EVIDENCE

I. INTRODUCTION

Development and Nature of Evidence

o pre-1970 controlled by common law

o NOW statutory FRE

Trial

o evidence – material (documents, physical objects, and testimony) that tends to prove or disprove the

existence of an alleged fact

offered to persuade the trier of fact

FRE govern which materials can be considered by the trier of fact in resolving fact questions

types of evidence

direct evidence – evidence that is based on personal knowledge or observation and that,

if true, proves a fact w/o inference or presumption.

veracity problem

NO relevancy problems

circumstantial evidence – evidence based on inference and not on personal knowledge or

observation

NOT eyewitness

relevancy and veracity problem

Role of the Trial Judge

o Authority

o Discretion

after evidence admitted by TC hard to get reversal on appeal UNLESS plain error

different standards by JD but all high

U.S. v. Walton

CoA gives great deference to TC b/c TC

first-hand exposure to evidence

familiarity with case

ability to gauge impact of evidence in context of entire proceeding

Bandera v. City of Quincy – NO plain error b/c no showing that it probably infected the

outcome or caused a miscarriage of justice

FRE 104 – Preliminary Questions

(a) Questions of admissibility generally – TC determines preliminary questions re: qualification of witnesses, existence of privilege, and admissibility of evidence

TC has a lot of discretion except re: privilege

Requirements for Reversal of Judgment When Evidence Erroneously Admitted

FRE 103 – Rulings on Evidence

(a) Effect of erroneous ruling – NO Error for ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection –ruling admits timely objection or motion to strike on record, stating specific ground of objection, if not apparent from context; or

(2) Offer of proof –ruling excludes substance of the evidence was made known to the court by offer or was apparent from context

CT: definitive ruling on the record admitting or excluding evidence DON’T need to renew objection/offer of proof to preserve a claim

(b) Record of offer and ruling –TC can add explanation re: evidence’s character/form, objection, and ruling

(c) Hearing of jury – proceedings shall be conducted, to the extent practicable, to prevent inadmissible evidence from being suggested to the jury by any means. (d) Plain error – rule doesn’t prevent noticing plain error affecting substantial rights even if not brought to CT’s attention

Specific objection?

Timely objection?

Valid grounds for

objection?

Prejudicial error?

REVERSED

NO reversal

NO

NO

NO

NO

Yes

Yes

Yes

Yes

II. RELEVANCE

Definitions

o relevant evidence – evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence [FRE 401]

very low standard any tendency to claim slightly or less lightly to be true

individual piece of evidence NOT required to be independently sufficient for jury verdict (“a

brick is not a wall”)

o irrelevant evidence – evidence without probative value that doesn't tend to prove or disprove a matter

in issue

no exceptions

Relevance and Irrelevance

o Knapp v. State (1907) – Evidence of Collateral Fact Admissible to Prove Challenged Fact if

Logical/Reasonable Inference of Existence of Challenged Fact Can be Drawn

evidence of collateral fact is admissible to prove the challenged fact if a logical and reasonable

inference of the existence of the challenged fact can be drawn therefrom

testifies that he heard rumor before murder that decedent killed old man, but didn’t

remember who told him, could, for the purpose of making ’s claim less probable, admit Dr.

testimony that old man died of senility and alcoholism

o U.S. v. Dominguez (1990) – Less Probative/Weak Evidence Can Still be Relevant

convicted of kidnapping, and robbery based on ’s evidence that owned gun, tried to have

barrel replaced, DIY attempt to replace barrel

relevant owning makes guilt more probable than not; even though had gun as part of job,

just made evidence less probative/weaker, NOT irrelevant

o State v. Larson (1992) – Evidence Assists Jury to Evaluate Fact and Apply Experience

Admissible

guy rides horse w/ kid even though warned horse was inexperienced kid dies

comparison of guy’s BAL v. DUI BAL was relevant in prosecution for negligent endangerment

of child

showed alcohol had impaired reactions and judgment

comparison helped jury evaluate level of intoxication and apply experience + logic to

determine whether intox. level impaired judgments and reactions

Probative Value and Prejudice

FRE 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

RELEVENT evidence is admissible except as otherwise provide by Const., Congress, FRE, S.Ct.

Rules

ALL IRRELEVANT evidence is inadmissible.

FRE 105 – Limited Admissibility

When evidence is admissible for one purpose/party NOT inadmissible just b/c it is inadmissible for another

TC, if requested, must instruct jury about limited admissibility.

o U.S. v. Noriega (1997) – Probative Value v. Potential to Confuse = Inadmissible

convicted of drug charges wanted to introduce evidence of how much he was paid for secret

operations in Panama in response to ’s evidence of how much money he has [from drug

trafficking]

probative – could have helped jury decide which amount was more credible

BUT probative value substantially outweighed by its potential to confuse shift trial from drug

trafficking to geopolitical issues

o U.S. v. Flitcraft (1986) – Cumulative + Potential to Confuse = Inadmissible

husband and wife convicted for not filing taxes and filing false exemptions appeal contesting

the willfulness of their behavior; they read articles and cases and believed their wages weren't

income

TC didn’t let introduce documents themselves, but was allowed to testify about them

NO abuse of discretion because documents were cumulative of ’s testimony ( probative

value) + danger of confusing jury by suggesting the law was unsettled ( prejudicial)

o Abernathy v. Superior Hardwoods Inc. (1983) – TC Doesn’t Have to Accept Evidence of Slight

Probative Value

truck driver () injured when log rolled of his truck while being unloaded by sawmill ()

employees

made video of log-unloading process TC allowed jury to watch with sound off

video didn’t meet minimum standards of reliability: not where was standing; amateur

recording; how sound would sound in courtroom?

TC isn’t required to encumber a trial with evidence of slight probative value merely because

effective cross-x might expose weaknesses

juries have hard enough time deciding w/o tangentially related evidence

federal trials take up enough time w/o being required to include crappy evidence

o U.S. v. McRae (1979) – Unfair Prejudice NOT Intended to Mitigate a Crime

shot wife claims accident

introduce photos of body argues should be excluded under FRE 403 for unfair prejudice

admissible – main function of FRE 403 is to exclude evidence w/ scant or cumulative probative

value, dragged in by its heels for the sake of its prejudicial effect

UNFAIR prejudice NOT to “even out” the weight of the evidence, mitigate a crime, or

make a contest when there isn’t one

o Old Chief v. U.S. (1997) – If Offered Stipulation Satisfies Element of Offense and Introducing

More Details Would Unfairly Prejudice Must Accept Stipulation

convicted of being a felon in possession of a gun, using/carrying gun during commission of a

violent crime, and assault with dangerous weapon

FRE 403 – Exclusion of Relevant Evidence: Prejudice, Confusion, Waste of Time

Relevant evidence may be excluded if:

probative value is substantially outweighed by the danger of unfair prejudice

confusion of the issues

misleading the jury

undue delay

waste of time

needless presentation of cumulative evidence

requested not read anything about prior conviction other than he was convicted of crime

punishable by 1+ year (meets statute) b/c more would be too prejudicial

TC refused S. Ct.: abused discretion risk of prejudice outweighs probative value

only need to show conviction for crime punishable by 1+ year ( w/i class of people statute

prohibits possessing gun) name/nature of prior crime carries risk of unfair prejudice

informing jury about exact nature of offense would do little more than the stipulation to

prove the element

prejudice jury re: propensity/character of committing assault w/ deadly weapon

although party typically gets to present evidence the way they want, FRE 403 must be

satisfied

dissent

under FRE 105 – limiting instruction would have been sufficient to avoid prejudice

Congress included prior conviction as an element intended jury to know about it

Conditional Relevance

o Admissibility of evidence may depend on an answer to a preliminary question of fact

ex: speed of car in reckless driving prosecution, relevant only if was actually driving

TC allows speed evidence as long as TC decides there is sufficient evidence to permit a

reasonable jury to conclude that was driving

o State v. McNeeley (2000) – Is Foundation Evidence Sufficient for Jury to Reasonably Find

Condition Fulfilled?

convicted of aggravated murder fellow inmate testified re: statements that made it more likely that

was guilty, but only relevant if made the statements

witness couldn’t ID as man he talked to

conditional relevancy question TC: foundation evidence is sufficient for the jury to reasonably

find that the condition on which relevance depends has been fulfilled?

yes admissible

no inadmissible

admissible even though witness couldn’t ID where witness testified he had spoken to

someone who represented himself as and gained 25# and shaved moustache since they

were in jail together

witness’s inability to ID influences WEIGHT jury should give evidence, not whether it is

admissible

Summary

o relevance

o balancing test: FRE 403

o limited admissibility: 105, when admissible for one purpose but not for another, then give jury a limiting

instruction

o conditional relevance: judge decides whether reasonable jury would conclude the condition.

III. HEARSAY

Hearsay Rule and Rationale

FRE 104 – Preliminary Questions

(b) When the relevancy of evidence depends on the fulfillment of a factual condition, court should admit

it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the

condition.

o Introduction

Terminology

statement – an oral/written assertion OR nonverbal conduct intended by the person to be

an assertion

NOT question or command

declarant – person who makes a statement

hearsay – a statement, other than one made by the declarant, while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted

hearsay prima facie inadmissible

witness testifying that some declarant said something

“out of court” = any statement other than one made under oath and in front of the

factfinder during the same proceeding in which it is being offered as evidence

includes testimony at prior trial

matter asserted – info declarant was trying to convey

line of inference: declarant said it he believed it it is true

believe that factual disputes should be based on live, sworn testimony, not only on

secondhand accounts of what other people said outside court

Leake v. Hagert (1970) – Out of Court Statement + Offered to Prove Truth of Matter

Asserted Hearsay

negligence car accident car v. truck/plow

accident investigator testifies about what ’s son told him re: rear light being broken

hearsay error to admit

out of court statement

offered for the truth of the matter asserted – light was out

hearsay rule prohibits use of a person’s assertion as an equivalent of testimony

UNLESS declarant testifies in court and subject to cross-x

BUT NOT prejudicial b/c adverse witnesses testified about light being broken

Rationale

concerns re: worth of evidence (trustworthiness, reliability) b/c

evidence not under oath

no opportunity for trier of fact to observe witness’s demeanor

not subject to cross-x to test declarant’s

memory – recollection of event

perception – sensory problems, distance away from incident, obstructions

sincerity – reason to lie?

articulateness/narration – ability to communicate what witness perceived

HEARSAY ELEMENTS

Evidence will be considered hearsay if

Evidence consists of an oral or written statement/assertion (or conduct intended to be an

assertion)

Assertion is made out of court

Assertion is offered to prove the truth of the matter asserted (to which issue is the evidence

being directed?)

Yes

Yes

Yes

Yes

Yes

Yes

No

No

No

No

No

No

o Non-Hearsay Uses of Out-of-Court Statements

Declarant’s State of Mind – Statements that circumstantially or indirectly reveal declarant’s state

of mind are NOT hearsay

Mistake – Lyons Partnership v. Morris Costumes (2001)

owner of IP rights to Barney sues for infringing on copyright with its Duffy the

Dragon costume

school principal testifies that kids screamed “Barney!” even though Duffy costume

parents testified that kids thought Duffy = Barney

NOT hearsay not offered to prove the truth of the matter asserted (Duffy =

Barney), but to show kid’s state of mind (confused Duffy and Barney)

Knowledge – U.S. v. Parry (1981)

convicted of conspiring to distribute PCP defense: I told Mom that I knew that I was

working with narcotics agents and they were calling me

TC excluded convos w/ mom

using out of court statement as circumstantial evidence of the declarant’s knowledge

of the existence of some fact, rather than as testimonial evidence of the truth of the

matter asserted does not violate the hearsay rule

NOT hearsay Mom’s testimony wasn’t to prove that caller was narcotics agent

or that was working with agent, only to establish that had knowledge of the

agent’s ID when they talked

Effect on Listener/Reader

Fear/Duress – Subramaniam v. Public Prosecutor (1956)

found wounded by security forces w/ illegal ammo convicted of weapons charges

defense: captured by terrorists + acting under duress

TC refused to admit testimony about what terrorists said

NOT hearsay – statement is offered to prove the statement’s effect on (state of

mind) NOT the truth of the matter asserted (whether statement was true)

terrorists said they would kill if refused show that he reasonably believed terrorist

would kill him prove that he was reasonably under duress

Warning or Notice – words offered to prove that notice or warning was given and received

NOT hearsay

Southerland v. Sycamore Community School District (2004)

bus driver sues school for not doing anything re: sexual harassment by another

employee

school challenges evidence re: rumors creeper spread about his sexual relationship

with driver

NOT hearsay – rumor wasn’t offered to prove the truth of the matters asserted

(rumor and harassment occurred) used to show that had knowledge of the

problem, and, as a result, their liability

U.S. v. Johnson (1995)

convicted of distributing drugs and mail fraud appeals TC’s admission of

assistant’s testimony that she overheard supervisor tell to stop writing bad rx

NOT hearsay NOT offered to prove the truth of the matter asserted ( did write

bad rx), rather evidence of knowledge that he was rx w/o legit medical purpose

and outside professional practice

U.S. v. Jefferson (1981)

convicted of possession of heroin and bond jumping

TC properly admitted into evidence letter and 2 mailgrams to show that had been

sent notice of hearing he didn’t show up to

Verbal Acts (Operative Conduct)

verbal act – statement that in and of itself has legal significance (creates legal relationship,

obligation, avoidance, or waiver of legal obligation)

exempted from hearsay rule under classic definition of statement offered to prove the

truth of the matter asserted

Fraud – U.S. v. Savvedra (1982)

inmates call people to get CC# by representing as police

= 3rd party who picks up money from CC fraud argues testimony of victims about what

inmate said over the phone is inadmissible hearsay

NOT hearsay testimony wasn’t offered to show that victim’s statements were true

(callers were police) but to show how CC# were fraudulently obtained circumstantial

that later use of CC#s was intentional + others involved

words offered to show conduct: inmates defrauding

Transfer – Hanson v. Johnson (1924)

conversion of corn – claimed, as LL, share of corn against purchaser

“here is your corn for the year” + gesture to crib = verbal act NOT hearsay

admissible

Cancellation – Creaghe v. Iowa Home Mutual Casualty Co. (1963)

car accident injured person claims is driver’s insurance co. defense: driver cancelled

policy: wants to intro evidence of convo between insured and employee that cancelled

policy + check returned

admissible hearsay rule doesn’t exclude relevant testimony as to what the

contracting parties said re: making or terms of oral agreement

statement creating or destroying (K) legal relationship once made truth

words NOT offered for the truth of any facts asserted, only to demonstrate what was

said or done operative facts to which substantive K law attaches duties and

responsibilities

question of whether statement ever made isn’t hearsay concern jury determines

credibility of insurance agent who will have to testify about statement

Performative Utterance

performative utterance – statement that performs an act or creates a state of affairs by the

fact of its being uttered under appropriate or conventional circumstances

NOT hearsay not truth of the matter asserted no assertions

no truth claims

performances

don’t make claims about the world

DO something in the world

ex: “I now pronounce you husband and wife” people are married; “I promise”

promise

Demand – U.S. v. Montana (1999)

convicted of bank robbery as getaway car driver accomplice testified that didn’t

know robbery @ trial accomplice’s note demands $$$ for favorable testimony

U.S. marshal heard accomplice tell testimony price

marshal’s testimony NOT hearsay

performative utterance – illustrated by a promise, offer, or demand which commits

the speaker to a course of action NOT hearsay

don’t make any truth claims

out of court declarant’s demand is different from statement b/c once said its true –

only issue of credibility is whether marshal was reporting demand correctly (jury

decides)

o Implied Assertions

implied assertion – nonverbal behavior intended to be a statement considered a statement for

hearsay purposes inadmissible unless hearsay exception applies

Non-Verbal Signals (nodding, waving, pointing) = statement

pointing out suspect in lineup is equivalent of words, assertive in nature, and to be regarded

as a statement

likelihood of fabrication, defects in perception/memory/narration

Verbal Expression NOT statement

generally treated as nonhearsay, either because they aren't offered to prove the truth of the

matter asserted OR on the ground that there is no matter asserted

No Mater Asserted – U.S. v. Zenni (1980)

police answer phone while executing valid warrant in ’s apt multiple calls asking to

place bets on sporting events wants to intro as implied assertion that callers

believed apt was used for betting

inadmissible hearsay – nonassertive verbal conduct offered as relevant to support

inference that bets could be placed at apt = implied assertion

language is not assertion on face + obvious that callers didn’t intend to make an

assertion about the fact sought to be proved (apt used for betting) or anything else

“put a bet on X” – not an assertion, cannot be true or false more like demand or

request

Non-Verbal Conduct Not Intended to Communicate Anything NOTstatement

State v. Dullard (2003)

police find hand-written note by unknown person warning about police presence in area

admitted into evidence convicted of possession materials/equip to manufacture

meth

out of court statements offered to prove something the statement implies (note offered

to prove that had materials/equipment for manufacturing meth) = hearsay

using statements for implied meanings implicates the basic testimonial dangers

against which the hearsay prohibition is meant to protect

prejudice implied b/c admission of note played important role in establishing

possession element + unable to cross-x declarant to overcome prejudice

not case w/ overwhelming guilt from other evidence

distinction between intended and unintended conduct/speech only implicates the

danger of insincerity based on the assumption that a person who lacks an intent to

assert something also lacks an intent to misrepresent

Multiple Hearsay

FRE 805 – Hearsay Within Hearsay

Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined

statements conforms with an exception to the hearsay rule provided in these rules.

o Reed v. McCord (1899) – Party’s Admissions of ANY Material Fact Always Admissible

killed official stenographer testifies that he heard say all machines involved in accident

were alike, etc. objected

admissible admissions by a party of any material fact are always admissible evidence

against him

if had merely admitted that he heard accident happened under circumstances inadmissible

b/c admission what he had heard and repeated, not an admission of the facts

BUT this statement was plain admission of facts and circumstances which caused the

accident

o Foster v. Commissioner of IRS (1983)

admission doesn’t constitute hearsay, but hearsay w/i admission is subject to an objection

party’s out of court statement “A said that x is a fact” to prove x is a fact

party’s out of court statement “x is a fact” admissible, even if not based on personal

knowledge; even if statement is based on A having told him so

Completeness

o Beech Aircraft Corp. v. Rainey

plane crash pilot’s surviving spouses sue plane manufacturer

letter to commander/investigator who concluded pilot error concluded plane defect

called as witness, asked about 2 statements in letter favorable to and admitted to

making them

asked on cross-x about letter

TC erred in preventing from explaining why crash caused by plane defect when one party

has used a portion of a document such that misunderstanding or distortion can only be avoided

by presenting another portion, material required for completeness is ipso facto relevant and

admissible

Hearsay and Right to Confrontation

o Limitations

applies only in criminal cases

applies to evidence against

only affects some hearsay civil cases, against prosecutor, hearsay declaration of

testifying witness

satisfied by confrontation

U.S. Const. 6th Amendment Confrontation Clause

In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses

against him.

FRE 106 – Remainder of or Related Writings/Recorded Statements

When a writing or recorded statement or part thereof is introduced by a party, an adverse party

may require introduction at any time of any other part or any other writing/recorded statement,

which, in fairness, should be considered contemporaneously with it.

o Ohio v. Roberts (1980) OVERRULED [by Crawford]

NO CC violation if the statement

fell within a well recognized [historical] hearsay exception OR

carried comparable “particularized guarantees of trustworthiness” or “sufficient indicia of

reliability”

o Crawford v. Washington (2004) – Testimonial Statements Inadmissible UNLESS Unavailable and

Prior Opportunity to Cross-X

husband and wife confront victim over rape allegation husband stabs victim claiming self-

defense during interrogation wife: victim didn’t have weapon

TC admits wife’s statement to police b/c sufficient indicia of reliability convicted

criminal case + statement used against + witness not on stand/unavailable CC issue

testimonial out of court statements by witnesses are INADMISSIBLE under CC unless

witnesses are (1) unavailable and (2) had prior opportunity to cross-x, regardless of whether

ct thinks they’re reliable

historical – CC adopted to keep ex parte examinations out of evidence [Sir Walter Raleigh]

Roberts is unpredictable and inconsistent

wife’s statement violates CC inadmissible reversed

“leave definition of testimonial for another day” but minimally includes

preliminary hearing testimony

grand jury testimony

testimony at previous trial

custodial police interrogations

concurrence

not convinced CC categorically requires exclusion of testimonial statements b/c law @

founding re: admissibility of out of court statements was still developing

don’t want to give up S.Ct.’s power to decide that there are other things admissible besides

historical expectations

o Davis v. Washington (2006) – Primary Purpose Test

2 DV s challenge testimony to police/911 as testimonial statements violating CC

Washington – police testify about responding to 911 call for DV + admit 911 tape of victim

IDing as attacker convicted

HHeeaarrssaayy ++ CCoonnffrroonnttaattiioonn

Crawford – testimonial out of court statements by witnesses are INADMISSIBLE under CC unless

witnesses are

unavailable and

had prior opportunity to cross-x

Davis – Primary Purpose Test

non-testimonial statements (NOT subject to CC) when made in the course of a police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency

testimonial statements (subject to CC) when the circumstances objectively indicate that there is

no ongoing emergency and the primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution

Hammon – police respond to DV + testify about what victim told them and her affidavit for

battery convicted

CC applies only to testimonial statements

testimony – a solemn declaration or affirmation made for the purpose of establishing or

proving some fact

primary purpose test

non-testimonial statements (NOT subject to CC) when made in the course of a police

interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency

911 call = non-testimonial NO CC violation admissible affirmed

describe events as occurring

frantic, present tense, immediate emergency info elicited intended to help resolve

emergency, NOT to learn about what happened in the past

testimonial statements (subject to CC) when the circumstances objectively indicate that

there is no ongoing emergency and the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution

interrogation = testimonial CC violation inadmissible remanded

statements made during interrogation into criminal conduct to elicit what HAD

happened

no immediate emergency: no circumstantial evidence of current fight and victim

stated things were fine

statements obtained under circumstances very similar to witness testifying on direct-

x

concurrence/dissent [Thomas]

neither 911 call nor police questioning were testimonial

no formalized dialogue

no circumstances making statement sufficiently formal (Miranda, custodial)

no suggestion used hearsay evidence to evade confrontation

Exceptions

o Rationale

necessity for using hearsay evidence (death or unavailability of declarant)

content or circumstances of utterance serves to guarantee trustworthiness

o Prior Statements by Witnesses

Albert v. McKay & Co. (1917) – Inconsistent Statement Can’t Be Used as Substantive

Evidence

FRE 801 – Definitions

(d) Statements are not hearsay if –

(1) Prior statement by witness – the declarant testifies and is subject to cross-x and statement

is

(a) inconsistent with the declarant’s testimony and given under oath subject to penalty of

perjury OR

(b) consistent with the declarant’s testimony and is offered to rebut an express/implied

charge of recent fabrication or improper influence or motive OR

(c) ID of a person after perceiving the person

employees clothes get stuck in machinery dies sues for negligence for turning on

machine while employee working near it

almost all witnesses said machine was running before decedent went down to work 1

witness said shortly after accident (out of court) machine hadn’t been running @ time of

accident, but at trial testifies that machine had been running continuously

a prior inconsistent statement by a witness can't be used to prove the truth of his prior

statement (that the machinery wasn't running then decedent employee began working by

it) only for assessing credibility

Out of Court ID – U.S. v. Owens (1988)

corrections officer attacked @ work severe memory loss FBI interview unable to

remember attacker’s name later FBI interview able to describe attack, named attacker,

and ID attacker from photo @ trial couldn’t ID

FRE 801(d)(1)(c) – not hearsay a prior statement of ID of a person made after perceiving

the person, if declarant testifies @ trial and subject to cross-x

testifies + subject to cross-x prior ID not hearsay

with adequate safeguards against suggestiveness, out of court IDs were generally

preferable to courtroom IDs

o Admissions by Party-Opponents

admission – any extrajudicial statement or assertion made by a party to a case that is

inconsistent with a position that the party presently takes

subject to relevance

includes when it seems “right” to hold the party against whom the evidence is offered at

least partially responsible for the out of court statement

adversarial fairness

NOT hearsay

Direct Admissions

direct admission – a party’s own statement, either in an individual or representative capacity

no guarantee of trustworthiness required

protected by adversarial system

Salvitti v. Throppe (1942) – Personal Knowledge Not Required

husband and wife () crash avoiding negligently driven truck ( = driver’s employer)

FRE 801 – Definitions

(d) Statements are not hearsay if –

(2) Admission by Party Opponent – statement is offered against a party and is

(a) party’s own statement, either an individual or representative capacity OR

(b) statement which the party has adopted a belief in its truth OR

(c) statement by person authorized by the party to make a statement re: subject OR

(d) statement by party’s agent or servant re: matter w/i scope of the agency or

employment made during the existence of the relationship OR

(e) statement by coconspirator of a party during course and in furtherance of conspiracy

**contents of statement should be considered but aren’t alone sufficient to establish the declarant’s

authority, agency or employment relationship and scope, or existence of

conspiracy

visits, admits fault challenges admission because employer didn’t have personal

knowledge b/c he wasn’t at the accident

personal knowledge is NOT required in a party admission

person can file pleadings etc. w/o personal knowledge why need personal

knowledge for making statements?

U.S. v. McGee (1999) – Need Not Obviously Be Against Interest

convicted of robbery challenges admission of 3 different versions of what happened

he made to police

statements DON’T need to be inculpatory to be admissions by part-opponents

ONLY relevant

doesn’t have to be a confession or admission in traditional sense of word

only need party’s own statement offered against party

U.S. v. Phelps (1983) – Must Be Offered Against Party-Declarant

drug prosecution wants to introduce testimony that POs heard say that the gym

bag was his, but T put it in the trunk co- (T) objects

statement inadmissible b/c although statement was MADE by , NOT offered against

him

Adoptive Admissions

FRE 801(d)(2)(B) – statement which the party has adopted a belief in its truth NOT hearsay

Admission by Silence

Admission by Silence

Party heard and understood statement

Party was physically and mentally capable of denying accusations

Party had opportunity and motive to deny a reasonable person would have denied the accusatory

statement under the circumstances

COD HERD – Capable Of Denying; Heard the statement; Reasonable to Deny

U.S. v. Fortes (1980) – Present, Heard, and Conscious When Statement Made =

Admission by Silence

convicted of armed robbery based on statements made by co-: Q: “did you rob

bank?” A: Yes + description of ’s role

admissible was present and conscious during conversation and heard

statements describing involvement but did not object to them

adoptive admissions includes admissions by silence or acquiescence

expect a reasonable person to deny involvement if untrue

Southern Stone Co. v. Singer (1982) – Failure to Respond NOT Adoption Unless

Reasonable for Proponent to Expect Other Party to Respond and Correct

stated events/comments

mere failure to respond to a letter does NOT indicate an adoption unless it was

reasonable under the circumstances for the sender to expect the recipient to

respond and correct erroneous assertions

letter inadmissible

went to office to sign personal account letter, not to discuss anything included in

letter

stopped business 1y+ previously

“didn’t care what was going on” and considered “corp. gone”

Authorized Admissions

(c) statement by a person authorized by the party to make a statement re: subject

Authorized Admissions

Statement by a person authorized to make a statement re: subject

Hanson v. Waller (1989) – Atty’s Letter on Behalf of Client NOT Hearsay

the street if deceased directly in front of truck when traffic light changed

admissible factual admission re: management of litigation w/i hearsay

exception

attorney’s letter on behalf of client is not hearsay and can be admitted

Agent and Employee Admissions

(d) statement by the party’s agent or servant re: matter w/i scope of the agency or

employment made during the existence of the relationship

Agent and Employee Admissions

Statement made by party’s agent or employee

About a matter within the scope of the agency or employment

Made during the existence of the agency/employment relationship

Mahlandt v. Wild Canid Survival & Research Center Inc. (1978) – Employee

Statements Admissible

kid ends up in wolf enclosure, employee keeping wolf @ home as part of

employment

statement #1: note to co. pres.: “wolf bit kid” admissible statements:

made while declarant agent/servant of corp.

concerned matter w/i scope of agency/employment (custody of wolf)

made during existence of relationship

statement #2: BoD minutes re: wolf biting kid

admissible against corp. statement made by a person authorized to make a

statement re: subject

inadmissible against guy who kept wolf @ home NO servant/agency

relationship justifying admission

Sea-Land Service Inc. v. Lozen International LLC (2002) – Employee Statements

Admissible

(carrier) sued (shipper) for money owed under shipping K

internal email written by 1 ’s employee and forwarded to admissible

original email ended with “signature” signaling from ’s employee

re: matter w/i author’s scope of employment

incorporated by 2nd employee manifest belief in truth of info in 1st message +

w/i scope of employment

Co-Conspirator Admissions

(e) statement by coconspirator of a party during the course and in furtherance of the

conspiracy is NOT hearsay

Co-Conspirator Admissions

Conspiracy established (co-conspirator’s statements considered, but not alone sufficient)

Statement made during conspiracy (before crime completed or before declarant withdrew from conspiracy

Statement made in furtherance of the conspiracy (re: effort to accomplish the illegal objective and isn’t

merely narrative in nature)

S.Ct. excludes statements made after objectives of conspiracy have failed/been

achieved

reason – necessity: conspiracy is hard to prove co-conspirator admissions have

probative value

Bourjaily v. U.S. (1987) – Consider Co-Conspirator’s Statements But Alone NOT

Sufficient to Prove Conspiracy

FBI informant arranges drug sale with L in phone call L buyer () and L arrested

when put drugs in ’s trunk

evidence: phone convo re: buyer’s participation as co-conspirator

admissible questions that rely on preliminary factual questions need proof by

preponderance of evidence

established conspiracy and ’s participation

court can consider hearsay statements while making preliminary factual finding,

but hearsay alone is not sufficient to establish existence of conspiracy and/or

agency relationship

dissent: needs independent evidence safeguard

1997 Amendment to FRE 801(d)(2):

court shall consider contents of co-conspirator’s statements in determining the

existence of conspiracy and participation

contents of statement do not alone suffice to establish a conspiracy court

must consider surrounding circumstances (ID of speaker, context,

corroborating evidence)

Bourjaily applies to

statement by person authorized by party to make a statement

agency re: scope of employment during employment

Admissions + Bruton Rule

Bruton v. U.S.

- + co- convicted based on co- confession

denied CC rights when co-s confession admitted at joint trial and co- did not

testify

limiting instruction is not sufficient to erase seriously incriminating confession

from jury’s mind shouldn’t benefit from windfall

Out-of-Court Statements Admissible Under FRE

Hearsay Exceptions FRE 803+804

Non-Hearsay FRE 801(D) Unavailability Required Availability Immaterial

1. Non-assertive conduct 1. Former testimony 1. Excited utterance

2. Statement not offered for

it’s truth

2. Declaration against interest 2. Present sense impression

3. Prior inconsistent

statement made under oath

4. Dying declaration 3. Physical condition/state of

body/injury report

4. Prior consistent statement

offered to rebut charge of

recent fabrication

5. Forfeiture by wrongdoing 4. State of mind

5. Prior statement of ID 5. Past recollection recorded

6. Admission of Party-

Opponent

6. Public Records

SUMMARY OF MAJOR HEARSAY EXCEPTIONS

Present Sense Impression Statement made concurrently with perception of event described

Excited Utterance Statement made while under stress of excitement of startling event

State of Mind/Mental Condition Statement of then-existing state of mind, emotion, sensation, or

physical condition. (Usually introduced to establish intent; admissible

when state of mind is a material issue or to show subsequent acts of

declarant)

Physical Condition/State of

Body/Injury Report

Statement made to medical personnel for the purpose of diagnosis or

treatment

Recorded Recollection Writing by witness who cannot now remember the facts, made while

the facts were still fresh in the witness’s mind

Business Records Writing made in the regular course of business, consisting of matters

within the personal knowledge of one with a duty to record. Lack of

such a writing may be used to show the non-occurrence of the event.

Public Record Prepared under duty to record and generally by an entrant with

personal knowledge

Former Testimony Statement made under oath in the same or at another proceeding at

which the party against whom it is offered had motive and opportunity

to develop testimony

Dying Declaration State made while declarant believed death was imminent, concerning

the cause or circumstances of the impending death

Statement Against Interest Statement against declarant’s pecuniary, propriety, or penal interest

Forfeiture by Wrongdoing Statement made by a witness who was unavailable because of a party’s

engagement or acquiescence in wrongdoing that intended to prevent

testimony

Residual Exception Necessary statement with circumstantial guarantees of trustworthiness

comparable to above exceptions

o basis: under appropriate circumstances, a hearsay statement may have circumstantial guarantees of

trustworthiness sufficient to justify declarant not testifying, even though s/he is available

o Spontaneous and Contemporaneous Statements

although emotions may overcome desire to lie, they also significantly impair declarant’s

observation skills

require 1sthand knowledge

Bemis v. Edwards (1995) – witness must have personal knowledge about matter testifying

about witness must have personal knowledge of the event they are perceiving and

making a statement about

witness who relays info to 911 operator based on descriptions of what is happening

from other people inadmissible as EU or PSI

may be limited by CC

(1) Present sense impression. A statement describing or explaining an event or condition made

while the declarant was perceiving the event or condition, or immediately thereafter.

Present Sense Impression

Statement made by person while or immediately after perceiving an event or condition that describes the

event or condition.

**No requirement of declarant unavailability**

accurate – substantial contemporaneity of event and statement negate likelihood of

deliberate or conscious misrepresentation

perfect contemporaneity impossible slight time lapse appropriate

limited to description of event

U.S. v. Obayagbona (1985)

undercover FBI agent bought heroin from (black and white dress) and other lady

(colored dress)

evidence: tape recording that gave drugs to agent out of her purse

admissible

present sense impression – statement describing or explaining event or

condition (drug deal) made either while perceiving the event or immediately

thereafter (agent spoke as soon as able – couldn’t make statement in front of

drug sellers)

(2) Excited utterance. A statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.

FRE 803: Hearsay Exceptions, Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a

witness:

(1) present sense impression

(2) excited utterance

(3) state of mind

(4) statements for medical diagnosis or treatment

(5) recorded recollection

(6) business records

Excited Utterance

Startling event that produced shock and excitement in the observer

Statement was made while observer was under the stress of the excitement (soon after event)

Statement was related to event

**NO requirement re: observer’s competency, unavailability, or ID**

risk of fabrication – circumstances may produce a state of excitement which temporarily

stills capacity to reflect and produces statements free of conscious fabrication

declarant must be in a state of excitement

U.S. v. Elem (1988)

convicted of felon possessing gun wants to admit exculpatory statements he

made to police while in custody:

Q: is that your gun?

A: no

inadmissible excitement and spontaneity supply indicia of trustworthiness and

reliability to support admission

nothing in record supports argument that he was excited enough to alter his

conscious reflections

statement must relate to the startling event (broader scope)

U.S. v. Obayagbona (1985)

undercover FBI agent bought heroin from (black and white dress) and other lady (colored

dress)

evidence: tape recording that gave drugs to agent out of her purse

admissible

excited utterance – statement about drug deal (exciting event) made while in state

of excitement (“exultant” about the arrest)

o State of Mind

Generally

(3) A statement of the declarant’s then existing is admissible, even if declarant is available

to testify

state of mind

emotion

sensation

physical condition (intent, plan, motive, design, mental feeling, pain, bodily health)

BUT NOT a statement of memory or belief (except in will challenges)

State Of Mind Exception

Statement contemporaneous with mental state sought to be proven

No suspicious circumstances suggesting motive to fabricate or misrepresent

State of mind relevant to issue in case

specialized application of present sense impression exception

U.S. v. Harris (1984)

drug prosecution based on info from former drug dealer/now informant in tape recorded

phone convos

theory – knew set up and cooperated b/c he was scared of what would happen if he

didn’t

evidence: PO officer testimony re: convos with in which stated he believed

government was persecuting him and trying to set him up

admissible depending on phraseology, either not hearsay or circumstantial

evidence showing state of mind

IF had stated he believed he was set up hearsay b/c evidentiary significance

depended on truth of the matter asserted – ’s belief

The Hillmon Doctrine

Mutual Life Insurance Co. v. Hillmon (1892) – Statements Admissible to Show

Declarant Acted in Accordance w/ State of Mind

“widow” sues life insurance policy company for not paying her policy after husband dies

disagreement over ID of dead body: H or W?

evidence: out of court letters written by W (person says is dead body) before he

disappeared saying that he was going with H

admissible state of mind – W thought he was going with H, whether he did is a

material fact

shows intention of going away likelihood that he did go jury can infer he did go

“ a man’s state of mind or feeling can only be manifested to others by countenance,

attitude, or gesture, or sound” regarded as verbal acts equally competent to

other forms of testimony

Shepard v. U.S. (1933) – State of Mind Exception n/a Past

husband convicted murdering wife claims wife suicide

evidence: wife to nurse: “go to my room and get whisky, I drank it right before I

collapsed, husband poisoned me”

inadmissible – state of mind exception n/a to past events

statements of memory and belief cannot be used to show past conduct

even though wife said husband poisoned her increased likelihood that husband

did poison her past

too confusing for jury: even w/ limiting instruction, jury would use it as evidence of

poisoning rather than rebuttal for suicide argument

U.S. v. Houlihan (1994) – State of Mind DOESN’T Apply to Future Conduct of Non-

Declarant

B told sister: “I’m going to meet H” – then found dead

could be admissible against H in murder trial to show meeting

FRE 803(3): statements of intent are admissible, not limited to a class of persons

against whom statements can be admitted R codifies Hillmon (out-of-court

statements of declarant are admissible to prove subsequent conduct of others)

had Congress intended to limit to specific s it would have

JDs split on whether independent evidence required

o Physical Condition/State of Body/Injury Reports

(4) Statements for purposes of medical diagnosis or treatment, describing medical history, or

past or present symptoms, pain, or sensations, or the inception or general character of the

cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment

must be made by patient for purposes of treatment or diagnosis

federal rule expands to cover statements made to Dr. hired solely for diagnosis

rationale: self-interest keeps patients honest

cause but not fault

Physical Condition/State of Body/Injury Report

Statement made to medical personnel for the purpose of diagnosis or treatment

NOT Statements specifying causation or fault

Rock v. Huffco Gas & Oil Co. (1991) – Medical Exception NOT Re: Specific Cause or Fault

ship employee ankle injury dies from vascular complications and infection

statements re: causation of injury NOT admissible – Drs. only need to know basic info

about type of injury, not the specific cause or ID of fault

State v. Moses (2005) – Statements of ID in DV Case Admissible

DV: wife + kids statements to social worker and ER Dr. (wife)

husband challenges admissibility b/c he was IDed as abuser

statements to Dr. admissible – attributing fault in DV case exception b/c ID of abuser is

pertinent and necessary to victim’s treatment

statements to social worker

kids statements NOT testimonial – not offered to prove truth of the matter asserted

introduced to show why SW called CPS not to show husband was abuser

wife’s statements inadmissible after wife knew SW called CPS b/c should have

realized implications of making statements

BUT admissions were harmless error b/c overwhelming untainted evidence of guilt

o Recorded Recollection

(5) A memo or record re: a matter about which a witness once had knowledge but now has

insufficient recollection to testify fully and accurately shown to have been made or adopted by

with witness when s/he still remember the event

can be read into evidence, but not received unless offered by an adverse party

rationale

g guarantee of trustworthiness b/c record made when witness clearly remembered

event better than inaccurate recollection

necessity – either admit hearsay written statement or have nothing

controversy – is memory impairment required?

witness can’t remember 2 options

past recollection recorded – document re: events witness once knew about but can’t

remember

evidence and read into record when prepared or adopted by witness when info was

fresh

Past Recollection Recorded

Document prepared or adopted by witness

Prepped/adopted when matter described was fresh in witness’s memory

Document correctly reflects what was remembered when it was made

Witness has insufficient recollection to testify fully and accurately about the matter

Document is authentic memo which has not been tampered with

present recollection revived – a witness’s memory that has been enhanced by showing

witness a document that describes the relevant events

memory stimulus NOT admitted into evidence

can use anything – picture, reference to other witness’s testimony, leading question

writing doesn’t need to be authentic, made by the witness, or have any independent

relevance

Past Recollection Recorded Present Recollection Revived

Item Preservation of info obtained in the past

ex: diary, list, tape, transcript

Anything that can be used to refresh

recollection; can be written but doesn’t

have to be (police report, picture,

leading question)

Marked as Exhibit YES YES

Given to Jury NO NO

Primary Evidence

Item relayed verbatim through oral

testimony of past knowledge

read into evidence

Reference to item (jogging of memory)

but primary evidence is oral testimony of

past recollection

CAN’T read from document

Hearsay Problem? Hearsay but w/i specific exception NO, not offered into evidence

Fisher v. Swartz (1955)

objected to admission of itemized statement of what was owed

admissible recorded recollection of testimony

made by witness when event fresh in witness’s mind

TC, in discretion, may allow witness to incorporate record into testimony and may even

read it

U.S. v. Riccardi (1949)

mover steals stuff owner has 2 lists of property moved – could only produce handwritten

one

evidence: owner refreshes her memory w/ lists she had made and appraiser used list to

testify re: value of property

admissible present recollection

so many items reasonable for owner to use list to remember what was packed and

testifies that she remembers packing them

didn’t have present recollection but uses list to jog memory

o Business Records

Generally

(6) Any form of a memo, report, record, or data compilation of acts, events, conditions,

opinions, or diagnoses, made at or near the time by or from info transmitted by a person

with knowledge if kept in the course of a regularly conducted business activity, and if it

was the regular practice of the business activity to make the memo etc, as shown by the

custodian or other qualified witness

"business" = business, institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit

rationale – should be admissible when sources of info and method/time of prep indicate

trustworthiness, unusual reliability b/c systematic checking, regularity, continuity,

precision, actual experience in business, duty to make accurate record as part of job

Business Records – Elements

For a Business Record to be Admissible Check for:

Entry made in regular

course of business

Entrant under duty to record

Records relate to primary business of organization

Form of record Any form is acceptable

Content of Entry

May contain: acts, events, conditions, opinions, or

diagnoses

MUST consist of matters w/i personal knowledge

of the entrant OR be transmitted to entrant by a

person who has personal knowledge and a duty

to report to entrant

Time of Entry At or near time of transaction

Time of Entry

Custodian’s testimony or other qualified witness

OR

Custodian’s certification or other qualified

witness

**unavailability of entrant NOT required**

State v. Acquisito (1983) – Sufficient to Have Custodian Testify Re: BR

2 alibi witnesses: didn’t go to work so they know was @ home admits payroll

record showing that they were working that day via payroll administrator

: common law rule should apply and all people involved in creating/managing record

must testify

CL out FRE in: CL rule doesn’t increase reliability + sufficient foundation w/

custodian testifying

Qualifying “Businesses”

Keogh v. Commissioner of IR (1983) – Sometimes Individual Personal Records

deficient income tax re: tips

individual’s personal records aren’t necessarily automatically NOT business records

when they show kept in the course of business activity, calling, or occupation

personal records systematically checked and regularly/continually maintained

co-worker who made same amount of tips recorded in diary admissible

regularly maintained (updated usually nightly, at most every 3-4d)

promptly made

based on knowledge

NO untrustworthiness – no motivation to fabricate, corroborated by payroll

records, no reason to doubt personal reliance

U.S. v. Gibson (1982) – “Business” Can Include Illegal Activities

convicted of heroin trafficking

evidence: ledger w/ records of drug transactions

admissible business record

record keeper testified that it was her regular practice to enter into ledger how many

balloons went out/day and how much money came in

recorded contemporaneously

record keeper relied on them

admissible even though incomplete and out of order

Qualifying Records

some incompleteness doesn’t disqualify record – Gibson

to ensure trustworthiness must appear that records were prepped in the regular course of

business activity involved AND regular practice to make record/entry in question

entrant under duty to record – must appear to be made by someone making records as

part of job NOT hobby or “unofficial” records

related to primary business – must appear records are a type customarily maintained by

the org. as part of its primary activities

records of acts, events, conditions, opinions, or diagnoses made in regular course of

business admissible

Palmer v. Hoffman (1943) – Accident Reports Prepped Primarily for Litigation

train accident engineer made statement and died before trial

accident report inadmissible NOT a business record

fact that a company has a policy of recording its employee’s versions of their

accidents business record

primary purpose of litigating, not railroading

motivation to fabricate to avoid liability

Lewis v. Baker (1975)

injured on the job wanted to introduce personal injury report and inspection report

admissible employees prepping report had no motivation to fabricate

prepping employees weren’t involved in accident and weren’t subject to liability from

it

ICC required reporting of accidents

reports had other purposes totality of circs. provide sufficient indicia of

reliability

prevent future accidents

investigate possibility of defective equipment

Sources of Information

entry must consist of matters either

w/i personal knowledge of entrant

transmitted to entrant by someone who was under business duty to report such matters

to entrant and who had 1sthand knowledge of facts

Wilson v. Zapata Off-Shore Co. (1991) – CAN’T Be Statement by Person Outside of

Business Incorporated into Inside-Business Person’s Statement

employee vs. employer sexual discrimination and emotional distress

evidence: social worker’s report including statement from sister: is habitual liar

NOT business record – can’t be from a person external to the business making the

statement and then incorporated into statement of person within business

Absence of Record

can use the absence of an entry in records of regularly conducted activity to prove the

“non-occurrence or nonexistence” of a matter that would have been reported there in the

ordinary course of business if it had occurred or existed

UNLESS sources of info or other circs. indicate lack of trustworthiness

U.S. v. Gentry (1991)

confessed to faking food tampering

challenged testimony of candy company employee that no other complaints of metal

in candy

admissible absence of a record of any complaints of pins in candy to prove non-

occurrence of an event

normally kept records of reports of metal in candy

o Public Records

(8) Records, reports, statements, or data compilations, in any form, of public offices or agencies

setting forth

activities of the office or agency

matters observed pursuant to duty imposed by law

EXCEPT law enforcement observations in criminal cases [CC concerns]

civil actions and proceedings against the Government in criminal cases factual findings

resulting from an investigation made pursuant to legal authority, UNLESS indicia of

untrustworthiness

rationale – assumption that public officer will perform duty properly and unlikely to remember

details independently of the record

factors to consider in admissibility

timeliness of investigation

special skill/expertise of official

whether a hearing was held and the level at which it was conducted

possible motivation problems

others

Public Records

Record must be prepared by public employee acting w/i scope of official duties duty to record

Personal knowledge of entrant generally required

Exceptions to Personal Knowledge Requirement

vital statistics – birth/death/marriage licenses recorded as they happen ensure

trustworthiness

agency operations – records re: activities/functions of governmental agency (records of

receipts and disbursements of government money)

matters required to be reported – info that government agency legally required to report

admissible

CAN’T use matters “observed” by police officers or other law enforcement

U.S. v. Oates (1977) – Evaluative Law Enforcement Reports Inadmissible in

Criminal Cases

drug possession

evidence: lab reports of a chemist who analyzed substance seized from co-,

chemist couldn’t testify @ trial

inadmissible hearsay in criminal case matters observed by law

enforcement OR factual findings resulting from authorized investigation

chemist are law enforcement personnel

substance was heroin law enforcement observations or fact finding

resulting from legal authority

clear legislative intent to make evaluative law inforcement reports

absolutely inadmissible against

prosecutorial use of any hearsay exception to admit evaluative law

enforcement evidence would violate ’s CC

non-adversarial reports – some JDs allow admission of reports re: law

enforcement observations against criminal that are “routine, nonadversarial

matters”

U.S. v. Brown (1993) – Non-Adversarial Police Records Admissible

runs away from police and throws gun on ground gun entered into

police property records later arrested never reclassified gun as

evidence gun destroyed pursuant to policy

receipt admissible non-adversarial

many JDs distinguish between police records prepped in routine,

non-adversarial setting vs. records made during subjective

investigation and evaluation of crime

no incentive to do anything other than mechanically record relevant

evidence on property receipt inherently reliable

State v. Forte (2006)

’s DNA recorded while in prison later matched to 3 SA-murder crime

scenes

NOT testimonial objective analysis and routine chain of custody info

don’t bear witness against ; neutral, not prepped specifically for ct,

agent had no interest in trial outcome

admissible business records created contemporaneously with work

as regular practice w/i ordinary course of business

admissible public records routine, non-adversarial matters, potential

use in court was only one purpose, also facilitated further investigation

Hinojos-Mendoza v. People (2007)

drug possession

evidence: lab report that IDs substance seized as cocaine, lists as

suspect, describes evidence tech didn’t testify

testimonial prepped at police direction, sole purpose to analyze

material in anticipation of prosecution, introduced @ trial to establish

elements of the charged offense

U.S. v. Orozco (1979)

drug conviction police found drugs in car : we just got back from

double date

evidence: computer data cards indicating car (license plate # recorded)

had crossed U.S.-Mex. border

record of license plate # admissible routine non-adversarial records

not intended to be excluded

check for reliability (computers)

no motive to fabricate

factual findings made pursuant to an investigation – admissible record containing factual

findings from an investigation made pursuant to legal authority

Beech Aircraft Corp. v. Rainey (1988)

fatal plane crash pilots’ surviving spouses sue plane manufacturer

evidence: investigative report of military commander: most probable cause

was pilot error

admissible parts of investigatory reports aren’t inadmissible just b/c they

state a fact or conclusion as long as

factual investigation

trustworthiness

hard to differentiate between fact and opinion all factual statements

are in some way affected by inference, reflection, memory,

observation)

o Former Testimony

(1) Testimony given as a witness at another hearing of the same or a different proceeding, or in a

depo taken in compliance w/ law in the course of the same or another proceeding, if the party

against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in

interest had an opportunity and similar motive to develop testimony by direct, cross-x, or

redirect

rationale

although hearsay b/c not live evidence in front of jury

former testimony given under oath, is usually in writing, giving under circumstances

suggesting the need for care and accuracy, and was subject to an adequate

opportunity for cross-x

only lacks opportunity for trier to observe demeanor

FRE 804 – Hearsay Exceptions; Declarant Unavailable

(a) Unavailability – situations in which the declarant--

(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; OR (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; OR (3) testifies to a lack of memory of the subject matter of the declarant's statement; OR (4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; OR (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

**NOT if no testify b/c wrongdoing of the proponent of a statement for the purpose of preventing witness from attending or testifying

(b) Hearsay Exceptions

(1) Former Testimony (2) Dying Declaration

(3) Statement Against Interest (4) Forfeiture by Wrongdoing

Elements of Former Testimony

Identity of Parties

witness’s recorded testimony from an earlier trial, depo, or proceeding ONLY admissible if

party against whom it is being offered

was a party to the earlier proceeding, had opportunity to cross-x, and similar motive to

develop witness’ testimony

predecessor in interest (civil)

def of predecessor unclear: JD split

o Lily – privity: predecessor from whom present party received title, right,

interest of obligation that is @ issue in current case

o Llyod – like motive to cross-examine about the same matters as the present

party would have

Clay v. Johns-Manville Sales Corp. (1984)

products liability for asbestos cancers

evidence: depo of Dr. who worked for from previous trial, died

before present trial

predecessor in interest

opportunity to cross-x (trial)

similar motive (death from asbestos exposure)

prior opportunity to cross-x in prior proceedings (criminal)

U.S. v. Solerno (1992)

o crime family construction co. rigging

o evidence: GJ witness testify that they weren’t involved presents

evidence they were @ trial invoke 5th Amendment b/c perjury

want to introduce GJ testimony

o inadmissible – didn’t show similar motive

plain meaning of FRE requires

proceedings with different functions (GJ and trial) w/ same parties and

case can have different motive

remanded to consider similarity of motive

o dissent (Stevens)

had adequate opportunity + similar motive to cross-x @ GJ chose

not to rigorously cross-x should be held accountable

Identity of Issues

issues don’t have to be identical, but must be substantially the same re: same subject

matter

now not really considered separate element b/c inherent in opportunity to cross-x by party

w/ same motive and interest

Unavailability of Witness Who Testified at First Trial

death

incapacity

physical and mental incapacity – too ill or disabled to testify (some JDs require

permanent [otherwise just postpone])

absence

Kirk v. Raymark Industries Inc. (1995) – Proponent has Burden to Prove

Unavailability; Failure to Contact is Not “Reasonable Means”

estate administratix products liability for asbestos products decedent encountered

@ work

evidence: expert testimony in different trial that ’s product caused mesothelioma

NOT admission by party opponent hearsay

expert who isn’t agent of party can’t be authorized to make admissions

expert NOT unavailable when no evidence proponent used reasonable – or any

– means to procure expert’s testimony

proponent of statement has burden of proving unavailability

mere absence of declarant doesn’t establish unavailability

didn’t offer to pay fee

didn’t even contact expert

refusal

Lack of Memory

Refusal

Privilege – U.S. v. Bollin (2001) – 5th Amendment Unavailable

convicted investment fraud

evidence: TC excludes redacted portions of GJ testimony

NOT unavailable – CAN’T rely on “unavailability” exception b/c invoke 5th

Amendment

o Dying Declarations

FRE 804(B)(2) – In a prosecution for homicide or in a civil action or proceeding, a statement

made by a declarant while believing that the declarant's death was imminent, concerning the

cause or circumstances of what the declarant believed to be impending death

rationale – necessity (justice – don’t want killer to be able to avoid conviction b/c victim is

dead) and reliability (fear of death)

ONLY available in civil matters or homicide prosecutions (for either side)

traditionally – only homicide

some state JDs – admissible for all actions

must concern death – causes or circumstances

don’t actually have to die – just need belief that it was imminent

Dying Declaration Requirements

Victim’s declaration – can’t be a third party’s deathbed confession that they killed victim (possibly

statement against interest)

Sense of Impending Death – made while victim believes death imminent (abandoned all hope of

recovery, conscious, and belief that death is immediately imminent) – BUT death doesn’t need to occur

immediately after declaration

Percipient Witness – victim must have usual capacities required of witness (perceive, relate facts,

recognize obligation to tell truth)

Facts Re: Cause of Death – must be re: cause or circumstances of what victim believed impending

death (CAN’T be just opinion, but self-serving ok)

Death – FRE: as long as statement made when declarant believed death was imminent don’t actually need

to die just be unavailable

Shepard v. U.S. (1933) – DD Requires NO Hope of Recovery

husband convicted poisoning wife

evidence: wife says husband poisoned her, asked nurse to have whiskey tested, not going

to get well, going to die

statements inadmissible NOT DD

dying declaration requires declarant to have spoken

in shadow of impending death AND

without hope of recovery

can be gathered from circumstances

even if period of recovery exceeds expectation

must be exhibited in evidence NOT conjecture

wife’s statements, made several weeks before death NOT dying declarations when

her condition @ time of declaration was apparently improved, and there was no

showing she had abandoned hope of recovery

U.S. v. Sacasas (1967) – Criminal Case Must be Homicide

bank robbery

new evidence: co-’s statement that didn’t have anything to do for robbery they were both

indicted for

Did declaration contain facts re: cause

or circumstances of what victim

believed to be impending death?

Did the victim make a declaration

believing death was imminent?

Was victim a percipient witness (able

to perceive, communicate facts,

understand obligation for truth)?

Is victim unavailable?

Admissible as DD in civil cases

and homicide cases

Yes

Yes

Yes

Yes

Inadmissible

NO

NO

NO

NO

made ~10 min before declarant lost consciousness died

statement inadmissible NO DD

not dying from being murdered

no one prosecuted for homicide

State v. Lewis (2007) – Testimonial DD Admissible

convicted of criminally negligent homicide and facilitation of attempted aggravated robbery

shop owner fatally shot during robbery before death told officer ’s info was on the counter

and said she was connected to the robbery

testimonial statement NO ongoing emergency

when statement made assailant had left

911 call made

statement in response to inquiries by investigating officers

BUT Crawford footnote: testimonial DD not excluded admissible

admissible evidence in DD is limited to that which the victim could have testified if present

lay opinion should only be admitted when it has reasonable basis

admissible record suggested that victim’s ID was rationally based on victim’s

perception

o Declarations Against Interest

(3) Statement that both:

(a) reasonable person in declarant’s position would have made only if the person believed it

to be true, b/c when made, is so contrary to

declarant’s proprietary or pecuniary interest or

tendency to invalidate declarant’s claim against someone else or

expose declarant to civil/criminal liability

(b) is supported by corroborating circumstances that clearly indicate it’s trustworthiness,

and tends to expose declarant to criminal liability (criminal)

Declarations Against Interest

Statement by non-party to action AND unavailable (necessity)

Statement sufficiently against important interests of declarant when made so that a reasonable person

in same position wouldn’t make statement unless believed it was true (trustworthiness)

U.S. v. Duran Samaniego (2003) – Declarant Must be Unavailable

claims boxing champion belts stolen end up being sold to undercover officer, seller

claims not stolen

BIL’s apologies for stealing admissible statement against interest

NOT admissible under state of mind exception – not admissible as a basis for an

inference of the happening of the event which produced the state of mind

statement against interest

subject to criminal liability

declarant unavailable – Panamanian citizen/resident tried to use declarant’s

immediate family to try to locate him

Against Interest –facts, to declarant’s knowledge, must be to declarant’s immediate substantial

prejudice @ TOD(eclaration)

against pecuniary ($$$) or proprietary (property) interest

civil liability

criminal liability

U.S. v. Jackson (2003) – NOT “Against Interest”

drug importation conspiracy

evidence: statements by co-conspirator that he didn’t supervise or ask him to smuggle

drugs

inadmissible weren’t self-inculpatory for co-conspirator/declarant and lacked

corroborating circumstances indicating trustworthiness

didn’t inculpate declarant or expose him to criminal liability

declarant made inconsistent statements about ’s role

Declarations Against Interest v. Admissions

Declaration Against Interest Admission

Statement by Party NO YES (and offered by opposing

party)

Declarant Unavailable YES NO

Declarant Personal

Knowledge of Facts

YES NO

Statement Against

Interest When Made

YES NO

o Forfeiture by Wrongdoing

A statement offered against a party that has engaged or acquiesced in wrongdoing that was

intended to, and did, procure the unavailability of the declarant as a witness.

if you are bad and try to subvert justice by hiding, threatening/intimidating, killing, bribing

witnesses witnesses unavailable and statements admissible

exception to CC

Giles v. CA (2008)

killed ex-gf

evidence: gf’s statements to police after DV call ~3k earlier

testimonial

NOT DD

FBW only applies when ’s conduct intended/designed to prevent witness from testifying

(@ CL)

DV often intended to dissuade victim from getting outside help (testimony to police

officers or helping prosecute) when fatal evidence could show that crime intended

to prevent testimony admissible

previous abuse, threats intended to prevent testimony, ongoing prosecutions in

which victim expected to testify highly relevant

remanded to consider intent

concurrence

Souter – intent can be inferred from abuser’s behavior in classic abusive relationship

could use expert testimony re: whether relationship is classic abusive relationship

Thomas – previously found that testimonial statements require more than police asking

questions

dissent

intent to kill = intent to prevent testimony/silence witness

majority gives abusers windfall kill or threaten victim to avoid conviction by taking

advantage of earlier crimes

IV. CHARACTER EVIDENCE

Basic Rule and Exceptions

rationale – unduly prejudicial

character – general description of disposition or disposition re: general trait

FRE 404 – Character Evidence

Evidence of a person’s character NOT admissible to show action in conformity therewith on a

particular occasion except:

(1) character of accused – evidence of a pertinent trait of character offered by , or by to rebut

the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an

accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the

accused offered by the prosecution.

: opinion or reputation; cross-x: specific instances of conduct

(2) character of victim – evidence of character trait of alleged victim offered by or by to rebut

the same, or evidence of a character of peacefulness of alleged victim offered by in a homicide

case to rebut evidence that alleged victim is 1st aggressor

: reputation and opinion evidence of victim’s character, where, if victim acted in

conformity w/ character conduct tend to prove ’s innocence

if says victim is first aggressor : can intro homicide victim’s peaceful

character ONLY time gets to initiate introduction of circumstantial character

evidence

(3) character of witness – Evidence of the character of a witness as provided in rules 607, 608, and

609.

o People v. Zackowitz (1930) – No Character Evidence in Criminal Trial Unless Opens It

victim insults ’s wife comes back with gun

evidence – 2 pistols and teargas guns in ’s apt. used to make inference of evil character

character evidence is never an issue in a criminal cause unless chooses to make it one

(consciously or implicitly opened character evidence door)

can’t intro character evidence

can’t introduce the fact that owned other weapons that he didn’t use or bring to the

crime to show his evil character

Is character evidence

offered to show action

in conformity with

character?

Admissible if offered

to show KIPPOMIA

(knowledge, intent, plan,

preparation, opportunity

motive, ID, or absence

of mistake or accident)

or if character or

reputation is in issue Is evidence offered:

by criminal to show

his good character

(or by to rebut the

same)?

by criminal to show

victim’s bad

character (or by

to rebut the same)?

by to show criminal

’s bad character

after attacked

same character

trait of victim?

to reflect credibility of

a witness?

Admissible

Inadmissible

N

O

N

O

YES

YES

o character evidence is “in issue”

o Cleghorn v. NY Central RR Co. (1874)

train accident caused by switchman’s negligence

evidence: switchman was drunk

admissible NOT offered to show that switchman acted in conformity w/ prior behavior of

being drunk at work offered to prove employer knew but didn’t fire him

o Character Evidence Admissible When Character = Element of Crime/Claim/Defense

Berryhill v. Berryhill (1982) – Custody

custody case

evidence: wife asks husband if ever killed anyone

character is in issue in custody case evidence re: character, conduct, reputation, and

fitness to be custodial parent admissible

asking if husband killed someone would be relevant to show a specific act of bad

character reflecting on fitness

Larson v. Klapprodt (1975) – Slander

slander: boss told people employee was alcoholic and promiscuous

character evidence re: past conduct or reputation

relevant

admissible to show truth in statements or mitigate damages (ex: character wasn’t that

great to begin with and wasn’t really hurt by statements)

o 3 Exceptions

criminal may introduce evidence of good character

can rebut with evidence of bad character

can use negative character evidence – “I haven’t heard anything bad about reputation”

criminal can present evidence of victim’s bad character (violent temperament, 1st aggressor)

can rebut with evidence of good character, or evidence of a peaceful character in a

homicide case to rebut evidence that alleged victim was first aggressor

character of witness to determine credibility

Methods of Proving Character

o Government of the Virgin Islands v. Roldan (1979) – Evidence of Social Habits = Open for

Character Evidence

character witness: unsociable introverted “did you know convicted of murder?”

by asking about social habits opened door character evidence prior conduct admissible

o Michelson v. U.S. (1948) – Direct: Only Opinion or Reputation [hearsay]; Cross: Conduct

convicted of bribing federal agent defense: only bribed b/c agent entrapped me!

evidence: produced good character evidence : “did you know was arrested for receiving

stolen goods?”

on direct witnesses can only testify about hearsay: CAN’T testify about specific acts or

misconduct – JUST opinion or reputation

on cross-x can testify about past acts

o U.S. v. Krapp (1987) – Can’t Ask “Did You Know”-Type Impeachment ?s

didn’t report stamp shortage convicted of making false records w/ intent to defraud US

evidence: character evidence of honesty : did you know ’s husband, w/ ’s knowledge, filed

false income tax returns?

inadmissible can’t ask “did you know”-type impeachment questions

prejudice if no basis in facts

o U.S. v. Setien (1991) – Testimony of Prior Good Acts NOT Admissible

airline baggage employee acquiesces/conspires to cocaine trafficking

evidence: co-conspirator testifies that didn’t get involved and told them conduct was bad

testimony of good conduct NOT admissible (specific conduct) to negate criminal intent

FRE 405 – Methods of Proving Character

(a) character evidence admissible testimony re: reputation or opinion

cross-x testimony re: specific conduct

(b) character is essential element of charge, claim, or defense testimony re: specific

instances of conduct

Other Uses of Specific Conduct

o Permissible Purposes

intent

U.S. v. Beechum (1978)

knowingly had coin stolen from mail

evidence: had 2 CC in wallet that were supposed to be mailed to people on his

mail route admissible to show intent

evidence of extrinsic offenses should NOT be admitted just to show ’s bad

character

2 step test

relevant – possession of stole CC shows intent less likely to return coin

when possessing other stolen goods

probative value substantially outweighed by potential prejudice

won’t confuse, mislead, waste time

probative weak case w/o intent evidence not cumulative

extensive jury instructions reduce prejudice

motive

U.S. v. Boyd (1995)

convicted of drug trafficking

evidence of personal drug use admissible to show motive

relevant – evidence used to prove motive to traffic drugs (needs more $$$)

not overly prejudicial – no more sensational/disturbing than crimes charged

opportunity

U.S. v. DeJohn

convicted of stealing checks

evidence: seen behind reception desk where mailbox w/ checks admissible

to show opportunity

relevant

probative

preparation/plan

Lewis v. U.S. (1985)

FRE 404 – Character Evidence: Other Crimes

Evidence of other crimes, wrongs, or acts NOT inadmissible to prove character in order to

show action in conformity therewith

However, may be admissible for other purposes:

motive

opportunity

intent

preparation/plan

knowledge

ID

absence of mistake or accident

**advance notice requirement unless during trial has good cause**

convicted of post office burglary

evidence of uncharged burglary of garage on same night admissible to show

preparation/plan

relevant

probative – stuff taken from garage used in post office burglary

knowledge

U.S. v. Crocker (1986)

conviction conspiracy to commit bank theft (helped get, prepare checks and drove

co- to different banks to cash checks)

evidence of prior involvement in a similar conspiracy admissible to show

knowledge that driving his friend and his checks was for illegal purpose

identity

U.S. v. Dossey (1977)

armed bank robbery can’t ID robber

evidence of participation in bank robberies close in time and w/ same distinctive

modus operandi and disguise admissible to establish ID

U.S. v. Wright (1990)

sold drugs in school zone to 3 Pos

evidence of wire tapped phone convo in which bragged about being a drug dealer

inadmissible evidence of other crimes to establish propensity to commit

type of crime charged

NO probative value – didn’t ID seller for school-zone sale

jury may be satisfied of guilt w/ standard of proof

absence of mistake or accident

o Requisite Proof

Huddleston v. U.S. (1988) – NO Preliminary Finding of Prior Act Required

selling/possessing stolen property (tapes)

evidence: sold stolen TVs, appliances admissible w/o preliminary PoE proof

ONLY inadmissible when NO jury could reasonably conclude prior act occurred

jury could have reasonably concluded that TVs were stolen properly admitted

Character and Habit

FRE 406 – Habit

Evidence of person’s habit or the routine practice of an organization – corroborated or not, and regardless of eye-witness presence – is relevant to prove conduct of person/org on a particular occasion was in conformity w/ habit or routine practice

knowledgeable witness testimony OR specific conduct

Character Evidence v. Habit Evidence

Character Evidence Habit Evidence

“Sally is always in a hurry.” “Sally always takes the stairs two at a time.”

“Bart is a drunk.” “Bart stops at Charlie’s tavern every night after work

and has exactly four beers.”

“Jeff is a careless driver.” “Jeff never slows down for the YIELD sign at the end

of the street.”

“Lara is very conscientious about taking care of her

possessions.”

“Lara checks the break on her car every Sunday

before church.”

o habit – regular response to repeated specific situation

probative than character evidence b/c individual’s habitual behavior is more consistent than

behavior based on character

routine practice of organization reliable b/c act w/ greater regularity

must show

degree of uniform response showing more than a mere tendency to act in a given manner

conduct was semi-automatic determined on case-by-case basis

o Loughan v. Firestone Tire & Rubber Co. (1985)

mechanic hurt by exploding tire piece

evidence: mechanic’s drinking habit

admissible evidence of drinking (admitted, fired from old job b/c drinking, supervisor: drank

on job) + habit of bringing cooler of beer to work from 3 sources

o Burchett v. Commonwealth (2003)

fatal car accident

KY doesn’t admit habit evidence

evidence that smoked pot every day prejudicial assume b/c regularly performs particular

act also did so on particular occasion

habit evidence overvalued, confusing, delay, distracting, and could be WRONG

V. TRIAL MECHANICS

Order of Proof

FRE 611 – Mode and Order of Witness Interrogation and Evidence Presentation

(a) Control by Court – Ct. shall exercise reasonable control over mode/order or interrogating witnesses

and presentation of evidence so as to

make it effective for ascertaining truth

avoid needless consumption of time

protect witnesses from harassment or undue embarrassment

(b) Scope of Cross-x – Cross-x should be limited to SM of direct-x and matters affecting witness’s

credibility

Ct. may discretionarily allow inquiry into additional matters as if on direct-x (to avoid confusion,

complication, or protraction)

o TC has ultimate responsibility, authority, and discretion

o Stone v. Peacock (1992) – Must Show Harm from Ct.’s Control Over Evidence

: wrongfully terminated b/c narked re: misuse of public property and $$$

TC requiring testify 1st NOT reversible error b/c no harm showed

o Elgabri v. Lekas (1992) – TC Decisions NOT Overturned Unless Prejudicial Abuse of Discretion

TC’s limit on ’s calling ’s witnesses during case-in-chief NOT reversible error

mode/order of questioning of witnesses in TC discretion

CoA doesn’t disturb courtroom management decisions unless abuse of discretion that

prejudices appellant’s case

Ct. limited ’s examination of s to SM that couldn’t be obtained any other way and allowed

unlimited cross-x of s

o U.S. v. Wilford (1983) – TC Has Discretion to End Trial

NO abuse of discretion when TC denied ’s request for surrebuttal to counter ’s witness

testimony because

witness wasn’t key witness

testimony was cumulative

o U.S. v. Carter (1990) – TC Can Admit Evidence Not Presented in Case in Chief

TC’s admission of testimony allowed to present evidence NOT offered in case-in-chief and

wouldn’t have been available on rebuttal, BUT NO abuse of discretion

probative value challenged alibis

Mode of Questioning

o U.S. v. Nabors (1985) – TC Ruling Re: Leading Questions Deserves Deference

armed bank robbery + conspiracy

key witness = 12yo nephew saw s laughing about money they had direct: kept asking

“what exactly did say?” and kid needed prompting that it was ok to say “Oh shit, Tray’s here.”

NO improper leading encouraging witness to repeat what witness had previously said to

, which included swear word

didn’t explicitly suggest language that witness was supposed to say

witness’s initial version omitted “shit” because he was reluctant to swear in court

TC’s ruling re: use of leading questions on direct of kid witness deserved deference b/c TC

in best position to evaluate emotional condition of child witness and hesitancy to testify

o Ellis v. City of Chicago (1981) – TC Decisions Re: Leading Questions for Own Witness NOT

Overturned Unless Clear Prejudice to Complaining Party

police officer shoots ’s dog responding to call after dog lunged at him

decisions re: circumstances justify leading questions on party’s own witness will not be reversed

unless clear showing of prejudice to complaining party

fellow policemen who were present for part of the incident and had worked closely with

officer = witnesses IDed w/ an adverse party

BUT refusal to allow leading questions NOT reversible error b/c only speculative harm

FRE 611 – Mode and Order of Witness Interrogation and Presentation of Evidence

(c) Leading Questions – should NOT be used on direct except when necessary (hostile witness,

adverse party, witness IDed w/ adverse party, child witness, witness can’t remember); permissible on

cross-x

Sequestering Witnesses

o U.S. v. Machor (1989)

federal agent who posed as prospective buyer during drug transaction exception to

sequestration rule as designated representative of

FRE has significantly restricted TC’s desertion to sequester ’s case agent

Questioning by Judge

o U.S. v. Tilghman (1998) – TC’s Questioning CAN’T Reveal Judge’s Assessment of Evidence,

Especially Witness Credibility

SSDI fraud testified that he didn’t know he was required to report income and was

questioned by TC objection

judge’s questioning improper deprived of fair trial reversed for new trial

juries decide whether witnesses are truthful + judges have enormous influence over jury

judges can’t ask questions that signal their belief or disbelief of witnesses

questioning may have given jury impression that TC doubted ’s credibility

intrusive questioning of witnesses and badgering didn’t negate prejudice to by

showing judge was evenhanded

while CoA gives deference, b/c it must protect ’s right to fair trial TC will be reversed

when witness management decisions affect substantial rights

FRE 615 – Exclusion of Witnesses

At party’s request (or on its own motion), Ct. shall exclude witnesses so they can’t hear testimony of other

witnesses except can’t exclude:

1. party (natural person)

2. officer/employee of (non-natural person) party designated as its representative by its attorney

3. person whose presence is shown by a party to be essential to the presentation of party’s cause

4. person statutorily authorized to be present

FRE 614 – Calling and Interrogation of Witnesses by Court

(a) Calling by Court: Ct. may, on own motion or on suggestion of party, call witness and all parties

are entitled to cross-x

(b) Interrogation by Court: Ct. may interrogate witnesses, whether called by itself or a party

(c) Objections: Objections to ct. calling witnesses or interrogation should be made at the time or at the

next available opportunity when jury not present

Questioning by Jurors

o slow of judges allowing jury to ask witnesses questions

o U.S. v. Hernandez (1999) – Jury Questioning Allowed w/ Appropriate Screening

TC allows jury to submit written questions for Ct. and atty review before being asked

NO abuse of discretion 1 fact question submitted but wasn’t even asked

jury questioning of witnesses during criminal trial is allowed as long as it is done in a

manner that ensures

fairness

primacy of court’s stewardship

’s rights

TC should screen questions, and only read to the witness after atty’s have had opportunity

to object outside jury’s presence

dangers of allowing oral questions outweighs any perceived benefit

o State v. Fisher (2003) – Appellate Standard = Abuse of Discretion

TC allowed jurors to ask questions via writing, after they were screened by ct. and attys

allowing jurors to question witnesses DOESN’T violate ’s right to impartial jury NOT error

TC has discretion to allow jurors to question witnesses and decision won’t be reversed w/o abuse

of discretion

those that do should

require questions submitted in writing

ensure jurors don’t display or discuss a question w/ others until read to witness

give attys opportunity to object to each question @ sidebar or otherwise outside jury’s

presence

instruct jurors that they shouldn’t draw adverse inferences from ct’s refusal to allow

certain questions to be asked

allow attys to ask follow-up questions of witnesses

VI. IMPEACHMENT AND REHABILITATION

Introduction

o impeachment – evidence used to undermine witness’s credibility testimony isn’t reliable

impeachment cross-x

two stages

own testimony through cross-x must have good faith basis for inquiry

facts prove by extrinsic evidence

Questioning by Jurors

Questioning by jurors should be allowed with appropriate screening:

require written questions

prevent sharing or discussion questions w/ other jurors unless and until asked to witness

give opportunity to object outside jury’s presence

instruct shouldn’t draw adverse inferences based on ct’s refusal to ask certain questions

allow atty’s follow up questions

Appellate standard: abuse of discretion

FRE 607 – Who May Impeach

Witness’s credibility may be attacked by any party, including the party calling the witness.

FRE 806 – Attacking and Supporting Declarant’s Credibility

Hearsay statement or authorized/employee/agent/co-conspirator admission admitted can attack

declarant’s credibility credibility can be supported by any evidence which would have been admissible for those purposes as if declarant had testified as a witness

Evidence of statement/conduct inconsistent w/ declarant’s hearsay statement NOT subject to requirement that declarant had opportunity to explain or deny

If party against whom a hearsay statement has been admitted calls the declarant as a witness entitled to examine declarant re: statement as if cross-x.

Methods of Impeachment

Impeachment Method Means of Proof Foundation

Contrary Evidence Cross-x

Extrinsic evidence

None required

Sensory Deficiencies Cross-x

Extrinsic Evidence

None required

Conviction of Crimes (FELONY

OR DISHONESTY)

Cross-x

Record of judgment

None required

Specific Instances of Conduct

(Bad Acts)

Cross-x ONLY N/A

Opinion or Reputation for

Truthfulness

Calling other witnesses None required

Bias, Hostility, or Adverse

Interest

Cross-x

Extrinsic Evidence

Witness must be asked on cross-x re: facts

showing bias or interest before extrinsic

evidence allowed

If facts admitted on cross-x extrinsic

evidence admissible w/i TC discretion

Prior Inconsistent Statements Cross-x

Extrinsic Evidence

Intrinsic Evidence

Witness must be given opportunity to

explain or deny inconsistent statement AND

other party must have opportunity to

rehabilitate (Exception for hearsay

declarants and where interests of justice

require.)

NO foundation required

Character for Untruthfulness

o In General

similar to character evidence proving witness lied b/c has lying nature

FRE 608 – Evidence of Witness’s Character/Conduct

(a) Opinion and Reputation Evidence – witness’s credibility can be attacked or supported by

opinion/reputation evidence as long as:

1. evidence re: ONLY character for (un)truthfulness AND

2. evidence of truthfulness ONLY after character for truthfulness has been attacked

(b) Specific Instances of Conduct – specific instances of conduct – except conviction under FRE

609 – CAN’T be proved by extrinsic evidence

1. Ct. has discretion to allow cross-x of witness re:

i. witness’s character for (un)truthfulness OR

ii. re: character for (un)truthfulness of another witness as to which character witness is

being cross-x has testified

**Testimony by or any other witness waiver of 5th Amendment privilege when examined ONLY re:

character for truthfulness)**

U.S. v. Lollar (1979) – Who Chooses to Testify Character an Issue Evidence re:

Believability as Witness [Opinion] Admissible

testify recalled witness to ask if they would believe that would be truthful under

oath “no”

once chooses to testify puts credibility at issue:

can’t attack character in general

can intro evidence re: believability as witness witness can be asked whether

would believe under oath

U.S. v. Rosa (1989) – Witness Can Be Cross-x Re: Prior Criminal Conduct When

Indicative of Truthfulness/Credibility

drug trafficking ring

TC prohibited s from cross-x co- about prior criminal conduct that witness hadn’t been

convicted of

TC has discretion only overturned for abuse of discretion NO abuse of discretion

prohibited questions re: bribery NOT indicative of truthfulness

allowed questions re: fraudulent insurance claim indicative of credibility

allowed questions re: conspiracy/loyalty to crime family to extent indicative of

credibility

Prior Bad Acts

prior bad acts not amounting to a criminal conviction may be introduced if:

act/conduct is probative of witness’s truthfulness NOT just general good character

evidence must be brought out solely in cross-x of witness + questioner must take

answer of the witness NO extrinsic evidence

questioner has reasonable good faith basis to believe witness engaged in conduct

U.S. v. Ling (1978) – Must Accept ’s Answer re: Specific Acts of Past

[Unconvicted] Misconduct

o charged with drug conspiracy cross-x: testified that he owned guns but never

shot/threatened to shoot anyone PO testify fired gun in public place

o when cross-x: must accept ’s answer re: specific acts of past misconduct not

subject to conviction CAN’T produce independent proof to show falsity of answer

can keep pressing to get to give answer, but can’t ask anyone else to prove

misconduct after denial

U.S. v. White (1992) – Can’t Use Extrinsic Evidence to Prove Specific Instances of

Misconduct

o want to intro evidence that ’s star witness had previously offered to fabricate

testimony for leniency

o can ONLY get info through cross-x CAN’T prove specific instances of misconduct

by extrinsic evidence

only wanted extrinsic evidence to show proclivity for lying probably lying now

(INadmissible under 404b)

U.S. v. Aponte (1994) – CAN’T Intro Witness Written Statement to Show Lies

FRE 610 – Religious Beliefs or Opinions

Evidence of religious beliefs/opinions is NOT admissible to show witness’s credibility is impaired

or enhanced.

BUT can ask about religion to show interest or bias.

o convicted of robbing mail truck

o ’s witness’s sworn statement containing lies and other documents where witness gave

false descriptions of “robbers” [extrinsic evidence] offered to show witness’s capacity

for deception INADMISSIBLE as specific instances of conduct

o Prior Criminal Convictions

Admissibility of Convictions

Conviction is Admissible for Impeachment Purposes IF:

Conviction involves a crime of dishonesty or false statement (NO balancing test) OR

Conviction is a felony (CP or 1+y prison) and

witness = more probative than prejudicial or

other witness probative value is NOT substantially outweighed by prejudicial effect

AND

Witness NOT pardoned for crime (if based on witness’s innocence or rehabilitation) AND

Conviction is not too remote – 10+y elapsed since date of conviction or release from prison

Admissible and Inadmissible Convictions

U.S. v. Wong (1983) – NO Balancing Test for Admitting Crimen Falsi Convictions

TC Has NO Authority to Exclude a Criminal Conviction of Dishonesty or False

Statements B/C Too Prejudicial

convicted of mail fraud and RICO

when testifiedTC intro convictions for mail and Medicare fraud

TC CAN’T exclude evidence that witness had been previously convicted for a crime

involving dishonesty or false statement b/c general balancing test for admission N/A

to impeachment by crimen falsi convictions

legislative history

final rule: conviction involving dishonesty/false statement always admissible to

impeach

FRE 609 – Impeachment by Criminal Conviction Evidence

(a) General Rule: For the purposes of attacking a witness’s character for truthfulness:

(1) evidence that witness – NOT – has been convicted of a felony (CP, 1+y prison) admissible, subject to limitations for prejudice, confusion, waste of time (FRE 403) evidence

that has been convicted of a crime admissible if probative value outweighs prejudice and

(2) evidence that witness has been convicted of a crime involving dishonesty or false statements is admissible regardless of punishment IF elements of crime required proof/admission of dishonesty or false statements by witness

(b) Time Limit: Evidence of a conviction is NOT admissible 10y+ since date of conviction or release

from prison (whichever is later) UNLESS Ct. determines in interest of justice that probative value

outweighs (w/ specific facts and circumstances) prejudicial effect AND proponent must give

adverse party notice and fair opportunity to contest

U.S. v. Amaechi (1993) – Crime of Dishonesty Must Contain “Tinge” of Falsification

NOT Simple Shoplifting

drug trafficking

witness “convicted” of misd shoplifting sentence: supervision conviction

NO conviction NOT admissible to attack credibility

shoplifting itself NOT crime of dishonesty

drafters excluded crimes that don’t contain “tinge” of falsification

including shoplifting would swallow the rule and admit any conviction

U.S. v. Sanders (1992) – Admission of ’s Prior Convictions Subject to Probative

Value v. Prejudice Balancing Test

convicted of assault w/ dangerous weapon w/ intent to do bodily harm + possession of

contraband (shank) for assault on fellow inmate

testified cross-x re: prior convictions for assault and contraband

prior convictions inadmissible

although they had some probative value for lack of credibility highly

prejudicial b/c involved exact same conduct

admission of a similar prior conviction does little to impeach but really suggests

propensity for assault and violence high probability committed current

charge

limiting instruction not sufficient

U.S. v. Oaxaca – Prior Conviction NOT Automatically Excluded Just b/c Same as

Current Crime Must Weigh w/ Balancing Test

bank robbery testified TC allowed impeachment by 2 prior convictions for burglary

and bank robbery

admissible NO abuse of discretion

convictions reflected on honesty/credibility, especially important to ’s alibi

prior conviction not automatically excluded just b/c same as current crime

must weigh w/ balancing test

U.S. v. Hernandez (1997) – TC Can Admit Similar Offenses When Credibility is an

Important Issue

convicted of kidnapping

TC admits prior conviction for drug possession

admissible NO abuse of discretion

kidnapping was related to drugs b/c ransom $$$ intended to pay back drug deal

TC determined that despite similarity in offenses, prior conviction was

admissible given importance of credibility

TC was aware of danger of prejudice and gave limiting instruction

Preserving Claims of Error

Luce v. U.S. (1984) – Must Testify to Raise and Preserve a Claim of Improper

Impeachment

drug charges moved to exclude impeachment by prior conviction *IF* he testified

no commitment to testify or what testimony would be about

to raise and preserve for appeal claim of improper impeachment w/ prior conviction

must testify

don’t know that didn’t testify b/c of threatened impeachment

don’t know if TC would have allowed impeachment

don’t know if would have tried to impeach

not requiring testimony automatic windfall reversal for

Ohler v. U.S. (2000) – CAN’T Testify About Priors on Direct AND Preserve Improper

Impeachment Claim for Appeal

motioned to admit evidence of prior felony as impeachment testified re: prior

before could cross-x

who pre-emotively intros evidence of a prior conviction on direct CAN’T on appeal

claim the admission of the evidence was erroneous

CAN’T take away ’s choice to use evidence by testifying about it first and

then preserve issue on appeal

Prior Inconsistent Statements

o NO foundation requirement for prior inconsistent statement on cross-x

o U.S. v. Lebel (1979) – NO Timing/Sequence Requirement for Confrontation and Opportunity to

Explain/Deny

drug trafficking

TC excluded evidence from prior trial that witness didn’t ID then later did

harmless error

ID or non-ID of persons in courtroom = statement for purpose of prior inconsistent

statements

error to require immediate confrontation with inconsistent statement since FRE doesn’t

specify any particular order

BUT harmless b/c impeaching collateral matter and had opportunity (2 ½ d) of calling and

confronting witness w/ ID and non-ID

o U.S. v. Dennis (1980) – Inconsistent Includes Evasive Answers, Inability to Recall, Silence, or

Changes in Position

TC admitted prior inconsistent statements made in GJ: witness testifies @ GJ re: crimes and that

threatened him, @ trial denies or doesn’t remember making statements

statement NOT hearsay TC determined testimony inconsistent read inconsistent

statements to impeach

inconsistency not limited to diametrically opposed answers, but may be found in evasive

answers, inability to recall, silence, or changes in position

TC limited use to minimize evidentiary costs

o Morlag Rule – CAN’T impeach own witness to sneak in prior statements for truth of the matter

asserted that would otherwise be inadmissible

key is knowledge of witness’s answer good faith or bad faith?

o U.S. v. Ince (1994) – CAN’T Try to Avoid Hearsay Rule w/ “Impeachment” of Otherwise

Inadmissible Evidence

convicted for assault w/ dangerous weapon

FRE 613 – Prior Inconsistent Statements

(a) Examining Witness re: Prior Statement: When questioning witness re: prior statement (written or oral)

DON’T need to show statement to witness, but upon request should be shown/disclosed to opposing

counsel

(b) Extrinsic Evidence of Witness’s Prior Inconsistent Statement: Extrinsic evidence of prior inconsistent

statement NOT admissible unless witness given opportunity to explain/deny AND opposite party

given opportunity to cross-x on explanation

**N/A to admissions by party-opponent**

evidence original witness statement “ admitted crime” both trials couldn’t remember statements

even though shown statements

INADMISSIBLE [Morlag rule] can’t try to get around hearsay rule w/ “impeachment” of

otherwise inadmissible evidence

b/c witness testified in earlier trial that she couldn’t remember knew she would

testify that she couldn’t remember

ONLY impeaching witness to get evidence of original statement ( admitted crime)

admitted as substantive evidence

o U.S. v. Webster (1984) – Party DOESN’T Violate Morlag Rule When Request Time to Determine

What Witness Will Testify About Outside Jury’s Presence

convicted aiding and abetting federal bank receiving stolen $$$

evidence: co- exculpatory testimony @ trial admit evidence of prior inconsistent

inculpatory statement to FBI agent

can’t call witness knowing wouldn’t give useful evidence just to introduce hearsay evidence

against hoping jury wouldn’t be able to distinguish impeachment v. substantive evidence

BUT when , before calling witness asked to examine witness w/o jury present b/c she

didn’t know what witness would say but ’s objection to it was granted CAN’T say

violated Morlag rule

wouldn’t have requested time to figure out witness’s testimony

Bias and Incapacity

o NO specific FRE re: impeachment for bias and incapacity

o bias – witness has motive to lie

U.S. v. Abel (1984) – Bias Testimony is Relevant to Impeach

@ trial co- implicated in bank robbery ’s witness: co- told me he planned to falsely

implicate co- recalled to testify that himself, , and ’s witness were members of

secret prison gang requiring members to deny existence and lie, steal, cheat, and kill to

protect each other

admissible evidence re: gang membership probative enough of possible bias

bias testimony is relevant tenancy to make facts to which witness testified less

probable than w/o bias testimony

testimony re: prison gang relevant

NO abuse of discretion – considered counter arguments, prohibited use of name of

gang, offered limiting instruction, sustained some objections

o incapacity – witness’s memory or perception is unreliable (mental or physical)

U.S. v. Sasso (1995) – Evidence of Psych. Problems + Meds That Didn’t Effect Ability to

Perceive and Weren’t Taken During Time About Which Witness Testifies NOT

Admissible

illegal gun trafficking witness testifies about incriminating statements between s

TC did NOT abuse discretion in excluding evidence that witness took Prozac + therapy

after accidently killed co-worker

NO indication of probative value: timing – not on meds @ time of observations – and

didn’t effect ability to perceive

Henderson v. Detella (1996) – Evidence of Drug Use Inadmissible w/o Showing Impact on

Perception or Memory

convicted murder and attempted murder (of witness)

TC properly excluded evidence from acquaintance that witness used drugs

w/o connection to cognitive abilities drug use only used to impeach character

Specific Contradiction

o no specific governing rule judge-made restriction

part of witness’s testimony is false jury should decide to disregard rest of testimony

NO extrinsic evidence allowed

test for collateral matter – would the party seeking to introduce it for purposes of contradiction be

entitled to prove it as part of it’s case?

NO can’t impeach

YES impeach

if there is some relevance to matter at issue NOT collateral matter admissible to

impeach

Collateral Matter Inadmissible NOT Collateral Matter Admissible

Extrinsic evidence/2nd Witness Testimony CAN’T be

used to discredit by:

Extrinsic evidence/2nd witness testimony

CAN be used to discredit by:

Unconvicted bad acts Prior conviction for felony or crimen falsi

Witness’s testimony was incorrect re: some point that

is not independently relevant to the case

Witness has bad character for

truthfulness

bad reputation

opinion

NOT specific instances of past

behavior

Prior statement inconsistent w/ trial testimony re:

immaterial issue

Bias

Sensory or mental defect

o Simmons Inc. v. Pinkerton’s (1985) –

security guard K security guard (’s employee) arson

TC admits arsonist’s testimony that he told he had passed polygraph admits on cross-x 1st

test inconclusive never scheduled second one

TC could decide that a relevant fact (specific incident of conduct) to witness’s credibility – lied –

is sufficiently important and probative to be elicited on cross-x

NO extrinsic evidence confusion, prejudice, waste of time

arsonist’s lie probative of his character for truthfulness proper to allow ? on cross-x

BUT can’t use extrinsic evidence TC properly used discretion

o U.S. v. Copelin (1993)

convicted drug dealing : mistaken ID

evidence: prior positive drug tests to contradict statement that had never seen drugs except on

TV

attempt to impeach through contradiction = legit reason to intro evidence of other crimes

admissible if probative outweighs prejudice

relevant (tending to prove or disprove) to ID (wasn’t someone else

impeached by intrinsic evidence (own statement) no collateral evidence rule problem

Rehabilitation

o In General

rehabilitation – introducing evidence that suggests witness is credible

response to impeachment CAN’T rehabilitate before impeachment (bolster)

support must meet attack if doesn’t meet attack evidence should be excluded based on

probative value insufficient to justify resulting confusion and waste of time

U.S. v. Lindemann (1996) – Bolstering Prohibition N/A to Bias, Incapacity, Inconsistencies

ONLY Subject to Relevance Standard

conspiracy to kill horses to get insurance $$ FBI informant implicates

cross-x: attack informant’s credibility by suggesting he only implicated to get plea deal

wanted to intro informant testimony that he narked on many people so didn’t need to

implicate to get plea deal

bolstering evidence inadmissible b/c

longer trial

asks jury to take witness’s testimony on faith

jury doesn’t listen as carefully for inconsistencies etc. in testimony

bolstering n/a in bias, incapacity, inconsistencies admissible if meet FRE 403

relevance standard

attacked testimony as biased only needs to be relevant to be admissible

relevant – probable that witness was biased based on self interest b/c had

multiple bargaining chips admissible

attacked credibility first by alleging bias gets to respond

o Character for Truthfulness

Beard v. Mitchell (1979) – Prior Inconsistent Statement = Attack

sister of murder victim sues FBI agent for screwing up and not preventing death

TC allows evidence of agent’s truthfulness

admissible attacked credibility w/ inconsistent statements

CoA can’t say that TC erred b/c inconsistent statements may be considered attacks

FRE 608 – Evidence of Witness’s Character and Conduct

(a) Opinion and Reputation Evidence of Character – Witness’s credibility can be attacked or supported

by opinion or reputation evidence, but:

1. ONLY character for (un)truthfulness

2. ONLY admissible after witness’s character for untruthfulness has been attacked by opinion or

reputation evidence or otherwise

evidence of bias or interest attack

misconduct – incl. criminal conviction – + opinion/reputation = attack

contradiction depends

(b) Specific Instances of Conduct – Witness’s specific conduct to show or attack witness’s character for

truthfulness – except criminal conviction FRE 609 – CAN’T be proved by extrinsic evidence BUT if

probative can be asked cross-x re:

1. witness’s character for (un)truthfulness

2. another witness’s character for (un)truthfulness as to which character the witness being

cross-x has testified

**Giving testimony by or another witness NOT waiver of 5th Am. when questioned re: character for

truthfulness*

U.S. v. Danehy (1982) – Prior Inconsistent Statement Attack

tried to ram Coast Guard boat and resisted arrest when CG came on his boat

’s evidence re: credibility and truthfulness NOT admissible

offering evidence to bolster self as witness, not to show character trait relevant to

crime charged FRE 608 applies

mere fact that a witness is contradicted by other evidence an attack upon his

reputation for truth and veracity so as to allow him to introduce evidence of his

reputation for truthfulness.

pointing out inconsistencies in testimony + arguing that ’s testimony wasn’t

credible attack TC properly excluded evidence re: reputation for

truthfulness

U.S. v. Drury (2005) – Leading and Accusatory ?s on Cross-x NOT Attack

hired undercover agent to kill wife and provided gun

leading and accusatory questions on cross-x NOT attack on character just pointing out

inconsistencies NO rehabilitation allowed

U.S. v. Murray (1997) – CAN’T Use Specific Conduct or Extrinsic Evidence Even After

Witness’s Credibility Attacked Can Use Opinion or Reputation

drug informant cross-x re: drug use, connection to dealers, drug and theft convictions,

unlawful carrying unlicensed firearm, concealing drug use, $$ for informant work, prior

inconsistent statements

call police officer testify about informant

being reliable admissible (truthfulness)

the number of cases he “made” inadmissible b/c extrinsic evidence of specific

instances of conduct to support credibility

o Prior Consistent Statements

NO specific rule governing FRE 801(d)(1)(B) – excludes prior consistent statements from

hearsay

consistent statement must be made EARLIER in time than inconsistent statement to be

admissible to impeach

use of nature of prior inconsistent statement must rise to level of implied charge of fabrication

Tome v. U.S. (1995) – FRE 901(d)(1)(B) Permits Use of Declarant’s Out of Corut Statement

to Rebut Charge of Recent Fabrication, Improper Influence or Motive ONLY When Those

Statements Made BEFORE Charged Recent Fabrication/Improper Influence/Motive

child abuse

implied kid had motive to lie b/c wanted to live w/ mom instead of dad TC allows

to intro testimony from other witnesses that kid told them about abuse before motive

developed

prior consistent statements are only admissible to rebut charge of recent fabrication or

improper influence when consistent statements were made before the charged recent

fabrication/motive/influence

must show fabrication occurred between prior consistent statement and testimony

TIMING

U.S. v. Simonelli (2003) – When Prior Consistent Statements NOT Offered for Truth – Just

Rehabilitation – FRE 801(d)(1)(B) N/A TC has Discretion

convicted false income tax returns and conspiracy

intro inconsistent GJ statements introduce consistent GJ statements

not offered for their truth – just rehabilitation – FRE 801 n/a TC has discretion

harmless error of cumulative evidence

VII. COMPETENCE

In General

o competence – a witness is competent when s/he is allowed to testify

then – children, felons, atheists, mentally ill, parties to suit can’t testify

now – pretty much anyone should be allowed to testify and jury sort out credibility

signals willingness to trust jury to judge good vs. bad witnesses, but not good v. bad

evidence

o FRE eliminates ALL grounds for incompetency not specifically recognized in FRE

o Rosen v. U.S. (1918) – Pretty Much Everyone Should Be Able to Testify Fact-Finder

Determines Weight Criminal Competent

likelihood of truth if everyone of competent understanding who seems to have knowledge of

facts testifies leave credibility and weight to be determined by jury or judge (bench trial)

rather than rejecting witnesses as incompetent

o U.S. v. Lightly (1982)

inmate assault 2 inmates charged : defense “I saw them fighting and I broke it up, co

cut me” + corroborated by 3 other inmates

evidence: tried to call co, would have testified that only he not assaulted but TC ruled

incompetent b/c he was criminally insane and unable to stand trial

TC erred inexcluding co testimony on grounds that co insane

Dr. testified that co had memory and personal knowledge, understood oath, and could

communicate what he wanted to say

valuable testimony

new trial

Personal Knowledge

o witness must have personal knowledge

o problem: often have to determine witness’s credibility to establish personal knowledge

o U.S. v. Hickey (1990) – Personal Knowledge Unless NO Reasonable Juror Could Conclude

Witness Had Ability and Opportunity to Perceive Events Testifying About

drug conspiracy pursuant to plea agreement co testified against but witness cocaine

addict, lack of memory about details, and inconsistencies

testimony shouldn’t be excluded for lack of personal knowledge unless no reasonable juror

could believe that witness had ability and opportunity to perceive event he testifies about

FRE 601 – General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules.

However, in civil actions and proceedings, re: element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law (pretty much only diversity suits)

FRE 602 – Lack of Personal Knowledge

Witness CAN’T testify to something unless there is evidence to show that witness had personal

knowledge

evidence doesn’t have to be witness’s own testimony

n/a opinion testimony of expert witness

even though most testimony was unbelievable and witness’s ability to perceive was

impaired sometimes reasonable juror could believe witness’s testimony NO

abuse of discretion admissible

Oath or Affirmation

o U.S. v. Ward (1993)

filed motion to challenge oath and proposed new oath replacing “truth” w/ “fully integrated

honesty” in addition to regular oath

TC denied motion b/c historical oath shouldn’t’ be changed just b/c wants to didn’t

testify or present any witnesses

TC’s refusal violates 1st Amendment ’s revised oath didn’t content or substance of oath

point is to tell truth under penalty of perjury

believed his oath imposed a higher duty to tell truth

new trial

o U.S. v. Allen J. (1997) – Juvenile Competent Unless Compelling Reason to Question

juvenile victim possible MR competent to testify

juveniles presumed competent unless compelling reason to question competence

knew difference between truth and lie

knew must tell truth in ct

knew punishment for lying

inconsistencies in testimony went to credibility, not competence

Competence and Constitution

o Rock v. AR (1987)

wife charged w/ manslaughter death of husband during fight couldn’t remember exact

details hypnosis: remembered she didn’t have finger on trigger and gun went off when

husband hit her expert testimony gun was defective

TC excluded hypnosis testimony

per se rule excluding all post-hypnosis testimony infringes on right to testify w/o clear

evidence repudiating all validity of it

not always so untrustworthy and so immune to traditional means of evaluating credibility

that it should prevent from presenting version of events

safeguards inaccuracies

independent specially-trained psych

tape recording everything before during and after

cross-x

expert testimony

limiting instructions

should have considered: expert’s corroboration of hypnotically enhanced memories +

TC conclusion that recordings of hypnosis sessions no suggestion/leading questions

VIII. OPINIONS AND EXPERTS

Lay Opinions

FRE 603 – Oath or Affirmation

Before testifying every witness required to declare that witness will testify truthfully by oath or

affirmation administered in a form calculated to awaken witness’s conscience and impress witness’s

mind w/ duty to testify truthfully

o examples of permissible lay witness opinions

physical appearance

recognition

emotional state of another

speed (approximate NOT definite measurements of excessive MPH), distance, temperature

value of one’s own goods or services

visible signs of irrational behavior

odors

o U.S. v. Meling (1995) – Lay Opinion Testimony Admissible When Helpful and Rationally Based

on Wittiness’s Perceptions

tried to kill wife w/ Sudafed laced w/ cyanide covered tracks by putting some tampered meds in

stores 2 more people died

evidence: EMTS and 911 operator testify faking grief

admissible

rationally based on their perceptions

helpful to jury in determining whether was faking

911 operator could compare calls to judge whether faking better than jury

o Government of Virgin Islands v. Knight (1993) Lay Opinion Testimony Admissible When Helpful

and Rationally Based on Wittiness’s Perceptions

hitting guy in head w/ gun gun went off guy dies

evidence: eyewitness and PO testimony accident

PO officer testimony inadmissible no personal knowledge

eyewitness admissible: based on perception and helpful to jury in determining facts

BUT harmless error b/c even conceded accident

Robinson v. Bump (1990) – Lay Opinion Testimony Admissible When Helpful and

Rationally Based on Wittiness’s Perceptions

fatal car accident ’s estate v. truck driver

evidence: other driver testified that was in control of truck until hit by other truck

FRE 701 – Lay Witness Opinion Testimony

If witness is not testifying as an expert, witness’s opinion or inference testimony limited to opinions or

inferences which are:

(a) rationally based on witness’s perception AND

(b) helpful to a clear understanding of the witness’s testimony or the determination of a fact at issue

AND

(c) NOT based on scientific, technical, or other specialized knowledge [FRE 702]

FRE 704 – Opinion on Ultimate Issue

(a) Except as provided in (b) opinion or inference testimony otherwise admissible is NOT

objectionable b/c it embraces an ultimate issue to be decided by trier of fact

(b) Expert witness testifying re: ’s mental state/condition in a criminal case CAN’T state opinion

or inference re: whether did or did not have mental state/condition constituting an element of

the charged crime ultimate issue ONLY for trier of fact to decide

admissible

rationally based on witness’s perception of truck

helped jury assess negligence

U.S. v. Peoples (2001) – When PO Isn’t Testifying as Expert Testimony ONLY Admissible w/

Personal Knowledge

FBI agent testifies re: her translation/interpretation of recorded (wiretapped) convo betw.

cos

when PO isn’t qualified as an expert lay opinion testimony only admissible when PO has

personal knowledge of the facts relayed in the convo, participating, or observed convo

testimony inadmissible NO firsthand knowledge based on investigation after the

fact

NOT harmless error testimony seriously influenced jury so that can’t confidently say

that no significant possibility that it had a substantial effect on jury’s decision to

convict

U.S v. Ayala-Pizarro (2005)

drug charges

evidence: PO testimony about whether location of arrest is drug point and packaging

NOT expert testimony

based on personal experience and experience

helpful to jury

didn’t take special knowledge to conclude that people @ drug point often have weapons

or figure out where drugs are being sold

jury could make own decisions aided by other independent evidence

Expert Testimony

o Permissible Subjects and Scope

Hatch v. State Farm Fire & Casualty Co. (1997) – Expert Testimony on Good Faith and

Fair Dealing And the Effect of Insurance Co.’s Ad. NOT Specialized Knowledge,

NOT Helpful

wouldn’t pay for house fire b/c believed husband started it husband acquitted of

arson

in trial for breeching duty of good faith and fair dealing expert testimony on insurance

industry standards of good faith and fair dealing

FRE 702 – Expert Testimony

Expert testimony is admissible if:

(1) If scientific, technical, or other specialized knowledge will help trier of fact to understand the

evidence or determine a fact in issue

(2) a witness qualified as an expert by knowledge, skill, experience, training, or education

(3) the testimony is based upon sufficient facts or data

(4) the testimony is the product of reliable principles and methods AND

(5) the witness has applied the principles and methods reliably to the facts of the case

expert’s testimony re: whether was living up to its advertising slogan “Like a good

neighbor” properly excluded

NOT specialized knowledge

extraneous and non-legal standard

required no specialized knowledge

couldn’t help jury in understanding evidence or determining any fact at

issue

State v. Lewis (2007)

negligent homicide facilitation of attempted aggravated robbery

shop owner fatally shot during robbery before death told PO robber left hat DNA

analysis

expert testimony: can exclude 99.9% of population but can’t ID for sure

cross-x: co-worker actually performed analysis

testimony admissible

didn’t argue it was untrustworthy or otherwise not type generally elided upon

by DNA experts

NO CC violation co-worker’s actual report not admitted into evidence and

expert didn’t communicate any out of court statements made by co-worker

OVERRULED by Melendez – in criminal case must be able to confront actual lab

person who did analysis

FRE 703 – Bases of Expert Opinion Testimony

Facts/data on which expert basis an opinion or inference can be perceived by or made known to the

expert at or before the hearing.

If the facts are of a type reasonably relied on by experts in the particular field in forming opinions or

inferences on the subject don’t need to be admissible in evidence in order for the opinion or

inference to be admissible.

Facts or data that are otherwise inadmissible shall NOT be disclosed to the jury by the proponent of

the expert testimony unless Ct. determines that their probative value in assisting jury evaluate the

expert’s opinion substantially outweighs the prejudicial effect.

3 Sources for Expert Opinion – 1sthand knowledge, presentation @ trial, expert info outside trial.

FRE 705 – Disclosure of Facts or Data Underlying Expert Opinion

Expert can testify in opinions and inferences and give reasons for them w/o first testifying to the

underlying facts or data unless Ct. requires otherwise.

Expert may be required to disclose underlying facts or data on cross-x.

FRE 705 – Disclosure of Facts or Data Underlying Expert Opinion

Expert can testify in opinions and inferences and give reasons for them w/o first testifying to the

underlying facts or data unless Ct. requires otherwise.

Expert may be required to disclose underlying facts or data on cross-x.

o Reliability

Court-Appointed Experts

courts can appoint experts, but both parties and experts want to avoid

LeBlanc v. PNS Stores, Inc. (1996) – FRE 706 Rarely Used w/o NEED

slip and fall accident wants Ct. appointed Dr.

court appointed experts only in really special circumstances

TC properly denied request to appoint expert didn’t show requisite

necessity b/c has access to ’s medical records

FRE 706 NOT an alternative to communication betw. parties

Judicial Screening of Party-Approved Experts

Frye v. U.S. – general acceptance test cts will go a long way in admitting expert

testimony deduced from well-recognized scientific principle or discovery BUT the

thing from which the deduction is made must be sufficiently established to have

gained general acceptance in the particular field in which it belongs

Daubert v. Merrell Dow Pharm. Inc. (1993) – NO General Acceptance Test

Expert Testimony Requires Scientific Knowledge that will Assist FF Understand

or Determine Fact in Issue

kids have birth defects caused by ’s drugs given to moms while preg.

TC + CoA: SJ for b/c expert testimony based on methodology that significantly

diverges from recognized authority’s procedures

Frye has been overruled by FRE

FRE 701 – no general acceptance required and no evidence it was

intended

FRE 706 – Court Appointed Experts

(a) Appointment: The Ct. may on its own motion or on the motion of any party enter an order to show

cause why expert witnesses shouldn’t be appointed, and may request the parties to submit

nominations. The Ct. can appoint any expert witnesses agreed upon by the parties, and may

appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court

unless the witness consents to act. A witness so appointed shall be informed of the witness' duties

by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the

parties shall have opportunity to participate. A witness so appointed shall advise the parties of the

witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be

called to testify by the court or any party. The witness shall be subject to cross-examination by

each party, including a party calling the witness.

(b) Compensation – Appointed expert witnesses are entitled to reasonable compensation, paid by

funds provided by law in criminal cases and civil actions involving just compensation under 5th Am, and

in other civil cases in ct.-ordered proportions

(c) Disclosure of Appointment – In exercise of discretion Ct. may authorize disclosure to the jury of the

fact that the court appointed expert witness.

(d) Parties’ Experts of Own Selection – Nothing in this rule limits parties’ use of expert witnesses of

their own selection.

TC must determine whether expert is proposing to testify to (1) scientific

knowledge (2) that will assist fact-finder understand or determine a fact

at issue

scientifically valid reasoning

applicable to facts

factors to consider

o tested

o peer reviewed/published

o rate of error

o consistent experimental controls

o generally accepted

Daubert Factors for Consideration in Admitting Scientific Evidence

A judge should consider the following factors before admitting scientific evidence

Whether the theory or technique is testable (and if it has been tested)

Whether the theory or technique has been subject to peer review

What is the error rate of the technique/test

Whether standards exist to control a technique test

Whether the theory or technique has gained general acceptance in its field (Frye)

Any other relevant factor

General Electric Co. v. Joiner (1997) – Appellate Review Standard Abuse of

Discretion

electrician exposed to ’s chemical

appropriate standard for TC’s evidentiary rulings is abuse of discretion

rarely reversed

this case NO abuse huge analytical gap between data nad opinion (don’t

have to rely on only individual expert’s opinion that their opinion is

correct)

studies very different from this exposure

studies showed no causal link

cited studies

o unwilling to say that exposure cancer

o although cancer, not statistically significant

o test subjects exposed to multiple carcinogens

Kumho Tire v. Carmichael (1999) – Daubert Applies to ALL Expert Testimony

’s expert: defective tire caused accident NOT abuse/misuse

Daubert applies to ALL expert testimony

judges can’t distinguish between scientific v. technical v. specialized

flexible don’t have to show all can establish 1 factor convincingly enough to

get evidence admitted (but want more if possible)

which criteria satisfied and to what extent is very fact dependent leave to

TC to determine which facts are relevant in which factual situations

Expert witness’s opinion?

Does opinion assist jury in

understanding evidence or

determining an issue?

Is the opinion rationally

based on the witness’s

perception?

Does the witness have

specialized

knowledge, skill, etc.

in the subject to which

his testimony relates?

Is opinion helpful

to jury?

Is the opinion based on

matters reasonably relied

on by experts in the field in

forming opinions about

subject at issue?

Is the opinion based on

scientific, technical, or

other specialized

knowledge?

Admissible expert

opinion testimony

Admissible lay opinion

testimony

Inadmissible

expert opinion

Inadmissible

lay opinion

YES

YES

YES

YES

YES

YES

YES

NO

NO

NO

NO

NO

NO

NO

IX. PRIVILEGES

In General

o privilege different from regular evidentiary rule

privilege rules govern

whether particular evidence can be introduced @ trial

whether certain evidence can be compelled before trial

parallel confidentiality and professional responsibility

purpose protect relationships that deserve confidentiality

NOT codified FRE 501 – fed. cts. develop federal CL privilege

Attorney-Client Privilege

o Introduction

oldest and most heavily litigated privilege

criticisms – helps/protects bad people; too close to bar interests

Swindler & Berlin v. U.S. (1998) – A&C Privilege Survives Client’s Death

client commits suicide interview notes subpoenaed atty refuses

A&C privilege survives client’s death encourages client to communicate fully and frankly w/

counsel

loss of evidence as a result of A&C privilege doesn’t preclude posthumous

application of privilege w/o assurance of privilege’s post-humorous application,

client might not have made disclosures at all

UNLESS disclosure would further client’s intention (will contests)

Attorney Client Privilege

Communication

In Confidence

Between Attorney and Client

To Facilitate Legal Service

o Elements

Communication

U.S. v. Kendrick (1964) – Characteristics Observable by Anyone ≠ Privileged

Communication

convicted of theft appealing TC admitting atty testify re: client’s demeanor during

trial (cooperative and aware)

FRE 501 – General Rule

Except as otherwise required by the Constitution or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the federal courts in the light of reason and experience.

However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

admissible NOT re: substance of communication + physical characteristic

observable by anyone no intent for confidentiality

Tornay v. U.S. (1988) – Privilege Protects Communication Necessary to Gather Info

for Effective Legal Advice/Representation NOT Fee Info

IRS investigation trying to figure out net worth/expenditure summons atty re: fees

paid respond fired summons new atty

fee info NOT privileged

privilege purpose to protect communication to gather info for legal advice

clients wouldn’t withhold necessary info for effective representation if they

knew info re: fee payments could be testified to

privilege isn’t to immunize client from liability re: legal fees encourage open

communication

may influence decision to seek counsel but that’s client’s choice

In Confidence

U.S. v. Gann (1984) – NO Confidentiality When Reasonably Aware of 3rd Party

Presence

connected to bank robbery search warrant found illegal gun police went

inside talking on phone (maybe to atty): “guess I have to go downtown … ex

con in possession I guess.”

NO confidentiality when reasonably aware 3rd party present (n/a agent)

client must know no reasonable expectation of confidentiality

didn’t show PO intended to eavesdrop

U.S. v. Evans (1997) – When 3rd Part Presence NOT Necessary to Achieve Goal of

A&C Meeting NO Privilege

friend/former atty sets up w/ 3 attys and friend talk to attys together

NO A&C Privilege betw. and friend friend can testify about convos

didn’t show friend/atty presence was necessary to achieve goal of meeting

friend’s testimony eliminates possibility of privilege: “I was friend and possible

character witness, NOT counsel”

U.S. v. Lawless (1983) – NO Privilege When Info Transferred to Atty w/ Intent that It

Will Be Transferred to 3rd Party

(atty) prep estate tax returns refused to disclose info used to prep tax return to

IRS

NO privilege when info transferred to atty w/ intent that it will be transferred to 3rd

party

info transferred so atty could prep taxes w/ intent to transmit evidence to IRS

SmithKline Beecham Corp. v. Apotex Corp. (2000) – Patent Application Info Privileged

sues for patent infringement

documents evaluating/apply for patents privileged

competent patent application and advice requires knowledge of technical

details of thing to be patented

public policy favors confidentiality for patents

tax = fulfilling obligation

patent = privilege/service

Between Attorney and Client

U.S. v. Kovel (1961) – Privilege If 3rd Party Necessary for Effective Consultation to

Provide Legal Services

accountant (employed @ law firm) subpoenaed re: tax violation refused to testify

b/c privilege

accountant was translator for atty if presence of 3rd party is needed for effective

consultation privilege

privilege if communication is made in confidence to obtain legal advice

NOT privileged if primarily seeking accountant services/advice

U.S. v. McPartlin (1979) – Joint Defense Privilege: Waiver NOT Inferred from

Disclsoure in Confidence to Co-Party’s Counsel for Common Purpose

cos work together to attack credibility of prosecution’s witness (unindicted co-

conspirator)

privileged – statements made to by co to an investigator acting for ’s counsel,

during course of interview for the common purpose of attacking adverse witness’s

credibility privileged

communications by client to own atty are privileged when atty subsequently

shares them w/ cos for purposes of a common defense

uninhibited communication between joint parties and counsel is important for

protection of interests + in criminal cases can be necessary for fair

opportunity to defend waiver NOT inferred from disclosure in confidence to

co-party’s counsel for a common purpose

cos defenses don’t need to be completely compatible for joint defense

privilege to be applicable

Pasteris v. Robillard (1988) – NO Privilege When Statement Isn’t Made to Atty’s

Subordinate or Someone Acting as Atty

fall accident want ’s transcribed statement to insurance company

NOT privileged

statement made prior to start of legal representation

even though insurance co. had obligation to provide legal defense and insured

had duty to cooperate NO evidence that the person to whom

communication was made was subordinate to atty or that the person was

taking the statement on behalf of insurance co. was acting as atty

Upjohn Co. v. U.S. (1981) – Employee Communications w/ Corp. Counsel Privileged

internal investigation of foreign subsidiary bribes via questionnaires IRS

summons questionnaires and interview notes

privileged

made by employees to corp. counsel, at direction of corp. superiors for

purposes of obtaining legal advice re: matters w/i employee’s duties, and

employers knew purpose

if protect only execs, corps wouldn’t do internal investigation or seek legal

advice

safeguarded by cross-x and can get testimony from other employees (GJ or

depo)

To Facilitate Legal Service

Hughes v. Meade (1970) – Privilege = Performance of Legal Services w/i Scope of

Professional Employment (re: law)

atty refuses to disclose ID of client who asked him to drop off stolen property @

police contempt

NOT privileged

privilege requires: performance of legal service + w/i scope of professional

employment

communication of prior criminal acts

legal consequences of behavior

future criminal acts

dropping off stolen property isn’t w/i A-C relationship or facilitating legal

advice/services

acting as an agent anyone else could have done it, not related to law

U.S. v. Davis (1981) – MUST Be Legal Services If Can Hire Someone Else To Do It

NO Privilege Just B/C Atty Doing It

atty has to turn over papers used to prep tax return and actual tax return

primarily accounting service, NOT legal NOT privileged

no privilege if accountant

if you’re able to hire non-atty to do something can’t use privilege just b/c

hire atty

U.S. v. Rowe (1996) – Fact-Finding Services = Legal Services

atty may be misusing client funds senior partner gets associates to investigate later

hire outside counsel

associates can’t be compelled to testify fact-finding services were legal

services as in-house counsel privileged

fact-finding is part of legal services

senior partner trying to avoid litigation investigation = legal services

regardless of inside v. outside counsel

o Waiver

ONLY client can waive privilege

U.S. v. Bernard (1989) – Any Voluntary Disclosure By Client Inconsistent with A&C

Relationship to Someone Who Isn’t Atty Waiver

convicted of making illegal nominiee loans witness: told me his atty said loans were

legal so I agreed TC allowed atty to testify

any voluntary disclosure by client that is inconsistent w/ A&C relationship waives privilege

any voluntary disclosure by client to someone who isn’t agent of atty about convo

NO privilege

Tasby v. U.S. (1974) – Client Initiates Law Suit Against Person w/ Whom Has Privilege =

Waiver

convicted making material false statement @ kidnapping trial testified after trial was

over tried to claim incompetent assistance of counsel atty testified that was warned

about testifying etc.

atty testimony DIDN’T violate privilege

client waived privilege by attacking atty competence in public hearing and making

communications, or lack thereof, an issue in litigation

atty can only defend claim by violating privilege

client initiates action against person w/ whom has privilege = waiver

Hollins v. Powell (1985) – Testimony Re: Substance of A&C Convo Must be Voluntary to

Waive Privilege

mayor didn’t like housing commissioners picked new ones old ones arrested when they

showed up to meeting

objected during city atty depo whenever question was covered by A&C privilege but

answered anyway reserved privilege re: those questions

waiver when mayor testified re: substance of convos w/ city atty + convos w/ own atty

In Re Von Bulow (1987) – Client Has Responsibility to Ensure Continued Confidentiality

MUST Take Affirmative Action to Preserve Confidentiality When Client is Aware of

Atty’s Intended Disclosure

convicted 2x assault w/ intent to murder reversed on appeal acquitted

evidence: discovery order granting access to convos betw. and atty b/c waived when

wrote book w/ atty about trials and acquittal

client who acquiesced in attorney's publication of book re: prior representation, and who

subsequently joined with attorney in actively promoting sales of book, was deemed to

have waived attorney-client privilege as to any confidential communications disclosed

in book.

fairness doctrine – prevents client from waiving A&C privilege only re: certain

communications to prevent prejudice and distortion of judicial process that would

otherwise result from client’s selective disclosure of otherwise privileged info

extrajudicial disclosure of A&C communication which isn’t subsequently used by

client in trial to adversary’s prejudice NO waive A&C privilege re: undisclosed

portions on communication

client has responsibility to ensure continued confidentiality of A&C comm. when client is

aware of atty’s intended disclosure must take affirmative action to preserve

confidentiality

o Crime-Fraud Exception

NO privilege when legal services obtained to further a future crime/fraud, regardless of atty’s

awareness of purpose

U.S. v. Zolin (1989) – Ct Can In Camera Review Alleged Privilege Communications to

Determine if C-F Applies AFTER Party Seeking Review Has Made Threshold Showing of

a Factual Basis for Good Faith Belief by Reasonable Person that Review Would Reveal

Evidence to Establish Exception Applies

client (Church of Scientology) tax fraud separate suit church v. member for illegally

documenting activities w/ 2 tapes in evidence IRS wants tapes

TC can in camera review alleged privileged comm. to determine whether C-F exception

apply

party seeking review must make threshold showing that there is factual basis for

good faith belief by a reasonable person that in camera review would reveal

evidence to establish claim that C-F exception applies

balance between absolute ban and avoiding fishing expositions for potential

evidence w/o clear idea of what evidence is

X. PHYSICAL EVIDENCE

physical evidence subject to same rules as testimonial evidence PLUS 2 rules

o authenticated – offering party must provide enough evidence so that the fact-finder could conclude that

it is genuine.

o best evidence rule – DON’T have to introduce best evidence on any given point ONLY party

seeking to prove content of a document introduce original

Authentication

FRE 901 – Requirement of Authentication or ID

(a) General Provision – requirement of authentication or ID as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.

(b) Examples – meet authentication requirements

1. Testimony of Witness w/ Knowledge – testimony that a matter is what it is claimed to be 2. Non-Expert Opinion on Handwriting – based on familiarity NOT acquired for litigation purposes

exception to rule prohibiting non-expert opinion testimony 3. Comparison by Trier or Expert Witness – w/ authenticated specimens 4. Distinctive Characteristics – appearance, contents, substance, internal patters, or other

distinctive characteristics, taken in conjunction w/ circumstances 5. Voice ID – ID of a voice, whether heard firsthand or through transmission/recording by opinion

based on hearing voice at any time under circumstances connecting it w/ alleged speaker 6. Phone Convo – by evidence that call was made to specific number assigned to particular

person/business if

person caller’s self-ID insufficient BUT person can be IDed by any distinctive characteristic that provide a clue to ID OR testimony that: call made to number assigned to particular person + recipient IDed self as being that person

business call made + convo re: business reasonably transacted by phone 7. Public Records or Reports – evidence that writing was legally required to be – and was –

recorded or filed w/ public office, OR a public record, report, statement, data compilation is from public office where items of this nature are kept

8. Ancient Documents or Data Compilation – Document or data compilation

is kept in such a condition to create NO suspicion re: authenticity

located where, if authentic, would likely be AND

20+yo @ time offered 9. Process of System – show process/system is used – and did – produce a result 10. Methods Provided by Statute or Rule

FRE 902 – Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT required for the

following:

(1) Domestic public records under seal (2) Domestic public records not under seal (3) Foreign Public Documents (4) Certified copies of public records (5) Official Publications (6) Newspapers and Periodicals (7) Trade Inscriptions (8) Acknowledged Documents (9) Commercial Paper and Related Documents

(10) Presumptions Under Acts of Congress (11) Certified Domestic Records of Regularly Conducted Activity (12) Certified Foreign Records of Regularly Conducted Activity

o U.S. v. Long (1988) – Doc. Authenticated When Proponent Proves Rational Basis for Claim

that the Doc. is What Proponent Asserts It to Be

convicted for check forging and bank fraud

gf ’s witness testifies re: K believing entering into legit business relationship

direct signed K for legit business cross-x describe K redirect IDed K

to authenticate document, proponent need only prove rational basis for claim that the document

is what proponent asserts it to be.

gf’s ID of K sufficient for authentication

offered to show ’s state of mind, not to show K created legit business relationship

reasonable jury could conclude K could be doc. witness saw/read

o Bruther v. General Electric Co. (1993) – Physical Evidence Authenticated When Jury Can

Reasonably Conclude It is the Item in Question

electrocuted by light bulb

evidence: light bulb that caused injury problem: break in chain of custody and no IDing marks

admissible jury could reasonably conclude bulb was the one that caused the injury (jury

decides how much weight to give it and decide whether it was the injury-causing bulb)

limited access to area

don’t keep broken bulbs

installed same brand before accident

same brand in socket now

o U.S. v. Casto (1989) – DON’T Need Perfect Chain of Custody to Authenticate Physical

Evidence

chain of evidence in drug case: seized sealed sent to lab 2m later tested positive for

drugs sent back to PO

tech who put drugs in vault @ lab didn’t testify

DON’T have to absolutely prove chain of custody over physical evidence to authenticate

but helpful and want to establish in order to avoid argument of doubt b/c broken chain of

custody

o U.S. v. Grant (1992) –

chain of custody in drug case missing for ~10d between seizure and lab

DON’T need to authenticate testimony of live witness

didn’t offer drugs themselves, offered testimony of person who tested it

live testimony only subject to relevancy authentication wrong objection should have

objected to relevance (gap in chain of custody raises doubt of substance seized was

substance tested)

FRE 903 – Subscribing Witness’s Testimony Unnecessary

Testimony of a subscribing NOT necessary to authenticate a writing unless required by laws of JD that

governs validity of writing.

The Best Evidence Rule

o Scope and Purpose

Meyers v. U.S. (1949) – DON’T Need to Use Transcript to Prove Testimony; Can Use

Witness Instead

convicted inducing perjury founded and co pres. co. subpoenaed to testify about ’a

involvement w/ co.

chief counsel of Senate committee testifies + transcript admissible

testimony admissible not testifying about content of the transcript (writing/recording)

just what he heard at hearing BER n/a

U.S. v. Gonzales-Benitez (1976) – DON’T Have to Use Tape to Prove Conversation; Can

Use Witness Instead

intro evidence of testimony of drug informants v. recording on tapes b/c tapes best

evidence

content of tapes not factual issue inquiry re: content of convo

o Exceptions

U.S. v. Stockton – When No Contest of Authenticity of Duplicate Duplicate Admissible

conspiracy to manufacture meth search co house photos of “miscellaneous papers”

FRE 1001 – Definitions

(1) Writings and recordings – letters, words, numbers or their equivalent, in writing, typewriting, printing,

photostating, photographing, magnetic impulse, mechanical/electrical recording or other form of data

compilation

(2) Photographs – still photos, x-rays, video tapes, motion pictures

(3) Original – writing or recording itself or any counterpart intended to have the same effect by a person

executing or issuing it; photograph includes negative or any print there from; if electronically stored,

printout or other output readable by sight, showing accurately to reflect data accurately is original

(4) Duplicate – counterpart produced by the same impression as the original, or from the same matrix, or by

means of photography, including enlargements and miniatures, or by mechanical or electronic re-

recording, or by means of chemical reproduction, or by any other equivalent techniques which accurately

reproduce the original

FRE 1002 – Requirement of Original

To prove content of a writing, recording, or photograph, the original is required, except as otherwise

provided by FRE or Congress.

FRE 1003 – Admissibility of Duplicates

Mechanically created duplicate is admissible to the same extent as an original unless:

(1) a genuine question is raised re: authenticity of original OR

(2) in the circumstances unfair to admit the duplicate in lieu of the original

BER applies contents of photos (agent testifies re: content of photos) BUT exception

applies b/c no contest authenticity of duplicate duplicate admissible

U.S. v. Standing Soldier

assault w/ intent to kill signed confession signed note to jailer: wanted to talk

@ trial jailer testify using copy of note b/c original lost

copy admissible NO evidence of bad faith on the part of + original lost

FRE has no “degrees” of secondary evidence no requirement that the copy be

introduced instead of oral testimony

Seiler v. Lucasfilm, LTD. (1987)

copyright infringement attempt to produce reproductions of originals obtains

copyright for drawings after ’s Star Wars movie released

drawings = writings: lettesr, numbers, words, or equivalents

b/c contents are material and must be proved must either produce original or show it is

unavailable through no fault of his own

CAN’T show he didn’t destroy or intentionally lose originals copies

inadmissible

FRE 1004 – Admissibility of Other Evidence of Contents

The original is NOT required and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1). Originals lost or destroyed. ALL originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; OR

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; OR

(3) Original In Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; OR

(4) Collateral matters. The writing, recording, or photograph is NOT closely related to a controlling issue.

FRE 1005 – Public Records

Contents of an official record or document required and actually recorded or filed, if otherwise

admissible, can be proved by copy, certified as correct in accordance w/ FRE 902 OR testified to be

correct by a witness who has compared it w/ original. If a copy complies w/ foregoing can’t be obtained by

exercise of reasonable diligence, other evidence of contents can be given.

FRE 1006 – Summaries

Contents of voluminous writings, recordings, or photographs which can’t be conveniently examined in

court can be presented in form of a chart, summary, or calculation. Originals, or duplicates, shall be

made available for examination or copy by other parties at reasonable time and place. Ct. may order that

they be produced in Ct.

Demonstrative Evidence

o 2 types

real/original – objects having played direct role in facts

found through discovery search

marked and received

demonstrative – no role in facts, offered for illustrative purposes to explain and assist

understanding

created by or at request of counsel

marked and taken into custody but NOT received into evidence jury can’t look at it in

deliberation

custody so CoA can see if necessary

theory – jury would confuse demonstrative evidence w/ real evidence and give it too

much weight

admissibility (permission to use) typically granted b/c evidence is helpful in some way

can give limiting instruction

excluded when not helpful

o U.S. v. Weeks (1990) – Gun NOT Used in Crime Admissible Demonstrable Evidence

TC did NOT abuse discretion in allowing to show gun to jury that wasn’t used in crime

admissible demonstrable evidence wasn’t given to jury for deliberation + limiting

instruction

o U.S. v. Humphrey (2002) – Is Evidence Useful or Relevant? Yes Admissible

bank employee convicted of embezzlement and making false entries in bank record

evidence: 107 coin bags filled w/ coins or Styrofoam + video of vault @ time record made to

show no way record could match # of bags in vault

expert testimony coin bags and Styrofoam pretty much same size

standard: is it useful or relevant? does it have a tendency to assist jury in determining fact at

issue?

yes admissible

FRE 1007 – Testimony or Written Admission of Party

Contents of writings, recordings, or photographs can be proved by the testimony or depo of the party

against whom offered or by that party’s written admission, w/o accounting for the nonproduction of the

original.

FRE 1008 – Functions of Court and Jury

When admissibility of other evidence of contents of writings, recordings, or photographs under these

rules depends on the fulfillment of a condition of fact, the question whether the condition has been

fulfilled is ordinarily for Ct. to determine in advance following FRE 104

However, when issue is raised:

(a) whether the asserted writing ever existed OR

(b) whether another writing, recording, or photograph produced @ trial is the original OR

(c) whether other evidence of contents correctly reflects the contents

the issue is for the trier of fact to determine as is the case of other issues of fact.

o Roland v. Langlois (1991) – Demonstrative Model Evidence DOESN’T Need to be Perfect to be

Admissible Just Instruct Jury

hit in head w/ carnival ride

evidence: life-sized model of fence around yard admissible model doesn’t have to be

perfectly accurate as long as jury instructed it’s not perfect

alternative of going out to see it

more probative than prejudicial

o U.S. v. Wood (1991) – Must Have Proof Demonstrative Evidence is Supported by Facts

conviction tax evasion

tax expert’s charts admissible; tax expert chart’s excluded b/c not enough support for means of

calculating exception

must have proof demonstrative evidence is supported by facts (more probative than

prejudice)

o Bannister v. Town of Noble, OK (1987)

negligence action against town

admissible w/ jury instructions evidence: “Day in the Life” film + video illustrative of car

accident (NOT demo/recreation)

can use demonstrative evidence in closing (must have had witness use evidence already)

can use jury instructions and use demonstrative evidence to explain (posters etc.) as long as

not contrary to judge’s instructions

XI. JUDICIAL NOTICE

Judicial notice: acceptance of facts that need not be proved and not disputed

o some facts that shouldn’t have to be proved – this date is a Sunday

o FRE recognizes

adjudicative facts – a controlling or operative fact, rather than a background fact; a fact that

concerns the parties to a judicial or administrative proceeding and that helps the court or

agency determine how the law applies to those parties.

who did what, where, when, how, and with what motive or intent.

U.S. v. Lewis – NO Judicial Notice When Judge Relying on Personal Knowledge

: confession not voluntary and knowing b/c heroin withdrawal and just woke up from

surgery

NO judicial notice judge can’t rely on personal knowledge (say weird things while

coming out of anesthesia) for judicial notice b/c accuracy not reasonably certainly

verifiable

judge is also testifying

legislative facts – fact that explains a particular law's rationality and that helps a court or agency

determine the law's content and application

U.S. v. Gould (1976) – Legislative Fact Judicial Notice FRE 201 n/a

import cocaine disputes judicial notice that cocaine is schedule II drug

legislative fact judicial notice

common knowledge or capable of indisputable verification

universally determinable

not specific to party

based on statutory definition

FRE 201 only applies to adjudicative facts

Carley v. Wheeled Coach (1993) – NO Judicial Notice When Facts Could Reasonably

be Disputed and Not Readily Ascertainable

injured in ambulance roll-over not our falt b/c manufactured via K w/ government

FRE 201 – Judicial Notice of Adjudicative Facts

(a) Scope of rule – ONLY judicial notice of adjudicative facts

(b) Kinds of facts – judicially noticed fact must be one not subject to reasonable dispute in that it is

either

1) generally known w/i territorial JD of the trial court OR

2) capable of accurate and ready determination by resort to sources whose accuracy cannot

be reasonable questioned

(c) When discretionary – CT can take judicial notice, whether requested or not

(d) When mandatory – CT must take judicial notice if requested by a party and supplied w/ necessary

info

(e) Opportunity to be heard – a party is entitled, upon timely request, to an opportunity to be heard re:

propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notice,

request may be made after judicial notice has been taken

(f) Time of Taking Notice – Judicial notice may be taken at any stage of the proceeding

(g) Instructing Jury – civil: CT shall instruct jury to accept as conclusive any fact judicially noticed;

criminal: CT shall instruct jury that it may, but is not required to, accept as conclusive any fact

judicially noticed.

TC judicial notice – government conducts crash tests and was at least as aware of

risk for accident

NO judicial notice – facts weren’t beyond reasonable dispute, not readily

ascertainable (NOT common knowledge)

U.S. v. Bowers + U.S. v. Bello – Geographic Locations Judicial Notice

geographic locations subject to legislative judicial notice

geographic location indisputable (no reasonable juror would dispute) and not related

to parties’ actions