ࡱ> ` Mbjbjss nI'$diiiPiD(nl *prt"tttoul  ,"."."."."."."$K,h.|R"%ououR"ttw*ǘǘǘtt,"ǘ,"ǘǘ` tp sV[i{v\"$*0*//yN ////d ǘR"R"ǘ*l l l l l l  EVIDENCE OUTLINE Schauer, Fall 2008  HYPERLINK \l "thenatureofevidencelaw" The Nature of Evidence Law (FRE 103, 104) 1  HYPERLINK \l "relevance" Relevance  HYPERLINK \l "relevanceandirrelevance" Relevance and Irrelevance (FRE 401, 402) 4  HYPERLINK \l "probativevalueandprejudice" Probative Value and Prejudice (FRE 403, Old Chief) 5  HYPERLINK \l "conditionalrelevance" Conditional Relevance (FRE 104(b)) 7  HYPERLINK \l "probabilisticevidence" Probabilistic Evidence (Collins, Blue Bus Problem) 7  HYPERLINK \l "subsequentremedialmeasures" Subsequent Remedial Measures (FRE 407) 8  HYPERLINK \l "settlementeffortsandinsurance" Settlement Efforts and Insurance (FRE 408, 409, 410, 411) 9  HYPERLINK \l "characterandhabit" Character and Habit  HYPERLINK \l "characterandhabitbasicrule" Basic Rule (FRE 404(a) 11  HYPERLINK \l "methodsofintroducingcharacterevidence" Methods of Introducing Character Evidence (FRE 405) 13  HYPERLINK \l "permissibleusesofspecificpastconduct" Permissible Uses of Specific Past Conduct (FRE 404(b)) 14  HYPERLINK \l "habit" Habit (FRE 406) 17  HYPERLINK \l "sexualhistoryofallegedsexualassaultvicti" Sexual History of Alleged Sexual Assault Victim (Rape Shield Laws) (FRE 412) 17  HYPERLINK \l "priorsexualoffensesofsexualassaultd" Prior Sexual Offenses of Sexual Assault " (FRE 413, 414, 415) 19  HYPERLINK \l "hearsay" Hearsay  HYPERLINK \l "hearsaybasicrule" Basic Rule (FRE 801, 802) 20  HYPERLINK \l "exceptionstothehearsayrule" Exceptions to the Hearsay Rule 23  HYPERLINK \l "nonhearsayexceptions" Non-Hearsay Exceptions (FRE 801(d)) 23  HYPERLINK \l "hearsayexceptionswhereavailablityimmater" Hearsay Exceptions Where Availability of Declarant Is Immaterial (FRE 803) 30  HYPERLINK \l "hearsayexceptionswheredeclarantunavailab" Hearsay Exception Where Declarant Is Unavailable (FRE 804) 40  HYPERLINK \l "otherhearsayexceptions" Other Hearsay Exceptions (FRE 805, 807) 44  HYPERLINK \l "hearsayandtherighttoconfrontation" Hearsay and the Right to Confrontation (Crawford) 45  HYPERLINK \l "impeachment" Impeachment (FRE 607, 611)  HYPERLINK \l "characterforuntruthfulness" Character for Untruthfulness (FRE 404(a), 608) 49  HYPERLINK \l "priorcriminalconviction" Prior Criminal Conviction (FRE 609) 51  HYPERLINK \l "rehabilitation" Rehabilitation (FRE 608(a)(2)) 53  HYPERLINK \l "useofextrinsicevidence" Use of Extrinsic Evidence (FRE 608(b)) 54  HYPERLINK \l "experttestimony" Expert Testimony  HYPERLINK \l "laytestimony" Lay Testimony (FRE 701) 55  HYPERLINK \l "experttestimiony" Expert Testimony (FRE 602) 56  HYPERLINK \l "whoqualifiesasanexpert" Who Qualifies as an Expert (FRE 702) 56  HYPERLINK \l "permissiblesubjectsandscope" Permissible Subjects and Scope (FRE 702, 703, 704, 705, 706) 56  HYPERLINK \l "reliability" Reliability (Daubert) 59  HYPERLINK \l "scientificevidence" Scientific Evidence  HYPERLINK \l "traditionalforensicevidence" Traditional Forensic Evidence 62  HYPERLINK \l "liedetection" Lie Detection Tests 62  HYPERLINK \l "dnatesting" DNA Testing 63  HYPERLINK \l "privileges" Privileges  HYPERLINK \l "privilegesgeneralrule" General Rule (FRE 501) 64  HYPERLINK \l "attorneyclientprivilege" Attorney-Client Privilege 66  HYPERLINK \l "spousalprivileges" Spousal Privileges (Trammel) 70  HYPERLINK \l "otherprivileges" Other Privileges 71  HYPERLINK \l "physicalanddocumentaryevidence" Physical and Documentary Evidence  HYPERLINK \l "authentication" Authentication (FRE 901, 902) 73  HYPERLINK \l "bestevidencerule" Best Evidence (Original Document) Rule (FRE 1001, 1002, 1003, 1004) 76  HYPERLINK \l "demonstrativeevidence" Demonstrative Evidence 78  HYPERLINK \l "presumptionsbudensandjudicialnotice" Presumptions, Burden of Proof, and Judicial Notice  HYPERLINK \l "burdensincivilcases" Burdens and Presumptions in Civil Cases (FRE 301) 79  HYPERLINK \l "burdensincriminalcases" Burdens and Presumptions in Criminal Cases 80  HYPERLINK \l "judicialnotice" Judicial Notice 80 I. The Nature of Evidence Law Rule-Based: Approach adopted by Federal Rules Juror are idiots: We need rules of evidence because we distrust jurors Jurors tend to overvalue certain types of evidence: Reputation, character, third- or fourth-handcertain kinds of evidence that may have a little probative value but jurors will wildly over estimate the importance of this evidence Federal Rules of Evidence Mechanics Process is dominated by preference for live witnesses swearing under oath what they saw Witnesses lie with enormous frequency at trial, and at least some of the rules are designed to take that into accountalso the fact that most liars get away with it, and most are competent enough at it to stand up under cross Testimony (lay) witnesses give must be on the basis of their personal knowledge (FRE 602), i.e., ordinary witnesses should be talking about things about which they have personal knowledge Schauer: In cases where the applicable FRE seems not to make sense, a judge is likely to stretch another FRE to avoid a nonsensical result At trial Evidentiary issues typically raised in objection to a question, where the question is objectionable independent of the answer In general, leading questions impermissible on direct, and permissible on cross Even more common than an objectionable question is an objectionable answer to a non-objectionable questions Objectionable question: Objection Objectionable answer: Motion to strike Motion in limine: Pre-trial motion, often in context of privilegesway to move to exclude evidence even before the trial starts (idea is to discuss potentially prejudicial evidence outside the view of the jury) Almost all appeals based on evidentiary questions are going to losenot taken seriously by appellate courts Large movement towards free proof (inclusion) over last 40 years The Need for Rules of Evidence Jury black box: FRE 606(b): Upon inquiry into the validity of a verdict, a juror may not testify as to any matter or statement made during deliberations or to anything that may have affected his or another jurors mind, emotions, or mental processes in relation to the jurors decision to join or dissent from the verdict Exceptions: A juror may testify concerning: (1) Whether extraneous prejudicial information was brought to the jurys attention (2) Whether any outside influence was improperly brought to bear on a juror (3) Whether there was a mistake in entering the verdict on the verdict form Because the jury is a black box, there is little quality control at the end of the process. Thus, it perhaps makes sense to have quality control at the front end, i.e., to scrutinize what goes into the black box, since we dont scrutinize what happens inside the box. General Provisions Intrinsic vs. Extrinsic rules: Intrinsic rules: Designed to increase the reliability of the truth-finding process Rules excluding evidence on grounds that admitting the evidence would impair the truth-seeking process E.g., exclusion of hearsay, character evidence, plea negotiations things we think jury will overvalue Extrinsic rules: Designed to serve goals other than truth-finding E.g., privilege against self-incrimination (protects notions of personal autonomy and that " should not have to help prosecution in his own trial) FRE 103 (Rulings on Admission of Evidence): (a) Admission decision is error only if affects substantial rights of party and is either objected to or proof is offered. (c) Proceedings should be conducted to prevent jury from hearing inadmissible evidence if possible. (d) Appellate courts can correct plain errors affecting substantial rights even though not brought to attention of court. FRE 104 (Preliminary Questions): (a) Preliminary questions about qualification of person to serve as witness, existence of a privilege, or admissibility of evidence shall be determined by the courtcourt not bound by rules of evidence in making such determinations , except those with respect to privileges. Standard of proof for admitting evidence regarding preliminary questions under this subsection is preponderance of the evidence (case?) (b) If relevancy of evidence is conditional upon a condition of fact, that evidence shall be admitted if other evidence is introduced sufficient to support a finding that the condition is fulfilled. Standard of proof for admitting evidence regarding conditions under this subsection is sufficient evidence (i.e., enough evidence that a reasonable jury could conclude that the condition has been satisfied) (c) (Preliminary) (evidentiary) hearings should be conducted out of hearing of jury if justice requires, when the accused is a witness and so requests, and always when dealing with the admissibility of confessions. (d) An accused does not become subject to cross-examination on other matters by testifying on a preliminary matter. (e) This rule does not limit ability of party to introduce evidence on weight or credibility. II. Relevance Relevance and Irrelevance FRE 401 (Relevant evidence): Relevant evidence is evidence having any tendency to make the existence of any material fact in issue more or less likely than it would be without the evidence Two components: (1) Materiality: Of consequence to the determination of the action (2) Probativeness: Tending to make the existence of a material fact more or less probable than it would be without the evidence FRE 402 (Admissibility): (1) Only relevant evidence is admissible (2) All relevant evidence is admissible, unless there is a legal reason to the contrary (in Constitution, statute, or other rules) (3) Irrelevant evidence is inadmissible Definitions: Materiality: So what? idea (whether the fact makes any difference to the determination of the action) Probative Value: The evidence must logically tend to prove the proposition for which it is offered Logical relevance: Tendency to make something more probable than it would be without that evidence Legal relevance: Combination of materiality and logical relevance and probative value General notes on admissibility: A brick is not a wall: A piece of evidence only needs to increase the likelihood a little bit in order to be admissible Admissibility is a threshold determination: Once evidence is admitted, it is up to the jury to determine what weight to give it. Case: U.S. v. James, 9th Cir., 1999 (p.25): " claimed self-defense, said decedent had told her about vicious crimes he d committed, which made her fearful. Held, evidence of decedent s crimes should have been admitted, because decedent was more likely to tell " that he had committed vicious crimes if he had in fact committed those crimes Probative Value and Prejudice FRE 403 (Exclusion of relevant evidence): Relevant evidence may be excluded if its probative value is substantially outweighed by its danger of an unfair prejudicial effect Judge also has discretion to exclude otherwise relevant evidence if it would (1) Confuse the issues, (2) Mislead the jury, or (3) For considerations of wasted time or resources Unfair prejudice: An undue tendency to move the tribunal to decide on an improper basis (that is, one not supposed to be part of the evaluative process), commonly, that not always, an emotional one (p. 51, McCormick on Evidence) Unfair is the key word, because all relevant evidence is prejudicial to one side or the other How evidence might be unfairly prejudicial: (1) Might inflame the jury (2) Jury might overweigh certain evidences probative value (give it undue weight) (3) Admission of evidence might bring in other, otherwise inadmissible evidence Evidence that looks like it is at best minimally or marginally probative should not be admitted unless there is other evidence that will make it substantially probative (so as to justify the amount of time and expense to get it in) Two Theories of how jurors evaluate probativeness Bayesian (cumulative): Pieces of evidence come in one by one. Jurors start with a prior probability, and every time a piece of evidence comes in revise the probability upwards or downwards, depending on whether the proposition becomes more likely or less likely after the piece of evidence comes in Holisitic: Jurors weigh evidence based on how well the evidence fit together with all of the other evidence Cases: State v. Bocharski (AZ SC, 2001, p.39): Murder trial, method of death not at issue. Grisly photos were introduced showing angle of stab wounds to head. Held, photos more prejudicial than probative, as they had little tendency to establish any disputed issue in the case. Commonwealth v. Serge (PA SC, 2006, p.45): Prosecution made CG animation of murder for trial. " could not afford to present a CG of his own. Held, CG animation was properly devoid of drama so as to prevent jury from improperly relying on an emotional basis. US v. James (9th Cir., 1999, p.50): Dissent argues okay for judge to exclude evidence that decedent committed vicious crimes in the past, because evidence might tend to make the jury view the victim as a bad man who deserved what he got, thus leading the jury improperly to base its verdict on emotion US v. Myers (5th Cir., 1977, p.54): Evidence of flight too remote from time of crime (in this case three weeks), so evidences unfair prejudice substantially outweighed its probative value Chain of inference re: evidence of flight: (1) From " s behavior to flight (2) From flight to consciousness of guilt (3) From consciousness of guilt to consciousness of guilt concerning the crime charged (Schauer thinks this is the most problematic of the inferences) (4) From consciousness of guilt concerning the crime charged to actual guilt of the crime charged Effect of stipulations Old Chief v. US, US SC, 1997 (p.28): " stipulated to prior convictions, which was element of charged crime (felon possession of firearm). Abuse of discretion to admit prior conviction because no probative value in light of stipulation except to prejudice the jury against the " s character Three lessons of Old Chief: (1) Prosecution of  generally able to introduce evidence, even when " agrees to stipulate to the evidence (2) Both parties have a right to be able to tell a coherent story (3) Parties frequently can bring in immaterial, otherwise inadmissible evidence in order to maintain narrative coherence Conditional Relevance FRE 104(b) (Relevancy conditioned on fact): If relevancy of evidence depends upon another condition of fact, that evidence shall be admitted if other evidence is introduced sufficient to support a (jury) finding that the condition is fulfilled. Huddleston v. U.S., US SC: The finding that the condition is fulfilled must be by sufficient evidence (that is, enough evidence that a jury could reasonably find the conditional fact by a preponderance of the evidence) IMPORTANT: The other evidence introduced must itself be admissible (otherwise it cant be introduced) HLR outline says this means the other evidence introduced must be enough by itself to establish relevancy of the conditionally relevant evidence, that it is not enough that the other evidence makes the conditionally relevant evidence more likely to be relevant This differs from the rule under FRE 801(d)(2)(E) allowing evidence of conspiracy to show conspiracy and thus invoke conspiracy exception to the hearsay rule, whether or not that evidence of conspiracy is itself admissible Case: Cox v. State (IN SC, 1998, p.32): State alleged that " killed decedent in retaliation for decedent s filing of child molestation charges against " s best friend. Evidence that " s best friend had recently had charges added at bail hearing admissible only if " knew about the new charges. Held, evidence admissible because " spent almost every day at best friend s house, so there is sufficient evidence to support the inference that " s best friend s mother told " about the bail hearing. Probabilistic Evidence Courts tend to prefer direct evidence and distrust statistical evidence, especially in criminal trials Reasons: Worry that juries will overvalue statistical evidence Worry that heavy reliance on statistical evidence would show that we occasionally convict innocent people (i.e., that the emperor has no clothes) Schauer finds courts preoccupation with direct evidence bizarre Cases: People v. Collins, CA SC, 1968 (p.504): Prosecutors use of mathematician to establish guilt through product rule reversible error. Product rule: Probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur Problems with use of the product rule: (1) No showing that any of the individual probabilities used were independent of each other (2) All the computation could show is the probability of a random couple possessing the characteristics in question, not that the perpetrator couple actually had those characteristics Schauer: A lot of the problem in this case relates to the notion that we should examine " s as individuals (particularistic), rather than using generalizations Blue Bus Problem:  is forced off the road in the middle of the night by bus, but saw no identifying marks.  can offer evidence that RT only bus company authorized to operate on route, and the times matched. Suit dismissed for lack of direct evidence;  only had naked statistics and that s not enough to survive summary judgment. Hertz v. Kaminsky: Auto accident caused by large yellow and black truck that said Hertz on it. Evidence can show that 90% of trucks with those characteristics are owned by Hertz, 10% by lessees; this is enough to be admissible absent other evidence Subsequent Remedial Measures FRE 407 (Subsequent remedial measures): Evidence of subsequent remedial measures (to time of injury) by " is: Not admissible to prove (1) negligence (2) culpable conduct, (3) product defect, or (4) need for warning, but Admissible when offered for another purpose, e.g., to prove (1) ownership, (2) control, or (3) feasibility of precautionary measures, if controverted, or (4) for impeachment Rationale: Intrinsic: Conduct is not an admission Extrinsic: Want to encourage (or at least not discourage) steps in furtherance of added safety Cases: Mahlandt v. Wild Candid Survival (8th Cir., 1978): Wolf attacks beagle, owners then chains wolf to fence; wolf then attacks child. Wolf owners chaining of wolf to fence admissible in child attack case but inadmissible in beagle attack case. Tuer v. McDonald (MA CA, 1997, p.95):  dies of heart attack as a result of alteration of heart stabilization drug. Hospital then changes dosage protocol. Court refuses to allow evidence in on feasibility or impeachment grounds, defining  feasible as  a risk worth taking (rather than as a mere  possibility ) Clausen v. Storage Tank Development Corp. (1st Cir. 1994, p. 305):  slipped and fell on ramp at job site. Judge allowed evidence that " later replaced ramp because arguably went to issue of control and not culpability. Settlement Efforts and Insurance FRE 408 (Offers to compromise): Evidence of offers to compromise and evidence of statements made in compromise negoations not admissible to prove: (1) Liability, (2) Invalidity of the claim or amount (evidence of statements made in compromise negotiations not admissible), or (3) For impeachment thorough prior inconsistent statements NOTE: This rule applies ONLY to cases where there is a dispute AND compromise negotiations (and a usually a claim) as to the validity or to amount of the underlying claim that is the subject of the negotiations NOTE: This rule does NOT bar evidence of offers to compromise otherwise discoverable, e.g., to show (1) control, (2) witness bias (see E&E, p.24), (3) lack of undue delay, or (4) obstruction of criminal investigation Case: Bankcard America, Inc. v. Universal Bancard Systems, Inc. (7th Cir., 2000, p.207):  wants to introduce evidence that " during settlement negotiations lulled  into breaching their contract. Court admits because goes to  s state of mind and explanation for its actions and it does not seem likely to have any  chilling effect on future negotiations. FRE 409 (Payment of medical expenses): Evidence of offers or promises to pay medical or similar expenses occasioned by injury not admissible to prove liability for the injury NOTE: The rule protects ONLY the offer itself, and NOT statements surrounding the offer (unlike FRE 408 and offers to compromise) FRE 410 (Plea negotiationscivil and criminal cases): The following are inadmissible: (1) Withdrawn guilty pleas, (2) Nolo contendere pleas (3) Statements made during plea negotiations with a prosecutor which either: (a) Do not result in a guilty plea, or (b) Result in a guilty plea that is later withdrawn Exceptions: The above statements are admissible when: (1) Offered to prove perjury if the statement was made under oath and in the presence of counsel (2) When in fairness the statements should be considered contemporaneously with another statement introduced into evidence, or (3) When used against a " other than the accused who made the statement Case: U.S. v. Biaggi (2d Cir., 1990, p.128): Court admits evidence that " rejected offer of immunity from prosecution in return for testifying about wrongdoing of other " s; courts finds " s rejection to be probative of a state of mind devoid of guilty knowledge FRE 411 (Liability insurance)::Evidence of liability insurance (or lack thereof) is Not admissible as evidence of (1) negligence or (2) wrongful conduct, but Admissible for other purposes, such as proof of (1) agency, (2) ownership, (3) control, or (4) witness bias Rationale: If jurors know " has liability insurance, jurors will treat action as being against insurer rather than against " III. Character and Habit (see flowchart p.151) Basic Rule FRE 404(a) (Character evidence generally): Cannot introduce evidence to prove a persons character to support an inference that the person acted in conformity with his character on a particular occasion, with three exceptions. Schauer: Its rare for character evidence to come in directly; rather, character evidence usually comes in as evidence of particular past actions. FRE 404(a) represents a general belief that, with propensity evidence, in balancing probative value against prejudicial effect its better to err on the side of prejudicial effect FRE 404(a) makes a substantial difference in a number or trials, since the probative value of character evidence can tend to be quite high Propensity rule: Prosecution or  cannot introduce evidence to prove that " has a propensity to commit a certain type of crime Rationale: Danger of unfair prejudice likely to substantially outweigh the probative value of the evidence: (1) Jury might give excess weight to character evidence (2) Jury might decide " is a  bad person and thus deserves to punished (maybe previous sentence was too short), whether or not " is actually guilty of this particular crime (3) Preventive conviction: Jury might decide " is dangerous ( might do it again ) and thus should be taken off streets, whether or not " is actually guilty of this particular crime We want to focus on this particular case, not relitigate previous cases Notion that a person deserves a fresh startpunish for what theyve done, not who they are Two circumstances where propensity rule does NOT apply: (1) When propensity evidence not offered to prove action in conformity with the trait E.g., Cleghorn v. New York Central: Employees history of intoxication admissible because offered to establish employers negligence in continuing to employ the alcoholic employee. Admissible against the employer, not the employee. (2) When character is at issue E.g., cases where the person s character is part of the cause of action Exceptions: (1) FRE 404(a)(1): Character of ", in criminal trial:  Mercy rule : " may offer pertinent evidence of his own character to support the inference that he did not commit a charged crime. (a) If " offers evidence about a pertinent trait of his own character, prosecution can offer evidence rebutting " s evidence E.g., Commonwealth v. Pring-Wilson (MA): " allowed to introduce evidence of his reputation for peacefulness (b) If " introduces evidence of the victim s character, even if " offers no evidence about his own character, the prosecution can show the " has the same (or similar) character trait (2) FRE 404(a)(2): Character of victim, in criminal trial: (a) If " introduces evidence of pertinent trait of victim s character, prosecution can introduce evidence to rebut " s evidence of victim s character E.g., Commonwelath v. Pring-Wilson (MA): " allowed to introduce evidence of victim s prior violent acts (b) In a homicide case, if " claims self-defense, even if " has not offered any evidence of the victim s character or aggressiveness (but only that the victim was the first aggressor), prosecution can introduce evidence of victim s peacefulness (3) FRE 404 (a)(3): Character of witness, in both civil and criminal trial See FRE 607-09 NOTE: FRE 413-415 also contain exceptions to 404(a) Cases: Michelson v. U.S., US SC, 1948 (p.223): " accused of bribing government officials, calls witnesses testifying to his good character. Prosecution asks " s character witnesses whether they are familiar with " s 30 year-old arrest for receiving stolen goods. Held, question okay because both crimes proceed from the same  defects of character and thus weakens " s assertion that he was known as a good, law-abiding citizen. General rule: FRE 404(a) says all propensity evidence is out, except when it is in under FRE 404(b) (see below) In actuality, however, the practice seems to be that all evidence is in except when it is out (burden of proof issue) If a lawyer is creative enough, propensity evidence usually can still come in under FRE 404(b) IMPORTANT: FRE 403 balancing still applies to propensity evidence that comes in under either FRE 404(a)s exceptions or 404(b). U.S. v. Guardia (10th Cir., 1998, p.215): Probative value of propensity evidence depends on considerations such as the: (1) Similarity of the prior acts to the acts charged, (2) Closeness in time of the prior acts to the charged acts, (3) Frequency of the prior acts, (4) Presence or lack of intervening events, and (5) Need for evidence beyond the testimony of the " and alleged victim. Methods of Introducing Character Evidence FRE 405 (Methods of proving character): (a) In all cases where character evidence is admissible, evidence may be made by testimony as to reputation or in the form of an opinion (but not as to specific instances of conduct) On cross-examination (in these circumstances), inquiry into relevant instances of conduct is permissible (b) When character of person is an essential element of a charge or defense, proof may be made by specific instances of that persons conduct This provision applies only when the existence of the character trait, and not any conduct in conformity with that trait, is the thing to be proved Purpose of cross-examination exception allowing inquiry into specific conduct: (1) If character witness has offered reputation evidence, to test witness s knowledge of " s reputation (2) If character witness has offered opinion evidence, to test witness s familiarity with " Permissible Uses of Specific Past Conduct FRE 404(b) (Permissible uses of past acts): Evidence of other crimes, wrongs, or acts may be admissible when it is offered to prove something other than character of person to show action in conformity therewith NOTE: Evidence of uncharged misconduct is routinely admitted in criminal trials on theory that it is being used to prove something other than character Standard of proof: To be admissible, a past act need be proved only to the extent necessary for a reasonable jury to be able to find that the past act occurred and that " was the actor ( sufficient evidence standard) I.e.,  similar act evidence relevant only if jury could reasonably conclude (1) that the act occurred and (2) that " was the actor Preliminary finding by court not required (Huddleston v. U.S, p.190) Permissible uses of past acts: To show proof of (1) Motive Evidence that " committed crime in the past might be admissible to show that motive for " s new crime was avoiding arrest In prosecution for injury stemming from drivers failure to stop streetcar at stop, evidence that streetcar driver failed to stop at previous two stops admissible to show driver likely was behind schedule and thus in a hurry NOT admissible to show that driver who did not stop earlier is more likely not to stop later (2) Opportunity If " accused of robbery using key " stole during earlier robbery, evidence that committed earlier robbery admissible to show how " got in (3) Intent In prosecution for mailing stolen coins, evidence that " had stolen credit cards in his home admissible to rebut " s argument that he was planning to turn the coins in NOT admissible to show that person who previously stole credit cards is more likely to have stolen coins (4) Preparation (5) Plan (6) Knowledge If person hit by FedEx truck, fact that driver had previously been involved in three accidents admissible in negligence suit against FedEx to show FedExs knowledge of drivers poor driving record, but inadmissible in action against driver (7) Identity Mode of operation (signature crimes): INADMISSIBLE to show that the crime was the  " s type of crime ADMISSIBLE to show that the crime could not be  anyone else s crime (i.e., that no one else could have committed the crime) I.e., admissibility depends on how unique the act was (8) Absence of mistake or accident ( doctrine of chances) Doctrine relies on the belief that multiple misfortunes, if similar enough and rare enough, suggest guilt ONLY because of the unlikelihood of innocent coincidence This shows the limits of the propensity ruleif the probability that it wasnt chance becomes high enough, evidence becomes admissible despite fact that evidence still rests on propensity (viz., assumption that a guilty person would have the propensity to repeat the crime) NOTE: This is not an exception to 404(a); rather, 404(a) is the exception to the general rule that relevant evidence is admissible Cases: People v. Zackowitz (NY CA, 1930, p.137): " accused of murder. Prosecution introduces evidence that " owned several pistols and a tear-gas gun in his radio box at home. Held, prosecution used evidence to show " was man of  vicious and dangerous propensities and so reverses conviction. Evidence of guns would have been admissible had: " bought guns in expectation of encounter with victim, because would have been evidence of preparation and design " dropped the extra guns at scene of crime, because would have been evidence of identity of perpetrartor. " brought extra guns with him to scene of crime (but not used them), because would have been evidence of preconceived design U.S. v. Trenkler (1st Cir., 1995, p.161): " created bomb in 1986. Now, " charged with creating bomb in 1991 with many similar characteristics, including method of connecting wires, use of magnets, and use of toggle switch purchased from Radio Shack. Held, similarities were  sufficiently idiosyncratic to permit an inference that " created both bombs (identity). Though none of the similarities in and of themselves were highly distinctive, taken together, the similarities were persuasive. U.S. v. Stevens (3rd Cir., 1991, p.170): Two white air force police officers robbed at gunpoint, and female officer sexually assaulted. " seeks to use  reverse 404(b) and introduce testimony to show that another, similar and near-in-time crime was not committed by ", thus tending to show " was innocent of the robbery and assault of the white officers (identity). Held, evidence admitted on theory that lower standard applies when " seeks to introduce  other crimes evidence than when prosecution does, because unfair prejudice to " is not a factor, but only relevancy (i.e, probativeness vs. waste of time and confusion) U.S. v. DeGeorge (9th Cir. 2004, p.180): Evidence that " had previously lost yachts at sea was admissible because it explained why " changed the yacht s ownership before scuttling it, which was an essential part of the prosecution s narrative that " had artificially inflated yacht s value and then purposefully scuttled it (i.e., evidence of plan). Habit FRE 406 (Habit; routine practice): Evidence of (1) habit of a person or (2) routine practice of an organization 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 (but is not admissible to show character (?)) NOTE: Evidence of habit does not need to be corroborated or attested to by eyewitnesses to the behavior Habit: Ones regular, predictable, almost reflexive response to a repeated, specific situation The key characteristics of habitual behavior are regularity, predictability, mechanicalness (non-volitional) Evidence adduced from multiple sources taken together demonstrates a uniform pattern of behavior (Loughan v. Firestone Tire, p.281) Case: Halloran v. Virginia Chemicals, Inc., NY CA, 1977 (p.240):  was injured by exploding Freon can. Court allows in evidence that  used immersion coil on previous occasion to heat Freon, provided " can establish that  so used an immersion coil enough times to constitute a habit. Sexual History of Alleged Sexual Assault Victim (Rape Shield Laws) FRE 412 (Sex offense cases; relevance of victims past sexual behavior): In any civil or criminal proceeding involving alleged sexual misconduct, evidence of any alleged victims other (1) sexual behavior or (2) sexual predisposition is not admissible, except: In a criminal case: Admissible if: Otherwise admissible under FRE, AND is evidence of: (b)(1)(A): Specific instances of sexual behavior by the alleged victim offered to prove that someone other than " was the source of semen, injury, or other physical evidence (b)(1)(B): Specific instances of sexual behavior between " and alleged victim: Offered by " to prove consent, or Offered by the prosecution (b)(1)(C) When exclusion would violate " s constitutional rights In a civil case: Admissible if (1) Otherwise admissible under FRE, AND (2) probative value substantially outweighs the danger of harm to ANY victim and of unfair prejudice to ANY other party, Evidence of alleged victim s reputation admissible ONLY if it has been placed in controversy by the alleged victim NOTE: Exceptions to FRE 412 are contained in FRE 412 itself, and are NOT subject to FRE 403 or any other rules NOTE: Use of evidence of alleged victims past sexual behavior generally admissible to show that alleged victims testimony is demonstrably false, i.e., for impeachment purposes (to challenge victims credibility) BUT, no consensus among courts on how far a " s right to cross-examine an alleged victim to expose the alleged victim s past false complaints (i.e., no consensus on whether " can cross-examine only to show bias regarding the particular occasion, or also to show alleged victim s untruthful character generally) Methods of introducing evidence of victims past sexual behavior (US v. Saunders, p. 288) Admissible: Evidence of specific prior acts, if directly probative Inadmissible: Reputation and opinion evidence, unless put in controversy by the alleged victim Rationales: (1) Encourage rape victims to report their crimes (2) Worry that jurors will overvalue evidence of victims sexual history (3) Ease difficult of proving rape cases, because rape cases generally harder to prove than other types of cases Generally, question of previous sexual activity is probative of consent on this occasion Argument is that a previous consenter is more likely to have consented on this occasion than someone who is not known previously to have consented Cases: State v. Smith (LA SC, 1999, p.320): FRE 412 inapplicable to evidence that alleged victim in the past made false allegations regarding sexual activity. Such evidence concerns the victims credibility, not her prior sexual behavior, history, or reputation for chastity Olden v. Kentucky (US SC, 1988, p.327): " allowed to impeach alleged victim s testimony by introducing evidence that alleged victim was living with Russell, when alleged victim claimed during testimony to be living with her mother. " allowed to cross-examine alleged victim  to show a prototypical form of bias on the part of the witness Prior Sexual Offenses of Sexual Assault " Evidence of (specific instances of (see E&E, p.52)) " s prior sexual assault or child molestation is (1) admissible and (2) may be considered for its bearing on any matter to which it is relevant in: (1) Prosecutions for sexual assault (FRE 413) (2) Prosecutions for child molestation (FRE 414) (3) Civil cases claiming damages for sexual assault or child molestation (FRE 415) Rules not limited to " s prior sexual assaults against the complaining witness NOTE: most states have not adopted FRE 413 Case: U.S. v. Guardia (10th Cir., 1998, p.215): Court holds that FRE 403 balancing still applies to evidence of " s prior sexual assaults sought to be admitted under FRE 413. Although indisputably probative, propensity evidence has prejudicial potential, and the two must be weighed against each other. It was not error for trial court to exclude evidence of prior sexual assaults by ", as such evidence would tend to confuse the jury and turn the trial into a series of mini-trials of " s alleged prior offenses. Schauer: Filtering evidence " s prior sexual crimes through FRE 403 balancing reduces the impact of FRE 413-15. IV. Hearsay (see flowchart p.369) Basic Rule Basic Rule: Factual disputes in cases should be decided based on live, sworn testimony in court, not on secondhand accounts of what other people said outside of court FRE 802: Hearsay is not admissible excepts as provided by the FRE, or by other rules prescribed by the US SC pursuant to statutory authority from Congress Rationales (see E&E p.64): (1) Hearsay likely to be less reliable, because of lack of (a) cross-examination, (b) absence of demeanor evidence, and (c) absence of oath (2) Juries are likely to overvalue hearsay statements, i.e., likely not to discount their reliability Schauer finds this rationale unpersuasive, because everyone always discounts third-hand information Definitions (FRE 801): (a) Statement (FRE 801(a)): An (1) Oral or written assertion, or (2) Nonverbal conduct of a person intended as an assertion NOTE: This definition excludes all evidence of conduct not intended as an assertion E.g., ship captain who boards ship with family not thereby asserting ship is safe, unless he intends bringing his family along to be an assertion that the ship is safe (b) Declarant (FRE 801(b)): A person who makes a statement (c) Hearsay (FRE 801(c)): Hearsay is: (1) An assertion (i.e., intended communication) (2) Made or done by someone other than the declarant while testifying at trial Out-of-court statement: Any statement other than the statement made under oath and in front of the factfinder during the proceeding in which the statement is being offered into evidence Thus, even self-quotation can be hearsay (3) Offered into evidence to prove the truth of the matter asserted by the declarant I.e., offered into evidence to establish that the statements content is true I.e., relevant only to prove the truth of what it asserts IMPORTANT: The matter asserted is the matter asserted in the statement offered into evidence, not the matter asserted by the party offering the evidence Implied Assertions: (1) Nonverbal conduct that is assertive in nature or intended as the equivalent of words, or E.g., pointing to a suspect in a police line-up E.g., NRC chairman taking of his family to blast site for bomb test is a statement that he believes the blast site is safe, because NRC chairman clearly intends his action to have that effect NOTE: The fact that nonverbal conduct indicates ones belief is generally not understood to be a statement unless it was intended to indicate ones belief. (2) Verbal conduct that intends to communicate non-specified facts by implication E.g., telling a person not to run the stop sign ahead, which communicates by implication that there is a stop sign ahead Because implied assertions are inherently communicative, they are hearsay if offered to prove the truth of the implied assertion Case: United States v. Zenni (p. 59): Police searching " s house pursuant to warrant answered phone several times, and people on the other end made statements about placing bets. Held, utterances of telephone betters were nonassertive verbal conduct because they did not intend to communicate any assertion, and so not hearsay. Non-Hearsay (i.e., permissible) Use of Out-of-Court Statements (1) Thoughts/Perceptions/State of mind: Lyons Partnership (p. 50): Testimony that children mistook dinosaur costume as Barney was not hearsay because not offered into evidence to prove that the Duffy dinosaur was Barney, but rather only that children thought (or perceived) that he was Barney. (2) Knowledge/Notice: Out of court-statements may be used to prove a persons knowledge of the existence of a fact, rather than to prove the actual existence of the fact. United States v. Parry (p. 51): Mothers testimony that son referred to caller as narcotics agent was circumstantial evidence that he had knowledge of agents identity, not proof that caller was a narcotics agent Surgical malpractice hypo: Surgeons statement that the sponge count doesnt seem right not hearsay because offered to show that surgeon was on notice that there was a problem, not that the sponge was still in the patient (i.e., the truth of the surgeon s implied assertion) General rule: If statement offered to show there was a problem, hearsay. If, however, statement offered to show " knew about the problem, not hearsay. (3) Oral agreements (legally operative words) (Creaghe v. Iowa Home Mutual Casualty, p. 56): Hearsay rule does not exclude relevant testimony as what words contracting parties uttered when making or the terms of an oral agreement Legally operative words are like verbal acts that operate independently of the speakers belief or intended meaning (4) Performative (or imperative) utterances: Instructions and demands fall outside the scope of the hearsay rule, because they do not make any truth claims. United States v. Montana: Only issue of credibility was whether the witness reported the demand to the court correctly (5) Words offered to prove their effect on the listener E.g., words that caused the listener to fear (6) Prior inconsistent statements offered to impeach NOTE: In each of these categories, whether the declarant believed the assertion when she made it is irrelevant; all that matters is whether the declarant actually made the assertion IMPORTANT: Just because a statement is either (a) not hearsay or (b) admissible under a hearsay exception does not automatically make the statement admissible (rather, only makes the statement non-excludable); the statement must still pass the FRE 403 relevance balancing test Exceptions to the Hearsay Rule Non-Hearsay Exceptions (i.e., Statements That Are Not Hearsay) (FRE 801(d)) IMPORTANT: Because not hearsay, these statements can all come in substantively NOTE: Impeachment evidence does not come in substantively This is important in cases where the only real evidence that the prosecution has is an earlier statement by a witness that contradicts the witness s current testimony and implicates the "; if the statement can come in only as impeachment, and not substantively, the judge must direct a verdict of for " 1. Prior Statement by a Witness (see chart on p.417) FRE 801(d)(1): A statement is not hearsay if: (1) The declarant testifies at trial, (2) Subject to cross-examination, and (3) The statement is: (A) Inconsistent with the declarants testimony, and was given under oath subject to penalty of perjury NOTE: Failure to allege self-defense earlier counts as a prior inconsistent statement when " claims self-defense for first time on stand at trial (Fletcher) NOTE: FRE 613 says that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless (1) the witness is afforded an opportunity to explain or deny the statement and (2) the opposite part is afforded an opportunity to interrogate the witness about the statement, or (3) the interests of justice otherwise require FRE 613 does not apply to party-opponent admissions as defined in FRE 801(d)(2)) (B) Consistent with the declarants testimony, and is offered to rebut express or implied charge against the declarant of recent fabrication or improper influence or motive IMPORTANT: To be admissible, the consistent statements must have been made before the charged recent fabrication or improper influence of motive (Tome) BUT, may still be relied on for credibility purposes (i.e., to support a witnesss statements), even if not admissible substantively because made after the motive to fabricate arose NOTE: The rules permits statements to rebut an alleged motive, not to bolster the veracity of the story told (Tome) (C) One of identification of a person made after perceiving the person (i.e., lineups) NOTE: Statements of identification always admissible Identifying statement still admissible even when witness who made the statement cannot now, because of memory loss, remember seeing the person (Owens) Cases: Albert v. McKay (p. 65): Witnesss prior statements could only be used to discredit him as a witness and not to prove negligence. U.S. v. Owens (US SC, 1988, p.451): Victim with memory loss testified to previously identifying attacker while in hospital, but could not identify attacker that day in court. Held, victims identification admissible, because victim can be cross-examined and his memory loss brought out at trial. U.S. v. Barrett (1st Cir. 1976, p.421): Witness testified that " told him " had committed the robbery. " seeks to introduce evidence that witness later told another person that the witness did not believe " was guilty. Held, " can introduce evidence of later conversation to impeach witness. To be received as prior inconsistent statement, contradiction need not be in  plain terms ; rather, enough that statement was  clearly incompatible with witness s testimony. U.S. v Ince (4th Cir., 1994, p.424): During second trial (following mistrial), government again called witness who had previously offered statement that " told her he had pulled trigger, but now denied that " told her that. Government then called police officer to whom witness had made statement that " had told her he had pulled trigger to  impeach witness s credibility. Held, allowing officer to testify that witness had earlier told him " had told her he had pulled trigger was prejudicial error. Court should rarely, if ever, permit government to  impeach its own witness by presenting what would otherwise be inadmissible hearsay if that hearsay contains an alleged confession by ". Further, probative value of officers testimony for impeachment purposes (the only effect by which its probative value may be measured, because officers testimony was offered solely for purposes of impeachment) was nil, so testimony fails FRE 403 balancing. Fletcher v. Weir (US SC, 1982, p.430): " arrested for stabbing victim, does not allege self-defense until on witness stand at trial. Held, " s failure to allege self-defense when arrested was admissible for impeachment purposes. Tome v. U.S. (US SC, 1995, p.439): " charged with sexually abusing his child, asserts child is fabricating alleged abuse because she wants to live with her mother. Prosecution introduces statements child made to others describing the alleged abuse in order to rebut suggestion of improper motive. Held, these statements inadmissible because made after time at which " alleged child formed motive to live with her mother. Commonwealth v. Weichell (MA SJC, 1984, p.448): " charged with murder. Prosecution introduces composite sketch witness of shooting helped prepare. Held, sketch admissible as compilation of statements of witness identifying " after witness perceived ". 2. Admissions (Statements) by Party-Opponents Basic Rule: FRE 801(d)(2) (Admission by party-opponent): A statement is not hearsay if it is (1) offered AGAINST a party to the current suit and is: (A) The partys own statement, in either an individual or a representative capacity (declaration against interest), (B) A statement for which the party has manifested an adoption or belief in its truth, (C) A statement by a person authorized by the party to make a statement concerning the subject (D) A statement by the partys agent or servant concerning matter within the scope of employment or agency, made during the existence of the relationship (E) A statement made by a coconspirator of the party during the course of and in furtherance of the conspiracy Bootstrap rule (FRE 801(d)(2)): Contents of statement shall be considered but are not alone sufficient to establish: (C) Declarants authority, (D) Existence and scope of agency or employment relationship, or (E) Existence of conspiracy and participation therein of declarant and party against whom the statement is offered THUS, admissions doctrine is not limited to statements made directly by the party against whom they are introduced. Rather, it applies when it seems right to hold the party against whom the evidence is offered at least partially responsible for the out-of-court statement Rationale: Admissions more reliable than other hearsay evidence because unlikely that a party is lying when it is saying something against its interest. Adversary system: Parties should pay for their mistakes IMPORTANT: An admission is a statement made by a party. To be an admission the partys statement need not necessarily admit anything. IMPORTANT: A party admission is not hearsay only when it is introduced against the party that made the statement. Admissions and Completeness FRE 106 (Related writings or recorded statement): When a writing or recorded statement, or a part thereof, is introduced, an adverse party may require the introduction at that time of any other part of that or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it When one party has made such use of a document that misunderstanding or distortion can be prevented only through presentation of another portion of that document, the material required to avoid distortion is ipso facto relevant. Direct Admissions FRE 801(d)(2)(A): The partys own statement, in either an individual or a representative capacity (declaration against interest) Statement does not need to be inculpatory; only needs to have been made by party against whom it is offered. (United States v. McGee, p. 73) Rationale: Admissibility of direct admissions into evidence is a result of the adversary system, rather than a satisfaction of the conditions of the hearsay rule (Advisory Committee) Case: Salvitti v. Throppe (p. 72): " visited  and admitted fault to the car accident, statement admissible Multiple (second-order) hearsay is admissible: No personal knowledge as to matter admitted by party required for admission against that party Mahlandt v. Wild Candid Survival (8th Cir., 1978, p. 400): Even though not based on personal knowledge, Poos note and statements about the wolf biting the child are admissible because the note was his own statement, and manifested an adoption of the belief that the statement was true. Adoptive Admissions FRE 801(d)(2)(b): Statement of which the party has manifested an adoption or belief in its truth (including admissions by silence or acquiescence) General idea: Sometimes, by saying or not saying (or doing or not doing) some particular thing in response to anothers statement, one can be taken to have adopted what the other person said (i.e., be taken as having actually said the other persons statement oneself) Admission by Silence Requirements: Must show that the declarant: (1) Heard the statement, (2) Had the opportunity to respond, and (3) That it would be reasonable to expect someone in the declarants situation to say something (i.e., protest) if that person intended not to make the postulated admission E.g., car accident hypo: Driver and angry wife Cases: United States v. Forts (p. 80): Admission by silence when witness asked two " s about a bank robbery and the first " answered, detailing the other " s role, while the other " remained silent. Mere failure to respond to a letter does not indicate adoption of its contents, unless it was reasonable under the circumstances for the sender to expect the recipient to respond and correct those erroneous assumptions (Southern Stone Co. v. Singer, p. 81) Authorized Admissions FRE 801(d)(2)(C): Statement by a person authorized by the party to make a statement concerning the subject Advisory Committee: Communication to a third party or intent to communicate is not required for the contents of the communication to be admissible as an admission E.g., partys books or records, prepared by bookkeeper, are admissible against that party Case: Statements made by lawyer in a representative capacity are admissible as authorized admissions when directly related to the management of litigation (Hanson v. Waller, p. 83) Agent and Employee Admissions FRE 801(d)(2)(D): Statement by the partys agent or servant (1) concerning a matter within the scope of the agency or employment, (2) made during the existence of the relationship IMPORTANT: The issue is whether the activity the agents statement concerned was a matter within the scope of her agency or employment, not whether the statement itself was within the scope of her agency or employment. Cases: Fed Ex Driver Hypo: FedEx driver hits pedestrian, says Im sorry. FedEx argues the driver is only authorized to drive and drop off packages, not to make statements on behalf of the employer. BUT, FedEx is wrong. The real issue is whether the driver is authorized to be driving. If the driver was authorized to drive the truck, his jumping out and saying sorry is a statement about his driving, and if its a statement about his driving it fits the exception because it concerns a matter with the scope of his employment relationship with FedEx, made during the course of that relationship Mahlandt v. Wild Candid Survival (8th Cir., 1978, p. 400): Poos note saying the wolf bit the child is admissible because the statement concerned a matter within the scope of his agency and was made while Poo was acting as an agent. Sea-Land Service v. Lozen International (p. 89): Internal company email admissible as admission by party-opponent, because made by employee within scope and duration of employment. Co-Conspirator Admissions FRE 801(d)(2)(E): Statement by a coconspirator of a party made (1) during the course and (2) in furtherance of the conspiracy. IMPORTANT: The (1) existence of a conspiracy and (2) the partys participation therein must be established by a preponderance of the evidence (FRE 104) in order for statements of coconspirator to come in, but a conspiracy does not actually need to have been charged Bootstrap rule: A co-conspirators statement alone is not enough to establish a conspiracy such that the statement can come in under FRE 801(d)(2)(E), but can be considered as evidence of the conspiracy, when corroborated by other independent evidence (see FRE 801(d)(2)(E)) Bourjaily v. United States (US SC, 1987, p.406): When preliminary facts relevant to Rule 801(d)(2)(E)) are disputed (e.g., existence of conspiracy), the offering party must prove those facts by a preponderance of the evidence A court may consider the hearsay statements sought to be admitted in making a preliminary factual determination as to those preliminary facts (see FRE 104) Advisory Committee: FRE 801(d)(2) has been amended since Bourjaily to codify Bourjailys holding that a court shall consider statements by a coconspirator during the course of and in furtherance of the conspiracy in determining whether the conspiracy exists and the extent of each partys participation in the conspiracy, but that such statements alone are insufficient to establish the existence of or parties participation in the conspiracy. FRE 801(d)(2)(E) also extends Bourjailys holding to 801(d)(2)(C) (authorized admissions) and 801(d)(2)(D) (agent and employee admissions) Hearsay Exceptions Where Availability of Declarant Immaterial (FRE 803) FRE 803 IMPORTANT: FRE 803 deals with the nonapplicability of the hearsay rule, not the admissibility of evidence I.e., Hearsay evidence not excluded as hearsay under FRE 803 still must pass the relevance (FRE 403) hurdle Thinking behind FRE 803: Hearsay admitted under FRE 803, in view of FRE drafters, sometimes better than declarants live testimony I.e., hearsay under FRE 803 so good it makes live testimony superfluous FRE 403 proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify not calling the declarant to testify, even though the declarant is available FRE 803: The following are not excluded by the hearsay rule, even though the declarant is unavailable as a witness: 3. Present Sense Impression FRE 803(1): Statement describing or explaining an event or condition made while declarant was perceiving that event or condition, or immediately thereafter Rationale: Substantial contemporaneousness of event and statement negate the likelihood of deliberate or conscious misrepresentation Participation by declarant in event not required Statement by 911 caller describing events he is witnessing meets criteria for either contemporaneous or excited utterance (Bemis v. Edwards) Statements MUST be based on personal firsthand knowledge (Bemis v. Edwards) Cases: Bemis v. Edwards (p. 102): There was sufficient evidence that witness was actually relaying what others were telling him and did not actually view the polices use of excessive force, so inadmissible 4. Excited Utterance FRE 803(2): Statement relating to a startling event made while the declarant was under the stress or excitement caused by the event Rationale: Circumstances which produce a conditions of excitement may temporarily still the capacity of reflection and produce utterances free of conscious fabrication I.e., people are less likely to lie when theyre in an excited state Schauer disputes this (thinks reaction to startling event frequently is to blame some else to cover your own butt) BUT, what about potential impairment of perception? Central question is whether declarant was excited at the time she uttered the statement Thus, amount of time between startling event and declarants statement may be important Participation by declarant in event not required Cases: Fact that witness was a law enforcement agent does not preclude admissibility under the excited utterance exception (US v. Obayagbona, p. 99: law enforcement officers excited utterance caught on his tape recorder was admissible into evidence against ") Domestic violence victim s statements on 911 tape are admissible excited utterances even though she did not testify at trial, as well as statements given at the scene within 5 minutes of call (State v. Lee, p. 100) Defendant s statements at time of his arrest are not admissible as excited utterances without support that unduly excited so as to alter conscious reflections (US v. Elem, p. 104) 5. State of Mind or Physical Condition FRE 803(3): Statement of the declarants then-existing: (1) State of mind (i.e., belief, knowledge), (2) Emotion, (3) Sensation, or (4) Physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) EXCEPTION: Does not include a statement of memory or belief to prove the fact remembered or believed, unless it relates to declarants will Purpose of exception is to prevent destruction of hearsay rule by allowing state of mind, provable by hearsay statement, to serve as the basis for an inference of the happening of the event which produced the state of mind Case: Defendants parole officers testimony that he believed the government was after him and trying to set him up, depending on the phrasing of the testimony, was admissible as circumstantial evidence as to " s state of mind. (US v. Harris, p. 109) The Hillmon Doctrine Extension of the state-of-mind exception to statements of present intent offered to prove that declarant actually did what she said she would IMPORTANT: Statements admissible only to prove declarant s future conduct, not the future conduct of any other person (is this right?) Mutual Life Insurance Co. v. Hillmon (US SC, 1892, p.495):  trying to collect life insurance for husband s death. " insurance company claims  s husband not dead, but that body found was of Walters. " attempted to introduce evidence that Walters wrote to three people expressing his intention to leave for Wichita with  s husband. Held, Walter s letters did not prove Walter actually left for Wichita with  s husband, but are admissible as to his intent to leave for Wichita with  s husband (i.e., his state of mind). Walters s intent to leave for Wichita with  s husband in turn makes it more likely that he did go to Wichita with  s husband. Thus, Walters s letters are competent evidence of intent, a material fact bearing upon the question in controversy. Sharp distinction between declarations of intention, pointing towards the future, and declarations of memory, pointing towards the past Shepard v. US (p. 115): Wifes declaration that husband poisoned her pointed towards past, and was not narrowly admitted as to state of mind, but rather to rebut " s theory of suicide Statements of a declarant s intent are admissible under FRE 803(3) to prove subsequent conduct of a person other than the declarant without corroborating evidence US v. Houlihan (p. 118): Victim s statement to his sister that he was going to meet the defendant on the evening of his murder is admissible as evidence of future intent 6. Medical Diagnosis FRE 803(4): Statement made for purposes of medical diagnosis or treatment and describing: (1) Medical history, or (2) Past or present symptoms, pain, or sensations, or (3) The inception or general character of the cause or source thereof insofar as reasonably pertinent to diagnosis or treatment EXCEPTIONS:: Rule does not adversely affect doctor-patient privileges Rule does not extend to statement from a physician consulted only for the purpose of enabling her to testify (i.e., consulted for litigation purposes only) (E&E, p.123, says this is false, i.e., that FRE 803(4) does not distinguish between treating and testifying physicians, although some jurisdictions do) Rationale: Patient has a strong motive to tell the truth to a diagnosing physician because the diagnosis or treatment will depend in part upon what the patient says Applications: Statement extends to causation, but not fault (e.g., car hit me admissible; car ran red light not admissible) Statement need not have been made by the person who needed the medical help Statement need not have been made to a physician, but rather merely to someone connected with obtaining medical services U.S. v. Iron Shell (8th Cir., 1980, p.511): " charged with attempted rape. Doctor testified that during physical examination, alleged victim told doctor a man had attempted to rape her. Held, doctor s testimony about alleged victim s statements admissible. Method by which alleged victim sustained her injuries was relevant to diagnosis because eliminated other possible physical causes of her injuries. 7. Recorded Recollection Past Recollection Recorded (FRE 803(5)): When a witness sometime in the past knew something (e.g., a license plate number), saw the thing or remembered it, and at that time wrote it down FRE 803(5): Memorandum or record: (1) Concerning a matter about which a witness once had knowledge but now cannot sufficiently remember to be able to testify fully and accurately, and (2) Shown to have been (a) made or adopted by the witness when the matter was fresh in the witnesss mind and (b) to reflect that knowledge correctly NOTE: If admitted, record may be read into evidence but not introduced as an exhibit, unless offered by an adverse party REQUIREMENTS: (1) Witness must be in court and actually be testifying, and therefore be available for cross-examination (FRE 803(5) (2) Witness must be the person who made the record and therefore can testify as to its (a) authenticity and (b) the circumstances of its creation (3) The recorded recollection (writing, etc.) is then entered into evidence (4) When the witness has no present recollection of what is contained in the writing, the record is usually offered as a substitute for memory (US v. Riccardi, p. 130)) Case: Johnson v. State (TX CCA, 1998, p.523): Witness swore statement saying that " killed victim, now says he does not remember the killing and does not remember making the statement. Held, statement not admissible under FRE 803(5) because witness at trial did not acknowledge the accuracy of the statement Present Recollection Refreshed (FRE 612): When a witness has forgotten something, is shown an item, and then says, Now I remember FRE 612: A writing may be used to refresh a witnesss memory, BUT any writing so used must be: (1) Shown to other side at hearing, and (2) The other party may (a) inspect the writing, (b) cross-examine the witness on it, and (c) introduce into evidence any portions of the writing which relate to the testimony of the witness The item used to refresh the witnesss memory is not admitted into evidence and the jury does not see it, but the item must be shown to opposing counsel Schauer: The traditional view is that virtually anything may be used (i.e., is reasonable) to refresh a witnesss present recollection The item used to refresh the witnesss memory does not have to be a writingit can be anything (smell, sound, etc.) The principal evidence under this exception is the recollection and not the writing (US v. Riccardi, p. 130) 8. Business Records FRE 803(6) (Record of regularly conducted activity): A record, memorandum, report, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses: (1) Made at or near the time by a person with knowledge, or (2) From information transmitted by a person with knowledge, IMPORTANT: The person furnishing the information must be a person in the business or activity, unless her information falls under another hearsay exception (3) If kept in the course of regularly conducted business activity, and (4) If it was the regular practice of that business activity to make the record, memorandum, report, or data compilation (5) As shown by testimony of the custodian or other qualified witness or by satisfactory certification (6) Unless the source of information or circumstances of preparation indicate lack of trustworthiness NOTE: Business includes institutions, associations, professions, occupations, and callings of every kind, whether or not conducted for profit FRE 803(7) (Absence of entry in records kept in accordance with FRE 803(6)): Lack of entry of a matter in records, reports, etc. kept in accordance with FRE 803(6)) may be used to prove nonoccurrence or nonexistence of the matter, if: (1) The matter was of a kind of which a record, report, etc. was regularly made and preserved, (2) Unless other sources of information or circumstances indicate a lack of trustworthiness Rationale for the rules: Businesses rely on records for successful operation, and those who make the records do so as part of their jobs (with possibility of censure if they mess up), so business records likely to be regular, precise, and well-checked Difficult and often impossible to find witnesses who can speak from firsthand knowledge about a businesss routine and often nondescript activities (Palmer v. Hoffman) Qualifying Businesses Keogh v. Commissioner of Internal Revenue (p. 138): Personal financial diary of co-worker admissible as evidence " underreported tips because diary shows every indication of  being kept in the course of his own  business activity  occupation and calling. According to this case, an individual s personal financial record-keeping is admissible under business exception U.S. v. Gibson (p. 140): Ledger containing record of drug transactions admissible because made at or near the time of the events described and in the regular course of business Qualifying Record Fact that company makes a practice out of recording its employees versions of their accidents does not put those statements into a class of records made in the regular course of business Palmer v. Hoffman (US SC, 1943, p.532): Held, accident report made by railroad engineer who died before trial inadmissible, because accident reports not made for conduct of company as a railroad business, but rather for litigation Reports not prepared for litigation, but to fulfill statutory duty, are admissible Lewis v. Barker (p. 142: Personal injury and inspection report prepared after accident as required by Business Records Act admissible at trial Sources of Information When source of information in the record is an outsider to the business, the information must fall under another hearsay exception to be admissible (otherwise double-hearsay) Wilson v. Zapata Off-shore Co. (p. 145): Sisters comments included in a psychiatrist report introduced at trial. Sisters comments in report meet exceptions because the report admissible as business record and the sisters comments admissible under 803(4) as statements made for the purpose of medical treatment Johnson v. Lutz (NY CA, 1930, p.538): Police report incorporating statement by bystander excluded, even though report made by police officer in the regular course of  business, because informant was not part of that business U.S. v. Vigneau (1st Cir., 2000, p.536): Money orders indicating " as sender not admissible because Western Union did not require independent proof of sender s identity. Identity of  sender on money orders was indicated by someone not a part of Western Union If both source and recorder are acting in the regular course of " s business, the multiple hearsay is excused and the documents are admissible (Grogg v. Missouri Pacific RR (p. 147)) Absence of Entry in Record U.S. v. Gentry (p. 147): Business records showing a pin had never been found in any other M&Ms admissible to show that the pin came from " and not the candy, because finding of a pin in an M&M ordinarily would have recorded in those records 9. Public Records FRE 803(8) (Public records and reports): Public records, reports, statements or data compilations, in any form, setting forth: (A) The activities of the office or agency, (B) Matters observed pursuant to duty imposed by law, as to which matters there was a duty to report, or IMPORTANT: Excluding, in criminal cases, matters observed by police officers and other law enforcement personnel NOTE: Several cases have held that (B) means to allow in records of routine, nonadversarial nature, even in criminal cases (U.S. v. Weiland, U.S. v. Orozco) (C) (Evaluative reports) In civil proceedings and against the government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, NOTE (Beech Aircraft v. Rainey): Conclusions or opinions from evaluative reports are admissible so long as they are: (a) Based on a factual investigation, and (b) Satisfy the rules requirements for trustworthiness Unless the sources of information or other circumstances indicate lack of trustworthiness FRE 803(9) (Records of vital statistics): Records or data compilations, in any form, of: (1) Births, fetal deaths, deaths, or marriages, (2) IF the report thereof was made to a public office pursuant to requirements of law FRE 803(10) (Absence of public record or entry): Certification or testimony that diligent search failed to disclose a public record, report, statement, data compilation, or entry, offered to prove: (1) The absence of the record, report, statement, or data compilation, in any form, or (2) The nonoccurrence or nonexistence of a matter of which a record, statement, etc. was regularly made and preserved by a public office or agency Rationale: Assumption that a public official will perform her duty properly Unlikelihood that a public official will remember details independent of the record Evaluative reports: Advisory Committee: Factors to consider include in determining admissibility: (1) Timeliness of the investigation, (2) Special skill or experience of the official, (3) Whether a hearing was held and at what level, and (4) Possible motivational problems Beech Aircraft v. Rainey (US SC, 1988, p.149): " sought to introduce JAG report concluding that pilot error most likely cause of accident. Held, not hearsay under FRE 803(8), because rule does not distinguish between facts and opinions contained in reports, so long as report based on factual findings Public records vs. business records (FRE 803(6) as back door when FRE 803(8) does not apply): U.S. v. Oates (2d Cir. 1977, p.547): Prosecution wanted to introduced report by chemist analyzing drugs seized from ". Held, chemist s report inadmissible. Police and evaluative reports which fail to satisfy the public documents exception of FRE 803(8) cannot come in under the business reports exception of FRE 803(6) U.S. v. Hayes (10th Cir. 1988, p.550): Document prepared by officer inadmissible at criminal trial under FRE 803(8); prosecution seeks to introduce as business record under FRE 803(6). Held, document admissible. When authoring officer or investigator testifies, FRE 803(8)(c) does not compel exclusion under FRE 803(6), because " has opportunity to confront witnesses against him (i.e., does not lose confrontation rights), which was the underlying rationale for FRE 803(8). Narrows Oates U.S. v. Weiland (9th Cir. 2005, p.551): Prosecution sought to introduce " s fingerprints and booking photo from prior conviction. Held, admissible under FRE 803(8)(B) as public records of routine and nonadversarial matters. FRE 803(8)(B) intended to bar public records that stem from more subjective investigations and evaluations of a crime. Court also emphasizes public records may only be admitted under FRE 803(8), and that government may not attempt to circumvent FRE 803(8) by admitting public records as business records under FRE 803(6) Other Exceptions under FRE 803: (1) Records of religious organizations (FRE 803(11)) (2) Marriage, baptismal, and similar certifications (FRE 803(12)) (3) Family records (FRE 803(13)) (4) Records of documents affecting an interest in property (FRE 803(14)) (5) Statements in documents affecting an interest in property (FRE 803(15)) (6) Statements in ancient documents (more than twenty years old) (FRE 803(16)) (7) Market reports, commercial publications (FRE 803(17)) (8) Learned treatises (FRE 803(18)) (9) Reputation concerning personal or family history (FRE 803(19)) (10) Reputation concerning boundaries or general history (FRE 803(20)) (11) Reputation as to character (FRE 803(21)) (12) Judgment of previous conviction (FRE 803(22)) (13) Judgment as to personal, family, or general history, or boundaries (FRE 803(23)) Hearsay Exceptions Where Declarant Is Unavailable (FRE 804) Definition of Unavailability (as a witness) FRE 804(a): Unavailability as a witness (concerning the subject matter of the declarants statement) includes situations where declarant: (1) Is exempted from testifying by ruling of court on ground of privilege (2) Refuses to testify despite order from court to do so (3) Claims lack of memory (4) Unable to testify because of death or physical or mental infirmity (5) Is absent from the hearing and party seeking to introduce statement is unable to procure declarants attendance (or testimony (by deposition), under hearsay exceptions in subdivisions (b)(2) (b)(4)) by process or other reasonable means A declarant is NOT unavailable as witness if her unavailability (as defined above) is due to wrongful efforts of the party seeking to introduce the statement to prevent the declarant from attending or testifying IMPORTANT: Just because a witness is unavailable under FRE 804 does not mean that the witnesss statement is automatically admissible; rather means only that we can continue the inquiry to see if one of the FRE 804(b) exceptions apply FRE 804(b): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: 10. Former Testimony FRE 804(b)(1): Testimony given as a witness in another hearing of the same or different proceeding or in a deposition, if the party against whom the testimony is now offered (or in civil proceeding, a predecessor in interest) had an (1) opportunity and (2) similar motive to develop the testimony by (a) direct, (b) cross, or (c) redirect examination. Not required to be testimony in the same proceeding, but does require identity (similarity?) of issues to ensure the equivalent handling of the witness Prior testimony in a civil case where this rule applies often is a deposition from a witness no longer available Cases: Trial vs. grand jury: U.S. v. DiNapoli (2d Cir., 1993, p.458): At grand jury, two witnesses denied knowledge of RICO conspiracy, but prosecutor did not challenge because did not want thereby to reveal information about wiretaps and cooperating witnesses. At RICO trial, when the two witnesses refused to answer certain questions on 5th Amendment grounds, " sought to introduce the witness s grand jury testimony. Held, grand jury testimony inadmissible because prosecutor did not have  substantially similar motive during grand jury to challenge witness s denial of knowledge of RICO conspiracy. " who invokes 5th Amendment: United States v. Bollin (4th Cir. 2001, p. 164): " who invokes his 5th Amendment right has made himself unavailable for testimony to any other party, and therefore cannot invoke exception in Rule 804(b)(1)  Predecessor in interest : If party in former suit had a like interest and motive to cross-examine about the same matters as the present party does, and was accorded an adequate opportunity for such examination, the testimony may be received against the present party (Clay v. Johns-Manville Sales (p. 166)) Lloyd v. American Export Lines, Inc. (3d Cir., 1978, p.463):  and " get into fight on ship. CG investigates whether " s license should be revoked, " testifies at the hearing. Later, when  sues " s employer, " refuses to show at trial. Held, " s employer able to introduce " s earlier hearing testimony because CG investigator, who sought to exact penalty for ", was  predecessor in interest to . Court defines predecessor in interest as a previous party  having like motive to develop the testimony about the same material facts 11. Dying Declaration FRE 804(b)(2): In a prosecution for homicide or in a civil proceeding, statement made when declarant believed that death was imminent, concerning the cause or circumstances of what declarant believed to be her impending death To make out a dying declaration, the declarant must have spoken without hope of recovery and in the shadow of impending death (Shepard v. US, p. 174) Must be some basis to believe statement is based on personal knowledge (Shepard v. US, p. 174) Origin of exception: Historically, evidence law more concerned about sifting out lies than mistakes At time when many of our trial procedures were developed, most people believed in both an afterlife and an omniscient deity (e.g., the oath) 12. Declaration against Interest FRE 804(3): Statement, which was at the time of its making was so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. IMPORTANT: A statement (1) tending to expose the declarant to criminal liability and (2) offered to exculpate the accused is not admissible, unless corroborating circumstances clearly indicate the trustworthiness of the statement NOTES: If statement by a party is offered against that party, the statement comes in as a party-opponent admission and therefore need not actually have been against the partys interest Exception limited to declarations against pecuniary or proprietary interests (mere embarrassment not enough) Only those statements by unavailable " which are self-inculpatory admissible. Non-self-inculpatory statements, especially those that implicate someone else, are not admissible, even if made within a broader narrative that is generally self-inculpatory. (Williamson v. U.S. (US SC, 1994, p.469) Non-self-inculpatory statements are not made more true or reliable because of their proximity to self-inculpatory statements Statements must be viewed in context to determine whether or not they are self-inculpatory; even a facially neutral statement can turn out to be self-inculpatory (e.g., I hid the gun in Joes apartment) Rationale: A person is unlikely to make something up thats not in her own self-interest A person is unlikely to make a mistake (about her observations or perceptions) against her own self-interest Case: Williamson v. U.S. (US SC, 1994, p.469): In confessing crime to police officer, Harris claims he was running drugs for ". Harris later refuses to testify at " s trial. Held, statements in Harris s confession implicating " not admissible under FRE 804(3), because only those parts of Harris s confession that are self-inculpatory may come in. 13. Personal or Family History FRE 804(b)(4):: Statement concerning: (A) Declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, ancestry, or other similar fact of declarants personal or family history, or IMPORTANT: Declarant not required to have personal knowledge of the matter stated (B) The foregoing matters, and death also, of another person, if declarant was related to other person by blood, adoption, or marriage, or was so intimately associated with the others family as to be likely to have accurate information concerning the matter declared 14. Forfeiture by Wrongdoing FRE 804(b)(6): Statement offered against a party that has engaged or acquiesced in wrongdoing that was intended, and did, procure the declarants unavailability as a witness For this rule to apply, the wrongdoing need not be a criminal act Rules applies to all parties, including the government Partys wrongdoing and intent to procure declarants unavailability must be proved by a preponderance of the evidence Rationale: A party who has arranged for the unavailability of a witness has waived its right to cross-examine that witness Case: U.S. v. Gray (4th Cir., 2005, p.484): " charged with attempted assault of declarant, later kills declarant (but not prosecuted). In later prosecution of " for mail fraud, prosecution seeks to introduce declarant s earlier criminal complaint against ". Held, earlier complaint admissible, because " s wrongdoing in procuring declarant s unavailability as a witness forfeits " s right to exclude, as hearsay, declarants statements at that and any subsequent proceedings. Other Hearsay Exceptions (FRE 805 & 807)) 15. Hearsay within Hearsay FRE 805 Hearsay within hearsay not excludable under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules Examples: Hospital record containing an entry of the patients age base on information furnished by his wife Hospital record qualifies as a business record entry, except that the person who furnished the information was not acting in the routine of the business. BUT, Wifes statement qualifies either as a statement of personal or family history (if she is unavailable), or as a statement made for purposes of diagnosis or treatment Dying declaration incorporating declaration against interest by another declarant 16. Residual Exception FRE 807 (Catchall provision): Statement not specifically covered by FRE 803 or 804 is not excluded by the hearsay rule if the statement: Has equivalent circumstantial guarantees of trustworthiness (to the exceptions in FRE 803 and 804) and (A) Is offered as evidence of a material fact (i.e., necessary to the determination of the matter), (B) Is more probative on the point for which it is offered than any other available evidence, and (C) Serves the general purpose of the FRE and the interests of justice by admission NOTE: Party seeking to introduce statement must give sufficient notice to opposing party Primary issue with rule is what the words not specifically covered mean: Majority rule: FRE 807 only concerns statements not dealt with in any other exception, not statements that are inadmissible under the other exceptions Minority rule (Near miss theory): FRE 807 applies to exceptional cases in which an exception to the hearsay rule does not apply, but the statement contains the equivalent guarantees of trustworthiness (US v. Laster (dissent), p. 187) Schauer: This exception does not come up very often, and usually applies to cases in which the hearsay statement seems as reliable as statements to which other hearsay exceptions apply Classic example: An old newspaper report of a factual event, such as a church fire Hearsay and the Right to Confrontation (see flowchart p.609) Confrontation Clause (6th Amendment): In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. Admissibility of testimonial hearsay statements Rule (Crawford): In a criminal suit, an out-of-court testimonial statement is admissible only if: (1) The declarant is unavailable, and (2) The party against whom the statement is offered had a prior opportunity to cross-examine the declarant about the statement EXCEPTION: A party that obtains the absence of a witness by wrongdoing forfeits her constitutional right to confrontation I.e., forfeiture by wrongdoing exception still applies Case: Crawford v. Washington (US SC, 2004, p.573): " husband charged with attempted murder of wife s alleged rapist. " claims self-defense, but wife s statement to police immediately following the incident suggests " did not act out of self-defense. Wife unavailable to testify because " invoked spousal privilege, but statement could come in as a statement against interest (because wife admitted involvement in the altercation). Held, wife s statement inadmissible because wife unavailable and " had no prior opportunity to cross-examine her about her statement Testimonial statements: Definition (Crawford): Statements made for the purpose of establishing or proving some fact A person who makes a formal statement to government officials bears testimony in a sense that a person who makes a casual remark to an acquaintance does not Examples of testimonial statements (Davis): (1) Prior testimony at a preliminary hearing (2) Prior grand jury testimony (3) Former trial testimony (4) Statements made in police interrogation How to determine whether a statement is testimonial (Davis, Hammon): Testimonial: A statement is testimonial when circumstances objectively indicate: (1) There is no ongoing emergency, and Fact that declarants statement occurs some time after the events she is describing ended suggests statement is testimonial (Davis) (2) The primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution I.e., a statement telling a story about the past (Hammon) Nontestimonial: A statement is nontestimonial when circumstances objectively indicate: (1) There is an ongoing emergency, and Fact that declarant was describing events as they were actually happening suggests statement was nontestimonial (Davis) (2) The primary purpose of the interrogation was to resolve a present emergency (i.e., enable police assistance to meet that emergency), not learn what happened in the past I.e., a statement seeking aid (Davis) NOTE: It is the setting under which a statement is made, NOT the indicia of reliability, that determine whether the statement is testimonial How formal a statement is seems to make a big difference NOTE: A conversation that begins as an interrogation to determine the need for emergency assistance can still evolve into testimonial statements after the earlier purpose has been achieved (Davis) E.g., if a 911 dispatcher stays on the line after dispatching help to inquire about an incident, the callers statements made after the time of dispatch might become testimonial Cases: Davis v. Washington (US SC, 2006, p.597): Held, 911 calls primary purpose was to enable police assistance to meet an ongoing emergency, not to prove some past fact, so call was nontestimonial. Call can therefore admissible either as a present sense impression or an excited utterance. Hammon v. Indiana (US SC, 2006, p.597): Held, purpose of interrogation of battered wife at couples home following domestic violence incident was to determine what had happened, as part of investigating a possible crime, not what was then happening (because incident had by then ended), so wifes statements to police were testimonial. Wifes statement to police therefore inadmissible despite likely being an excited utterance. V. Impeachment (see flowchart p.249) NOTE: The central issue with impeachment is whether " will testify at trial given what her testimony will open her up to on cross-examination FRE 611 (Mode and order or interrogation and presentation) (b) Scope of cross-examination: Cross-examination should be limited to the subject matter of the direct examination and maters affecting the credibility of the witness. The court may in its discretion permit inquiry into additional matters (c) Leading questions: (i) Direct examination: Not allowed except as may be necessary to develop the witnesss testimony EXCEPTION: When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party (ii) Cross examination: Allowed FRE 607 (Who may impeach): The credibility of a witness may be attacked by any party, including the party calling the witness NOTE: This rule does not change the basic nature of how witnesses are examined E.g., leading questions still cannot be asked on direct examination and cannot use impeachment to as a back door to introduce otherwise inadmissible hearsay statements Rationale for impeachment rules: Traditional view: People are by nature either liars or truthtellers, and the way to determine whether someone is telling the truth on the stand is to inquire whether she is generally a liar or a truthteller Alternative view (best interests): A persons propensity to lie depends on the particular situation, so the way to determine whether someone is telling the truth on the stand is to inquire into her motive or occasion to lie about the question(s) asked Schauer seems to subscribe to this view, thinks the traditional view is wrong Assumptions on which impeachment rules rest: (1) Dishonest people are mote likely to lie in a given situation than are honest people (2) The character trait of untruthfulness is detectable by casual observers in the community and the community consensus is accurately transmitted among acquaintances (3) Jurors, if properly instructed, will appreciate the distinction between an inference from dishonest character to untruthful testimony, and an inference from dishonest character to criminal conduct Character for Untruthfulness Character evidence; exceptions (FRE 404) FRE 404(a): Evidence of a persons character is not admissible to purpose of proving action in conformity therewith on a particular occasion, except: FRE (404)(a)(3): Evidence of the character of a witness, as provided in rules 607-09 FRE 608 (Evidence of character and conduct of witness): IMPORTANT: Evidence under this rule is admissible solely for impeachment purposes, and not substantively (a) 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, subject to limitations that: (1) The evidence may refer ONLY to character for truth/untruthfulness (2) Evidence of truthful character admissible ONLY after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise NOTE: Witness giving credibility evidence usually required to be a member of the same (relevant) community as the witness whose credibility she is supporting or calling into question (Whitmore) Community not necessarily geographic community Schauer: Inquiry into the witnesss membership in the same community as the first witness usually merely a ritual (b) Specific instance of conduct: Specific instances of the conduct of a witness, for purposes of attacking or supporting the witnesss character for truthfulness, other than for conviction of a crime (FRE 609): (a) May not be proved by extrinsic evidence. IMPORTANT: When a witness is cross-examined with purpose of impeaching credibility by proof of specific acts of past misconduct not the subject of conviction, examiner must accept the witnesss answer (i.e., cannot introduce extrinsic evidence to show falsity of answer) (US v. Ling) Rationale: Avoiding trials-within-trials (b) If probative of truth/untruthfulness, may, in the discretion of the court, be inquired into on cross-examination of the witness, concerning: (1) The witnesss character for truth/untruthfuless (2) The character for truth/untruthfulness of another witness about whose character the witness being cross-examined has testified IMPORTANT: Cross-examining attorney must have a good-faith basis for believing (i.e., possession of some facts supporting fact) that the past acts took place (U.S. v. Whitmore (DC Cir., 2004, p.250)) The giving of testimony, whether by the accused or by any other witness, does not operate as a waiver of the accuseds or witnesss privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness NOTES: Develops FRE 404(a)s exception for the admissibility of character evidence bearing on a witnesss credibility Generally bars evidence of specific instances of conduct of a witness for the purpose of attacking or supporting her credibility, but specific instances of past conduct MAY be inquired of on cross if the witness has opened herself up to character evidence concerning truthfulness The probative value of evidence of specific instances of conduct under this rule assessed ONLY in terms of its effect on witness credibility, and not its substantive value The inquiry into the witnesss character under this rule strictly limited to character for veracity, not character in general, and must conform to FRE 404(a) and 405 Other relevant rules: FRE 610 (Religious beliefs or opinions): Evidence of the beliefs or opinions of a witness on matters of religion not admissible for purpose of showing that by reason of their nature the witnesss credibility is impaired or enhanced FRE 806 (Attacking and supporting credibility of declarant): Rules concerning impeachment of witnesses apply with equal force to impeachment of a hearsay declarant Prior Criminal Conviction FRE 609 (Impeachment by evidence of conviction or crime) (a) General rule: For purposes of attacking the character for truthfulness (credibility) of a witness: (1a) Evidence that a witness other than the accused has been convicted of a crime shall be admitted if (subject to FRE 403): The crime was (could have been) punishable by death or imprisonment in excess of one year (1b) Evidence that the accused has been convicted of a crime shall be admitted if (subject to 403): (a) The crime was (could have been) punishable by death or imprisonment in excess of one year, and (b) The court determines that the probative value of admitting the evidence outweighs it prejudicial effect to the accused No presumption of admissibility either way For factors this balancing, see Gordon (below) (2) Evidence that any witness has been convicted of a crime, regardless of the punishment shall be admitted if: Establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness Schauer: What needs to be shown is some element of concealment or of a cover-up E.g., past conviction for embezzlement (or perjury or criminal fraud) probably would come in, but not past conviction for simple theftthe ultimate criminal act must involve deceit IMPORTANT (Conference committee): Admission not within discretion of the court, i.e., FRE 403 balancing does not apply NOTE: Inquiry into the underlying details of the crime generally not permitted, though some judges permit the witness to explain the circumstances of the crime or conviction (b) Time limit: Evidence of a conviction under part (a) not admissible if the conviction or the witnesss release from confinement for that convictionwhichever is lateroccurred more than 10 years ago EXCEPTION: Unless the court determines, in the interest of justice, that the probative value of the conviction substantially outweighs its prejudicial effect, and the proponent gives the other party sufficient notice So, presumption against admissibility if conviction more than 10 years old (c) Effect of pardon, annulment, or certification of rehabilitation: Evidence of conviction not admissible if witness has received a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on finding of: (i) Rehabilitation, if the witness has not been convicted of subsequent crime punishable by death or imprisonment in excess of one year, or (ii) Innocence (d) Juvenile adjudications: Generally not admissible EXCEPTION: In a criminal case, if witness is not the accused, conviction would be admissible to attack the credibility of an adult, and admission necessary for fair determination of guilt or innocence (e) Pendency of appeal: Does not render evidence of conviction admissible Evidence of pendency of appeal itself is admissible Preserving claims of error: In order to preserve a claim that the trial court erred in admitting evidence of " s prior conviction(s), ": (1) Must have testified at trial, (Luce v. US, US SC, 1984, p.287), and (2) Cannot preemptively have introduced evidence of her conviction on direct examination (Ohler v. US, US SC, 2000, p.288) Cases: U.S. v. Brewer (E.D. Tenn., 1978, p.273): If " reconfined pursuant to a parole violation, " s release date from her second confinement is the one used for computing time under FRE 609(b) Factors to consider in determining whether probative value of " s past conviction outweighs its prejudicial effect under FRE 609(a) (Gordon v. US, D.C. Cir, 1967, p.276): (i) Nature of the crime Violent crimes less likely to bear on honesty or veracity (ii) Time of conviction and witness s subsequent history (iii) Similarity between the past crime and the charged crime Convictions for similar past crimes usually should not be admitted (cant trust jury to distinguish between conviction as evidence of impeachment and conviction as evidence of propensity) (iv) Importance of " s testimony If " s testimony very important to " s case, this factor weighs against admission of past convictions, in order not to deter the " from testifying (v) Centrality of the credibility issue Rehabilitation FRE 608(a)(2): Evidence supporting a witnesss character for truthfulness admissible ONLY after the witnesss character for truthfulness has been attacked IMPORTANT: Evidence supporting the truthfulness of a witnesss testimony in the current proceeding may be corroborated by non-character evidence without regard to FRE 608s restraints BUT, extrinsic evidence of specific instances of witnesss past conduct for purposes of supporting his credibility not admissible Determining what constitutes an attack on a witnesss character for truthfulness: Attacks on character for truthfulness: (1) Opinion or reputation testimony of the witnesss bad character for truthfulness (FRE 608(a)) (2) Eliciting on cross-examination evidence of specific acts of the witness that are probative of untruthful character (FRE 608(b)), or (3) Evidence of a past conviction of the witness (FRE 609) (4) Evidence in the form of contradiction, depending on the circumstances (Advisory Committee) E.g., prior inconsistent statements suggesting the witness has lied intentionally and pervasively NOT attacks on character for truthfulness: (1) Evidence of bias or interest (Advisory Committee) Evidence of bias subject only to relevancy standard of FRE 402 (2) Evidence in the form of contradiction, depending on the circumstances (Advisory Committee) E.g., contradicting evidence that the witness has made a mistake of perception, memory, or narration Use of Extrinsic Evidence FRE 608(b) Specific instances of the conduct of a witness, for purposes of attacking or supporting the witnesss character for truthfulness, other than for conviction of a crime (FRE 609), may not be proved by extrinsic evidence. EXCEPTION: Extrinsic evidence that tends to prove BOTH the witnesss character for truth/untruthfulness AND that the witness did/did not lie about non-character matters in this case (e.g., bias) may be admissible NOTE: A witnesss bias is not deemed collateral because evidence of bias is not character evidence governed by FRE 608 US v. Abel (US SC, 1984, p.301): Extrinsic evidence that earlier witness and " were both members of organization that subscribed to lying admissible because tended to show the earlier witness s bias toward " (even if it was also evidence of a specific instance of conduct tending to show the earlier witnesss character for untruthfulness under FRE 608(b)) Collateral evidence rule: A witness cannot be impeached by collateral evidence Collateral evidence: Evidence which the party seeking to introduce the evidence would not be entitled to prove as part of its case in chief E.g., evidence that witness who testified she was walking home from church when she saw the car accident was actually walking home from a brothel (because irrelevant to the issue of the car accident) EXCEPTION: Evidence that tends to prove BOTH a collateral matter AND something else may well be admissible VI. Expert Testimony Lay Testimony FRE 701 (Opinion testimony by lay witness): If a witness is not testifying as an expert, the witnesss testimony in the form of opinions or inferences is limited to opinions or inferences that are: (a) Rationally based on the witnesss perception (i.e., limited to witnesss firsthand observations), (b) Helpful to a clear understanding of the witnesss testimony or resolution of a fact in issue (i.e., helpful to the jury s factfinding), and (c) Not based on scientific, technical, or other specialized (expert) knowledge within the scope of FRE 702 E.g., lay witness probably can testify " sounded depressed, probably cannot testify " was suffering from posttraumatic stress disorder NOTE (Advisory Committee): A lay witness may testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established Cases: 911 operator and paramedics allowed to testify that " was feigning grief, because both had ample time to observe and form opinions and both had daily observances and encounters with grief-stricken people (United States v. Meling (p. 441)) Lay witness opinion must be rationally based on own firsthand perceptions (Government of the Virgin Islands v. Knight (error to exclude eyewitnesses testimony that gun discharged accidentally)) For law officers not certified as experts, opinions are admissible as lay testimony only if officer (1) is participant in the conversation, (2) has personal knowledge of the facts being related in the conversation, or (3) observed the conversations as they occurred (United States v. Peoples (p. 444) (because officers testimony not based on firsthand knowledge but on knowledge gained from later investigation, inadmissible)) Expert Testimony General rule: An expert can testify in whole or part based on information she acquired secondhand (i.e., hearsay information), so long the information is: (1) Of a type typically relied on by experts in the field, and (2) The witness is drawing on special skill or knowledge IMPORTANT: Expert witnesses need not testify based on personal knowledge (FRE 602) Who Qualifies as an Expert FRE 702 (Testimony by experts): A witness [may] qualify[y] as an expert by (1) knowledge, (2) skill, (3) experience, (4) training, or (5) education Cases: U.S. v. Johnson (5th Cir, 1979, p.694): Witness allowed to testify that marijuana at issue was Columbian, based on his past experience with buying, selling, and smoking lots of marijuanaFRE 702 provides that expertise can be obtained by experience as well as formal training or education Jinro America, Inc. v. Secure Investments, Inc. (9th Cir., 2001, p.696): Witness who was a PI in Korea not allowed to testify as an expert about general Korean business culture, because offered only impressionistic generalizations based on his personal PI experiences in Korea and his hobby of studying Korean business practices and offered no empirical evidence for his conclusions besides a few newspaper articles and (clearly hearsay) anecdotal examples Permissible Subjects and Scope When an expert may testify: FRE 702 (Testimony by experts): If scientific, technical, or otherwise specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue (i.e., is relevant to the task at hand), 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, Data is intended to encompass the reliable opinions of other experts (Advisory Committee) (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 NOTE: If party seeks to have expert witness testify about an item the jury is supposed to be competent to assess on its own (e.g., demeanor evidence), probably inadmissible because does not serve to help the trier of fact determine a fact in issue NOTE (Advisory Committee): Proponent has burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence (FRE 104(a)) Proper/Improper subjects of expert testimony: FRE 704 (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. BUT, testimony cannot merely tell the jury what result to reach (b) No expert witness testifying with respect to criminal " s mental state or condition may state an opinion or inference as to whether the " had the mental state or condition constituting an element of the crime charged or defense thereto such ultimate issues are matters for the trier of fact alone. Improper topics of expert testimony: (a) Matters of common knowledge (b) Opinions on law and opinions on criminal " s mental state at time of crime, if an element of the crime or defense (c) Opinions on credibility (d) Opinions on eyewitness identification Basis for experts opinion: FRE 703 (Bases of opinion testimony by experts): Underlying facts need not be admissible: 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 upon which an expert witness bases an opinion or inference need not be admissible in evidence in order for the opinion or inference to be admitted Test for determining when otherwise inadmissible underlying facts admitted: Facts or data 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 experts opinion substantially outweighs their prejudicial effect (presumption against disclosure by the proponent of the expert) NOTE: If admitted, such evidence can only be used to help the jury assess the reliability of the experts opinionnot substantively NOTE: This rule completely disengages the admissibility of the experts opinion from the admissibility of the facts supporting the opinion, so long as other experts in the field reasonably rely upon such facts in forming opinions on the subject FRE 705 (Disclosure of facts or data underlying expert opinion): An expert witness may testify in terms of opinion or inference and give reasons therefore without first disclosing the underlying facts or data (unless the court requires otherwise), BUT may be required to disclose the underlying facts or data on cross-examination if asked Other: FRE 706: The court may appoint its own expert witness in lieu of experts from the parties Cases: (Im)proper topics of expert testimony: (a) Matters of common knowledge (and matters that require no specified knowledge to analyze): Hatch v. State Farm (p. 448): It doesnt take an expert to know if someone is being a good neighbor (b) Opinions on law and opinions on ultimate issues: Hygh v. Jacobs (2d Cir., 1992, p. 704): Expert witnesss testimony that police officers use of force was not warranted under the circumstances and totally improper inadmissible because concerns the ultimate legal conclusion entrusted to the jury. (c) Opinions on credibility: State v. Batangan (HI SC, 1990, p.709): Psychiatrists implicit testimony that complainant in child sexual abuse case was telling the truth inadmissible. Expert witness can explain why sexual abuse victims sometimes act erratically in reporting and recanting allegations, but cannot give opinion on whether complainants behavior in this case is consistent with the alleged crime having occurred (d) Opinions on eyewitness identification: U.S. v. Hines (D.Mass, 1999, p.714): Expert testimony by psychologist that people have more difficulty identifying persons of another race admissible because only provides the jury with more information with which to make an informed decision. Expert in this case did not actually interview witness and did not suggest whether witness had in fact properly identified " Reliability Current Rule (Daubert): To be admitted, an expert s testimony must both (a) rest on a reliable foundation, and (b) be relevant to the task at hand (i.e.,  fit  help the trier of fact understand or determine a fact in issue) Pertinent evidence based on scientifically valid principles (i.e., good science) satisfies these demands. BASIC IDEA: To avoid exclusion, an expert witness must offer the court more than unsupported assertions; rather, must offer evidence about the basis of their asserted expertise sufficient to convince a judge that their expert testimony will provide dependable information to the factfinder (i.e., not just junk science) The focus of the inquiry is on principles and methodology, not on the conclusions they generate (Daubert) Test (and Daubert factors) applies to all expert testimony based on scientific, technical, or other specialized knowledge (Kumho Tire) Supersedes the general acceptance test Daubert factors: Guidelines (not exclusive) for determining reliability of expert testimony, based on validity/reliability of the scientific method underlying the testimony: (1) Testability (ability to be falsified) of technique or theory (2) Publication or peer review of technique or theory (3) Known or potential rate of error of technique (4) Existence and maintenance of standards controlling techniques operation (5) Degree of acceptance of technique or theory within the scientific community (6) Whether research conducted independent of or prior to litigation (Daubert, 9th Cir.) IMPORTANT: These are guidelinesneither exclusive nor dispositive Criticism: Schauer: Agrees with Rehnquist dissent that Daubert test masquerades as a rule but isnt really one, because doesnt say how many factors needed or whether any are necessary or sufficient conditions (Schauer likes rules) Schauer: Daubert applies well to science-like fields (such as junk science), but less well to fields bearing little relation to science (arts, crafts, etc.) BUT, maybe this is okay because lower likelihood of juror confusion in fields involving arts or crafts Advisory Committee: A review of caselaw after Daubert show that the rejection of expert testimony is the exception rather than the rule Old rule: General acceptance test (Frye): For expert scientific testimony to be admitted, testing method must be sufficiently well established to have gained general acceptance in the particular field in which it belongs (Frye) Schauer: This test is both overinclusive (of methods that are generally accepted but objectively wrong, such as phrenology) and underinclusive (of methods that are accurate but not yet generally accepted) Superseded by FRE 702 (Daubert) Cases: Frye v. U.S. (D.C. Cir., 1923, p.726): Systolic blood pressure test not gained sufficient scientific recognition to justify courts in admitting expert testimony based on results of such a test Joiner: Court of appeals reviews trial courts decision to admit or exclude expert testimony under an abuse-of-discretion standard Daubert v. Merrell Dow Pharmaceuticals, Inc. (US SC, 1993, p.727): Children with birth defects sue drug company, seek to introduce testimony by expert witnesses based on reanalyses of past studies showing Benedictin causes birth defects, tests in which Benedictin caused birth defects in lab animals, and evidence that Benedictins chemical structure similar to other drugs suspected of causing birth defects. Trial court rules inadmissible because reanlysis not a generally accepted scientific method. US SC rejects general acceptance test and lays out factors for consideration Daubert v. Merrell Dow Pharmaceuticals, Inc. (9th Cir., 1995, p.741): On remand from US SC, and applying new Daubert factors, court again refuses to allow testimony by expert witnesses that Benedictin causes birth defects, because testimony not based on preexisting or independent research or published or peer-reviewed research. 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F$dgdMdgd6E$a$gd0Q5 & FdgdaR & Fdgdpwu & Fdgdpwu** , `   4!b!x!""1"|"~"""#####($)$*$+$-$>$?$K$L$$$R%[%]%c%%%%%%~h&5>*B*CJ aJ phhTh h]5>*h]h 5>* h 5 h 5>*hhE hE5 hE5>*h&5>*B* CJ(aJ(phhlhlh" hl6hO*hl6h" hAthlh<{h:4p,x!~"*$+$,$-$>$?$$%R%%%%%V& & FdgdQa & F%gd&dgdT & Fdgd & FdgdE & FdgdE & F$dgd&dgd" & Fdgdl & Fdgdl%%%%%]&l&''L)M)k)l)m)r)u))))))))**6*>*I*]*^*_*`*}**ùzvohvv`XhhE>*hEhE>* h:4ph+- h:4phd~rhd~r h:4p5>*h:4phE5>* hAthE hE5hEhE5 hE5>*hw hw5hdNh&5>*hdNhw5>*hTh&5>*B*CJ aJ phh[ hQa6 hQa5 hQa5>*hQa hqh&5B*CJ aJ ph!V&]&'L)M)l)m))*3+++2,*---"..2/22|2 & Fdgdw & Fdgdw & Fdgdw & Fdgdw & F%gd&dgdT & FdgdQa & FdgdQa********+1+3+y++++++++%,2,*---------.!.".M......4/6/0ξzpi hdNhwh[hw5>*hwhw>*h[hw>* h[hw hw5>*hw hw5 hdN5>*hdNhw5>*hwh*$>*h*$h:4ph]hQDhH&hE hAthE htf6>*hwhE5>*hEhE>* hhE hwhE)00122x26334445464=4f4g4h444444 5K5L5X5o5|555555"6@6U6r6x666667707O7P7ŽɰɰɰɸɘɈɀɀ|tp|h GhtfhG>*hGhGhQa>*htfhtf>*h GhQa>*h?hQa>* hQa>* h %hQah %hQahQa>* h$y#5h$y#h$y#5h$y#hQa hQa5 hQa5>* hw5hdNhw5>*hdNhwhw>*h[hw>*hw,|2233464h45Q778 :':::s;<N>6@ & Fdgdl & Fdgd[ & Fdgd[ & Fdgd[ & Fdgdw & Fdgdw & Fdgdw & FdgdwP7Q7u77788 99*9h99999: :%:&:':.:/::::::: ; ; ;);*;+;.;H;r;s;w;;;;䜘xxxpk h8~6hEAh8~>* hAth,hO*h,6h, h,>*hEAh[>*hTh[h/ hAth[hAth[5>* h,h[ h[5 h[5>* hw>* h hwh}hw>*h3hw>*hw hw5 hw5>*h GhGhQa);;<<<<<<<<<<M>N>R>w>y>>>4@6@8@N@P@R@b@j@l@n@|@@@@@@@@@$A.A0A4A8A³~~~~v~r~h+-h`whd~r>*hd~r h`w6h`w h`w5 hd~r5>* h`w5>*hl hqh&5B*CJ aJ phh&5>*B*CJ aJ phh[h,hl5hEA hT6hEAhT>*hLB ha6hahEAh>*hThcf>h8~*6@8@P@R@ BuBC!DDDEEE(FuFFG`GlGIHH & Fdgd>G & Fdgdn= & Fdgdn= & Fdgd`w & Fdgd`w d^gdl & F%gd&dgdLB8A:ANAvAAAB BDBEB\BuBBBBBBBECJCCCCCCDD!D+D3D*hVhV5>* hV>*hVhV>*hV h.6h. hn=6hwhn=>*h' hn=5hq8q hf hn=hn=hn=hn=>*h`wh`w>*h+-h`whd~rh`whd~r>* h`w>**DDDE E,EEEEEEF,FRFyFFFFFF G GGG'G3G=G_G`GiGkGlGGGFHGHHHIHRHYHII}IIIIIIIJJJgJpJJÿ˿˭˩˭ˡ h]>* h]6h] h]5 h]5>*hq8qh>G5htf h>G6h>Ghq8q5 hq8q6hq8qh>Gh>G5h>G h>G>*hn=hn=>* hn=6hov/hn=>*hn= hn=>* h~8>*h`whn=>*5HOIIJKKKrLL=Odgd=+dgdS_$a$gd0Q5 d^gdl & FdgdhZ & Fdgdf( & Fdgd] & Fdgd] & Fdgd>G & Fdgd>GJJJJ/KOKKKKKKKKqLrLxLLLLM!M7MMMM(NN*h;2hS_hS_5>*B* CJ(aJ(phh;25>*B* CJ(aJ(phh=+ h=+5 h=+5>*h0Q55B*CJ0aJ0phhl5B*CJ0aJ0phhkhf(h,hW'f5 h.6h.hW'f hW'f6hW'fh45. ]Nrs & Fdgd%S & F&dgd;2dgd;2 & FdgdP(! & FdgdP(! & Fdgd;2 & Fdgd;2 & F&dgdS_dgdS_QW_`dN~IJ &'RS޾޶󏇏hFhP(!hP(!5hP(!h;25>*B* CJ(aJ(phh%S5>*B* CJ(aJ(ph h;25h,h=+5 h=+6 hmh=+h=+hl5hlhlh;25h=+ h;26h%Sh;2h;25h;2h=+h=+52`J ' & FdgdP(! & Fdgd;2 & F&dgd;2dgd;2 pd^pgdl & Fdgd=+ & Fdgd=+(,-:;BS\^_hiŷ{t{jtje hZC>*hZChZC5>* hmhZChZChZC>*hZC hZC5 hZC5>*hZC5>*B* CJ(aJ(ph hmhlh^t5B*CJ0aJ0phhl5B*CJ0aJ0phh,h%S5hP(!h^t h%S6 h%S5h%Sh%S5h%Sh;25 hmh%Sh%S h%S>*',-:;_Z:$ & FdgdXx & Fdgd/( & Fdgd/( & FdgdL9 & Fdgdl & FdgdZC & F'dgdZCdgdl$a$gd^t & Fdgd%S & Fdgd;2iOYZfv9:@#$*ao"#%*bcg|Iƿ{ hS>*h hShU hD<hU hD<>*hU h >*hU h>*hU hS>*h/(hXx hafwhl hZChl hZChZC hZChXxhL9hL9>*hL9 hL95hL9hL95hZChZC>*hZC hmhZC.cI_&H^E4 & FdgdXx & FdgdXx & FdgdXx & FdgdU  & FdgdU  & FdgdU "H\^ D4t 24<=ŽŹ{tpkp hc*6hc* hafwhOFhU hTw5>*hTwh{ xhTw5h{ xh{ x5h{ xh{ x5>* hafwhZChZC5>*B* CJ(aJ(phhZChh>*h h6 hXx>*hXx hXxhXxhXxhXx>*hFhyh$sh hS h >*(4tj > & Fdgdc* & FdgdOF & FdgdTw & FdgdTw & F'dgdZCdgdZC & Fdgd & FdgdXx & FdgdXx & FdgdF=>"ABK[ko{+,-Q˹᭝yhOFh{ x>* hL9hL9 hL9>* hOFh{ xh{ x h{ x>*hPhL9hO*hzx_6hzx_hFhL9>*hFhzx_>*hU hTw5>*hTwhOFhc*>* hc*>* hc*6hc*hc*hOF>* hafwhOFheh~_hOF/o-Ji,M` & Fdgdc* & Fdgd{ x & Fdgd{ x & Fdgd{ x & FdgdL9 & Fdgdzx_ & FdgdTw & Fdgd~_ & Fdgdc*,-1;LM^_`k  .<=% !*1:<ACPRٽ󱧣닓| hU hTwhU hTw>*hafwhTw6 hafwhTwhl hl>*h4IhPh4I;>* h4I>* hpxhhc* hc*hTw hc*6 hL9hL9hL9 hL9>*hU hTw5>*hU hTw5hTwhOFhc* h{ x6h{ x0`F =%<CR & Fdgdzx_ & Fdgdzx_ & FdgdTw pd^pgdl & Fdgd4I & Fdgdc* & FdgdTw & FdgdL9 & FdgdL9R /Nj+PT\ef./0123<EF5T|;Wbklm;Rhafwhzx_5hzx_hzx_>* hzx_6hc*hOF hOF6 hU hzx_hU hzx_>*hO*hzx_6 hc*6hzx_ hafwhzx_HjgGmlTt,;s & Fdgdpxh & Fdgdy & Fdgdpxh & Fdgdzx_ & Fdgdzx_ & Fdgdzx_ & FdgdOFRajkm4IST`rs-?BrKUkqv|NrsI]_m 5_gwررةرԱررةhpxhhpxh6 hpxhhpxhhOF hOF6 hU hpxhhU hpxh>*hyhc*hpxhhzx_hzx_>*hzx_hzx_6hzx_ hafwhzx_hO*hzx_6B#< ;Lopqrstu & Fdgd~_ & Fdgd & FdgddgddgdZC & F'dgdZCdgdpxh$t"'+,4;<@IK[`a  '9:;?FW]oĸııĸĊ hhh~_ hh hmhhh>* h>*hh5 hmhlhh>*hh hhhhl5>*hO*hl5 h5hZChZC5>*B* CJ(aJ(ph hafwhpxh3ot|,<LPTfjnopuƾˮ}}uh,ZhZC5 hmhZChZChZC5 hZC6 hZC>* hZC5hZC5>*B* CJ(aJ(phhlhZChhl>*hhh>* h>*hl h6hO*hl6 h5 hmhlh~_h>*h~_hl>*hh~_.$]^pdgd & FdgddgdZC & Fdgd,Z & Fdgd,Z & FdgdZC & FdgdZC & F( hhd^hgd}-k^p >N T [ n   3 A            ÿȷȿÿÿÿȄhl5B*CJ0aJ0ph h,Zh hAth h6hlhyhh5>*hh>*h h>* h5 hZC5h,hZC5 hmhZChZChO*hZC6h,Zh,Z5 hmh,Zh,Z.`N O P Q R S T [ O         $a$gd & F( hhd^hgd}dgd & Fdgd d^gdl & Fdgd & Fdgd        / 1 6 I J          h?]cBsùӵӍӍӍӍӍӄ{ h.&>*h.&hl hO?>* h*>*honhjhjhC>* hjhChCh2h2>*h2h2h*5>* hO*h*h$ hK5h* h*5>*h*5>*B* CJ(aJ(ph h*5h5B*CJ0aJ0ph/    2   _o & Fdgd.& & Fdgd.& pd^pgdl & Fdgd* & Fdgd2 & Fdgd* & Fdgd*dgd* & F*dgd*dgd$&9Y ghiq34;JPSپپҧhj h.&5 hK5 hon5 h.&5>* honaJ h:h:>*aJ h:>*aJ h:h.&>*aJ hKh.&>*aJ h.&>*aJ h.&aJ hMh.&aJ h.&>*h.&h.&>*h.& h.&h.&4i4e3Pw.W & Fdgd.& & Fdgdj & Fdgd.& & Fdgd.& & Fdgd.&de23(HJf!"!"!""##C#Y#### $o$$$$u%w%%%&&&&&&&&'''''''(ŽŽ󌽅 hj5 hj5>*hC5>*B* CJ(aJ(phhlhO*hl6 hO*hl h0hlhjhC>*hChonhk hk6 hO?6hO? h,6h,hZHh$h.& h.&hjhjhjhj>*2J!"#o$v%&&''''k((()) & FdgdC & FdgdC & FdgdC & F*dgdCdgdC & Fdgdl & Fdgdl & Fdgd, & Fdgd,(j(k(s((((((((())f)o)y)))R*]**+E+F+a+++++++++++++++, ,,L,M,,,H-I-׾׺׶⦢׶} h0h@hDh@hDh Fh F5>*h Fh F>*ho<h F5h F h F5 hCho<hKho<hOh&@hKhC>* hC>*hChC>*hC hChC hC5 hK5 hC5>* hjhj h/5/))f))N*F++M,,I-^----d.. // 0U0 & Fdgd F & Fdgd F & Fdgd@hD & Fdgdo< & FdgdC & Fdgdo< & FdgdC & FdgdC & Fdgd&@I-[----------..!.Z.j.... ///!/@/C/// 0$0Y0{000&15181}1111111111223h566<6:ҽh/h{d h{d6hO*h@hD6h@hDh@hD>* h0h@hDh@hDh@hDh@hD; h F>*h Fh F>*h F hK5 h Fh F h F5 h F5>*hKho<>*ho< ho<>*5U00&11126::.:/::::;9;s;;I< & Fdgdj & Fdgdj & Fdgdl & Fdgdl & F*dgd{ddgd F & Fdgd@hD & Fdgd@hD & Fdgd F:.:/:G:::::::::;;;";7;=====(.ڄ…ԅ؅UVچ01읏sh|JF5B*CJ0aJ0phh3C5B*CJ0aJ0phh/5B*CJ0aJ0phhl5B*CJ0aJ0ph hO*hlhO*hl6Uh3C hj>*hjhj5>*hjhK h{d>*hl h0hl h{d5h{dh{d5>*B* CJ(aJ(ph*I<===V01YZ`=Gމ & FdgdlW & FdgdlW & FdgdCgdC & F+dgd|JF$a$gd|JF $h^ha$gd/ & Fdgdl & Fdgdl & Fdgdje actual crime (but of similar make/model to weapon used in commission of crime) for demonstrative purposes. United States v. Weeks (p. 641) No requirement that demonstrative evidence be completely accurate Roland v. Langlois (p. 643) (" allowed to admit portion of life-size fence as illustrative of the fence surrounding the carnival ride) If evidence is pedagogical, should only aid in testimony and not be introduced into evidence or used by jury during deliberations. United States v. Wood (p. 643) X. Presumptions, Burden of Proof, and Judicial Notice Burdens and Presumptions in Civil Cases Presumption: Where the finding of one fact leads to the presumption of another; i.e., if one fact is found, another will deemed to have been found A kind of legal relationship between two factsthe fact giving rise to the presumption and the fact being presumed Conclusive (irrebuttable ) presumptions allowed in civil cases, but not in criminal cases ( IS THIS TRUE, BEN? I WASNT REALLY PAYING ATTENTION WHEN SCHAUER WAS TALKING ABOUT THIS ISSUE Exception: Out-of-state insurance Examples: One who sells books without covers presumed to have been doing so fraudulently One who drives faster than 65mph presumed to have been driving unsafely One who develops black lung presumed by miners workers comp program to be permanently disabled Receipt and acknowledgment of rent payment presumes receipt of earlier rent payments Burden of persuasion: The burden to satisfy the trier of fact that a particular position has been demonstrated to a particular level of certainty Carries with it a basic burden to produce some evidence Burden of proof in libel cases is clear and convincing evidence both (a) that a statement was untrue and (b) that the publisher of the statement knew it was untrue Rule for rebutting presumptions: Presumption is rebutted by introduction of evidence that would support a finding of the nonexistence of the presumed fact In re Yoder (p. 650): If item is properly mailed, it is presumed received; however, since neither attorney nor  received item (can show would have records of receipt, under standard business practices, had letter in fact been received), sufficient evidence to rebut the presumption  Bursting bubble theory (Thayer): Presumption vanishes as soon as it is rebutted (only the production burden shifted) FRE 301: Takes the bursting bubble approachpresumption has no probative effect once it has been rebutted Morgan: Presumption shifts the burden of proving the nonexistence of the presumed fact to the opposing party (persuasion burden shifts as well) Burdens and Presumptions in Criminal Cases General rule: Prosecution shoulders burden of proving guilt beyond a reasonable doubt Sandstrom v. Montana (p. 668): Jury instructed that law presumes that a person intends the consequences of his voluntary acts. " objects and appeals because essentially shifted to " the burden of disproving an element of the crime. Held, reasonable juror could have given the presumption either conclusive or persuasion-shifting effect Judicial Notice General idea: There are some facts that should not have to be proved because they cannot be reasonably disputed, these facts are dispensed of as unnecessary FRE 201 (Judicial notice of adjudicative facts) (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, or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (c)/(d): Judicial notice is discretionary when not requested by a party, mandatory when requested by a party and supplied with the necessary information (g) Instructing jury: In a civil action: Court shall instruct jury to accept as conclusive any fact judicially noticed In a criminal action: Court shall instruct jury that it may, but is not required, to accept as conclusive any finding judicially noticed Adjudicative vs. Legislative facts Adjudicative facts: Facts of the particular case1YZe_`#$[\%'6͌8B<|~ďֺ֨˟ϊ{shO*hC5 hChChO*hC6hChC>* hC>*hlhB%hZ^ hC5hChC5>*hlWhlW>*hlWhlW5>* jhlWhC h0hChlWhlWhC>*h|JF5B*CJ0aJ0phh|JF5>*B* CJ(aJ(ph-މ=$\'|5/0[\j d^gdl & F+dgdCgdC & FdgdC d^gdl & FdgdC & FdgdC & FdgdlWď458<=?Aa ./0[\hijƑБё `rt6@!#:Y³񏗈|hChC>*hl hO*hlhO*hl6 h0hlhChC5 hC>*hlhl5hC5>*B* CJ(aJ(phhC5B*CJ0aJ0phhO*hC5 hC5hO*hC5>*h0hC5>*hCh} h0hC0jTFwפ & FdgdC & Fdgdl & Fdgdl & Fdgdl & Fdgdl & F+dgdCdgdC & FdgdC & Fdgdl  =STX @MeŖ)M~ӗԗ՗֗Eخئؙh|JFUhChl>*hChC>* hC5hO*hl5 hC>*h!bWhlWhl>*hlhl>*h} hChl>* hl>*hChlWhl5>*hl h|JF5hO*hl5>* hChC6 (i.e., those facts to which the law is applied in a particular case) Established through the introduction of evidence Tradition has been one of caution in requiring that the matter be beyond reasonable controversy Legislative facts: Facts having relevance to legal reasoning and the lawmaking process (i.e., facts related to background ideas about reality or law), whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body NOTE: No FRE deals with judicial notice of legislative facts     PAGE  PAGE 1 EFOQvw֤פ-l$%&()+,./1289:;<=>?EFGHJKLMŽhx0JmHnHuh"Bhcvhl hl0Jjhl0JUhZjhZU h0h|JFh} hChl>*hChC>* hC5hO*hl5h|h|JF hO*hlhC*פ%'(*+-.01:;<=>IJK h&`#$]hgdl &`#$gdcvh`hgdl &`#$gdcv hh]h`hgdl &`#$gdl & FdgdC & Fdgd|JFKLM & FdgdC50P:pl/ =!"#$% 50P:pl/ =!"#$% DyK thenatureofevidencelawuDyK  relevanceDyK relevanceandirrelevanceDyK probativevalueandprejudiceDyK conditionalrelevanceDyK probabilisticevidenceDyK subsequentremedialmeasuresDyK settlementeffortsandinsuranceDyK characterandhabitDyK characterandhabitbasicruleDyK &methodsofintroducingcharacterevidenceDyK %permissibleusesofspecificpastconductmDyK habitDyK )sexualhistoryofallegedsexualassaultvictiDyK $priorsexualoffensesofsexualassaultdqDyK hearsayDyK hearsaybasicruleDyK exceptionstothehearsayruleDyK nonhearsayexceptionsDyK 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