Evidence

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Best Evidence Rule (General)

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R 1002
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.

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What is a "writing" and "recording" under BER?

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R 1001 (1) "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.

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What is an "duplicatel"?

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FRE 1001 (3)
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.

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When is duplicate inadmissible under Best Evidence Rule?

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FRE 1003: (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.

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When is evidence admissible that would otherwise be barred by Best Evidence Rule? EXCEPTIONS

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FRE 1004

(1) Originals lost or destroyed.

(2) Original not obtainable.

(3) Original in possession of opponent.

(4) Collateral matters

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FRE 1005?

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Best Evidence Rule: Public Records

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original.

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FRE 1006?

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Best Evidence Rule: Summaries

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When can summaries be admitted as an exception to the Best Evidence Rule?

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The contents are "voluminous" and "cannot conveniently be examined."
Can be put in the form of a chart, summary, or calculation.

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FRE 1008?

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Role of judge and Jury

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Hearsay defined

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FRE 801 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

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Statement under Hearsay

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FRE 801 (a)
an oral or written assertion
or
nonverbal conduct of a person, if it is intended by the person as an assertion

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Hearsay Rule

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FRE 802

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.

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Is a question hearsay?

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No. Only statements. Question do not assert the truth or falsity of a fact. See US v. Wright

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Is a statement to prove state of mind hearsay?

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No, see US v. Hanson

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Can you use hearsay for impeachment purposes?

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Yes, it is not admitted to prove the truth of the matter asserted. SeeGoodman

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Can you use hearsay to prove circumstantial evidence?

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Yes, it is not admitted to prove the truth of the matter asserted. See US v. Hanson

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Is a verbal act hearsay?

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No, the value of this evidence does not depend on it being truthful.

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Is silence hearsay?

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No, as long as it does not assert something.

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Is showing a security badge hearsay, when someone else testifies to the fact?

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Yes, it is admitted to prove the truth of the matter asserted.

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How do you know if something is hearsay?

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Ask first: Can it be true or false
Thus, questions, declarations, directions are not assertions under the hearsay rule.

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Is an implied assertion, like "place this bet for me," hearsay?

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No. FREs changed common law stance on this.

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What is a declarant when using the hearsay rule?

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FRE 801 (c)
A "declarant" is a person who makes a statement.

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Can a Q be hearsay?

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Yes. "Did you know Larry took your laptop?"

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FRE 801 (d)

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Statements which are not hearsay.

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FRE 801 (d) (1) (A)

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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

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803 (1)

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Present sense impression.

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

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803 (2)

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Excited utterance.

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.

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803 (3)

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Then existing mental, emotional, or physical condition.

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

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803 (4)

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Statements for purposes of medical diagnosis or treatment.

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

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803 (5)

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Recorded recollection.

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.

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803 (6)

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Records of regularly conducted activity.

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, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

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803 (8)

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(8) Public records and reports.

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.

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803 (18)

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Learned treatises.

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

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803 (9)

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Records of vital statistics.

Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

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803 (11)

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Records of religious organizations.

Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

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803 (12)

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Marriage, baptismal, and similar certificates.

Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

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Davis v. Washington

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holding that portion of victim's 911 conversation in which she identified defendant was not testimonial for purposes of the Confrontation Clause.

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Crawford v.WA

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held that:
(1) out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by court, abrogating Ohio v. Roberts,

(2) admission of wife's out-of-court statements to police officers, regarding incident in which defendant, her husband, allegedly stabbed victim violated the Confrontation Clause.

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Rule 804.

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Hearsay Exceptions; Declarant Unavailable

Restricted Exceptions

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Rule 804 (a)

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Unavailability is
1) invokation privilege

(2) refusal
(3) a lack of memory
(4) death or then existing physical or mental illness or infirmity
(5) unable to procure the declarant's attendance by process or other reasonable means

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804 (b) (1)

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Restricted hearsay exception
Former testimony
W testimony admissible if opp party had
1. opportunity and
2. similar motive to develop the testimony by direct, cross, or redirect examination.

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804 (b) (2)

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Dying declaration.
Still allowed under Crawford b/c of its long histoy in common law.
Reqs:
1. belief of impending death AND
2. ONLY prosecution for homicide or in a civil action or proceeding

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804 (b) (3)

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Statement against interest.
Statement so far contrary to the declarant's pecuniary or proprietary (soetimes social) interest,

or exoses D tocivil 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.

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804 (b) (3) Exception

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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.

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804 (b) (4)

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Statement of personal or family history

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804 (b) (6)

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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

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Confrontation Clause

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6th amend.
In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him

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Roberts v. Ohio

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When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Practically overruled by Crawford

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Giles v. California

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“Forfeiture by wrongdoing” was not exception to Sixth Amendment's confrontation requirement because it was not established at time of founding of Bill of Rights or in American jurisprudence since that time. Need intent-to-silence

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Judicial Notice

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FRE 201

allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party seeking to have the fact at issue determined by the court. Matters admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and even if one party wishes to lead evidence to the contrary.

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FRE 201 (a)

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Jud. Notice

This rule governs only judicial notice of adjudicative facts.

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FRE 201 (b)

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(b) Kinds of facts.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either:

(1) generally known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

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FRE 201 (c)

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(c) When discretionary.

A court may take judicial notice, whether requested or not.

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FRE 201 (f)

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(f) Time of taking notice.

Judicial notice may be taken at any stage of the proceeding.

EVEN APPEALS

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FRE 201 (g)

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(g) Instructing jury.

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

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Adjudicative facts?

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Those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case. They relate to the parties, their activities, their properties, their businesses.

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FRE 607

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The credibility of a witness may be attacked by any party, including the party calling the witness.

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FRE 608

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Evidence of Character and Conduct of Witness

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FRE 608 (a)

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Opinion and reputation evidence of character.

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness, and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

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FRE 608 (b)

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Specific instances of conduct.

Extrinsic evidence may be used against to undermine his truthfulness

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.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.