EVIDENCE OUTLINE SKINNY Rule 103 Rulings on Evidence: if admitted, opponent must timely object or move to strike, on the record, and state specific grounds; if excluded, proponent must make an offer of proof informing court of its substance - reverse on appeal only if error affects a substantial right Rule 104 Preliminary Questions: (a) covers qualification of a W, existence of a privilege, or admissibility of evidence; court is not bound by rules of evidence except privilege Rule 105 Limited Admissibility: if the court admits evidence that is admissible against a party for one purpose, but not another, on timely request, court will instruct the jury on its proper scope - limiting instructions Rule 106 If a party admits all or part of a writing or recorded statement, opponent may require introduction, at that time, of any other part or related writing or recorded statement that in fairness ought to be considered at the same time RELEVANCE Rule 401 Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action - definition of relevance - admit under 401 - a brick is not a wall; relatively rare that evidence is irrelevant Rule 402 Relevant evidence is admissible unless the rules or some other law provide otherwise Rule 403 The court may exclude relevant evidence if its probative value is substantially outweighed by: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence - 403 balancing – does probative value substantially outweigh prejudice? - suggest decision on improper basis? - exclude under 403 Similar Happenings: Evidence of other, unconnected happenings, is not admissible simply to show a propensity to act in a wrongful or negligent way - N.O. P.E.T. evidence (no other person/place, event, or time); unless you can show special relevancy - can show product defect, dangerousness of particular condition, causation in this case, notice o key to admissibility is showing similarity of facts to this case Rule 104(b) Conditional Relevancy: court may admit proposed evidence on condition that the proof be introduced later Rule 407 Subsequent Remedial Measures not admissible to prove negligence, culpability, product defect, or need for a warning or instruction - can be offered for proper purpose such as impeachment, ownership, control, or feasibility - HRE: allows evidence of product defect Rule 408 Compromise Offers, Negotiations, and Agreements: conduct, offers, agreements, and promises made during discussions to compromise are not admissible, by either party, to prove validity or amount of disputed claim or to impeach - wide umbrella of inadmissibility - exceptions: to prove bias or prejudice, negate contention of undue delay, or prove effort to obstruct criminal investigation or prosecution Rule 409 Payment of Medical and Similar Expenses not admissible to prove liability for the injury - only protects offer and/or payment; not collateral statements (apology or fault statements) Rule 410 Pleas, Plea Discussions, and Related Statements are not admissible against the defendant - exceptions: prove perjury; if already introduced, to allow statements to be considered together 1 Rule 411 Liability Insurance status is not admissible to prove a person acted negligently or otherwise wrongfully - can be offered for proper purpose such as bias or prejudice, agency, ownership, or control HRE 409.5 Expressions of Sympathy and Condolence are not admissible to prove liability; does not require exclusion of a statement that acknowledges or implies fault - pure apologies are excluded; but statements of fault are not COMPETENCE Rule 104 Preliminary Questions Rule 601 Every witness is presumed competent Rule 602 Witness must have personal knowledge Rule 603 Every witness must give an oath or affirmation to testify truthfully HRE 603.1 A person is disqualified if incapable of expressing oneself so as to be understood, even with interpreter, or incapable of understanding duty to tell the truth Rule 604 Interpreters must be qualified, and make an oath to make a true translation Rule 605 Presiding judge may not testify as witness Rule 606 Jurors are not competent witnesses at the trial and cannot testify about their deliberations except about extraneous prejudicial information brought to a juror’s attention, outside influence, or clerical error in entering verdict - Hawaii courts will inquire into “effect” of improper influence Furutani; Bailey Hypnosis: - Federal: Majority allows victim to testify what she can remember prior to hypnosis Moreno; defendant has constitutional right to testify to hypnotically refreshed memory Rock v. AK - Hawaii: not admissible in criminal proceedings unless testimony is limited to matters witness recalled and related prior to hypnosis and recollection was preserved Polygraph: Reject lie detector results unless parties stipulate to allow evidence (usually before test administered) WITNESS EXAMINATION Rule 611 Cross-examination should not go beyond the scope of direct examination and matters affecting witness credibility; Leading questions should not be used on direct except as necessary (hostile witness, adverse party, witness identified with adverse party) Rule 612 Writing Used to Refresh Memory; adverse party is entitled to have the writing produced at the hearing, to inspect the writing, cross-examine witness about it, and introduce relevant portions - refreshed while testifying – a right - refreshed before testifying – at court’s discretion - Jencks Act: USA doesn’t have to give up statements until after gov. witness has testified on direct - can use anything: my left shoe Rule 614 Court can call its own witness Rule 615 Sequestration: at party request (a right), or at court’s discretion, a witness may be excluded so he cannot hear other witnesses testify - cannot exclude a party, party’s representative, or “essential parties” HRE 616 Televised Testimony of Child: court may allow, if physical presence of the accused would cause serious emotional distress to child and substantially impair child’s ability to communicate - defendant out; defense lawyer in IMPEACHMENT (1) Bias – never collateral; extrinsic evidence at any time (2) Sensory perception – inability to perceive correctly or provide credible testimony; extrinsic evidence allowed 2 (3) Character for Credibility – reputation or opinion, and specific instances/608, and prior convictions 609 (4) Prior Inconsistent Statement – 613 (5) Contradiction – something W said is not true; extrinsic evidence allowed, but cannot be on collateral issue Rule 607 Any party may attack the witness’s credibility Rule 608 Evidence of Character (for credibility) and Conduct of Witness - (a) Reputation or Opinion Evidence: only for truthfulness; only after character for truthfulness has been attacked o no bolstering o by taking stand, a defendant has opened the door to evidence of truthfulness - (b) Specific Instances of (non-conviction) Conduct: on cross, court may allow inquiry into prior bad acts o HRE: right to ask about prior bad acts on cross o extrinsic evidence: FRE: other than conviction of crime under 609, cannot use extrinsic evidence; so must “take the W’s answer” even if he lies HRE: allows extrinsic evidence for prior bad acts impeachment at courts discretion, major difference Rule 609 Impeachment by Evidence of Prior Conviction - felony: must be admitted, subject to 403; but if the W is a criminal defendant, must be admitted so long as probative value outweighs prejudicial effect - any crime of dishonesty must be admitted - 10-year time limit, unless probative value substantially outweighs prejudicial effect; and notice - does not apply to convictions that have been pardoned/annulled/rehabilitated - limited admissibility for juvenile convictions in FRE; allowed in under HRE - HRE: only dishonesty convictions are admissible; but criminal defendant wears a halo; prior conviction only admissible if defense tries to establish credibility HRE 609.1 Evidence of Bias, Interest, or Motive; can use extrinsic evidence - common law in federal courts; same outcome Rule 610 Religious beliefs or opinions are not admissible to attack or support credibility Rule 613 Witness’ Prior Statement: can impeach with PIS - (a) intrinsic; while W is on the stand o party does not need to disclose contents to W unless requested o allows surprise - (b) using extrinsic evidence, so long as W has opportunity to explain or deny the statement - proper foundation must be laid (before or after impeachment) - HRE 613(c): prior consistent statements admissible to rebut attack using PIS, to show PCS was made before alleged bias or motive for PIS, to show PCS was made when event was recent and fresh AUTHENTICATION - documents: handwriting, voice (telephone), photographs, x-rays - fungible items may require chain of custody (show special handling) Rule 901 Proponent must authenticate or identify an item of evidence by producing evidence that supports a finding that the item is what the proponent claims it to be - lenient standard; discretion of judge; typically satisfied - (b) illustrations of good authentication Rule 902 Self-Authentication: Extrinsic evidence not required for certain items - including domestic public documents under seal or signature, foreign public documents, certified copies of public records, trade inscriptions (food labels), certified records of RCA (biz record) 3 - does not include signed documents with letterhead Rule 903 Subscribing Witness’ Testimony Unnecessary BEST EVIDENCE Rule 1001 Originals include “duplicates” Rule 1002 Original required to prove the contents of a document; exceptions if there is a good reason original or duplicate cannot be provided; allowing proof of document content through other evidence H/FRE 1003 Duplicates admissible as original unless genuine issue or authenticity of original, or it would be unfair to admit the duplicate in lieu of the original H/FRE 1004 Original or duplicate not required, and other evidence of the contents is admissible if - lost or destroyed (not in bad faith) - unobtainable through judicial procedure - in possession of uncooperative opponent - document pertains to a collateral matter; not closely related to a controlling issue H/FRE 1005 The contents of public records can be proved by certified copy or by witness who has compared it with the original H/FRE 1006 Summaries allowed for voluminous writings H/FRE 1007 Testimony or Written Admission of Party: contents may be proved by testimony or deposition of the party against whom offered or by party’s written admission, without accounting for nonproduction of the original H/FRE 1008 Court determines admissibility; Jury determines other issues HEARSAY - Hearsay risks: no cross to test: Sincerity, Perception, Articulation/ambiguity, or Memory Rule 801 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted - oral assertion, written assertion, or nonverbal conduct intended to be an assertion, document, silence in certain situations Rule 802 Hearsay is not admissible unless it falls within some exception Rule 805 Hearsay Within Hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule Rule 806 Declarant may be impeached, and then rehabilitated, as any other witness Statements that are not Hearsay FRE 801(d)(1) Prior Statements by Declarant-Witness are not hearsay if: - inconsistent with declarant’s testimony and was given under penalty of perjury at an early legal proceeding (any sworn PIS) - consistent with declarant’s testimony and offered to rebut charge of fabrication or improper influence or motive; OR to rehabilitate declarant’s credibility - prior identification - HRE 802.1: can also introduce signed prior statements FRE 801(d)(2) Admission by Party-Opponent if offered against opponent and was party’s own statement, an adoptive admission, made by speaking agent, agency admission, or coconspirator in furtherance of a crime - contents of statement alone are not enough to establish authority to speak for opponent, agency relationship, or conspiracy - withdrawn plea is not an admission Rule 410 - hearsay exception under HRE 803(a); same outcome Verbal Acts: statement of operative fact that gives rise to legal consequences - e.g. defamation, contract 4 803 Exceptions: Availability Immaterial Rule 803(1) Present Sense Impression: A statement describing or explaining an event or condition, made while or immediately after the defendant perceived it Rule 803(2) Excited Utterance: A statement related to a startling event, made while the declarant was under the stress of excitement that it caused Rule 803(3) Then-Existing Mental, Emotional, or Physical Condition: A statement of declarant’s then-existing state of mind (motive intent, or plan), or emotional, sensory, or physical condition (mental feeling, pain, or bodily health) - does not include a statement of memory or belief (unless it relates to validity of declarant’s will) o Shepard: statements about prior conduct not admissible - Hillmon: present intention admissible to prove future conduct of declarant o limited to declarant; does not extend to another person Rule 803(4) Medical Diagnosis or Treatment: A statement that is made for and reasonably pertinent to medical diagnosis or treatment and describes medical history, past or present symptoms or sensations, their inception, or their general cause - allows backward-looking statements - fault-statements not covered Rule 803(5) Past Recollection Recorded A record on matter that W once knew about but now cannot recall well enough to testify, was made or adopted by W when matter was fresh in W’s memory, and accurately reflects the W’s knowledge Rule 803(6) Records of Regularly Conducted Activity if kept in the regular course of business, made at or near the time of the event, by someone with personal knowledge (KRAP) Rule 803(7) Absence of a Record of RCA admissible to show event didn’t occur Rule 803(8) Public Records if it sets out office’s activities, observation while under legal duty to report (but not by law-enforcement personnel in a criminal case), or factual findings from a legally authorized investigation (civil case or against the government in a criminal case) Rule 803(9) Public Records of Vital Statistics (birth, death, marriage, reported to public office in accordance of legal duty) Rule 803(10) Absence of a Public Record admissible after a diligent search failed to find record FRE 803(9)-(23) / HRE 803(b)(9)-(23) Miscellaneous Exceptions 804 Exceptions: Declarant must be Unavailable Rule 804(a) Unavailability: Declarant considered unavailable when declarant asserts a privilege, refuses to testify despite court order, testifies to lack of memory about subject matter, unavailable due to death or then-existing infirmity or illness, or absent and unable to procure by subpoena (PRIMA) Rule 804(b)(1) Prior Testimony given by witness at a proceeding under oath, and if the party against whom the statement was offered had similar motive and opportunity to develop the testimony - same motive? factors: same issues, same stakes, and same parties o strictly construed in criminal cases o broadly constructed in civil cases Rule 804(b)(2) Dying Declaration made under belief of imminent death, about cause of death, in a homicide or civil action - HRE 804(b)(2) allows dying declarations in any case (all criminal and all civil) Rule 804(b)(3) Statement Against Interest that are so clearly against declarant’s penal or pecuniary interest that a reasonable person would not have made the statement unless he believed it to be true - in a criminal case, must be supported by corroborating circumstances that indicate trustworthiness o HRE: only criminal defendant needs to corroborate - court will sever collateral statements that are not against interest Rule 804(b)(4) Statement of personal or family history (family or someone intimately associated) 5 Rule 804(b)(6) FORFEITURE if unavailability is due to wrongdoing of a party intended to procure unavailability, hearsay of the unavailable declarant is admissible against the aprty - party forfeits right to object to their hearsay HRE 804(b)(5) Statement of Recent Perception that describes an event or condition recently perceived by declarant, made in good faith, and not in contemplation of pending litigation or settlement, while declarant’s recollection was clear HRE 804(b)(6) Statement by Child under the age of 16 that describes any act of sexual assault or physical violence performed against child if court determines time, content, and circumstances provide strong assurances of trustworthiness Rule 807 Residual Hearsay Exception statement not covered by 803 or 804 exception but nonetheless has sufficient circumstantial guarantees of trustworthiness and is more probative than other evidence available through reasonable efforts is admissible; must give notice of intent to use 807 - HRE 803(b)(24) Confrontation Clause: “Testimonial” statements of an unavailable witness violate the Confrontation Clause unless there was a prior opportunity for cross-examination Crawford - Davis/Hammons Rule: o “nontestimonial” – to private parties (friends, neighbors, business persons); or primary purpose is to enable police assistance in an ongoing emergency o “testimonial” – when primary purpose is to establish or prove past events potentially related to later criminal prosecution - privilege for criminal defendant, where declarant is unavailable (PRIMA) - 6th Amendment: In all criminal proceedings, the accused shall enjoy right to be confronted with the witnesses against him - Ohio v. Roberts Approach (HI): focus of reliability CHARACTER EVIDENCE Rule 404 (a) Character evidence is not admissible for the purpose of proving the person acted in accordance with the character trait; except: - 404(b): in a criminal case, defendant may offer defendant’s own pertinent trait (subject to rebuttal by prosecutor); or a defendant may offer victim’s pertinent trait (subject to rebuttal by prosecutor regarding victim or defendant’s pertinent trait) o HRE: attack on victim’s trait does not expose defendant’s same trait to prosecutor - 404(c): in a homicide case, prosecutor may offer evidence of victim’s peacefulness to rebut evidence that victim was first aggressor (b) Crimes, Wrongs, or other acts are not admissible to show a person acted in accordance with the character; except - to prove another purpose (motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident) - on request, prosecutor must provide notice Rule 405 Methods of Proving Character Evidence, when admissible - (a) by Reputation or Opinion; can inquire into relevant specific instances on cross - (b) by Specific Instances of Conduct; where character is an essential element of charge, claim, or defense Rule 406 Habit and an organizations routine practice can be admitted to prove conduct in conformity - factors: specificity, regularity, unreflective behavior Rule 412 Rape Shield Law: excludes evidence of victim’s prior sexual behavior or predisposition in sexual misconduct cases, except - criminal cases: (narrow exceptions) 6 o another source of physical evidence (semen, injury, or other) o consent defense, prior acts between D and victim o when constitutionally required - civil cases: probative value substantially outweighs danger of harm to victim and unfair prejudice Rule 413 Where criminal defendant is accused of sexual assault, any other sexual assault defendant committed is admissible, requires notice Rule 414 Where criminal defendant is accused of child molestation, any other child molestation defendant committed is admissible, requires notice Rule 415 Where a civil defendant faces a claim of sexual assault or child molestation, court may admit evidence of defendant’s past sexual assault or child molestation, requires notice LAY & EXPERT OPINIONS, PROBABILITIES Rule 701 Lay Witnesses are limited to helpful opinions that are rationally-based on the witness’s perceptions - not based on scientific, technical, or other specialized knowledge Rule 702 Expert Witnesses must be qualified and can give opinions so long as they are based on sufficient facts or data, the product of reliable principles and methods, and expert has reliably applied principles and methods to the facts - codified Daubert factors - use of statistics must be reliable Collins Rule 703 Experts can rely on facts or data that are the type reasonably relied upon in the field—even if they don’t have personal knowledge, or even if the underlying evidence would not be admissible otherwise - HRE: court may disallow testimony if underlying facts or data indicate lack of trustworthiness Rule 704 Opinions on an ultimate issue are generally admissible, except in a criminal case, an expert must not state an opinion on whether defendant had mental state or condition that is an element of the crime or defense Rule 705 Expert does not need to disclose facts or data underlying opinion prior to testifying unless the court orders otherwise; but the expert may be required to disclose those facts on cross Rule 706 Court-appointed experts are available BURDENS & PRESUMPTIONS FRE 301 In a civil case, party against whom a presumption is directed has the burden of producing evidence to rebut the presumption FRE 302 In a civil case, state law governs the effect of a presumptions if state law supplies the rule of decision HRE 301 Definitions HRE 302 In civil proceedings, burden is on party against whom the presumption is directed; if presumptions conflict, weightier presumption applies; if equal weight, neither applies HRE 303 Public policy presumptions imposing burden of production - bursting bubble: by challenging the presumed fact, jury instruction on presumption is not given - including: money presumed to be owed, letter presumed to be delivered, possessor presumed to be owner HRE 304 Presumptions imposing burden of proof - continuing effect: jury instruction is still given, even if presumed fact is challenged - including: official duty regularly performed, death after five years HRE 305 Prima facie statute establishes presumption HRE 306 Presumptions in Criminal Proceedings, court may submit presumption to jury only if a reasonable juror could find the presumed fact beyond a reasonable doubt; jury instructed that it may infer 7 a presumed fact but is not required to do so and that presumed fact must be proved beyond a reasonable doubt JUDICIAL NOTICE Rule 201 The court may take judicial notice of a fact that is not subject to reasonable dispute because it is generally known within the jurisdiction or can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned - any stage or proceeding; on its own or at party request - civil case: jury instruction that the fact is conclusive - criminal case: jury instruction that the fact may or may not be conclusive HRE 202 Judicial Notice of Law PRIVILEGES - apply at all stages of actions, cases, and proceedings Rule 1101(c) FRE 501 Common law determines privilege in federal question cases; state law provides privilege in diversity cases where state law decides HRE 501 Unless a privilege applies, no person can refuse to be a witness, refuse to disclose any matter refuse to produce an object or writing, or prevent another from doing so - must cooperate with proceedings unless privilege applies HRE 503 Lawyer-Client Privilege: Client has privilege to refuse to disclose and prevent disclosure of confidential communications between client and her attorney; includes attorney’s representatives, attorneys in common interest, and among lawyers who represent the same client - Upjohn: attorney-client privilege attaches to employee - exceptions: future crime or fraud, prevent crime or fraud, will contests through same deceased client, fee disputes and legal malpractice claims, lawyer as notary, suits between two clients if they shared attorney, profession responsibility HRE 504 Physician-Patient Privilege: Patient has privilege to refuse to disclose and to prevent disclosure of confidential communications made for the purpose if diagnosis or treatment, among doctor and persons who are participating in the diagnosis of treatment under the direction of the physician, including family members - Exceptions: proceedings for hospitalization, court-ordered examinations, condition as element of claim or defense, proceedings against physician - no federal common law HRE 504.1 Psychologist-Client Privilege HRE 505 Spousal Privilege - Testimonial Spousal Privilege: in criminal proceedings, the current spouse of the accused has a privilege not to testify against the accused o Trammel Witness-spouse is privilege holder; defendant-spouse cannot assert privilege to stop spouse from testifying against him - Confidential Marital Communications Privilege: in all proceedings, either spouse has privilege to refuse to disclose or prevent disclosure of private communication between spouses that is not intended for disclosure to any other - Exceptions: spouse is charged with crime against the other spouse or property, child of either spouse, third person living with either spouse, or third person committed in the course of committing a crime against any of these three; or as to matters occurring prior to marriage HRE 505.5 Victim-Counselor Privilege HRE 506 Communications to Clergy HRE 510 Identity of Informer HRE 507 Political Vote HRE 509 Privilege Against Self-Incrimination HRE 508 Trade Secrets HRE 511 Waiver of Privilege by Voluntary Disclosure HRE 512 Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege HRE 513 Comment Upon or Inference From Claim of Privilege; Instructions 8
