ContentsIntroduction to Trial and Jury......................................................................................................................2

Legal Institutions Responsible for Evidence.............................................................................................2

Evidence and Jury Rationality..................................................................................................................3

Taking a case from the jury......................................................................................................................3

Inferential Reasoning and Circumstantial Evidence.................................................................................4

Basic Relevancy...........................................................................................................................................4

Materiality and Logical Relevancy...........................................................................................................4

Prejudice and Probativeness...................................................................................................................6

Flight and Silence.....................................................................................................................................8

Conditional Relevance.............................................................................................................................8

Character, Propensity, and Other Act Evidence...........................................................................................9

Default Principle of Nonadmissibility.......................................................................................................9

Non-Propensity Uses of Character and Prior Act Evidence....................................................................10

Absence of Mistake or Accident............................................................................................................11

Proving Other (or Prior) Acts When They are Admissible......................................................................11

Putting Character in Issue......................................................................................................................11

Habit (vs. Character)..............................................................................................................................12

Character for Credibility........................................................................................................................13

Rehabilitation........................................................................................................................................14

Bias (v. Character for Credibility)...........................................................................................................15

Rape Shield Laws...................................................................................................................................16

Witnesses, Personal Knowledge, and Purposes of Examination................................................................17

Competency and Dead Man Statutes....................................................................................................17

Scope of Examination............................................................................................................................18

Form/Scope of Exam and Preservation of Objections...........................................................................18

Hearsay......................................................................................................................................................19

Defining Hearsay...................................................................................................................................19

Testimonial Triangle & Problems with Hearsay.....................................................................................20

Selected Rules Not Barring Hearsay......................................................................................................21

Note on Adoptive Admissions...............................................................................................................22

Prior Statements of W (Inconsistent and Consistent)............................................................................23

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Prior Inconsistent Statements...........................................................................................................23

Prior Consistent Statements [801(d)(1)(B)]......................................................................................25

Prior IDs [801(d)(1)(C)]......................................................................................................................25

Unavailability of Witness [804]..........................................................................................................25

Former Testimony - 804(a)................................................................................................................26

Dying Declarations.............................................................................................................................27

Statements against Interest...............................................................................................................27

Exceptions to Hearsay Rule...................................................................................................................28

Present Sense Impressions................................................................................................................29

Excited Utterances.............................................................................................................................29

Statements of Then-Existing Mental, Emotional, or Physical Condition............................................29

Statements for Medical Diagnosis or Treatment...............................................................................30

Rules for Forfeiture by Wrongdoing..................................................................................................31

Past Recollection Recorded...............................................................................................................31

Business Records...............................................................................................................................32

Public Records - Governed by 803(8).................................................................................................33

The Residual Exception/ Great Hearsay Exception - Governed by 807..............................................34

Confrontation Clause.................................................................................................................................34

Compulsory and Due Process and Hearsay............................................................................................36

Subconstitutional Exclusionary Rules........................................................................................................37

Subsequent Remedial Measures...........................................................................................................37

Offers of Compromise and to Pay Medical Expenses............................................................................38

Pleas, Plea Negotiations and Insurance.................................................................................................39

Structure of Privileges...........................................................................................................................39

Authentication and Best Evidence.............................................................................................................40

Authentication and Identification of Documents...................................................................................40

Best Evidence Rule................................................................................................................................41

Review of 104(a) and (b)........................................................................................................................42

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Introduction to Trial and JuryLegal Institutions Responsible for Evidence

Jury—typical fact finder in cases that actually go to trial o non-professional decision-makers; ignorant (in a good way) o FRE operate as a filter through which evidence must pass before jury can consider it

Prevents excessive entries of evidence; Rationality/Accuracy: Jurors acting as arm of govt SO must act rationally

Judge—Classic American Model o Passive or neutral role in connection with fact-finding; Make rulings with respect to admissibility of

evidence and other questions of law; Control order of trial sometimes; Instructs jury (See below)

Evidence and Jury RationalityProcedural Controls

Trial Processo Proof is attorney driven and attorney controlled

Failure to object will normally allow evidence to be admitted, even if inadmissible; Attorneys may waive objections

Parties decide what evidence to submit/to object to (need objections for pos appeal) To preserve objections, they need to be: specific, timely, on record To preserve excluded evidence: Offer of proof of substance on record; no jury present Evidentiary rulings not overturned on appeal unless substantial right affected

o Motions in Limine - May deal w/ admissibility of evidence for certain articles of evidence pre-trial o Judge discretion: trial structure; deciding what is prejudicial – BUT can’t ask Q/require evidence

Law of Evidenceo Limit admissibility for relevancy and general unreliability and undue prejudice to enhance rationality. o Goals of FRE

Accuracy: no unreliable evidence (HS Rule); Fairness: eliminate evidence that may be given excessive or prejudicial weight; Protection: of privileges/individuals in certain relationships

o Enforcement of FRE Accomplished through objections and Motions in Limine; Not self-enforcing; Failure to object

in egregious cases may = malpractice in a civil case Charge to the jury -- issues jury must decide/what standards (burden of proof) should guide decision Verdicts -- general vs. special vs. general with "interrogatories"

Taking a case from the jury JMOL Rule 606(b):

o Prohibited Testimony or Other Evidence. Juror may not testify about any statement made/incident that occurred during jury’s deliberations; the effect of anything on juror’s or another juror’s vote; or any juror’s mental processes concerning verdict/indictment.

Exceptions. A juror may testify about whether: extraneous prejudicial info improperly brought to jury’s attention; an improper

outside influence; or mistake made in entering verdict on verdict formo DOES NOT:

Prevent counsel from interviewing jurors, post-verdict; Prohibit pre-verdict inquiries of jurors by the court that would be otherwise forbidden post-verdict

o CAN TESTIFY ABOUT: Being bribed; Finding out extra info about case not introduced at trial

o CAN REACH VERDICT AFTER:

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Group prayer, séance, name calling/brow beating/strong arm tactics, etc.

Peterson v. Wilson (5th Cir. 1998)F: DC ordered a new trial based on b/c jury said it completely disregarded the Court's instructionsH: Reversed – conviction upheld Tanner v. US (SCOTUS, 1987)F: Post-verdict evidence from 1 juror that other jurors regularly drank alcohol/did drugs throughout trialH: Barred by FRE 606(b; Full/frank discussion in deliberation room, jurors’ willingness to return an unpopular verdict, and citizen’s belief in the layperson jury = undermined IF post-verdict scrutinizing of juror conduct allowed; Voluntarily taking drugs = no more of an external influence than illness or lack of sleep Warger v. Shauers (SCOTUS - Dec. 9, 2014)F: Losing party tried to get new trial by showing that juror lied about her potential impartiality during voir direH: Testimony barred by 606(b)

Inferential Reasoning and Circumstantial EvidenceLavender v. Kurn (SCOTUS, 1946)F: Conflicting circumstantial evidence: decedent struck on head by a mail hook swinging out from a railroad car OR "hobo" struck him -- Court held either conclusion = reasonable though evidence weighed slightly more on hoboH: Error to have directed verdict for D railroad -- "Whenever facts are in dispute, or evidence is such that fair-minded men may draw diff inferences, measure of speculation/ conjecture is required on part [of fact-finder].” Galloway v. United States (SCOTUS, 1943)F: Disability over 20 years? P didn’t have evidence for a 8 year period, but evidence of disability before/after gapH: Gap jury's inference was asked to bridge = too great -- irrational to make an inference w/o evidence for 8 years

Smith v. Bell Telephone Co. - Beyond the duty of the court to say whether 2+ inferences are "equal." Facts are for the jury – look at direct/circumstantial evidence – they reach reasonable conclusion as to whether D = liable

Basic RelevancyMateriality and Logical RelevancyWhat are you trying to prove? Relevancy depends on: WHAT YOU ARE TRYING TO PROVE!

Know ELEMENTS of claim and defense to answer whether evidence is material in your case.

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RELEVANCE = PROBATIVENESS + MATERIALITY Materiality – What are your trying to prove and how does it relate to the elements of the case?

Elements of the claim; elements of an affirmative defense; proof of damages Evidence that bears on a witness’ credibility

o Always material BUT does not go to elements Motive and opportunity = NOT always formal elements of a claim but are OFTEN considered material

o "Somewhat more likely to do X if you have the motive/opportunity" Probativeness - Does evidence go to show that something is more or less likely to have occurred?

Does NOT have to be SUFFICIENT to prove the case - Need ONLY have a TENDENCY to show that fact is MORE OR LESS probable than it would be w/o evidence

Can a rational jury make use of evidence? Judge doesn't really weigh evidence but can assess probativeness

Evidence that is relevant for multiple purposes – Limiting instruction if admissible for one purpose and not another

Sherrod v. BerryF: Cop shot man in an alleged suspect's car b/c cop thought man was reaching for something in pocket; DJ allowed evidence to show that decedent was NOT armed when cop shot at himH: Standard = objectively reasonable under the circumstances SO evidence of being unarmed = NOT MATERIAL b/c need to judge cop by what he perceived in the split second before he shot man (thought he was at risk when saw man moving towards pocket); admissible for state of mine not that he was unarmed United States v. JamesF: J charged with aiding/abetting murder of Ogden when she gave daughter gun during an argument w/ O; Did so b/c J had heard O boasting of killing another w/ pen; Evidence allowed to show that stabbing truly occurred James's Case:

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Mother claims O told her terrible things he did to harm others. Is it relevant? o Is it probative? Of the reasonableness of her fear, yeso Is it a fact of consequence? Probably in a defensive natureo Material? Yes.

Mother also wants to introduce evidence that O committed the acts.o Probative? Maybe not, didn’t know at time they had been committed; BUT might be probative of

trutho Fact of consequence? Maybe so jury can weigh Mother’s testimonyo Material? Perhaps

H: Extrinsic evidence regarding prior violent misconduct of O directly corroborated J’ss credibility SO TC’s exclusion of the evidence = prejudicial (If he did acts, she is likely not lying); NOT admissible as probative of her fear TLDR: In dealing w/ relevance, evidence must only be probative of a particular fact of consequence insomuch as the evidence might indicate that the fact = somewhat more or less likely in light of evidence; Includes evidence that might not be admissible as probative of a diff fact Compare with: Knapp v. StateF: D claimed self-defense; Claimed he heard a story that cop he killed had previously killed a helpless old man H: Evidence allowed showing that the officer didn't kill the old man b/c it made it somewhat less likely that the D was telling the truth when he said that he had heard the victim had killed the old man Carter v. HewittF: C brings action against prison for beating; Complains that his letters = inadmissible; D wants to admit them as evidence of directing others to file false claims; C says letters were to encourage filing of legit complaint; Both readings are reasonable but D reading is relevant, P isn’tH: Letter has direct relevance as to whether prison guards truly beat C; Factfinder could interpret letter as reflecting P's plan to promote the filing of false complaints SO his own complaint was indeed falseTLDR: Admissibility isn’t necessarily affected by jury’s option to reject inferences made by evidence. Steps inferred must only be rational - Jury decides what weight to give; Judge only determines whether a rational fact finder could find inferences rational. Defamation Example: One ELEMENT of defamation = extent of injury SO apology is not probative of overall liability BUT of extent of injury -- may be irrelevant for defense BUT relevant for mitigation of damages

Prejudice and Probativeness

In Rule 403 challenges, judges weigh the probative value of evidence - goes beyond probativeness/materiality Qs of Rule 401/402 to determine how the evidence might affect jury reasoning. Must pass 401/402 FIRST, before 403 issues arise. Rule 403

In favor of admissibility BUT PV must be SUBSTANTIALLY OUTWEIGHED by DUP or other reason for evidence to be inadmissible o Hurtful evidence ≠ unfairly prejudicial evidence

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o Unfair prejudice = evidence might cause jury to look at evidence in such a way as to make decisions based on irrelevant info

Even if DUP > PV, decision of whether or not to admit evidence is at judge’s discretion

o Standard of review on appeal: Abuse of Discretion 403 is a pessimistic rule - Assumes that jury cannot separate impermissible reasoning from permissible

reasoning; 403 rulings often consider efficacy of a limiting instruction in the admission of evidence. U.S. v. Hitt (9th Cir. 1992)F: Man charged w/ having a fully automatic weapon; govt sought to introduce a pic of gun to prove that; D claimed gun = semi-automatic; Pic had other guns/rifles/knives that were not the D's but his roommate's; D convicted Probative: Low value—external cleanliness ≠ internal condition; Undue prejudice: Multiple guns in photo; might make jury believe he has special knowledge/make other judgementsH: New trial b/c guns in background could have unduly prejudiced jury under FRE 403 (could think he was likely to have a machine gun OR he was a bad man so deserved to be in jail OR since he had so many guns he would likely not poorly maintain a gun, etc.) United States v. Grassi (5th Cir. 1979)F: Conviction for violating statutes against interstate transportation of obscene materials; P wanted to show 5 films but D said contents = prejudicial & wanted stipulation that films = obscene --> no stip BUT only 3 films shownR: Evidence can have PV even in the event of an offer to stipulate to the issue on which the evidence is offered. A cold stipulation can deprive a party "of the legit moral force of his evidence," and can never fully substitute for tangible, physical evidence or testimony of Ws.H: PV of films = substantial, even in light of the offer to stipulate SO cannot hold that showing 3 films = abuse of discretion (as opposed to showing 1-2); Films lost shock value after 1st one anyway b/c they were repetitive Old Chief v. US (SCOTUS, 1997) -- WHAT CAN TAKE SOMETHING OUT OF TRADITIONAL STIPULATION RULE?F: Present case = assault + using firearm in violent crime + possessing firearm w/ prior conviction BUT earlier conviction = assault; Crime to carry a weapon when have already been convicted for a crime that is punishable by at least 1 yr in prison [LENGTH OF SENTENCE = IMPT], D wanted stip about prior felony charge; D refused stip and introduced prior assault charge into recordR: P = entitled to prove its case by choosing own evidence; Criminal D may not stip/ admit his way out of the full evidentiary force of Govt’s presented case H: Although name of prior offense may have been technically relevant, it addressed no detail in definition of the prior conviction element that the stipulation of having a conviction for 1+ year of jail time would not have coveredD: Need a specific felony not just that it was a felony b/c certain business felonies are excluded from the felon-in-possession definition; should use limiting instructions to mitigate any harm from introducing specific felony Difference b/w Grassi and Old Chief

Old Chief - almost exclusively deals w/ cases where a prior conviction bears upon current case, but instant case is a new one

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o Perhaps conflates Rule 404’s bar on prior act evidence as predictive, but this would be another purpose, likely admissible

Grassi is diff b/c it’s w/in judge’s discretion to determine whether evidence is admissible in combo w/ particular stipulation

Flight and SilenceFlight - Tendency to make person appear guilty in the absence of other probative evidence might outweigh PVU.S. v. DillonF: Appeal on a federal cocaine conviction; D argues that DC erred in admitting evidence of his flightR: PV of flight evidence depends upon the degree of confidence with which 4 inferences can be drawn: (Myers)

1. From the D's behavior to flight;2. From flight to consciousness of guilt;3. From consciousness of guilt to consciousness of guilt concerning the crime charged;4. From consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

For flight evidence to be admissible, timing of flight must itself indicate sudden onset or sudden increase of fear in the D's mind that he/she will face apprehension for, accusation of, or conviction of crime charged. But mental crisis that causes flight may fail to occur until one is charged w/ crime/sought for it H: All inferences = rationally supported; Other plausible inferences do not prevent admissibility of flight evidence Silence - Silence in the face of an accusation, or when a reasonable person might be expected to speak up are admissible under similar circumstances. [EXCEPT when excluded by another rule or Constitution]

Silence NOT protected in civil litigation EXCEPT where there’s a legit threat of crim. pros. Silence protection for crim Ds under Miranda arises from general right for accused not to take stand.

o Pros. is also barred from commenting on silence before or after trial OUTSIDE of a crim situation, inferences about silence can be drawn.

Jenkins v. AndersonF: Prosecutor used the fact that D admitted to stabbing but did not initially claim it was in self-defense to make it seem like it wasn't in self-defense; D waited 2 weeks to inform the police of his role in shootingH: Evidence of silence = ADMISSIBLE - Right to remain silent isn’t triggered in pre-arrest, pre-Miranda; inference that might be drawn is not so irrational as to constitute unconstitutional grounds for decision making

Conditional RelevanceSometimes evidence standing on its own will not be relevant without some other established fact Cox v. IndianaF: TC admitted evidence, concluding that b/c Hammer's mom knew about the denial of Hammer's bond reduction and the other charges to be filed, "other persons in [Hammer's] circle reasonably are likely to know about it."R: 104(b) - When relevancy of evidence depends upon fulfilment of a conditional fact, Court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfilment of the condition.*Need reasonable inferences - sufficient evidence by which a factfinder could find by POTE…*H: State introduced evidence that C spent almost every day at the H house where H’s mother lived before/after bond reduction hearing and up to the time of the shooting (mother knew about the denial of H's bond reduction; H charged w/ molesting daughter of V in Q and is Cox's best friend) SO there is sufficient evidence to support the inference that Cox had learned what occurred at hearing (and thus went to go kill V in retaliation). Is there sufficient evidence of the requisite fact that a rational factfinder could find that the fact exists?

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Character, Propensity, and Other Act Evidence

Default Principle of Nonadmissibility What can be admissible

o Motive/MO w/ limiting instruction. o Intent elements of torts may be proved by prior similar acts when a party claims that he lacked intent

If ADMISSIBLE UNDER 404, still must pass basic relevance and 403. New York v. Zackowitz (1930) -- killed people outside for insulting wifeF: P allowed to admit evidence that showed a radio box of guns that D kept in his home even though it was obvious that they weren't used in the shooting b/c they were of a diff caliber than the pistol used H: Evidence INADMISSIBLE as indicative of his character and thus propensity to premeditate - Evidence of guns was to generate an atmosphere that D was prof criminal + besides gun he didn't have a crim record/was an opticianD: Evidence of guns should be admissible not b/c it showed that he had a dangerous disposition but to show that he had the opportunity to select a weapon to carry out the threats he made to the boys who insulted his wifeModern Analysis: Perhaps admissible to show opportunity or even a plan to shoot

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Non-Propensity Uses of Character and Prior Act Evidence

The permitted uses of 404(b)(2) provide an alternate reason for trying to admit prior act evidence. Unlike exceptions under 404(a)(2), which are still trying to show character for propensity reasons

United States v. Cunningham (7th Cir. 1996)F: Former addict nurse had access to tampered syringes; Urine test showed nurse had drug in system; Govt wants to show addiction --> stealing; 4 years prior nurse had plead guilty to stealing drug at diff hospital under a diff name; Judge let in: suspension of her license b/c of earlier theft, falsification of drug test results she took after theft & addiction that had led to the earlier theft and the resulting suspensionR: Evidence of prior conduct may be introduced (subj. to judge's power to exclude under 403 as unduly prejudicial, confusing, or merely cumulative) for other purposes (i.e. show motive for committing crime charged)H: Nurse = in position to steal; evidence of addiction = admissible unless judge thought jury would draw inference of "once a thief always a thief" (which judge did not think); evidence about falsified drug results = infer she falsified them to keep her access to drug, which created motive to tamper w/ syringes; jury had to know that she was suspended to understand why there was prior drug test results U.S. v. Danzey (1979)F: DC admitted evidence of bank robberies under 404(b) to show identity/found that the similar crimes had distinctive M.O. -- always had 2 cars, one stolen (Ford), 1 light/1 dark, 3 people involved, etc.R: Earmark cases - where method by which 2 crimes committed = so distinctive and unusual = signatureH: Evidence of 15 other robberies shows "trademarked" approach - Main issue = IDENTITY so w/o evidence the only way robber could be identified is if D confessed [Opportunity/means/identity are not relevant where identity is not at issue in the case -- check elements of case for hints for relevance]

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Absence of Mistake or AccidentRex v. Smith (1915) - Brides in the Bath caseF: D accused of murdering his wife (after she put him in her will) by drowning her in a bath; P sought to show that D's 2 previous wives (who both put him in his will) had both died in the same way H: "Doctrine of chances" - allows evidence to show that it is unlikely a D would be repeatedly, innocently involved in similar, suspicious circumstances United States v. Woods (4th Cir. 1973)R: Under doctrine of chances, the initial decision facing the trier of fact is whether the uncharged incidents are so numerous that it is objectively improbably that so many accidents would befall the accused. H: National average of children experiencing a cyanotic episode is way lower than for the children who were in Ms. Woods's custody over the same time period --> harm to children may not be accidental

Proving Other (or Prior) Acts When They are AdmissibleHuddleston v. United States (1988)F: Charged w/ knowing possession of stolen tapes; D denied knowing they were stolen; P allowed to introduce similar acts under 404(b) of D's involvement in sales of allegedly stolen TVs from same suspicious store as tapes were stolen from b/c such evidence had "clear relevance as to D's knowledge" that tapes were indeed stolenR: Court does not have to make a preliminary finding of “other acts” by POTE; similar acts evidence admitted if there is sufficient evidence to support a finding by the jury that D committed the similar actH: TC properly allowed the evidence of the TV sales, since the jury reasonably could have made a connection b/w TVs that were stolen and D's inability to produce a bill of sale (if TV stolen, then likely knew tapes were stolen) [Must only satisfy that a judge be persuaded that a jury could REASONABLY FIND THAT THE FACT EXISTS by a PREPONDERANCE OF THE EVIDENCE based on a TOTALITY OF THE CIRCUMSTANCES] Dowling v. United States (1990)F: Prior Act: robbing lady w/ help of another guy; Acquitted; Govt wants to admit evidence of incident to show connection b/w D and the same guy with a similar weaponH: Not guilty only means that jury was not persuaded as to some particular element in that case SO admitting evidence on one aspect of a prev. acquittal, so long as a reas. jury might find convincing = ADMISSIBLE; Impossible to know what facts jury was not persuaded by SO unfair to bar facts that might be persuasive on own; Look at Huddleston low standard SO conditional facts can get in even if they didn’t pass crim. standard of BARD in a prev. pros. b/c standard for conditional relevance is only POTE

Putting Character in Issue 3 categories of exceptions

o Character of D in a criminal case (NO EXCEPTION IN CIVIL) Trait must be pertinent If a D opens door to trait, pros. can rebut. Evidence admissible:

Evidence of specific acts indicative of trait CW testimony as to: specific act; reputation; opinion

o Character of alleged V in criminal case Trait must be pertinent; If admitted, pros. may offer evidence to rebut it + introduce evidence

of D’s same trait.o Character of a WITNESS in a CIVIL or CRIMINAL case

Always available Character for Credibility/Truthfulness (see 607-609)

If D puts on character evidence, pros. is free to cross-exam but must have GOOD FAITH REASON for questions asked.

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Rule 405 = framework for treating character evidence o Reputation/Opinion = available when: put in issue + provides for inquiry into specific instances o Specific Instances of Conduct = available on their own IF character = ESSENTIAL ELEMENT of a charge,

claim or defense (i.e. defamation)

SEC v. Towers Financial Corp - D cannot call character witnesses in a civil trial F: Suit for alleged material representations in furtherance of a Ponzi schemeR: 404(a)(1) uses words like "accused" and "prosecution"; can't use CW even if civil trial implicates something crimH: Plain meaning of 404 limited exception of admitting character evidence to prove that the D acted in conformity therewith on a particular occasion to CRIMINAL CASES, making it UNAVAILABLE in civil cases like this one Perrin v. Anderson (10th Cir. 1986) [CIVIL CASE AGAIN]F: Cops charged w/ violating constitutional rights of P's sons when killed him during an altercation - allowed to introduce evidence to show decedent = violent (which was circumstantial evidence that he was the first aggressor)H: B/c evidence was proof of specific prior acts of violence of V and character of W was NOT an essential element of case, it was barred by FRE 405 (BUT Even though it was a civil suit, Court of Appeals was prepared to uphold the admission of such character evidence "when the central issue involved in a civil case was in nature criminal.")

Habit (vs. Character)

Reyes v. Missouri Pacific Railroad (5th Cir. 1979)F: RR introduced evidence of R's past convictions for public intox to show that R was intoxicated on the night that he was lying on the RR tracks and got run over; R says he was on the tracks b/c he was knocked unconsciousH: BARRED by 404(a) - Evidence of prior convictions was admitted for purpose of showing that he acted in conformity w/ his drunk character on the night of the accident by becoming intoxicated; BARRED by 406 - 4 prior convictions for public intoxication over 3.5 years = insufficient regularity to rise to the level of "habit" evidence Meyer v. United States (D. Colo 1979) - Ruling for Dentist Defendant - BENCH TRIAL HOLDING SO VERY POWERFULF: P says lack of dental consent b4 procedure that left her w/ nerve damage - if she knew risks, may have refused itH: Evidence of dentist's usual practices shows that he routinely/regularly informed patients of potential risks in similar procedures; his testimony = corroborated by 2 assistants neither of whom heard the testimony of the other -- HABIT OF INFORMING PATIENTS, MAKES IT SOMEWHAT MORE LIKELY THAT HE INFORMED MEYER THIS TIME Halloran v. Virginia Chemicals (1977)F: Freon sold by D exploded and P brought suit; D claims P heated it w/ an immersion coil, causing explosion; Lower courts did NOT allow evidence of heating to be admitted

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H: IF on remand, evidence tends to show that mechanic used an immersion coil a sufficient # of times to warrant a finding of habit/regular usage = admissible to aid the jury on its inquiry whether he did so on this occasion; Exclusion = not proper ONLY IF the W had seen P use this method a "sufficient number of times" (+ should be able to talk about specific times/places it occurred) so that he formed a "habit" of doing it

Character for Credibility

Ways to Impeach:

Character for Untruthfulness [608,609]o Put on a bad CW, asking about reputation for untruthfulness o Cannot put on evidence of past acts of untruthfulness that are not convictions

Admissible: felonies (balancing test) and truth-related crimes Some old, juvenile or pardoned convictions

Non-Character Contradiction: W’s perception/memory; W’s own past statements; Contradictory Ws and/or other contradictory evidence

U.S. v. Brackeen (9th Cir. 1992)F: D pled guilty to 2 counts of unarmed robbery; P wanted to use GPs for impeachment during D's trial for aiding/ abetting armed robbery; TC admitted GPs for impeachment under 609(a)(2) can do so w/ crime of “dishonesty” R: Bank robbery = NOT w/in definition of “dishonesty” b/c it is a crime of violent, not a deceitful, taking.H: 609(a)(2) applies only to those crimes that factually or by definition entail some element of misrepresentation or deceit, and not to “those crimes which, bad though they are, do not carry with them a tinge of falsification." U.S. v. Wong (3d Cir. 1983)F: Pros. for mail fraud; Wong has prior convictions for mail fraud and wants to bar admissionH: Conviction of a truth-related crime = ALWAYS admissible; Judge doesn’t have discretion to exclude this Risks of taking stand for Criminal Ds

Opens up attacks on character for credibility SO if a list of prior convictions exists, may elect not to testify BUT, balancing test under 609(a)(1) favors nonadmissability; Judge must make affirmative finding that

evidence’s PV > DUP U.S. v. Brewer (Tenn. 1978)F: D’s charge = kidnapping; convicted of 4 prior crimes (3 state convictions w/in last 10 years; 1 federal kidnapping 17+ years ago); D released w/in past 10 years; D wants to suppress evidence of priorsR: When a conviction is offered as impeachment evidence & 10+ years old, NOT admissible UNLESS: PV > DUP

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H: Previous felonies EXCEPT kidnapping = admissible. Kidnapping poses too high a risk of DUP to justify admission, given low PV ("if he did it before, probably did it again"); other 3 convictions serve purpose of impeachment Compare with: United States v. Valencia - similar crime was admitted for impeachment purposes under 609 (even though it was not admitted for non-propensity purpose under 404(b) - balancing test for 609 and 404 = different) Factors to determine whether admitting evidence of prior convictions means that DUP > PV:

1. Nature of the crime; 2. Time of conviction and the witness’ subsequent history; 3. Similarity between the past crime and the charged crime; 4. Importance of D’s testimony; and 5. Centrality of the credibility issue.

TAKEAWAY: EVERY TIME W TAKES STAND, CHARACTER FOR CREDIBILITY CAN BE ATTACKED/BECOME AT ISSUE

Rehabilitation D's character needs to be attacked 1st BEFORE D can put on W to testify to truth/veracity

o If P puts on evidence of D's prior grand larceny conviction --> NOW, W can testify to D's truthfulness When suit for assault/battery D can put on W to testify about D's peacefulness - "pertinent trait" - D opens

door w/ this testimony Extrinsic Evidence to Provide Character for CredibilityLuce v. United States (1984)F: D did not testify; Wants review of denial of motion to forbid use of a prior conviction to impeach his credibilityR: Requiring that D testify in order to preserve 609(a) claims enables reviewing court to determine impact any erroneous impeachment may have had in light of the record as a wholeH: Knew that priors could be used against him; Failing to testify = impossible to figure out how challenged evidence would have harmed D's case; W/o full record including cross, cannot tell possible impact of impeachment Ohler v. United States

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F: P allowed to introduce priors so D introduced 1st to remove "sting" - now, appeals admissibility of convictionsH: B/c D introduced evidence of priors on direct, she could not appeal admissibility; D argued that it's unfair to apply waiver rule here b/c it compelled D to forgo tactical advantage of preemptively introducing the conviction in order to appeal the in limine ruling BUT Court found that D's argument would have denied US its usual right to decide, after she testified, whether to use her prior conviction against her Hierarchy of admissibility for convictions to show W’s bad CC

a. 609(a)(2) Truth Related Crimes (AUTOMATIC)b. 609 (a)(1) felonies of non-crim ∆ (std. 403)c. 609(a)(1) felonies of crim ∆ (ONLY IF PV > DUP)

i. Less Importantd. Convictions > 10 yrs old (PV>!DUP)e. Juvenile Convictions: Infrequentlyf. Convictions subject to pardon: Almost NEVER

Rule about collateral matters: For purposes of probing accuracy of a W's recollection of a particular event on a given day, courts routinely allow Qs about "collateral matters" - maters that doesn't really matter to guilt/ innocence of D (i.e. W says he wasn't eating fries on day in Q but B testifies that he was). But just as routinely, courts will not allow in evidence on such collateral matters, even if the questioner has apparently caught W in a falsehood on 1 small particular regarding event of the evening b/c it could distract from central issues

Judge has discretion to admit or not but if admitted just have to take witness's answer

Bias (v. Character for Credibility)United States v. Abel (1984)F: Prison gang Aryan Bhd. members testify against each other; one W claims another is lying due to involvement in gang; Trying to show bias by introducing evidence of gang tenet of perjuryH: Admissible for bias BUT inadmissible for credibility of truthfulness By limiting 609 to proof of a W’s character for truthfulness through extrinsic evidence, amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to 402 and 403. See, e.g., United States v. Winchenbach (admissibility of a prior inconsistent statement offered for impeachment is governed by 402 and 403, not 608(b)); United States v. Tarantino (admissibility of extrinsic evidence offered to contradict W governed by 402 and 403); United States v. Lindemann (admissibility of extrinsic evidence of bias is governed by 402 and 403). Taking the Witness’ Answer

a. Q’s directed to Character W re: a pertinent trait of crim ∆ or victimb. Qs directed to CCW re: prior W’s prior truthful/untruthful actsc. Qs directed to Ws re: their own prior acts for dishonesty except convictionsd. Qs directed to so-called “collateral matters” But bias≠collateral

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Rape Shield Laws

Olden v. KentuckyF: Matthews accused Ds of rape; Ds claimed M consented + concocted story to save relationship w/ Russell; TC granted M's motion to preclude evidence that she was living w/ Russell during alleged rape + allowed M to claim she was living w/ her mother; Disallowed D from asking her about this on crossR: In determining whether error = harmless, looked at: importance of W’s testimony for P’s case, whether the testimony was cumulative, the presence or absence of corroborating or contradicting material evidence, the extent of cross allowed, and the overall strength of P’s case. H: D maintained that it was consensual sex SO M's testimony = crucial to P's case; Appropriate to allow a cross that exposes the credibility, or lack thereof, of testimony; Reasonable jury might have received a significantly diff impression of M's credibility had a defense counsel been permitted to pursue his proposed line of cross; Taking into account factors, error = not necessarily harmless Evidence of extramarital affair is probably not admissibleDoesn’t fall w/in exception But in state court, D argues affair could show motive to lie Doe v. United StatesF: D wants to admit evidence of victim’s sex rep in crim case as evidence of D’s state of mind. Admissible? H: Relevant as sexual predisposition? Perhaps, but such use is barred; Relevant as evidence of defendant’s state of mind? Perhaps; Black's knowledge, acquired before alleged crime, of V's past sexual behavior = relevant for his intent; Opinion or rep evidence of V's sexual predispositions and habits = NOT admissible Rules 413-415 [RB at 91-98]

a. In civil and criminal cases, evidence of past sexual assaults admissible against D in sexual assault casesb. In civil and criminal cases, evidence of prior child molestation admissible against D in child molestation cases

1. Reverses presumption that PROPENSITY purposes are usually NOT admissible2. Allows introduction of this prior act evidence even as part of pros. case in chief3. no time limits

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4. D doesn’t have to put a pertinent character trait at issue. in order to open up admission of this evidence.

5. Does not matter if prior event was not subject of conviction - judge just needs to find that a rational factfinder would find by preponderance of the evidence that prior act occurred (Huddleston - 104(b))

Witnesses, Personal Knowledge, and Purposes of Examination Competency and Dead Man Statutes

The Personal Knowledge Requirement W should report to jury what she has perceived herself through own five senses Hearsay exemptions do not "dispense w/ requirement of firsthand knowledge" W may testify to a matter only if evidence is introduced to sufficiently prove that W has personal knowledge

o Lay a foundation for what the witness is testifying to

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Scope of Examination

Form/Scope of Exam and Preservation of ObjectionsRule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. Exercise reasonable control over mode /order of examining Ws and presenting evidence so as to:

(1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect Ws from harassment or undue embarrassment.

(b) Scope of Cross. Cross should not go beyond the subject matter of direct + matters affecting W’s credibility. Court may allow inquiry into additional matters as if on direct exam(c) Leading Qs. Leading Qs should not be used on direct except as necessary to develop W’s testimony. Ordinarily, the court should allow leading:

(1) on cross-examination; and(2) hostile W; adverse party; or W identified with an adverse party.

Rule 614. Court

(a) Calling. The court may call a W on its own/at a party’s request. Each party is entitled to cross the W(b) Examining. The court may examine a W regardless of who calls W(c) Objections. Party may object to court’s calling/examining W either at that time or at the next opportunity when the jury is not present.

Rule 615. Excluding WitnessesAt a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

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(d) a person authorized by statute to be present. Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:(A) timely objects or moves to strike; and(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Notes

During direct examination, Leading questions are permitted:o In eliciting preliminary information that is not in dispute; If the witness is forgetful; When

interrogating a very young witness; When interrogating a hostile witness Need to show foundation that you are P, know the D, etc. Need foundation of first-hand knowledge before you ask something very specific Once a W's recollection is exhausted or he otherwise gets stuck, counsel may be permitted to lead but

should do so only after asking permission from the trial judge and then only to minimum to make W unstuck On cross-examination, you cannot ask leading questions of an ADVERSE PARTY/HOSTILE WITNESS Questions that force W to assume a fact in issue are not allowed: "What had your husband done to cause

you to kill him?" BUT the fact in issue is that D has killed her husband

HearsayDefining Hearsay

Defining Hearsay Out-of-court statement offered to prove the truth of the matter is asserts = hearsay = inadmissible Definition of hearsay extends to written statements or statement otherwise recorded before trial

Estate of Murdock (2013)F: TC excluded utterance of husband even though crucial to figure out who died 1st in plane crash due to diff willsH: Statement had independent legal significance to show that husband said something SO must be alive

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Subramaniam v. Public Prosecutor (1956)F: D charged w/ possession of ammunition and in defense, D claimed that terrorists captured him + made him work under duress; TC excluded statements made by the terrorists as hearsayR: Statement = not hearsay IF introduced to establish, not the truth of statement, but fact that it was made H: Don’t care about truth of statement, just care whether such statement could cause duress; NOT hearsay.

Testimonial Triangle & Problems with Hearsay

Testimonial Triangle

o Problems: Ambiguity— does declarant’s statement in fact expresses his or her belief? May be unclear Sincerity—a declarant may say something that purposely states something other than his or

her belief Memory—the event may be remembered erroneously Perception—there may be a faulty perception of the event.

Non-Hearsay Useso To show effect on listener (Subramaniam; Prob 17, Prob 18, U.S. v. James)o Independent legal significant

Words of offer and acceptance for a K - someone can testify that offer/acceptance was made Perjury case - someone can testify to hearing person perjure themselves Defamation case - someone testify to hearing defamatory testify Marge saying that Homer said "the blue car ran the red light" to show Homer speaks English

o As circumstantial evidence of speaker’s state of mindo Any independently relevant purpose

Conduct as Hearsayo Conduct not intended as an assertion ≠ hearsay

Conduct of raising a paddle in an auction - I bid $10k BY raising paddle IS THIS HEARSAY? There are non-hearsay uses of conduct intended as an assertion

K OFFER!! – BINDING; did something that has independent legal significanceo Conduct, may imply an assertion, even if did not intend that leads to hearsay problems

Anything that a party has previously said/done can be used against them w/o regard to HS ruleo Suspect in custody - in compliance with Con. rights - suspect confesses --> crim proceeding vs. suspect

--> cop wants to testify that he heard suspect say that he killed V TO PROVE that he killed V --> looks like it fits definition of hearsay BUT offered against an opposing party AND made by the party in his own individual capacity = ADMISSIBLE (Cop can testify to confession even if D never takes stand)

Theory = typically don't go around saying things that are against interest IF they aren't true BUT: Boston murder case -- tell cops that you were in NYC on June 1 when murder happened

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But then if NY brings a suit for robbery on June 1 against you - that statement that you made to the Boston cops can be admitted EVEN THOUGH it was not against your interests to tell Boston cops that you were in NY when the Boston murder occurred

Spoken Non-Assertions [NOT hearsay]o Grunts, screams, etc. = often not considered hearsay.o Others argue that commands or questions may be non-assertive, but these likely still have hearsay

problems unless there is a separate non-hearsay purpose. Written statements will often implicate the hearsay problem, with the exception of some records. Formal admissions = binding admissions - no evidence allowed to rebut formal admissions

o Formal admissions Can't rebut someone admitting something in an ANSWER Admitting/denying things during discovery Don't really see formal admissions in criminal adjudication

Generally just guilty or not guilty The closest things are stipulations (Old Chief case)

o (compare with: 801(d)(2) admission - non binding)

Selected Rules Not Barring Hearsay

Mahlandt v. Wild Candid Survival & Research Center Inc. (8th Cir. 1978)F: Boy got into Poos's wolf enclosure; Neighbor saw boy lying on the ground + wolf’s head near his BUT did not see what wolf was doing; Poos went to Center, left a note for superior saying wolf had bit child + that he needed to talk to him; Poos then saw superior and told him about bite; Same statement = in Center’s BOD’s meeting minutes R: Statement made against a party that is party’s own statement = admissible under 801(d)(2)(B) as an admission by a party opponent + not necessary for party to have had personal knowledge about events in statementH:

Admissible against Poos individuallyo Poos' written note - 801(d)(2)(A) [statements = Poos's own statements so clearly diff from reported

statements of another + statements of which he had manifested his adoption/belief in their truth]o Poos' verbal statement - 801(d)(2)(A)o NOT ADMISSIBLE - BOARD MINUTES (principal's statement ≠ agent's statement) [no servant, or

agency, relationship which justified admitting evidence of BOD minutes vs. Poos + minutes have a repetitive nature/low PV for Poos's case]

Admissible against Wild Canine CenterPoos' written note - 801(d)(2)(D) [Poos = agent of Center - once agency + making of statement while agency relationship continues = established, then statement exempt from HS so long as it relates to a matter w/in scope of the agency]

o Poos' verbal statement - 801(d)(2)(D) -- agent statement = principal's admissiono Board Minutes - 801(d)(2)(C) = statement by person authorized to speak for WCC

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Note on Adoptive Admissions Statements of persons other than a party but which will be treated as the admissions of a party, when the

party manifested his adoption of the statement of a belief in its truth - 801(d)(2)(B) Signing a confession that another has drawn up; Signing off on a report made by a subordinate Board's minutes - manifested an adoption of Poos's statement that wolf bit a kid Silence in the face of an accusation = could constitute circumstantial evidence that person who was silent

did what they were accused of to their face - B/c silence = not intended as statement of agreement, silence is not hearsayo Fletcher v. Weir - states permitted to use such prior silence of crim D in face of an accusation for its

impeachment value if D takes the stand (pre-Miranda silence)o Salinas - nonhearsay, circumstantial evidence of guilt (need to invoke 5th during voluntary Qs)

Bourjaily v. United States (1987)F: G arranged to sell cocaine to L for FBI; L talked about a friend that had Qs about coke in recorded phone conversations; Decided upon sale time/place; Everyone showed up --> friend/L arrested; TC found that events in parking lot + L's phone statements = Govt established by POTE conspiracy b/w L and Friend + L's phone statements made in the course of/in furtherance of conspiracy SO allowed by 801(d)(2)(E)H: Conviction affirmed; TC = can look at hearsay statements to determine conspiracy exists by POTE; Requirements of 801 (d)(2)(E) = same as for Confrontation Clause SO Friend’s constitutional rights protected; Friend showed up at chosen spot/time + picked up coke + had a lot of $$ SO Court could have concluded that Govt established existence of a conspiracy and friend's participation in it --> allows L's statements about "friend"

Theory of Co-Conspirator Exception and Existence of a "Conspiracy"

Theory of the Co-Conspirator Exception o Based on agency principles; conspirators are all agents of one anothero Must be during AND in furtherance of conspiracy in order to show that it is within the scope of the

conspiracy and in order to continue the conspiracyo Vicarious admission - statement imputed to D from co-conspirator based on agency relationship

Existence of a Conspiracyo Application of the coconspirator exception depends on whether govt has formally charged conspiracy

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o Co-conspirator exception almost never applies to a confession made knowingly to police implicating associates [would likely TERMINATE, rather than further the conspiracy]

Distinguishing 104(a) questions from 104(b) questions In Bourjaily, govt had to meet several preconditions to qualify L’s statements about his “friend” as co-

conspirator statements - Qs that needed to be resolved under 104(a)o Show that Conspiracy Existed; Show that Conspiracy included Lonardo and Bourjaily; Show that

Lonardo made statements during and in furtherance of conspiracy 104(a) and (b) both address how we should resolve Qs on which the admissibility of evidence depends

o Bourjaily - 104(a) - Requires court to determine whether prelim conditions proved by POTEo Hudddleston - 104(b) - In determining whether Govt introduced sufficient evidence, court simply

examines all evidence and decides whether jury could reasonably find the conditional fact by POTE o 2 important facts about these dual standard

Preponderance standard of 104(a) = higher than the sufficient evidence standard of 104(b) Evidence under 104(a) need not be admissible BUT evidence under 104(b) MUST be admissible

104(b) governs matters of conditional relevance; 104(a) governs everything else

Prior Statements of W (Inconsistent and Consistent)

Prior Inconsistent Statements

Admissible to prove truth of matter asserted under 801(d)(1)(A) if: o Prior statement was at a proceeding under oath (trial, depo, GJ, etc.)o Prior statement is actually inconsistent w/ current testimonyo Witness is testifying now and subject to cross

Admissible for impeachment under Rule 613: o Witness is available o Not excluded by 403 (Ince)

If judge believes by POTE under 104(a) that W is lying about not remembering --> inconsistent statement

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 Doyle v. OhioH: Post-Miranda silence = inadmissible b/c warnings provide implicit assurance that silence will carry no penalty; to admit silence to impeach a witness = deprivation of due process Fletcher v. WeirF: D said for 1st time at trial, that he acted in self-defense + stabbing was accidental BUT when arrested did not mention self-defenseR: NO violation of DP when D impeached regarding his post-arrest silence IF no evidence of Miranda warningsH: Since no Miranda warnings given, when D chose to take the stand he was open to cross, and no violation of DP occurred; Cross-exam inquired as to why he did not advance his explanation to arresting officer

Silence Pre-Arrest/Pre-Miranda Post-Arrest/Pre-Miranda Post-Arrest/Post-Miranda

To impeach (but ONLY if party testifies)

OK (Jenkins v. Anderson) OK (Fletcher v. Weir) NOT OKAY (Doyle v. Ohio)

Substantively (even if party does not testify)

OK (Salinas v. Texas) Courts are divided NOT OKAY

United States v. InceF: On night of shooting, Neumann, D’s friend, told cop in a signed statement that D fired the shots BUT during trial, N said she could not recall what she told cop; US called cop to impeach N + called 2 eyewitnesses who identified DR: Risk of DUP > PV = HIGH when statement offered to impeach contains D's alleged admission of guilt H: Was cop’s testimony offered to prove the truth of the matter asserted in N’s statement (=inadmissible HS) OR to impeach (=admissible under FRE 607)? Though offered under 607, testimony = highly prejudicial + devoid of PV as impeachment evidence; Judge should have rejected it as an impermissible attempt to circumvent HS rule

Whitehurst v. WrightF: Whitehurst can’t impeach own witness, a detective, who was brought to testify whether he fired gun killing Whitehurst’s husband; Whitehurst tried to impeach testimony by introducing statement allegedly made by detective to one police Lt. stating he had, in fact, fired the gun.

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R: While proper for a party to impeach own witness, 607, "impeachment by prior statement may not be permitted where employed as a mere subterfuge to get before jury evidence not otherwise admissible." U.S. v. Morlang.H: Impeachment’s purpose was not to impeach credibility BUT to introduce evidence that would otherwise be impermissible HS; Impeachment of one’s own W cannot operate to circumvent traditional HS rule Prior Consistent Statements [801(d)(1)(B)]

To rebut allegations of fabrication o Must occur before motive to fabricate arises.o Declarant must be available for crosso PCS need not have been made under oath

Tome v. United StatesF: A.T. = 6.5 years old + short answers to leading Qs; During cross, D suggested A.T. had fabricated abuse vs. Tome b/c she wanted to live w/ mother; To rebut fabrication, US called 6 Ws (babysitter, mother, social worker, 3 docs) that all testified to statements about abuse that A.T. had made to them; TC admitted PCS under FRE 801(d)(1)(B)R: To properly rebut fabrication charge = PCS must be made BEFORE motive to fabricateH: Motivation to fabricate arose when A.T. put in D's custody in 1988, BEFORE PCS in 1990; Found that statements from the other Ws should not have been admissible under FRE 801(d)(1)(B) Prior IDs [801(d)(1)(C)]

Admissible for Truth if: o W is available and subject to cross nowo NO requirement that the prior ID be given under oath OR be inconsistent to introduce

Allowed b/c: Accuracy; change of appearance; More fear and intimidation of IDing at trial United States v. Owens F: CO Foster beaten + severe memory loss; Interviewed by investigator and said could not recall name of attacker BUT in a later meeting, named D + ID'd from photos; At trial, F said he clearly remembered ID’ing D during 2nd interview BUT on cross, admitted he did not remember any other visitors he had in the hospital except for the investigator + could not recall whether any visitors had suggested to him that D beat himR: FRE 802 does not bar testimony concerning a prior, out-of-court ID when the identifying W is unable, b/c of memory loss, to explain basis for ID; Subject to cross while on stand even if can't recallH: On cross, can show proof that he has memory loss - could show that his ID is not to be given heavy weight Unavailability of Witness [804]

Exceptions under 804 = EXCEPTIONS, but not EXCLUSIONS (Still hearsay)

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Former Testimony - 804(a)

Criminal requirements for former testimonyo Former Testimony must be under oath o Party against whom statement is brought must have had a prior motive/opportunity to develop

former testimony o Declarant must be unavailable

Civil Requirements for former testimony: o Former Testimony must have been given under oath o Party OR Predecessor in Interest must have had similar opportunity/motive to develop former

testimony COMPETITORS ≠ predecessors in interest, but merged companies may be

o Declarant must be unavailable Grand Jury Testimony won’t always be former testimony

o It’s NOT admissible under 804(b)(1) if: It’s brought in against a D who was not a party to GJ proceeding If the W is available now b/c he’s on the stand testifying. MUST BE UNAVAILABLE.

Prior motive/opportunity to develop testimony [104(a) question]

U.S. v. DiNapoli

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F: Ds wanted to call 2 Ws, but both invoked 5th Am. (therefore, unavailable) SO wanted to introduce GJ testimony; TC disallowed evidence b/c “similar motive” requirement of 804(b)(1) = not metR: To determine whether “similar motive” requirement met, court considers: whether party resisting offered testimony at present proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue; Nature of 2 proceedings – what is at stake + applicable burden of proof + cross at prior proceeding = relevant though not conclusive on issue of similar motiveH: Evidence properly excluded; Using GJ to investigate poss crimes and identify poss criminals DOES NOT make prosecutor an "opponent" of W's version BUT in trial, a prosecutor = opponent (Concerns: at GJ, prosecution does not want to reveal more than needed for an indictment); If both proceedings = trial + same manner is seriously disputed at both, THEN side opposing the version of W at 1st first trial had a motive to develop that W's testimony similar to 2nd trial's motive [SIMILAR OPPORTUNITY -- BUT NOT MOTIVE] Llyod v. American Export Lines, Inc.F: Fight b/w Alvarez and P on ship; Hearing held by Coast Guard about revoking P's license; P testified about "assault"; After hearing, Al brought negligent hiring suit against D; At trial, D offered P’s testimony from hearing to show Al initiated fight to dispute negligence; P = “unavailable” (unable to be found); TC excluded the evidence - requirements of 804(b)(1) = not metR: Under 804(b)(1), when a “sufficient community of interest” exists b/w a prior litigant and a party against whom prior testimony is offered, prior litigant is a “predecessor in interest” (PII)H: Testimony admissible, as CG and Al shared a “community of interest” + both CG and Al had “similar motive” to develop P’s prior testimony; Same nucleus of operative facts = conduct of P&Al on ship; Basic interest advanced by both = a determination of culpability + penalty for same condemned behavior thought to have occurredNote: Court collapses motive/opportunity requirements to a “community of interest” allowing parties to count as predecessors in interest to anyone w/ similar motives and opportunities; This rule was rejected by HoR, which specifically imposed the higher standard of predecessor in interest; Holding = inconsistent then with Adv. Notes Dying Declarations

Only available in prosecutions for HOMICIDE or civil cases Requires:

o Declarant believe that death is imminento Statement of cause or circumstances of believed imminent death o DEATH NOT REQUIRED, just must be unavailable

Shepard v. United States F: While on deathbed, wife had convo w/ nurse and said that D had poisoned herH: NOT dying declaration - made statements 2 days after collapse (thoughts = rational/orderly) + everyone thought she was recovering + not until a week later did she relapse; Also, doubt as to whether wife had personal knowledge of husband poisoning her (or just mere suspicions)Note: Who decides whether the out of court declarant had personal knowledge of what he/she is saying?

FRE 104(a) – DJ makes decision if persuaded by POTE that out of court declarant believed her death was imminent BUT PERSONAL KNOWLEDGE (FRE 602) = 104(b) standard - W's testimony likely only relevant IF judge finds that a jury can find by POTE that declarant had personal knowledge of what the declarant was saying (104(b) is more specialized - personal knowledge, conditional facts, proving up prior act evidence)

Statements against Interest

Need to determine under 104(a) prelim question whether the statement is against interest Statements that could expose a person to civil suit/criminal prosecution if true General Requirements

o Unavailableo Must affect money or property rights or crim liabilityo Corroboration in criminal trials

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G. M. McKelvey Co. v. General Casualty Co. of America F: Employees embezzled funds from P store but then fled (couldn’t be found by sheriff); P sued to collect on ins. policy and wanted to introduce signed affidavits from employees admitting to the theftR: Statement against interest by a person not a party = admissible IF (1) W = unavailable to testify due to death, sickness, insanity or absence from the jurisdiction, (2) W had a special way of knowing about the matters involved in the statement, (3) W had no motive to falsify the statement, and (4) statement was against W's interestH: Admissible b/c: employees = unavailable + Person who embezzles has way of knowing whether he embezzled/ how much he took + Not in interests to confess b/c could be civilly liable for $ stolen + No probable motive to lie Williamson v. United States F: Cop uncovered coke in Harris's car; H said he received drugs from D/was delivering them to D; Later H changed story, indicating that D was driving ahead of him in another rented car, witnessed search, and knew drugs had been uncovered; H refused to testify at trial; Cop was allowed to relate statements made by HR: FRE 804(b)(3) - statements against interest excludes all statements that are not explicitly self-inculpatoryH: H’s confession did little to subject himself to crim liability + reasonable person in his position might even think that implicating someone else would decrease his exposure to crim liability; Just b/c overall statement is against interest & therefore more reliable, does not mean that whole statement is admissible

Exceptions to Hearsay Rule

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Present Sense Impressions

Describing what W observed at a specific moment Does not require precise contemporaneity; so statements made shortly thereafter are covered

o But trouble with defining extent of time allowed W in court can testify to circumstances surrounding the making of the statement, and given the simultaneity

of the event and statement this should help evaluate the truthfulness of the statement Excited Utterances

Statement relating to a startling event or condition, made under stress of excitement Basic rationale: stress of occasion may deprive declarant of an opportunity to reflect on self-interest, and

may blurt out the truth, even if it hurts. o Ex. 911 Callso In a fact pattern, normally indicated by OMG!! or other craziness

Must have personal knowledge

Statements of Then-Existing Mental, Emotional, or Physical Condition Statement of declarant’s then-existing state of mind, or emotional/sensory/physical condition

o Does not include memories or beliefs of such a state of mind or conditiono Ex. I feel sleepy, sad, neck hurts, etc.o No description of an external event

Does not apply to "a statement of memory or belief to prove the [past] fact remembered or believed" i.e. "I believe (today) that D ran light (yesterday) at the intersection of Barracks and Millmont"

Future Plans ARE includedo CAN be used to show that a person planned to do something (i.e. go somewhere) o CAN’T be used to prove that another person mentioned in plans also went.

backwards looking involves earlier conversations about plans to go

Non-hearsay State of Mindo Some SOM statements come in as non-HS to demonstrate feelings - not truth of matter asserted

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Ex. “My husband is a murderous thug” in a loss of consortium case. Not trying to prove that he is a thug Just looking to effect on listener [probably doesn’t get as much for loss of consortium if

she hated her husband]

Shepard v. U.S. (again)R: Today = 803(3) specifically excludes statements of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s willH: Not used to show SOM; Forward-looking statements about one's own actions such as, "I'm going to the zoo tmrw" hold more weight in establishing SOM than backwards-looking statements about another's action such as "I've been poisoned"; Not descriptive of her own SOM or condition [BUT maybe shows she was not suicidal] Mutual Ins. Co. v. HillmonF: M claims that husband faked death to get $ + he conspired to murder Walters; At trial, M tried to show that buried body was W + introduce letters from W just before he disappeared saying that he was going on trip w/ Mr. H; Wife objected saying letters = hearsay BUT Mutual argued that statements = present state of mindR: If a person says that they are going to do an act, then that statement is relevant evidence that can be used to help prove that they actually did the act. It isn't conclusive proof, but it can help.H: W said he is going to some place on some day = some evidence that he was there on that day; W was never heard from again = some evidence that man in the casket is W and not H; Admissibility of W's letters could contribute to the circumstantial case presented by Ds and “might properly influence the jury.” Note: Statement could come in to show W was going to go there (forward looking) BUT "w/ H" not likely b/c backwards looking as he only said he was going there w/ him after an old convo where H told W his intention to go w/ him Compare with: United States v. Pheaster [HOW IT WOULD BE DECIDED UNDER FRE]R: 803(3) should "render statements of intent by a declarant admissible to prove HIS future conduct, not the future conduct of another person"H: Boy's statement that "he'd be right back" after going into parking lot = admissible to show he did not disappear voluntarily (speaking of present intention to do some future act so no faulty memory + just relating contents of mind, so no faulty perception) BUT cannot introduce it show D was kidnapper (using one person's statement of his own future intention to prove what someone else did in the future -- would only know that D is going to be kidnapper if he LOOKED BACKWARD on a prior convo boy had with alleged kidnapper) Statements for Medical Diagnosis or Treatment

Must be made for and reasonably pertinent to medical diagnosis or treatment Incudes statements to a physician consulted only for the purpose of enabling him to testify Describes medical history (past/present symptoms, sensations, their inception , or general cause—can be

backward looking) Does NOT include statements of fault Medical student was in the room can testify that patient came in and said he heard patient say to doctor

"My throat is sore."o But what about: My throat WAS sore OR I hit my head on the pavement A FEW DAYS AGO

803(4) - can testify to this backward looking statement if its relevant to medical diagnosis because theory is that you wouldn't lie to medical personnel

Could Mrs. Shepard's statement to nurse have counted as a medical diagnosis statement?o The "my husband" part -- is the “who” part relevant to medical diagnosis? Analogize to sexual

assault case - would want the wife to get out of this situationo Poisoning part could probably come in o BUT STILL NEED TO SHOW PERSONAL KNOWLEDGE -- there was some Q as to whether she had

personal knowledge about whether her husband poisoned her or if it was just an opinion Can be introduced by a doctor hired by attorney for purpose of testimony

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Usually can show you sustained injuries (i.e. push, hit by car, etc.) BUT NOT necessarily who did ito Exceptions: sexual abuse cases, domestic abuse case -- must know who abuser is to render

proper treatment Two part test for determining admissibility of WHO: Declarant's motive must be

consistent with purposes of obtaining medical treatment + Content of statement must be such as is reasonably relied on by physicians in providing medical treatment/diagnosis

Could be CONFRONTATION CLAUSE issue in criminal cases

Rules for Forfeiture by Wrongdoing Where opponent of evidence causes a declarant to be unavailable, the opponent does not receive the

benefit of the hearsay rule to bar that declarant’s testimonyo Absence as a witness is procured by the opponent of the testimony (person who doesn't want them

to testify figures out a way to make them unavailable) --> ANY hearsay of now "unavailable" witness is going to be admissible against you without regard to any other hearsay exceptions

Theory = opponent of that witness's testimony/hearsay HAS waived their objection to hearsay by procuring their unavailability

Where the proponent of evidence causes a declarant to be unavailable, proponent may not use the 804 exceptiono BUT WHAT IF YOU ARE THE PROPONENT OF SOME WITNESS'S HEARSAY BUT MAKE THEM

UNAVAILABLE SO THAT HEARSAY CAN BE INTRODUCED --> CANNOT INTRODUCE THAT HEARSAY ANYMORE (but might get in through some out hearsay exception like 803 -- just can't use 804 by getting them to be unavailable to introduce the hearsay)

  

Past Recollection RecordedDifference between Recollection Refreshed and Recollection Recorded

Recollection Refreshed: RULE 612. Writing Used to Refresh a Witness’s Memory

Once had PK but now can't really remember BUT can testify that it was truthful when memo was written -- can be admitted to show the truth of what is written in the memo

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o No need for a hearsay exception b/c testimony = refreshed PK coming from the in-court witness, not doc from which her memory is refreshed

IF unsuccessful, can perhaps try to introduce under Past Recollection Recorded. Not admitting papers into evidence -- just using it to "refresh memory" -- but jury doesn't have to believe

that witness is now testifying from his own PK after being refreshed -- can use anything to refresh

Baker v. StateR: When a party seeks to introduce a record of past recollection, they must establish: Record was made by or adopted by W at the time when W did have a recollection of the event + W can presently vouch for the fact that when the record was made or adopted, he knew that it was accurate BUTH: P could not offer police report into evidence as a record of past recollection for officer w/o showing that he wrote report or that he read it at the time it was written BUT under present recollection revived doctrine, police report could be given to Officer off the record to jog memory -- Report (that decedent never ID'd attacker) would not be entered into evidence, so the only evidence would be Officer's testimony about what he remembered Past Recollection Recorded

Governed by 803(5) Requirements:

o W must testify that they once had PK of events observedo W must no longer remembero W must have made this record when events were fresh in memoryo W must testify NOW that the information in record was accurate at time.

W isn’t testifying b/c can’t remember so RECORD COMES IN AS THEIR TESTIMONY. o Read to jury, but not admitted into evidenceo must pass muster in terms of evidentiary competence, though

Johnson v. State (Tex. 1998)F: V killed during a robbery that allegedly involved D + Reginald Taylor (W); W gave a statement to police following the crime indicating that D was responsible for murder; At trial, W testified that he could not remember what he had told police in his statement BUT statement still read aloud to jury over objection R: Evidence = inadmissible when no evidence that W had PK of event and there is no testimony given that W's memory was correctly transcribed or that factual assertions contained in the statement were true.H: Wrongly admitted b/c 2 elements lacking – no PK + W NEVER acknowledged accuracy of the statement - “Did not testify regarding the basis of the allegations contained in his statement, i.e., whether he was present during the commission of the offense . . . [nor did W] guarantee that his memory was correctly transcribed or that the factual assertions contained in the statement were true.” Business Records

Governed by “routinely kept records” exception, 803(6), also clarified by exceptions 7-14. Includes any enterprise that routinely makes records of its routine activities - schools, churches, police

departments, businesses, etc. If an enterprise relies on these records in its everyday affairs, if their competitors and its regulators also

rely on these records, as do its customers, then that is some indication of their reliabilityo + duty to observe and report/record matters accurately

To admits a business record as an actual exhibito Someone must testify that

It’s a regularly kept record of a regularly conducted business activity It’s the custom of the business to keep a record The record was made by someone with PK of the event shortly after the event. Doesn’t have to be the person who recorded that info. Requirements above are usually met

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o Declarant must have a duty w/in org organization to provide the information. HS w/in the record

o Admissible as long as person saying the HS is part of Orgo Business record containing hearsay of those w/in business or org who has a business duty to

observe and report will be admissible, including the hearsay w/ino HOWEVER, hearsay in a similar report from persons who lack a business or org duty to observe

and report (for example, witness by-standers in Johnson v. Lutz) will NOT be admissible. Lack of Business Records

o 803(7) - Evidence that info is lacking in a place where it would normally be recorded = admissible to prove nonoccurrence or nonexistence of the matter.

Johnson v. LutzF: After moto accident, police report offered into evidence by D and excludedR: Exception for records of regularly conducted bus activities does NOT encompass docs like police reports, which contain statements made by 3rd parties not under any duty to prepare doc/tell the truth when talking to copsH: Cop report = NOT record of a regularly conducted business activity BUT a report full of voluntary HS statements of 3rd persons w/ no indication that they saw the accident or whether merely repeating what others had saidNote: Sometimes courts can get around Johnson -- Can be true when it is clear that the record was made w/o anticipation of litigation in which the org would be a party Palmer v. HoffmanF: TC excluded statements from a train engineer who died before trial made in an interview 2 days after accident; Wanted to introduce them as a bus record, arguing that they were made in the course of a routine accident reportR: Business records admissible under the hearsay exception rules do not include accident reports prepared for litigation even if the reports are prepared in a routine, systematic processH: Properly excluded; Statements were not in a record inherent for a RR co Public Records - Governed by 803(8)

Treated basically the same as business records. Criminal Case-matters observed by law enforcement

o Matters observed by law enforcement personnel = inadmissibleo If record has EXCULPATORY evidence of D, then cop has to turn it over to D, but still doesn’t

come in D can also bring in the reports against govt, but not the other way around

o Solution: put officer on stand to testify about what happened Admissible—public records that include routine & non-adversarial matters.

o e.g. registering a handgun, entering or leaving the country o Opinions that are built into these are admissible, as are facts.

Beech Aircraft Corp. v. RaineyF: Ps says naval flight crash caused by "rollback" theory but Ds claim pilot error; D submitted JAG report that included opinions/conclusions from investigator; statements allowed = impossible to determine but pilot error = most probable cause; statement disallowed = rollback could have been a possible causeH: "Facts" = conclusions/inferences based on those facts; Opinions don't necessarily make report untrustworthy - unfair to allow only selected statements; Factual findings in investigative report w/o a bad motive = admissible

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The Residual Exception/ Great Hearsay Exception - Governed by 807

  2 parts of exception: Trustworthiness + Necessity

Essentially indicates that over time, courts can develop new hearsay exceptions. There are concerns that the rule just lets in “near misses” that fail to meet the requirements of existing

exceptions [7th circuit is particularly wary about this] Courts tend to be more flexible with respect to civil cases, while adhering more strictly to the HS rule in

criminal cases due to Confrontation Clause Concerns. Dallas County v. Commercial Union [More controversial approach -- very limited to facts]F: Dispute over cause of clock tower falling -- lightning striking 5 days earlier OR due to structural weakness; D introduces 1901 newspaper article about a fire near courthouse’s constructionH: Newspaper admissible b/c of its necessity, trustworthiness, relevance, and materialness, and b/c TC judge has the discretion to admit it; Necessity - fire was 58 years later so those who remember it are dead/don't really remember + hard to find any W w/ any accurate memory of fire; Trustworthiness - not likely that a small town newspaper would report about a fire if there was no such fire; No motive to falsify story about fire

Confrontation Clause

 Overlapping Role with the Hearsay Rule

An out-of-court statement [for instance, to an officer] falls w/in standard HS ruleo However, if declarant falls under a HS exception or exclusion and the declarant is unavailable, D is

faced with evidence of a W w/o the opportunity to confront/cross-examine the W

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o This presents a Confrontation Clause Problem Crawford v. Washington (state)F: D invokes spousal privilege so wife unavailable; State played wife's tape-recorded statement [made during interrogations, after Miranda warnings, that resulted in a sworn written statement under oath SO testimonial]; Wife's account = diff than D's; Admitted under HS exception to show D did not do stabbing in self-defenseR: For testimonial HS to be admissible: D needs to have opportunity to cross now OR Needed to have opportunity at time of initial testimony to cross; Any out-of-court statement that is "testimonial" in nature = NOT admissible unless declarant = unavailable to testify in court + D has had a prior opportunity to cross-examine him or herH: Use of spouse's recorded statement made during interrogation violated CC right to be confronted w/ Ws against D where spouse, b/c of spousal privilege, did not testify at trial; Prior opp for cross = mandatory and dispositive of whether testimonial statements of unavailable W = admissible Examples of Testimonial HS (CONF. PROBLEM)

Preliminary hearings GJ Testimony Testimony at another trial Sworn/Unsworn statements made to police in structured interrogation

Non-Testimonial Hearsay (NO CONF. Problem)

Casual Statements Co-conspirator statements

 Examples of Admissible HS w/in CC

Co-Conspirator Statements: Crawford acknowledges that these are non-testimonial - ADMISSIBLE. Prior Inconsistent Statements: Testimonial by definition, and although cross at time of statement is not

required, it is required at current hearing, so passes test - ADMISSIBLE Former Testimony: Testimonial - ONLY admissible under a HS exception if Crim D could cross examine in first

instance and if Witness is unavailable now—same as Crawford. ADMISSIBLE. Prior ID: Likely testimonial since probably given in interrogation or w/in proceeding. Under HS exception, no

need for proceeding or under oath. Crim D can’t normally cross exam at time of ID, but under 801(d) witness must be available for cross exam now - ADMISSIBLE

Party Admission (of D): Maybe testimonial, maybe not. o In case of a signed, sworn statement, yes. o In case of casual statement, no. o BUT, ADMISSIBLE as an admission by D

Party Admission (by Agent): Unclear, likely decided case-by-case. Business Records: Crawford identifies these as non-testimonial. Likely ADMISSIBLE. Statements Against Interest: Could be testimonial, but W must be unavailable now, so no opportunity to

cross examine now, and perhaps no opportunity at time of initial testimony. o BUT, Williamson bars statements against interest that inculpate others, and allows only those

portions that are against the declarant’s interest to be admitted

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o Therefore, likely not a problem either b/c (1) non testimonial or (2) does not inculpate crim D (except in states that are using different rules)

Dying Declarations: could be testimonial if made to authorities. However, if such HS is allowed in against Crim D, no opportunity to cross at time - INADMISSIBLE if testimonial. Admissible if non-testimonial.

Grand Jury Testimony: quintessentially testimonial. but no HS exception applies b/c D has no opportunity to cross as required the Former Testimony exception or Crawford. So, NOT admissible anyway.o As a Prior Inconsistent Statement? ADMISSIBLE b/c W is available.

Excited Utterance: might be testimonial, and if W is now unavailable, there would be a problem. However, if it is NON-testimonial or the W is available, ADMISSIBLE.

Forfeiture HS Exception: Assuming the statement is testimonial, since declarant is now absent, there may have been no opportunity to cross at any point. BUT, intentional procurement of absence could WAIVE the constitutional right to cross examine.

 Davis v. WashingtonF: Davis's ex-gf made a 911 call in which she stated that Davis had assaulted her and just fled the sceneR: Statements = NON-testimonial IF made in the course of police interrogation under circumstances objectively indicating that primary purpose of interrogation is to enable police assistance to meet an ONGOING EMERGENCYH: Gf spoke of events actually happening + statements necessary to resolve ongoing emergency rather than to learn what had happened SO gf not acting as W testifying Note: Maybe after it is not an ongoing emergency then phone statements are testimonial Hammon v. IndianaF: When police responded to a reported domestic disturbance, P's wife said nothing wrong, but let cops in; When cop separated wife from P, she said P assaulted her + sworn affidavit saying same R: Admission of an affidavit of an abuse victim w/o her testimony violates CCH: No ongoing emergency - cops seeking info about "past conduct" + primary purpose of interrogation was to investigate crime; Statements made deliberately + sometime after events + wife segregated from her spouse Compulsory and Due Process and Hearsay

 

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Chambers v. MississippiF: D said cop shot by McDonald; D has testimony of 2 Ws who claimed to have seen shooting + sworn confession written by M to D's lawyer + 3 Ws who claimed M confessed to them; On stand M repudiated confession but no exception for statements against interest + couldn't impeach own W by MS lawH: Violation of DP not to allow D to present Ws, even though the Ws’ testimony might be inadmissible under FRENote: Rule: perhaps only viable in this case BUT Evidence may be admissible despite HS problems based on a CC challenge [even if it's not testimonial]: (1) when Q of D's guilt appears to be close; (2) when evidence in Q goes directly to point of actual/factual innocence; (3) where the evidence is thought to be reliable/particularized need

Subconstitutional Exclusionary RulesNote: FRENCH RULES (If not admitted for the prohibited use, probably permissible) - 407, 408, 409, 411

BUT: 410—German Rule—forbidden for all except special purposes - Subsequent Remedial Measureso Rape Shield (412) and Guilty Plea statute (410)

Subsequent Remedial MeasuresPurpose: do not want to discourage Ds from taking steps that further safety + avoids having to give juries the difficult task of distinguishing between Ds due care prior to P's injury, and D's due care after P's injury

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Subsequent remedial measures are, however, admissible into evidence for:1. witness impeachment purposes2. proving defendant's ownership of the instrumentality that injured the plaintiff, if ownership is disputed3. proving defendant's control of the instrumentality that injured the plaintiff, if control is disputed4. proving the feasibility of undertaking precautionary measures, if feasibility is disputed

Example: In a slip and fall claim where P falls on wooden steps leading into a building, D decides, as ambulance is taking P to hospital, to quickly sand down the stairs where P injured herself; 407 prohibits P from introducing evidence of this subsequent remedial measure to prove that the steps were hazardous at the time of her injury.

If D says that he did not own the building where P fell, and P disputes this claim, P may introduce evidence that D sanded the stairs to show that D did, in fact, own the property on which the steps are located at the time her injury occurred.

If D claims that there was nothing he could have done to make the steps safer at the time of P's slip and fall, and P disputes this allegation, P may introduce evidence of the subsequent remedial measure to prove that undertaking precautionary measures was, in fact, feasible.

Flaminio v. Honda Motor Company (7th Cir. 1984)F: P = injured when lost control of motorcycle; P claims that TC erred by not allowing him to put on evidence that Honda had thickened the front forks of the motorcycle after his accident per 407 arguing that evidence was admissible to impeach any testimony by Honda that they 1) would never have thickened the struts, and 2) that 407 should not apply in products liability cases, and 3) the fed court was bound to follow state law of whether subsequent remedial measures were admissible b/c it is a matter of substantive law (Erie)H: No offer by Honda that they would not have thickened the struts SO evidence cannot be used to impeach it; Since a strict liability D still has a motivation to make things safer, he would be discouraged from doing so if evidence of subsequent remedial measures was used to show that the product was inherently unsafe SO rule applies in products liability cases; [Rule = more procedural than substantive b/c it is premised on the fact that juries will overvalue subsequent remedial procedures, so FRE applies]

Offers of Compromise and to Pay Medical Expenses Notes:

CEO in negotiation says: Engineers said there could have been a problem a year agoo CEO's statement cannot be admitted under 408 BUT opposing side will just take depo of engineers to

find out when they knew (= Statement NOT ADMISSIBLE, but can be proved up in a different way) Apologies generally NOT protected, unless stated w/in context of negotiations

o Party admission for fault Info itself is not protected, and may be admissible if discovered through other means—only the statement

in its form w/in context of negotiations is protected Completed settlements are also protected from admissibility in future litigation Also, negotiations/settlements STILL admissible to show bias or other purposes

Davidson v. Prince [ADMITTED CERTAIN FACTS IN DEMAND LETTER]F: Prince crashed a truck with cows; Escaped cow injured Davidson; Davidson sued Prince for negligence for releasing; Forensic evidence said distance was 22 ft; Prince wanted to introduce Davidson's letter, where he admitted that he was only 10 ft. away; Davidson argued that letter inadmissible as part of a settlement negotiationR: Offers to compromise or settle = NOT admissible BUT does not apply to all correspondence w/ opposing partyH: Letter language was not an offer to compromise BUT just an attempt to inform Prince of accident facts; letter demanded payment in full/suggested that there would be no compromise; not during settlement negotiation Examples:

Similar Davidson facts but Prince apologizes, admits fault, and offers to pay medical bills of Davidsono Apology and statement of fault regarding steers = ADMISSIBLE as a party admission

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Unconditional "apology" (as well as an acknowledgement of fault) will be treated as an admission, relevant to show liability

o BUT not offer to pay medical bills -- cut up statement (WHAT ARE OTHER PLACES WE DO THIS?) Can introduce settlement agreement to show bias (3 car collision and witness for A against B received

favorable settlement from A so likely to provide favorable evidence for A against B)o Can always put on extrinsic evidence to show bias -- not barred by 408

Settlement agreement in a suit to enforce it - considered either admission of the party against whom it is offered or a non-hearsay verbal act

Pleas, Plea Negotiations and Insurance1. Pleas and Plea Negotiations

a. Rule 410 applies to:i. Evidence of GPs that are withdrawn

ii. Statements made to pros. during GP negotiations not resulting in GPiii. Statements made during GP negotiations that result in a withdrawn GPiv. [DEALS WITH SIMILAR ISSUES TO 408]

b. COMPLETED GPs = admissible - NOT BARRED BY THIS RULEi. Doesn’t bring in issue preclusion, b/c issue is not litigated

ii. Admissible as a party admission in a future civil suitiii. NO CLAIM PRECLUSION b/c civil P would not be a party to the original GPiv. Statements in GP negotiations under 410 protected only if made to govt attorney or

prosecutor (vs. 408 statements need not be made to attorneys to be protected)v. Statements in GP negotiations are only inadmissible vs. D who made them (vs. 408 - neither

party may introduce protected statements, but only when offered for forbidden purposes)c. U.S. v. Mezzanatto - absent some affirmative indication that the agreement was entered into

unknowingly or involuntarily, an agreement to waive the exclusionary provisions of the plea-statement rules was valid and enforceable.

2. Evidence of Insurancea. Still admissible to show other purposeb. Only bars admission for culpability purposes c. Special Concerns

i. Mention of insurance can result in an immediate mistrial when admitted for improper purposeii. Permissible reasons are likely few, since it may not be relevant and it also creates a number of

issues in damage calculations with juriesiii. Want to incentive people to have liability insurance but don't want juries to try to take from

deep pocket parties d. Examples

i. Dispute over whether owner or lessee of a truck stop is responsible for its maintenance --> P cross-examines owner about whether owner had liability insurance that protected against damages for injuries sustained on the truck stop premises

1. Evidence in question was not offered on the issue of the owner's wrongful/negligent conduct, but was addressed to the dispute of which D had responsibility ("control") for maintaining truck stop SO ADMISSIBLE

Structure of Privileges

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The Rule

Federal courts must follow state privilege rules in cases governed by state law o In supplemental jurisdiction cases, there could be more than one privilege rule operating at once (this

might influence a fed court to decline to take on a state claim) Trammel v. United States [SPOUSAL PRIVILEGE -- PRIVILEGE OF TESTIFYING SPOUSE]F: T and wife both arrested for drugs but wife willing to testify against T for immunity; At trial, T invoked spousal privilege; TC allowed wife to testify to any act she observed during marriage/communications made in presence of a 3rd person BUT confidential communications b/w T and wife were inadmissibleHistorical Privilege: Spousal Testimonial Privilege said that a spouse could never testify against other spouse on any issue, as long as they were married VS. Spousal Communications Privilege said that a spouse could never testify about communications b/w the two made during the marriage, even after they got divorcedH: Spouse should NOT be barred from testifying if she chooses to; Testifying spouse = only one who can raise issue of privilege -- If she waives it, accused spouse can't stop testimony; Spousal communications privilege may be asserted by either spouse in both civil/crim proceedings; Spousal testimonial privilege may only be claimed by testifying spouse + only in crim proceedings; enables spouse to take advantage of pros. lenience and testify independently to take deal/immunity OR enables spouse to support spouse by refusing to testify Branzburg v. Hayes [REPORTER'S PRIVILEGE]F: 3 reporters refused to participate in GJs claiming a media privilege—asserted that a failure to privilege reporter-source communications = violation of 1st amendment free press rightH: 1st Am does not create privilege for reporters/press members to refuse to testify regarding crim activities relevant to inquiries of a GJ, or to conceal the source of such info

Authentication and Best Evidence Authentication and Identification of Documents

1. Authentication denotes a foundational requirement: a. Whenever a lawyer offers evidence that she asserts is genuine, she must provide a foundation

sufficient for a reasonable trier of fact to conclude the evidence is authentic.1. Proponent of doc must provide additional evidence to confirm authenticity 2. Self-ID by phone or signature is normally insufficient, standing alone. 3. 104(b) - all that is need is evidence sufficient for the judge to conclude that a reasonable jury

could find that the evidence in Q = genuinea. Can say you recognized caller's voice OR info revealed by caller was info that only that

person would know OR person who calls frequently stutters and stuttered on the phone

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2. Authentication: how do we know a writing it is what it purports to be?a. 902-there are some self-authenticating

1. Doesn’t mean authentic - Judge just doesn’t have to do 104(b) analysis2. Rule of automatic ADMISSIBILITY, not authenticity

b. 901(a)- proponent must produce evidence suff. to find that item = what prop claims it is1. Court doesn’t have to be persuaded, just has to find a reasonable jury could be [104(b)]

a. Conditional relevance-writing is relevant, on condition that it is authenticb. Question asks: is there suff. evidence from which a rational factfinder could find

that this document is authentic by a preponderance of the evidence?2. Just because a writing is authenticated under 901(a) doesn’t mean it's actually authentic

—just sends to factfinder

Best Evidence Rule

1. NO rule that only the best evidence may be admitted when multiple sorts of evidence could be admitted

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a. Just have to produce document yourself2. Basic goals of Best Evidence Rule

a. Requirement of Original—used to be stricter, but Rule 1003 permits admission of duplicates that are considered accurate + Proving the contents of writing—rule only applies when a writing, recording or photo is offered to prove its contents; proponent may have to show add’l evidence.

3. Rule applies ONLY: when a "writing, recording, or photograph" is offered to prove its contents 4. Witness may ordinarily not testify to what a doc said, normally the doc itself must be admitted/produced 5. If doc doesn’t exist at no fault of proponent, any relevant evidence may be put on to prove contents of

doc6. “Objection: document speaks for itself”: to the extent that doc is otherwise admissible, it is perfectly

admissible for a party on stand to read the doc aloud to factfinder7. Meyers v. United States

a. Appeal from perjury conviction, D.C. Cir. upheld admission of a W’s testimony of his recollection of proceedings for which a written transcript WAS available, against a best evidence challenge

b. Best evidence rule only applies where the contents of a writing are to be proved. Witness’ testimony was equally competent here to show what D had said.

c. Perjurious statements may be proved by others who heard them, or by notes recorded in shorthand, or by other means and not exclusively by an official transcript.

8. What does it mean to testify to the contents of a document?a. Oral confession being transcribed --> suspect then reads/signs confessions --> Can a detective

who overhead confession testify to what he heard OR does best evidence rule prevent this?1. Detective CAN still testify --> testifying from PK of what he remembers that he heard2. What if suspect never made oral confession -- just wrote/signed it -- and officer read it?

1. Objection: Best evidence b/c detective didn't also hear confession - only testifying to contents which he read - no personal knowledge of it

Review of 104(a) and (b)

1. 104(a) Is the General Rulea. 104(b) is basically an exception b. If not sure, probably 104(a)—district judge determines relevancec. HS is admissible as an exception only if all requirements are met

2. 104(b) Conditional Relevancea. Allows jury to determine whether evidence is relevant + either use relevant evidence or ignore if

irrelevant. b. District judge must find suff. evidence for rat’l factfinder to find fact by POTEc. More lenient of the 2 standardsd. Cox - evidence of molestation charges only rel. if D knew about hearing/what happened theree. Huddleston - prior act evidence-DJ must be persuaded that jury could find it by POTEf. Dowling - prior acquittal of a crim D permissible in a later trial

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g. PK Requirement - Judge: can jury find that there’s PK by POTE? 1. Shepard v. U.S. - Dying Declaration 2. Exception: Don’t need personal knowledge for PARTY ADMISSIONS

h. Like 602, 901(a)i. NOTE MATERIAL AFTER BOURJAILY - review 218-220

1. 104(a) = default rule1. Conditional admissibility of uncontestable evidence

2. 104(b) = exception to 104(a)1. Conditional relevance - only relevant if some other fact is true (i.e. letters aren't

relevant unless they are letters from Walters)2. Personal knowledge3. authentication

3. District Judge assess whether there is a risk that the jury will hear something that FRE says that they shouldn't hear and wouldn't be able to ignore

1. No collateral judgement by letting something in is probably 104(b) inquiry1. i.e. jury does not have to believe that letters are actually from Hillmon

3. RISK in 104(b): If jury hears something under 104(b) that is prejudicial, will they be able to ignore it?a. If not, maybe avoid 104(b) when it may give jury access to statements that can’t be called back if

irrelevant. b. When there isn’t a risk that a jury is going to be unable to ignore the evidence, then 104(b) is

appropriate

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