Evidence Rules

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Rule 104(a)

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(a) Questions of admissibility generally. Preliminary questions
concerning the quaWication of a person to be a witness, the
existence of a privilege, or the admissibility of evidence shall be determined
by the court, subject to the provisions of subdivision 01). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

IOW: Preliminary questions of qualification of a witness, existence of a privilege or admissibility is to be determined by the judge.

FED & WA SAME

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Rule 401

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Definition of "Relevant Evidence."

"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.

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Rule 403

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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.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. FED & WA SAME

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Rule 801(c)

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Definition of Hearsay.

(c) Hearsay. "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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RCW 9A.44.120

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WA Rape Shield Law: Not necessary to corroborate the testimony of the alleged victim;

Evidence of victim’s past sexual conduct inadmissible as to character or to prove victim’s consent, however, when the victim and accused have engaged in sexual behavior in the past and that past behavior is relevant to prove consent, then evidence concerning the past behavior between the victim and accused is admissible\
Past sexual behavior may be admissible as to consent if the accused makes a written pretrial motion stating the offer of proof; if the court finds the offer of proof sufficient, it will hold a hearing for the court to decide as to admissibility

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Crawford v. Washington

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

If it applies then you MUST either 1) provide cross at trial or 2) provide cross before trial because unavailable

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Daubert v. Merrill Dow Pharmeceuticals

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Held that: (1) “general acceptance” is not necessary precondition to admissibility of scientific evidence under Federal Rules of Evidence, and (2) Rules assign to trial judge the task of ensuring that expert's testimony both rests on reliable foundation and is relevant to task at hand.

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Frye v. United States

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Frye test requires general acceptance in scientific community.

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How do Daubert and Frye differ?

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D- Judge decides
F- Sci Community Decides (dispositve factors, general acceptance)

Also...
D- FED Cts
F- WA Cts

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When must the proponent satisfy Daubert or Frye?

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In sum, a proponent must comply with Daubert (federal court) or Frye (Washington court) when scientific evidence is "novel"—i.e., when the reliability of information generated by a machine or process turns on scientific, technical, or specialized knowledge; the machine or process is not routinely used for purposes other than litigation; and the reliability of the machine or process remains subject to reasonable dispute.

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How does the proponent satisfy Daubed or Frye?

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a. Using Rule 104(a), the proponent must show that the machine or scientific process is (a) scientifically reliable (Daubed) or (b) generally accepted in the relevant scientific community (Frye).

FED- GE v. Jorner (Judge has broad discretion)

WA- Kathryn (De Novo)


b. The rules of evidence don't apply.

c. The burden is preponderance.

d. Standard of review 9De Novo), and is the appellate court limited to the record made below? A: Can’t go outside the record

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Like all evidence, expert testimony has probative value only if accompanied by adequate indicators of reliability. In the absence of such indicators, it cannot be evaluated or rationally credited. The required indicators include:

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a. The expert witness must be qualified to form an opinion. ER 702.

b. The expert must base the opinion on scientific, technical, or specialized knowledge that is reliable and properly applied in this case.

c. The expert must base the opinion on proper facts drawn from the case.

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ER 405a

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FED:
In all cases where character evidence is admissible, proof may be made by testimony as to reputation or opinion; on cross examination, testimony is allowed as to specific instances of conduct

WA: Same except testimony to opinion is not allowed – only reputation

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The following indicators generally must accompany the testimony of an in-court witness:

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1. The witness must be competent (although competency is usually presumed). ER 601.

2. The witness must assert personal knowledge (or the record must support an inference of personal knowledge). ER 602.

3. The witness must be under oath, observable by the jury, and subject to cross-examination ("oath-demeanor-cross").

4. In a criminal case, the accused has a right to confront the witnesses against him.

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ER 801 contemplates three categories of people and conduct. They are...

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(1) The actor engages in human conduct.

(2) The declarant makes a statement (i.e., engages in human conduct that is accompanied by an intent to assert). The declarant is also an actor.

(3) The witness gives testimony (i.e., engages in human conduct that is accompanied by an intent to assert and that the proponent offers at trial to prove the truth of the matter that the actor was intending to assert). The witness is also a declarant and an actor.

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Hearsay is...

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CONDUCT, other than that performed by the actor while testifying at the trial or hearing, OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED.

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The hearsay rule includes the following propositions:

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(1) Hearsay is the out-of-court conduct of an actor.
(2) Hearsay is limited to out-of-court conduct "offered to prove the truth of the matter asserted."
(3) Although hearsay does not include the in-court conduct of an in-court witness, it does include the out-of-court conduct of an in-court witness when the proponent offers such conduct to prove the truth of the matter asserted.

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ER 801(c) makes clear, however, the term "hearsay" actually refers to...?

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the out-of-court actor, NOT the in-court witness.

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Assuming that the out-of-court actor is subject to cross at trial, when is his or her pre-trial inconsistent statement non-hearsay?

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a. The out-of-court statement must be inconsistent with an in-court one.

(1) "I don't remember" or "I don't know" before trial, statement of fact at trial.

(2) Statement of fact before trial, "I don't remember" or "I don't know" at trial.

b. The out-of-court statement must have been made under oath, subject to penalty of perjury.
(1) The actor must take an oath at the time of the out¬of-court statement, and a second oath at the time of trial.

c. The out-of-court statement must have been made at a prior trial, hearing, deposition, or "other proceeding."

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Assuming that the out-of-court actor is subject to cross at trial, when is a pre-trial consistent statement non-hearsay?

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a. The out-of-court statement must be consistent with an in-court one.

b. The out-of-court statement must be offered to rebut an express or implied charge of recent fabrication or improper influence or motive.

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Assuming that the out-of-court actor is subject to cross at trial, when is a statement of ID non-hearsay?

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a. The out-of-court statement must identify a person.

b. The out-of-court statement must be made "after perceiving" the person.

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A statement is not
hearsay if.....(2) Admission by party-opponent.

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The statement is offered AGAINST a party and is:
(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

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A statement is not
hearsay if.....(1) Prior statement by witness.

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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;

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801c – On test – if asked about hearsay if offered for the truth of the matter asserted then 801C
If he asked you if it is offered for truth – you can say yes – then you need to answer if it is a nonhearsay exemption under 801d1or 2

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Exemption = non-hearsay

Exception = hearsay but it is admissible