?
Conditional relevance 104(b)
Is there a set method for authentication?
No, you can come up with your own method
Does the photographer need to testify in order to authenitcate a photograph?
no, just someone who can testify that it was an accurate representation of the scene
Sims v Dixon
Person can authenticate the picture without being the photographer even though they did not take the picture
Can a photo/video self authenticate?
Factors to find self authentication
1.Time stamping
2.Officer can testify as to where/how they set up the camera-
3.Chain of custody-
a.Regular process to ensure that the tape is only capturing what it is supposed to be capturing-
Wagner v State-
- Court allows a surveillance tape in when the cop testifies as to how it was set up and used.
FRE 1001
(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".
(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original
FRE 1002
Requirement of Original -To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress
FRE 1003
VII. Rule 1003. Admissibility of Duplicates A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
FRE 1004
Admissibility of Other Evidence of Contents -The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if—
Originals lost or destroyed. (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
Original not obtainable. (2) No original can be obtained by any available judicial process or procedure; or
Original in possession of opponent. (3) At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
Collateral matters. (4) The writing, recording, or photograph is not closely related to a controlling issue.
Rules of thumb for best evidence
b.Duplicates under most circumstances are considered the same as originals
c. Only applies if you are trying to prove the content of the writing-
FRE 501
-Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience
Proposed privileges
a.Attorney Client
c.Spousal testimonial
f.Secrets of state/other official information
g.Identity of the informer
h.Required reports
i. Trade secrets
Which of the proposed privileges have been recognized?
a.A/C privilege
c.Spousal Testimonial/marital confidential communications
4 part test from Jaffee V redmond
1.Public/private interests in favor of the recognition of the privilege
2.Evidentiary loss that would result
3.Whether the privilege is recognized by the states
4.If it was one of the nine proposed privileges
Can a D use a CP/DP argument to overcome a privilege.
Not the 5th amendment privilege. Sometimes it will work for other privileges
Morales v Portuondo-
Court finds no priest penitent privilege applied and overrides the A/C privilege. This was the only way to get in the information and the person who confessed was dead, making it impossible to hold it against him
Bottom line rule for CP
i.Never trumps 5th amendment
ii.IS it otherwise admissible?
1.Go through relevance, HS, authentication, If yes,
iii.Go to whether a privilege applies
1.Burden of the person invoking the privilege to show that it does apply
iv.IF privileged then you have to go to CP
Three requirements for the AC privilege
i.Communication between the lawyer and the client
ii.Must be confidential-
iii.Lawyer must be consulted in their professional capacity-
How to analyze whether the court would see that consultation of the attorney as a consultation in the professional capacity?
1.Look at it from the perspective of the client-
2.Would they reasonably believe that they are consulting them in their capacity as a lawyer-
People v Gionis
Man calls his lawyer friend after he gets served with divorce papers-
i.Lawyer friend had traded favors with him in the past, but this is not enough to get to the A/C privilege-
1.Lawyer told him right off that he could not represent him b/c he knew both parties-
2.Dissent would argue that the fact that they had traded favors in the past is enough to get the client to a reasonable belief that he would represent him in the divorce regardless of the statement to the contrary
ii.If he had said I am looking to hire a lawyer and here is what happened-
1.As long as he is trying to talk the lawyer into representing him, those facts will be privileged
Blackmon v State-
- Court finds that going across the courtroom and whispering is enough of a precaution to protect confidentiality, even though a guard with good hearing heard the statements-
What is required for the ID of a client or a fee arrangement to be covered by the AC privilege?
The mere revelation of the fee arrangement/ID of the person has to reveal some of the confidential communications between the lawyer/client
Baird v Koerner-
- ∆ gets his attorney to tender some payments to the IRS for back taxes. Does so anonymously
a.Here the court protects the ∆’s ID. Mere revelation of his ID would = an admission of guilt and would go to the substance of his privileged communications between him and the attorney.
b.Large part of the communication was probably I don’t want them to find out my identity, what can we do to protect this
In Re Osterhoudt-
Gov’t wants to get a hold of the amount, form, and date of payments made to the attorney in order to show that the ∆ had large stores of cash-
a.Court distinguishes Baird by saying that revealing the amount paid to the lawyer would not convey the substance of confidential communications between the attorney and the client
b.Fact that it is incriminating does not make it privileged-
What is the duration of the AC privilege?
i.Ordinarily the A/C privilege will survive the death of the person who holds the privilege
Two exceptions
a.Testamentary exception- If the Person told the lawyer who drafted the will his intent, then he can talk about it with the heirs if there is a quarrel over the way that the estate should be distributed
b.Possible CP argument- If a ∆ really needs the information it is possible that the court will override the AC privilege if they are dead
Swidler Berlin v US-
Court keeps the privilege in place even after Vince Foster kills himself-
1.Court is worried that communications will be chilled if people think that the information can come out after their death
2.Here VF was probably contemplating suicide when he went to the attorney
Crime fraud exception
Disclosures that relate to an ongoing or future crime/fraud are not privileged-
What evidence can a judge consider in determining if the crime fraud exception applies.
a.They can consider the actual communication to determine if the CF privilege will apply
b.Judge has the discretion to perform an in camera review of the material
c.Proponent must show that there is a reasonable good faith belief that the CF exception applies.
i.Judge still has discretion to look or not to look
US v Zolin-
- Scientology case. Court decides that the judge should be able to listen to the tapes to determine if the CF exception applies.
a. In Camera review will not undermine the AC privilege, b/c the judge will not disclose the information unless he determines that the privilege no longer applies
When are gov't employees protected by the attorney client privilege
If a gov’t employee is being represented individually by an appointed lawyer then the privilege will cover all of their communications-
In Re Lindsey-
Court refuses to allow the White House general Counsel to refuse to testify about things that Clinton told him about his relationship with ML
1.Executive branch employees are sworn to uphold the laws and they should not allow a privilege to allow them to get out of this
2.Society has a large interest in criminal activity being exposed in the govt
3.Nothing stops the president from retaining private counsel, and not using public money to provide legal advice about possible crimes
Three required elements of the fifth amendment privilege
1. Testimonial communication
2. Has to be compelled by the gov’t
3. Must be self incriminatory
5 important things to remember about the 5th amendment privilege
i.The lawyer client privilege protects against disclosure of communications between lawyer and client, but not against disclosure of the underlying facts-
ii.The Client’s fifth amendment privilege does not protect the client’s documents against compelled production when they are in the lawyer’s hands
1.The Client’s Fifth amendment privilege would have protected the documents against disclosure when they were in the clients hands AND
2.The client has transferred the documents to the lawyer in confidence and to get legal advice
3.THEN the lawyer-client privilege protects the documents against the compelled production when they are in the lawyer’s hands
iv.The Clients Fifth amendment privilege protects against only compelled testimonial self-incrimination. All three elements must be present in order for the fifth amendment to apply
v.Sometimes the very act of producing documents can be testimonial and self incriminating-
Fisher v US-
- ∆ has consulted an accountant who prepares some documents. The ∆ then turns them over to the lawyer. Gov’t wants to get the documents from the attorney . Court holds.
i.If the client’s documents are protected by the 5th amendment privilege and the disclosure was made to further legal advice then the ACP protects the documents-
1.IF the client had a 5th amendment privilege then they would not be able to reveal it to the lawyer which would undermine the ACP
ii. Here the only thing that is being compelled is the production of the documents-
1. The ∆ had already prepared the documents
2.Here the act of production of the documents is not very incriminating. Subpoena was reasonably specific and the Only thing revealed by disclosing the documents is that they did have the papers that were asked for
Use Immunity
Gov’t can grant immunity for any incriminating aspects of production that would result from the act of production
US v Doe
-Gov’t sends a subpoena for a large amount of business records. The subpoena was not very specific.
1.DC finds that the documents are not protected BUT the act of production is incriminating, testimonial and compelled and therefore protected by the fifth amendment-
a.Gov’t is basically saying give us all of the evidence that relates to these charges-
b.By producing the documents the ∆ is forced to incriminate himself
2.Court also finds that the gov’t must follow the appropriate procedure in order to get to use immunity-
a.Gov’t wanted constructive use immunity
b.Court says that there has to be a statutory request of the UI is no good-
USE + Fruits doctrine
Gov’t can not use the act of production or any evidence derived from the act of production-
US v Hubbell-
Gov’t is investgating White Water. They issue a very broad subpeona to the ∆ and grant use immunity. When they go through the documents produced they find evidence of the ∆’s tax fraud.
a.5th amendment applies to the production-
i. Gov’t is compelling him
ii.Subpoena is very broad and requires him to use his brain to decide which documents are relevant to the case
1.Which makes this both testimonial and self incriminating
b.The evidence of the tax fraud is fruit of the poisonous tree-
i. They would not have found out about the tax fraud unless they forced him to disclose the documents, so they can not use the information
c. Burden is on the gov’t to show that they had another source for the information
Elements of the spousal testimonial privilege
1. Must be married at the time of the testimony
2.It must be an actual marriage
3.Applies only in criminal cases AND only when the non-testifying spouse is the ∆
4.Testimony must be adverse to the non-testifying spouse
Who holds the spousal testimonial privilege?
THe testifying spouse
US v Trammel-
Court says that reason and experience no longer support allowing the non-testifying spouse to be able to veto testimony
i.Privilege is based on preserving marital harmony
ii.If a spouse is willing to testify then there is little marital harmony left to protect
iii.Move in the states to not recognize this anymore
ELements of the marital confidential communications privilege
1.There must be a valid marriage at the time of the communication
2.Communication must have been made in confidence
Who holds the marital confidential communications privilege?
Both spouses
US v Rakes
∆ is being extorted by the mob boss. GJ indicts him for perjury for lying about the extortion and then calls his wife to testify about communications that he made about the extortion scheme=
1.Two arguments for why MC does not apply
a.Communications were not confidential- ∆ told the information to another party. This is a different argument than a waiver argument-
i.Response is that he did not blab to everyone, he only made the comment to get a creditor off of his back
b.Privilege was waived- This is not so, b/c the communication did not reveal that he had made a confidential communication to this wife. Jsut revealed the facts
Is there a parent child privilege?