INTRODUCTION TO EVIDENCE
- For law of evidence, trial court is usually court of last resort
- Appellate court rarely reverses a trial court for mistaken rulings on evidentiary
issues unless the appellate court doubts the substantive justice of the trial’s
outcome
- “FOR THE RECORD”
- An appellate court is generally restricted to reviewing a trial “on the record” -- it
must base its decision solely on info that was presented in the trial court and
preserved in the record of the trial
- The trial record is the authoritative source of info about the trial for all purposes
- Record consists of :
- Pleadings, memoranda, and other court documents
- These papers are incorporated into the record when they are filed
with the clerk of the court
- Must be prepared for the trial or hearing on which they are used
- Not usually evidence but have evidentiary implications
- Transcripts of oral proceedings
- Get transcribed: Testimony ; Objections, rulings, and offers of
proof ; jury selection, opening statements, closing argument,
instructions ; sidebar conferences and meetings in chambers
- Exhibits
- Objects or documents that have evidentiary value in themselves,
or that help clarify or illustrate the testimony of a witness
- Presented as evidence or in conjunction with other evidence for
the benefit of the trier of fact
- Procedure for using exhibits:
- Must be marked for identification by the clerk
- Must be shown to the opposing party
- Must be admitted in evidence → authentication
“Real World” Rules of Evidence
- Litigation is storytelling → in every case, the fact-finder chooses between two competing
stories
- If you do not know the rules of evidence ,you cannot tell your client’s story of properly
limit the other side’s effort to their story
- Many judges do not know--or they carelessly apply--the rules of evidence
- If there is no proper and timely objection, then there was no error → so cannot appeal it
- If it is not in the record, then it didn’t happen
- Even if the trial judge clearly made a mistake in admitting or excluding evidence, an
appellate court will rarely do anything to correct it
- Trial judges know they have a lot of discretion
EVIDENCE RULE 606 -- Juror’s Competency as a Witness
- “a) At the trial. A juror may not testify as a witness before the other jurors at the trial. If
a juror is called to testify, the court must give a party an opportunity to object outside the
jury’s presence.
- b) During an Inquiry into the Validity of a Verdict or Indictment.
- 1) Prohibited Testimony or Other Evidence: During an inquiry into the validity
of a verdict or indictment, a juror may not testify about any statement made or
any incident that occurred during the jury’s deliberations; the effect of anything on
that juror’s or another juror’s vote; or any juror’s mental processes concerning
the verdict or indictment. The court may not receive a juror’s affidavit or evidence
of a juror’s statement on these matters.
- 2) Exceptions: A juror may testify about testify about whether
- (A) extraneous prejudicial information was improperly brought to the jury’s
attention;
- (B) an outside influence was improperly brought to bear on any juror; OR
- (C) a mistake was made in entering the verdict on the verdict form”
- POLICY BEHIND RULE:
- Strong desire to protect juries from post hoc challenges → there should be no
nitpicking about how the jury’s deliberation happened cuz this violates the finality
of the juror’s decisions
- The EXCEPTIONS refer to improperly obtained information used in deliberations
- Ex: (b)(2) allows for testimony about outside influences that might have
tainted deliberations
- There has there been a contamination of the process so it is not as
unagreeable to upset the finality of the jury’s result -- not the same as just
rooting around proper deliberation
- Hence, this rule provides a complete protection of deliberations that were on
information properly obtained
- These rules are very sensitive → some parts of a testimony could be admissible and
others not, as shown by the Juror Hicks statement
JUROR HICKS STATEMENT
- Bobby Hill convicted and sentenced to death for murer → he’s now challenging his
sentence in post-conviction review
- Lawyers representing Hill interviewed a juror from his trial (Juror Hicks)
- What of Juror Hicks’ statement could you present according to FRE 606(b)?
FACT
ADMISSIBILITY/REASON
Jury had difficulty imposing death
sentence
NO -- Impeaching deliberations [(b)(1)]
Bailiff told the jurors that Hill would be
YES -- Extraneous information (that
released in 7 years if given a life
sentence instead of death
shouldn’t have reached witness stand)
[b(2)(a)]
Jury sentenced Hill to death relying on
that information
NO -- Jurors’ mental processes [(b)(1)]
Hicks saw Hill in shackles
YES -- Extraneous information [(b)(2)(a)]
Hicks thought Hill was dangerous
because of the shackles
NO -- Jurors’ mental processes [(b)(1)]
2/9/2021
ANATOMY OF A TRIAL
- Where can you introduce/present evidence to jury/jurors?
- Plaintiff’s witnesses (direct/cross/redirect/recross examinations)
- Defense’s witnesses
- Plaintiff’s reply witnesses (limited to new issues)
- Defendant’s rebuttal witnesses
- So lots of parts of the trial happen before evidence can even be presented
THE PREPARATION OF TRIAL
- Where do lawyers get evidence?
- Pre-trial discovery (but not usually sufficient cuz other side might be hiding stuff
even if not supposed to)
- Investigation
- Ex: requesting and collecting records
- can last all the way to trial
- Lawyers must consider what of the evidence collected is admissible in court
- Lawyers must also consider what the best trial strategy is using the evidence that has
been gathered.
- Ex: if one of the witnesses does not seem credible to the jury or is unlikeable or
inarticulate
PEOPLE V. TELLEZ
- Most important pieces of evidence:
- For prosecution:
- Ronnie’s injuries did not match his testimony
- Only one handcuff was on Ronnie
- The story is corroborated by four different people
- Photographic evidence of Alfieri’s injuries
- Not much evidence of Ronnie’s injuries
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For defense:
- Changing of witness’ stories
- Nobody initially mentioned the opened handcuffs
- A second set of handcuffs was put on Ronnie instead of just locking the
old one → implies he really didn’t have a key and wasn’t trying to escape
- Broken glasses
- Security of building and courtroom --. Where would he even have been
trying to escape to
Jury finds him NOT GUILTY → defense prevails
- Evidence for prosecutor is strong but not “beyond a reasonable doubt”
Sequestration of Witnesses
- Motion to Exclude Witnesses (on Page 18)
- Rule 615: Excluding Witnesses
- “At 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
- (Means the party when party is human)
- (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
- (Means human representative of company or
organization - sinc standing in for nonhuman party)
- (c) a person whose presence a party shows to be essential
to presenting the party’s claim or defense OR
- (Refers to maybe a translator if witness or party
doesn’t speak English; or expert who needs to
interpret what other witnesses are saying); or lead
investigator or law enforcement for prosecution
(since they have the most knowledge of case))
- (d) a person authorized by statute to be present”
- (Ex:people who have independent right to be there)
Opening Statement
- Side with burden of proof (usually prosecution) goes first
- (also goes first for closing argument and gets last rebuttal for closing
argument)
Witnesses being Sworn (page 28)
- Rule 603: Oath or Affirmation to Testify Truthfully
- “Before testifying, a witness must give an oath or affirmation to testify
truthfully. It must be in a form designed to impress that duty on the
witness’s conscience.”
- To reinforce in mind of witness to be truthful
- No God involved; just affirmation that will testify truthfully
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Witness Competence
- Rule 601: Competency to Testify in General
- “Every person is competent to be a witness unless these rules provide
otherwise. But in a civil case, state law governs the witness’s competency
regarding a claim or defense for which state law supplies the rule of
decision.”
- PRESUMPTION OF COMPETENCE (change from common law)
- Exceptions to presumption of competence:
- Rule 606(a) → a juror may not testify as a witness before
the other jurors at the trial
- Rule 605 → judges in cases over which they preside
Ethics of asking an objectionable question (page 57)
- Asked questions even though she knew they were objectionable → to plant the
seed of the idea in the jury’s mind anyway
Page 71 → judge rules on objection wrong
- Prosecution eliciting prior acts of Alfieri as proof of his good character; defense
objects but judge overrules → so cannot appeal
- Similarly defense didn’t object to something that should not be allowed → since
she didn’t object, cannot argue that it was wrongly admitted on appeal
Page 82 → Tellez testifies in his own defense -- unusual
- But put him on the stand since he was a former cop -- so he is used to being
questioned and cross-examined
Jury Instructions (page 134)
- Shape the jury’s decision making process → tells them the methods for sorting
through info
- Usually boring and jargon heavy -- jurors don’t understand instructions
- So as a lawyer you should instruct them by putting own input into
judge’s instructions
2/10/2021
TAKING EVIDENCE -- PRECONDITIONS TO TESTIMONY
PERSONAL KNOWLEDGE AND THE LAY OPINION RULE
- Most basic rule of evidence from point of view of the case is RELEVANCE
- From the point of view of the WITNESS, however, the fundamental limitation is
PERSONAL KNOWLEDGE
- Regardless of the case, or the issue, a person may only testify to things she has
perceived.
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FRE 603 : “A witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of
the matter”
Personal knowledge requirement means that a witness can testify only to what she saw,
heard, or otherwise perceived
- If the testimony is based on the witness’ perceptions and represents her best
memory it is admissible, even if the perception and memory are foggy or
incomplete
Two major exceptions to the personal knowledge requirement
- 1.) Admissions → statements by a party to a trial that are offered in evidence by
the opposing party--”admissions”--are a major exception to the hearsay rule
- An “admission” by the opposing party may be used in evidence even if it
is based on second-hand information or guess-work rather than
perception
- 2.) FRE 602: The personal knowledge rule does NOT apply to a witness’s
expert testimony under Rule 703.
FRE 701 -- allows opinions in general, but limits them
- “If a witness is NOT testifying as an expert, testimony in the form of an
opinion is limited to one that is:
- (a) rationally based on the witness’s perception;
- (b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; AND
- (rule of preference → if more precise sensory data is
available + easy to convey, use them; if not, you may fill in
with inferences)
- (c) not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702”
Old “Ultimate Issue” Prohibition Rule overturned by FRE 704(a)
- FRE 704(a) -- “An opinion is not objectionable just because it embraces an
ultimate issue”
- Exception -- no witness may state an opinion about the defendant’s
mental state in terms of the legal standards that define “an element of the
crime charged or of a defense”
FRE 701 and 702 require that opinions be helpful AND FRE 403 permits the exclusion of
opinions that are unfairly prejudicial or waste the court’s time
- Also cannot express opinion about the credibility of the testimony of another
witness
OATH
- FRE 603: “Before testifying, a witness must give an oath or affirmation to testify truthfully.
It must be in a form designed to impress that duty on the witness’s conscience.”
COMPETENCE
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FRE 601 -- “Every person is competent to be a witness”
Narrow EXCEPTIONS to general rule of competence
- FRE 605 -- a judge may not testify at a trial in which she presides
- FRE 606(a) -- a juror may not testify in a case in which he is sitting
- Dead Man Statutes -- opposing parties in lawsuits cannot testify about dealings
with their deceased opponents
FRE 601 -- federal courts should apply state-law competence rules in cases which,
under the Erie doctrine, are subject to state substantive law
Competency requirement comes from oath requirement??? -- since witness must
promise to testify truthfully, the judge is impliedly authorized to determine whether the
witness understands the meaning of that promise to testify truthfully and has the
capacity to keep it.
INTERROGATION
- DIRECT EXAMINATION
- Can cover ANY RELEVANT MATTER
- Ideally, trial is not a procedure for obtaining evidence but a forum for presenting
evidence -- so limit ability of lawyers to control testimony during direct examinat
- FRE 611(c) -- “LEADING QUESTIONS should not be used on direct
examination except as necessary to develop the witness’s testimony”
- Trial courts have virtually unlimited discretion in ruling on objections to
leading questions
- Leading is permitted on preliminary matters (that aren’t disputed)
- No leading questions cuz decreases credibility of testimony
- “Asked and Answered” Objection → designed to deal with attorneys trying to cue
a witness during a direct interrogation
- CROSS-EXAMINATION
- FRE 611(c) -- Court SHOULD ALLOW LEADING QUESTIONS
- More restricted topics than direct examination → limited to same ground that was
covered in direct examination
- FRE 611(b): SCOPE OF CROSS-EXAMINATION -- “Cross-examination
should not go beyond the subject matter of the direct examination and
matters affecting the witness’ credibility. THe court may allow inquiry into
additional matters as if on direct examination.”
- But can ask even if outside scope, it it bears on witness’ credibility
- IMPEACHING AND LEADING ON DIRECT
- FRE 607: “Any party, including the party that called the witness, may attack
the witness’s credibility.”
- Right to impeach is NOT the same as right to cross-examine
- You are free to impeach on direct, but ordinarily you must do so without
leading questions
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However, you may use leading questions on direct if you call a “hostile
witness, an adverse party, or a witness identified with an adverse party”
(FRE 611(c)(2))
- FRE 611(c)(2) -- 3 situations in which leading questions should be permitted on
direct examination:
- (1) When one party in a civil case calls the opposing party as a hostile
witness
- (2) When a party calls an employee, relative, or other person “identified”
with the opposing party
- (3) When the witness demonstrates hostility to the direct examiner by
being evasive or changing her story or acting truculent or unexpectedly
giving evidence that damages the direct examiner’s case
THE JUDGE’S PLENARY CONTROL
- FRE 611(a): The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to:
- (1) make those procedures effective for determining the truth;
- (2) avoid wasting time; and
- (3) protect witnesses from harassment or undue embarrassment
- Reasonable Control = judge has virtually unreviewable authority to decide how
and when questions are put to witnesses
PROBLEMS
- II-1 (page 147): The objection is not valid because Jimmy does have personal
knowledge of what he is testifying -- he’s testifying that he called number given to him by
his father, that it was a long-distance number from Chicago, that Sid answered and said
that his dad was in Chicago--all of which he does know. He is not testifying that his dad
was actually in Chicago (which is what would not be personal knowledge).
- FRE 602 : “A witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of
the matter”
- The prosecutor could possibly make a hearsay objection depending on what
evidence is being used for. (FRE 801+ 802) → defense is trying to elicit from
Jimmy that Able was in Chicago -- wants info that places Able in Chicago -out-of-court statement offered in court for its truth (which is objectionable)
- Could they raise the hearsay objection on appeal having asserted at trial only the
personal knowledge objection
- NO -- cuz FRE 103(a)(1) -- there needs to be a specific objection made to
be raised on appeal (wasn’t right objection made here, so cannot appeal
on different objection)
- II-2: The motion should not be granted because he is saying what he perceived/saw. If
the testimony is based on the witness’ perceptions and represents her best memory, it is
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admissible, even if the perception and memory are foggy or incomplete. The claim is
rationally based on his perception and satisfies the elements of FRE 701. It is not
unfairly prejudicial either, in all likelihood????
- What could be the potential bases for request to strike / objection to testimony?
- FRE 602 (Personal knowledge requirement) → doesn’t know for sure if
guy is robber (but wouldn’t hold up in court cuz don’t have to be 100%
sure to testify, still based on personal knowledge)
- FRE 403 -- cuz accusation just suggestion, not certain??
- FRE 701 -- opinion testimony has to be “Rationally based on witness’
perception” and helpful to the jury
- But it is rationally related -- we can make educated guess about
who someone is from seeing their upper face and hair
- It is pretty weak identification evidence but that doesn’t mean that evidence isn’t
includable -- it does point in a direction and a jury might be willing to credit it,
especially if it is assessed in the context of other information
- There is important distinction between weight of evidence and
admissibility of evidence
- Even evidence without much weight can still be admissible
- Judge only concerned with admissibility; jury with weight
II-3 (page 157): The judge should probably not permit this line of inquiry because it is
beyond the scope of the direct interrogation since the scope was only about events
leading up to the accident. Laura can raise the objection that whether he left or not is
irrelevant to his driving up until the accident. But, perhaps, one can counter that the
witness claim speaks to credibility and thus should be admitted.
- FRE 611(b): Cross-examination should not go beyond the subject matter of
the direct examination and matters affecting the witness’s credibility.
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Credibility testimony is ALWAYS relevant -- goes to assessment of quality
of evidence
- FRE 611(b) → cannot ask questions on cross-examination about stuff
outside the scope / on different subject matter than asked in direct
examination
- Objection on issue of subject matter -- cross examination going
beyond subject matter of direct examination
- But depends if demarcation of subject matter is based on
time vs general situation
- FRE 611(b) → witness claims speaking to credibility are admissible (even
if it’s not on subject matter of direct evidence)
611(b) As On Direct Approach ----> Also You can ask things outside the scope
on cross-examination if you ask judge if can essentially treat as a direct
examination (so cannot ask leading questions)
- Risky tho -- asking opposing witness but without leading questions
- If witness is hostile or identified with adversary party, you can pose
leading questions even if As On Direct (FRE 611(c)(2))
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Risky cuz have to provoke witness to be hostile via non-leading
questions firsthand before you can do leading questions
II-10 (page 194): The basis of the objection is that Witness A’s comment that the car
was going 75 mph is NOT derived from his personal knowledge (so violates FRE 603). It
is opinion testimony, which can’t do unless expert. According to FRE 701, If a witness is
NOT testifying as an expert, testimony in the form of an opinion is limited to one that is
(a) rationally based on the witness’s perception; is helpful; and not scientific ) --this is not
rationally based, so the judge should accept the defendant’s objection.
- Concerning Witness B’s claims that the car was going 35 mph, the judge will
probably likewise accept the objection because this information is not rationally
based on his perception. However, perhaps because he was standing on the
street corner instead of farther away in the bakery, it is ok to say 35 mph because
it is a relatively sensible inference from his observation?????
- Possible Objections
- Objection: FRE 701(c) -- lay witnesses cannot offer opinions that require
technical knowledge
- Objection FRE 701(a) -- speed estimates probably not rationally based on
the witness’s perceptions → but it is reasonably lay opinion to know
speed estimate
- But judge will probably treat the testimony as admissible (and reject objections) -let jury decide which one they think was right or to think that both of them are not
credible on this issue
11-13 (page 195):
- That he was following 20 feet away -- admissible (lay opinion under FRE 701)
- Jones was intoxicated -- admissible (lay opinion under FRE 701)
- Jones fell -- admissible (simple personal knowledge under FRE 602)
- Jones fell because he was drunk -- This is not going to ultimate issue -- prohibition in FRE 704 doesn’t go to
these type of cases
- Problem with this testimony even tho it is lay opinion is that it should be
seen as “not helpful to the jury” under FRE 701(b)
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Cuz Smith cannot really know why Jones fell or what other factors
could have been at work at the time Jones fell
- Could’ve broke his ACL; Smith far away so might not have
seen big rock sticking up or something
- Might mislead jury -- so helpfulness deficit could give court
valid reason for choosing not to admit testimony
2/15/2021
OBJECTIONS
- Why have exclusionary rules of evidence?
- For effective fact-finding → To save time ; to encourage the presentation of
reliable information ; to prevent misuse
- To protect privacy, confidentiality, and personal autonomy
- Relevant evidence is presumptively admissible (FRE 402)
UNLESS there’s proper objection, evidence comes in and you cannot complain
about it on appeal -- even if it would’ve been inadmissible if objection made
- Cuz the preference is for lawyers to have autonomy in crafting the
narrative of their case
- Judges generally just rule on objections presented by lawyers, but in very rare instances,
the judge raises objection himself
- Ex: if very hostile evidence, or lawyer is particularly inept and isn’t objecting to
lots of inadmissible stuff -- cuz don’t want to have record full of errors on appeal
- CLASSIFICATION OF OBJECTIONS
- Objections to the Content of Evidence → Most important
- Ex: irrelevance, hearsay, undue prejudice, privileged, improper opinion,
inadmissible settlement negotiation, etc
- Objections to the Foundation for Evidence → this evidence is inadmissible unless
the proponent can show something else first
- Ex: lack of authentication of an exhibit, lack of qualifications for an expert,
lack of evidence on some fact necessary to make evidence relevant
- Objections to the Form of a Question → This testimony may be admissible, but
you’ve asked the wrong sort of question
- Ex: leading (on direct); question calls for narrative answer or is compound
or confusing
- Objections to Timing and Sequence
OBJECTION BASICS -- FRE 103
- TIMING → Objection must be raised ASAP (cuz wantto give trial judge a chance to fix
the problem before it becomes unfixable
- If question FORM is the problem, objection should come before witness has a
chance to answer
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If CONTENT of the witness’ ANSWER is the problem, objection (and motion to
strike) should come as soon as the answer is heard
SPECIFIC GROUND(S) → correct basis/bases of objection must be asserted
- A timely objection on the wrong ground(s) will not secure an immediate remedy
or the right to appellate review after trial. It’s just a waiver.
OFFER OF PROOF → Objection to EXCLUSION must be accompanied by an OFFER
OF PROOF
- Offer should be sufficient to inform appellate review of the trial court’s basis for
exclusion
- Obligation of party whose stuff is excluded to make offer of proof is objecting to
exclusion
GET A RULING → If the court doesn’t rule, preservation is INCOMPLETE. Counsel
MUST demand it.
Trial judge gets the benefit of the doubt on appeal
- Erroneous admission/exclusion will be affirmed if there’s a plausible basis for it
- Sustained general objection (i.e., one unaccompanied by a specific and correct
statement of grounds) will be affirmed if there was ANY basis for sustaining it
- Bottom Line: Complaints about evidentiary rulings are easy to lose on appeal
WAIVING, PRESERVING, AND REVIEWING ERROR
- General Principles
- To invoke an exclusionary rule of evidence, you must make a timely and specific
objection → or you cannot raise it on appeal
- Evidence is Presumed Admissible
- FRE 402 -- General Rule of Admissibility
- “Relevant evidence is admissible unless any of the following
provides otherwise: the US Constitution; a federal statute;
these rules; or other rules prescribed by the Supreme Court
- Advisory Committee Notes for FRE 801 (concerning Hearsay) →
“ambiguous and doubtful cases will be resolved...in favor of admissibility”
- Objections can be Waived → in the absence of an objection, evidence is almost
always admissible
- The trial judge is rarely reversed → has discretion to admit or deny evidence
- Avoiding Waiver
- FRE 103 → sets out what party needs to do that wants to raise evidence issues
on appeal - objection + offer of proof
- (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.
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(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”
- Objections to Admission of Evidence
- You must object every time a witness is asked an objectionable question
or gives an objectionable answer.
- Even if judge has already rejected your objection on similar topic
- A failure to repeat the objection might even be taken as a waiver
of the original objection that was made
- You must make a SPECIFIC and CORRECT objection
- Claims of Erroneous Exclusion of Evidence
- To avoid being shut out on appeal, you may have to let the judge know
why your evidence ought to be admitted over any plausible objection,
stated or unstated
ESCAPE CLAUSES
- FRE 103(a)(1)(B) → recognizes that the specific ground for an objection need
not be stated if it is “apparent from the context”
- Basis of objection may be inferred simply from the evidence that you seek
to exclude -- But don’t count on this
- More helpful for OFFERS OF PROOF tho → FRE 103(a)(2) -- if the substance of
the evidence “was apparent from the context,” you don’t have to make any offer
of proof at all
- FRE 103(a)(2) makes no distinction between direct and
cross-examination
- FRE 103(e) - Plain Error : “A court may take notice of plain error affecting a
substantial right, even if the claim of error was not properly preserved”
- Do not rely on this → it is a discretionary power of appellate courts →
rarely exercise, especially for errors in admitting or excluding evidence
HARMLESS ERROR
- Judgment must be reversed if, considering everything else that happened, “the error
itself had substantial influence”
- If error didn’t have substantial influence, then error was harmless
- (If error constitutional, court must be convinced that it was harmless beyond a
reasonable doubt)
- FRE 103(a): “A party may claim error in ruling to admit or exclude evidence only if the
error affects a substantial right of the party”
- Harmless error is an imprecise, case-specific concept
- Generally
- Attention focused on the overall fairness of the trial, rather than on the
correctness of individual rulings
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Undermines the value of appellate decisions as precedents that interpret and
give content to the rules of evidence
THE ROLES OF JUDGE AND JURY
- If decision turns on interpretation of law, only judge is responsible
- Most Preliminary Issues of Fact:
- FRE 104(a): “In general, the court must decide any preliminary question about
whether a witness is qualified, a privilege exists, or evidence is admissible. In so
deciding, the court is not bound by evidence rules, except those on privilege.”
- Exempts hearings on preliminary factual issues that affect admissibility
from the operation of the rules of evidence themselves, except those that
govern privileges
- Rules on privileges DO apply in FRE 104(a) hearings
- Judge generally determines all questions of admissibility
- If the admissibility of evidence turns in whole or in part on some matter of fact,
the judge is usually responsible for determining whether that fact exists
- When the judge acts as a factfinder to determine the admissibility of evidence, he
must allow the parties to be heard on the issue
- FRE 104(c): Conducting a Hearing So That the Jury Cannot Hear It: “The
court must conduct any hearing on the preliminary question so that the jury
cannot hear it if:
- (1) The hearing involves the admissibility of a confession
- (2) A defendant in a criminal case is a witness and so requests; or
- (3) Justice so requires
- FRE 104(d): “by testifying on a preliminary question, a defendant in a criminal
case does NOT become subject to cross-examination on other issues in the
case”
- When otherwise inadmissible evidence is introduced on a preliminary issue it is:
- 1) Affidavit → in trial would be hearsay
- 2) Evidence that is itself the subject of the objection
- FRE 104(e): Evidence Relevant to Weight and Credibility: “This rule does not
limit a party’s right to introduce before the jury evidence that is relevant to the
weight or credibility of other evidence
- FRE 104 does NOT require the judge to make explicit findings on factual issues
that determine the admissibility of evidence
- PRELIMINARY FACTUAL ISSUES THAT GO TO RELEVANCE AND PERSONAL
KNOWLEDGE (AND AUTHENTICATION)
- Exceptions to General Rule that the Judge decides questions of fact that go
to admissibility:
- FRE 104(b): Relevance That Depends on a Fact: “When the relevance
of evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist. The court may admit
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the proposed evidence on the condition that the proof be introduced
later.”
- Judge only has to decide whether a reasonable person could
believe it exists
- Conditionally Relevant evidence may be admitted either after or
before the introduction of sufficient evidence of the preliminary fact
- If connecting evidence is not presented, the opposing party
should ask the judge to strike the conditionally relevant
evidence from the record
- FRE 602 → the personal knowledge requirement is subject to the same
procedure -- A witness may only testify if there is evidence “sufficient to
support a finding that the witness has personal knowledge of the matter.”
PRELIMINARY FACTUAL QUESTIONS THAT GO TO “ULTIMATE ISSUES”
- If the issue about admissibility coincides with the ultimate issue, the judge
decides admissibility unless specific rule provides otherwise
- Perfectly fine for judge and jury to reach different conclusions
- Cuz have different burdens of proof + different interpretation
- Under FRE 104(a), the judge may consider inadmissible evidence in
deciding preliminary issues; but jury is only supposed to consider
admissible evidence.
CAUTIONARY INSTRUCTIONS AND LIMITED ADMISSIBILITY
- FRE 105: when evidence has limited admissibility: “If the court admits evidence that
is admissible against a party or for a purpose--but not against another party or for
another purpose--the court, on timely request, must restrict the evidence to its proper
scope and instruct the jury accordingly.”
- MOTIONS IN LIMINE
- Making the objection in advance, outside the presence of the jury → so you must
anticipate the issue
- Usually an objection to anticipated evidence from other side
- Sometimes possible to ask the court in limine to overrule an anticipated objection
and decide in advance that evidence that you wish to present is in fact
admissible
- But judge can change his mind -- not final judgment
- Counts as objection on the record (according to FRE 103(b)) -- but needs to be
definitive -- so best get judge to agree that it is during the trial itself
OBJECTIONS TO EVIDENCE IN NON-JURY TRIALS
- The practice of postponing rulings and the presumption that inadmissible evidence is
disregarded means that in bench trials, the rules of evidence can largely be ignored
PROBLEMS
- II-4 (Page 172): Only Sky Lift, not Snow Bird, objected on the grounds of hearsay.
However, Sky Lift and Snow Bird are co-defendants and, according to FRE 103(a)(1), “a”
party (not “the party”) needs to state the specific ground on which they are objecting.
Snow Bird did not say hearsay but Sky Lift--who was a party did-- so they probably can
raise it on appeal, given the plain language of FRE 103(a).
- The trial court had full opportunity to see the problem and fix the problem, so
nothing legitimate is served by rejecting appellate review. Purpose of rule is
served, so SnowBird can ride on Sky Lift’s coattails
- FRE 103(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.
- II-5 (Page 173): The Whites will probably would lose the appeal because they did not do
enough at trial to explain to judge the reason for the objection. ?????????????????
- The Whites can argue in reply that FRE 103(a)(1)(B) → recognizes that the
specific ground for an objection need not be stated if it is “apparent from the
context”
- Is evidence excludable on appeal? Could you argue that even though there is no
offer of proof, the substance was apparent from the context under FRE 103(a)(2)
- NO - cuz judge didn’t really have fair chance to fix problem cuz was
unaware that P was trying to say there’s sam chemicals, not no patches
- It was up to P’s counsel to correct the judge’s misconception that
the lawyers were just talking about the bare patches
- Judge here deciding preliminary question under FRE 104(b)
- Judge making decision on conditional relevance (FRE 104(b)) → unless
some connection between this parcel of land and the others exists (Here
judge thought connection was just gonna be about bare patches), then
the evidence that they bought up property would not be relevant
- It would be ok for the judge to rely upon statements about what evidence was
going to say in making decision about evidence was conditionally relevant?
- YES by FRE 104(a) -- which allows judge to make admissibility decisions
- From there 104(b) would kick in → it’s ok as long as the evidence
would allow the jury to make a judgement about it --> AND
THERE IS ENOUGH FOR JURY TO FIND EITHER WAY
- This would have been enough as an Offer of Proof (but could’ve also
done formal offer of proof -- making jury leave and then ask the witness
all the questions and make him answer just in front of judge)
- Other points made by this problem
- Judge called lawyers to the bench cuz didn’t want jury to hear discussion
about thing that might not be admissible
-
-
-
It is NOT a problem that P’s lawyer’s direct examination of the operations
manager of Black & Tan Oil featured leading questions because under
FRE 611(c)(2), you can do leading questions on direct of a witness
identified with an adverse party
II-6 (Page 181): Judge should have allowed it because it was enough for the jury to find
either way with regards to whether D knew about the NR memo. ?????????????????
- 104(b) If the relevance depends on a fact, proof must be introduced to support a
finding that the fact does exist
- o To support a finding → means that at least some people could be convinced
that the finding / conclusion exists based on the fact that were introduced
- o The judge’s role is limited to a certain extent à it is not the judge’s job, but
rather reserved to the jury
- o Judge’s only job is to look at the evidence and ask: “if this were in front of a
jury, would a reasonable juror reach that conclusion.” --- pretty low threshold
- Even if the judge had allowed it to come in, the opposing party would have been
able to attack this under 104(e)
- o Any party is free to try to persuade the jury on weight
- /on what basis did this judge exclude the memo? -- on basis of preliminary
factual determination in 104(a) -- that P failed to prove that memo was received
before the work stated
- That’s a problem cuz that’s not judge’s call to make
- This is a conditional relevance problem under 104(b) -- question of
whether there was proof sufficient to allow a rational trier of fact to
conclude that this folder was received in time
- Whether it was received in time is jury’s call to make, not
judge’s
- THere is enough info for jury to find either way with regards to whether D knew
about memo -- it’s a close enough question that jury should make determination
II-7 (Page 191):
- Under FRE 407, evidence of old suit is admissible to prove that D owned or
controlled the sidewalk, but inadmissible to prove he was negligent.
- This is evidence of limited admissibility so, under FRE 105, “If the court admits
evidence that is admissible against a party or for a purpose--but not against
another party or for another purpose--the court, on timely request, must restrict
the evidence to its proper scope and instruct the jury accordingly.
- Renew your objection on 408 on the record
- 103(b) – depends on whether there was a definitive ruling under 103(b)
- Never go wrong with renewing the objection
- MOTION IN LIMINE (FRE 408) -- motion made before trial starts cuz you wanna
know before the trial whether judge will admit the info or not … so you know
strategy you should take
-
-
Only cost is that you alert other side to existence of this issue and the fact
that you know it might be problematic
- If there’s some possibility that jury will use this info for impermissible purpose,
have you done enough to preserve it on appeal → 103(b) question
- Prudent thing always to do is to renew objection to make sure the results
of the motion in limine are clear -- so make clear that judge was on notice
and you’re clear what you’re saying/context
- 105 -- limiting instructions -- can ask judge to specifically instruct jury what the
jury can and cannot use evidence for
- But sometimes problematic cuz actually invites jury to think about it
impermissible way when they might not have even thought about it that
way before
- Or you can just drop the defense that your client was not liable for stuff on
sidewalk
- You could offer to stipulate control of the sidewalk -- but other side isn’t obligated
to accept this stipulation so might not work out
II-8 (Page 194):
- 614(b) Judge is permitted to examine a witness regardless of who calls the
witness
- But here, the judge was leading and quite suggestive
- 701 --> is it rationally based on the witness’s perception → NO
- She could only see van from behind …. She couldn’t actually see driver
himself and it just happened to be that truck keeping itself going straight
on straight road
- It’s probably beyond her personal knowledge
- So it is misleading and unhelpfl the jury because it doesn’t actually
make them more informed, just potentially mislead → so not admit
it
- It’s misleading because it implies that she knew when she couldn’t have
known
- “safe and prudent” seems too technical now
- Can you object to a judge’s line of questioning?
- Judge’s question was leading and subjective ….but 614 and 611 only
regulate what lawyers can do when questioning witnesses….so doesn’t
appear to be anything under the Federal Rules that prevent judge from
doing something like this
- You could argue a due process / fair trial kinda point tho
- 614(c) – a party may object to the court’s calling or examining a witness
(either at that time or the next available time when the jury is not present)
- But it’s very unlikely that would go over very well and then you can’t raise
the issue on appeal
- Her second answer is even a worse problem under 701 -- “safe and prudent” go
WAY beyond permissible personal opinion
-
-
So if judge committed error for eliciting inadmissible testimony, then party
could’ve objected and maybe made out
- But since didn’t object to the even worse 701 violation probably
means that the less bad one washes out
- Since you didn’t object, then you waived that objection
Could argue that it is based on specialized / technical knowledge within the
scope of 702 (i.e. how does she know it’s complete control)
- I guess it’s also important to notice that this is a 701 violation cuz juror is
more likely to accept as true the “safe and prudent manner”
characterization than the fact that they were driving 75 mph … so it’s
more likely to mislead so counts as outside the
CATEGORIES OF OBJECTIONS
- Content → “You can’t introduce that evidence at this trial”
- Foundation → “That evidence is not admissible until you have presented sufficient
foundational evidence.”
- Sorta a conditional relevance idea → until other facts exist, you can’t air this info
- Form of Question → “You can’t ask for the evidence with that question.”
- Ex: inappropriate leading on direct
- Timing / Sequence → “The evidence is improper at this time.”
- Can be conditional relevance situation or opening the door
- Evidence only becomes admissible if side brings in evidence
2/16/2021
RELEVANCE
BASIC POLICY OF RELEVANCE
- FRE 401: Definition of Relevance → “Evidence is relevant if:
- “(a) it has any tendency to make a fact more or less probable than it would be
without the evidence; and
- (b) the fact is of consequence in determining the action”
- “Of consequence” = MATERIALITY
- Materiality usually about the relationship between offered
evidence and a legal issue raised by the pleadings in the case
- But also evidence can be material in that it is of consequence to
the litigation even where it does not bear directly on a legal issue
- Ex:evidenc affecting CREDIBILITY of witness is admissible
- Subcategory of relevance
- FRE 402: “Relevant evidence is admissible UNLESS any of the following provides
otherwise: the US Constitution; a federal statute; these rules; or other rules prescribed
by the Supreme Court
-
-
Irrelevant evidence is not admissible”
Unless provision is very important → Some categories of evidence (like hearsay
and impermissible character) that would otherwise be relevant have been judged
to be inappropriate to put before the decisionmaker
- Leaves room for more exclusion than those categories too with FRE 403
→ things can be excluded on a case-by-case basis
FRE 403: “The court may exclude relevant evidence if its probative value is
substantially outweighed by the danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence”
- UNFAIR PREJUDICE = Evidence that IMPROPERLY appeals to / inflames the
biases or emotions of the fact-finder
- Information that invites / encourages factfinder to decide the case on
something other than the relevant facts;
- Information that creates a risk that the factfinder will demand (or settle for)
a quantum of proof greater or less than the law requires
SIMULTANEOUSLY PERMISSIBLE AND IMPERMISSIBLE INFERENCES
- EX: In a carjacking prosecution, the victim is prepared to testify that the defendant
told him to relinquish the car because he (D) had been to prison for beating
another person who refused to give up her car. The defense is that V consented to
D’s use of the car.
- Key issue -- raised by D as his defense -- is “consent”
- Does V’s proposed testimony address that question? YES
- But does V’s proposed testimony suggest anything else that might be
problematic? YES that he’s bad criminal person
- Allowable Chain of Inference: D made statement → Statement would cause
reasonable person to submit → D is guilty
- This chain is allowable cuz info goes directly to question of consent →
showing that there was duress not consent
- Forbidden Chain of Inference: D made statement → D carjacked someone else
→ D is bad person → D is guilty
- Judgment about D’s character that doesn’t really go to whether this car
owner consented or not
- So what should judge do in this situation?
- Sometimes lawyers + judges come together to instruct witness to control
amount of prejudice to let in
- D’s attorney could also raise Motion in Limine before trial
CIRCUMSTANTIAL AND DIRECT EVIDENCE
-
-
-
By FRE 401(a) -- Evidence which is offered for its bearing on a fact in issue is irrelevant
if, after receipt of the evidence, the existence of the fact appears no more or less
probable than it did before the evidence was offered
- Evidence may be irrelevant in this logical sense only if it is CIRCUMSTANTIAL,
not direct proof of a fact in issue
Direct evidence = testimonial evidence which, if believed, resolves a matter in issue.
Circumstantial Evidence = serves as a basis from which the trier of fact may make
reasonable inferences about a matter in issue
IRRELEVANT means that the evidence does NOT allow the trier of fact to
REASONABLY infer anything about the likely existence of a fact in issue
When evidence is “of some fact” ( evidentiary fact ) is logically relevant = it has some
tendency, however slight, to make a consequential fact in issue more or less likely than it
would be if that fact did not exist.
There are NO degrees of relevance
- But evidence does have different PROBATIVE VALUE (power to persuade a
reasonable person about a fact in issue)
- Direct evidence not necessarily more probative than circumstantial
REALITY HYPOTHESIS
- When link is not obvious, must offer reality hypothesis
- Reality Hypothesis = some plausible view of how the world works that explains why the
facts offered in evidence are linked with facts the part must prove.
- Has to be at least minimally plausible and consistent with evidence offered
- As long as it is not laughable (“straight face” test), it is sufficient to meet the weak
test that the evidence has ANY tendency to make D’s guilt more probable
- So RELEVANCE simply means that an item of evidence can be fit into an argument that
advances the proponent’s case and that the argument cannot be dismissed as ridiculous
or scientifically impossible.
- Expert testimony is sometimes needed for scientific issues
- But courts will likely look at more than just relevance for expert testimony on
scientific matter
CONDITIONAL RELEVANCE
- FRE 104(b): Relevance That Depends on a Fact: “When the relevance of evidence
depends on whether a fact exists, proof must be introduced sufficient to support a finding
that the fact does exist. The court may admit the proposed evidence on the condition
that the proof be introduced later”
- Whether connection is actually proven is question for jury; judge’s function is just to
decide whether party presenting evidence has presented sufficient other evidence to
support a jury finding that the connecting condition exists.
- Ex: Only knowledge of threat of being shot is conditional evidence; that she actually
feared the threat is implied
-
-
-
To prevent free reign with respect introduction of certain sorts of evidence -- judge is
authorized under FRE 104(b) to inquire whether there is evidence “sufficient to support a
finding” that the conditional or preliminary fact exists to allow a reasonable jury to find.
- SO FRE 104(b) process does impose a “somewhat higher” burden for admission
than simple relevance standard
HOW DOES A COURT DECIDE WHETHER EVIDENCE IS CONDITIONAL:
- (1) Does evidence of the conditioning fact greatly increase the probative value of
the item of evidence that is offered?
- (2) Is good evidence of the factual condition likely to be available?
- Consider precedent and the centrality of evidence
The converse of conditional relevance -- when apparently relevant evidence appears
irrelevant when placed in context → probably can object
RELEVANT AND IRRELEVANT
- Where evidence is admissible for only one of several possible purposes the evidence
will almost always be admitted for that purpose
- Can ask judge to instruct jury to only use it for that purpose
- When evidence that might prejudice a jury is offered to prove a peripheral point--or a
point on which other evidence is readily available
- Issue is not logical relevance, but rather how FRE 403 (which requires a
weighing of the probative value and various risks associated with the evidence_
should be administered and whether, in administering FRE 403, courts may
consider the availability of alternative ways of proving a point
LOGICAL OR LEGAL RELEVANCE
- Logical relevance (reflected by FRE) -- for evidence to be relevant and hence
presumptively admissible, it need only tend logically to prove or disprove some fact in
issue.
- Legal Relevance -- needs to have “plus value” ; even relevant evidence may be
excluded if it seems likely to be unduly prejudicial, misleading or time-consuming
- Issue is that it invites courts to confuse the question of whether evidence is
relevant with the question of whether it is sufficient to support a verdict
- Evidence is relevant if alone or in context it has any tendency to prove or disprove a fact
in issue; evidence is sufficient if a reasonable jury could conclude from the evidence
introduced that the party with the burden of proof has met that burden.
- A desire to ensure that evidence is not only relevant but also has something more than
minimal probative value permeates exclusionary rules:
- Ex: rule against hearsay; rules of authentication; requirement of a chain of
custody for certain real evidence; requirements pertaining to competence of
witnesses; admission of opinion testimony
WITNESS CREDIBILITY AND OTHER EVIDENTIARY DEFICIENCIES
- Evidence that affects the credibility of reports of relevant facts is itself relevant
FRE 403 BALANCING
- The judge must weigh the probative value of evidence that bears some logical
relationship to a matter in issue but threatens to confuse the jury or to be unduly
repetitious or time consuming, or to unfairly bias the jury. Must balance probative value
against the possible detrimental effects of its admission
- Availability of other evidence on same point may affect judge’s decision in FRE 403
- Old Chief v. United States
- RULE: If the evidence is unique and important, and if no stipulation is
forthcoming, the need for information almost always outweighs associated
detrimental effects
- Where evidence is not unique, the opposing party is willing to stipulate to
everything the evidence tends legitimately to prove, the judge’s decision
can go either way
- The name of the prior offense was still relevant because it showed he was a
convicted felon (bear on fact in issue)
- But probative value did out outweigh unfair prejudice (since he stipulated
he was criminal)
- NARRATIVE RELEVANCE → in reaching decisions under FRE 403, a court
should give considerable, and often dispositive weight to a party’s need to tell an
effective, coherent story.
- Court’s usually confine outcome of this case to its facts
- Do a case-by-case judicial discretion in applying old Chief
- Where the tradeoff between probative value and prejudicial danger is a close one,
FRE 403 mandates admissibility since it allows relevant evidence to be excluded
only if its probative value is SUBSTANTIALLY OUTWEIGHED By threats to fair and
efficient fact-finding
- FRE 403 accords LOT OF DISCRETION to trial judges
- THE MEANING OF PREJUDICE
- Prejudice -- harm which results when evidence is inappropriately influential
because it appeals to the biases or emotions of the fact-finder
- But evidence may destroy a party’s case without being prejudicial within the
meaning of FRE 403
- Conversely, although prejudice may not exist without harm, even slight harm may
be prejudicial
- Something is impermissibly prejudicial if it has NO plausible relationship to the
probability of crime but might conceivably affect judgment by appealing to the
fact-finder’s biases or emotions
- Often evidence has both probative and prejudicial value
- Only if the likely harm is much greater should the evidence be barred
DIRECT VS. CIRCUMSTANTIAL EVIDENCE
- Direct Evidence -- if it is believed, this evidence requires no further inference to
establish the crime
- Ex: I saw D shot the victim
- Not necessarily more probative than circumstantial evidence
- Circumstantial Evidence -- does require at least one inference to get to the fact
- Ex; I saw D running with gun in his hand away from the room where victim shot
- Often preferable to direct evidence actually
RECAP: PRESUMPTIONS OF RELEVANCE & ADMISSIBILITY
- FRE 401: Evidence is relevant if -- It has any tendency...To make any fact of
consequence…More or less probable.
- FRE 402: Relevant evidence is presumptively admissible
- Relevant evidence MAY be excluded (assuming specific, timely objection) if -- FRE 403: Its probative value is substantially outweighed by unfair
prejudice, confusion of or misleading the jury, or delay;
- OR
- FRE 402: Some other specific rule precludes the admission of the evidence
PROBLEMS
- III-1 (p 221):
- Her theory of liability is RES IPSA LOQUITUR -- bottles of soda shouldn’t
explode in midair
- Immaterial: MATERIALITY = “Of consequence in determining the action” (R 401)
- What’s the difference between evidence being immaterial and irrelevant?
- Immaterial -- doesn’t affect element / something that could dictate
outcome
- If a legal theory does not depend on evidence going to prove
certain fact, it’s probably immaterial
- Ex: evidence that someone is a careful driver doesn’t matter in
case where person is arguing on respondeat superior
- (5) -- “testimony by Phoebe’s mother that her family’s vacation had been
ruined by her daughter’s injury” → does not impact any issue of
consequence (unless we’re talking about damages)
- Doesn’t speak to res ipsa loquitur at all --- would only be material
for damages
- (6) -- “Testimony of Phoebe’s mother that her daughter could catch
anything thrown to her” → not material unless circumstantial evidence
- If theory is res ipsa loquitur, then who cares ….
- But her side might argue it might be related to how accident didn’t
happen and so she should be permitted to enter it as narrative
evidence (Old Chief)
-
-
-
-
??(9) -- A sketch Janitor had made of the pattern of cola stains and
embedded glass on the room’s floor, walls, and ceiling → does not make
it more or less likely; doesn’t tell us anything → but it could potentially be
material cuz the contents of the explosion made it all the way to ceiling
(more likely that it exploded rather than simply fell on ground)
- Probably MATERIAL tho …. Cuz presumably drawing’s relevance
derives from its demonstrative or explanatory value -- that type of
relevance is relevant (but outside of that, it doesn’t have value)
- ?? (12) and (13) testimony that employees didn’t regularly check pressure
machine was bottling soda; and equipment was old and prone to error →
immaterial under res ipsa loquitur
- Doesn’t really matter how much equipment was maintained or how
often it was checked for a res ipsa theory (it would be material for
normal negligence theory tho)
Irrelevant? -- (5) , (2 - maybe cuz cumulative???), (4 - maybe cuz cumulative)
- FRE 401: Definition of Relevance → “Evidence is relevant if:
- “(a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and
- (b) the fact is of consequence in determining the action”
Direct Evidence that Phoebe was injured by glass from an exploding soda
bottle:
- (1) Her own testimony that the bottle exploded in mid-air, and that a piece
of glass from the bottle opened a 2 inch cut on her leg
- (2) Her friend’s testimony to the same effect
- On edge -- ((14) Testimony by an ER physician that wound on Phoebe’s
leg was “consistent with being caused by a piece of flying glass” → on
the edge, but the doctor was not in the room when the bottle exploded
- Direct evidence that there was a wound and that it was consistent
with a piece of exploded glass…..
- So not totally direct evidence of the fact of the actual cause of the
injury )
Circumstantial evidence that Phoebe was injured by a glass from an
exploding soda bottle: Most of these go to the fact that there was broken glass
in the room, but until we put Phoebe in the room, it’s not relevant
- (6) Testimony by Phoebe’s mother that her daughter could catch anything
thrown to her
- (7) Janitor’s testimony that she was called to the scene of the accident
and cleaned up a mess, consisting of broken glass and a substance she
recognized as the residue of a cola beverage, which was spread
throughout the room
- (8) Janitor’s testimony that while cleaning up she found a large fragment
of a bottle with most of the label attached. The portion she found said “ie
Kol,” and in the lower right hand corner it read “Nome Bottling Company”
-
-
-
-
(10) The fragment of a bottle that Janitor described
(12) and (13) testimony that employees didn’t regularly check pressure
machine was bottling soda; and equipment was old and prone to error →
immaterial under res ipsa loquitur
- (14) Testimony by an ER physician that wound on Phoebe’s leg was
“consistent with being caused by a piece of flying glass”
- Relevance of this testimony is CONDITIONAL --- some other
source has to say that Phoebe was actually in the room when the
bottle exploded (otherwise just evidence that some girl came in
with cut on her leg)
Direct Evidence that the glass that allegedly injured Phoebe came from a
bottle of Kookie Kola:
- (3) Her friend’s testimony that he had put $2 in a soda machine and
pressed the button labeled Kookie Kola
- (4) Her friend’s testimony that what he took from the machine was a bottle
of Kookie Kola
- (8) Janitor’s testimony that while cleaning up she found a large fragment
of a bottle with most of the label attached. The portion she found said “ie
Kol,” and in the lower right hand corner it read “Nome Bottling Company”
Direct Evidence that the glass that allegedly injured Phoebe came from
soda bottled by the Nome Bottling Company:
- (8) Janitor’s testimony that while cleaning up she found a large fragment
of a bottle with most of the label attached. The portion she found said “ie
Kol,” and in the lower right hand corner it read “Nome Bottling Company”
- (10) The fragment of a bottle that Janitor described
- (11) A copy of the contract between Nome Bottling Company and the
Kookie Kola Company, giving Nome Bottling the exclusive right to bottle
Kookie Kola in the Nome area
Reality hypothesis that supports the admissibility of the testimony that
Janitor is prepared to give (Items 7, 8, and 9)?
- Reality Hypothesis = some plausible view of how the world works that
explains why the facts offered in evidence are linked with facts the part
must prove.
- Know jury will assume certain things because that’s just how
things work
- Her discovery of the bottle sherd on the floor just after the accident
occurred suggests that it is true that a Kookie Kola bottle bottled by Nome
was broken at that time and in that place. While it could be that it was
dropped and broken, it is plausible that it exploded in the air.
- Can assume that she’s competent at art, etc, we’re willing to accept that
she can make this drawing
-
-
-
Found pieces of broken bottle - Reality Hypothesis would be -- assume
that labels on bottles are accurate; although she didn’t witness injury or
explosion, she can tell us about aftermath
- We can assume that if an explosion left behind what she found in
there, it is understood that it’d have been a dangerous explosion
III-2: Alan is charged with killing his wife. Evidence of Alan as the beneficiary of
insurance policy.
- 401 test: If a jury were to hear evidence (life insurance policy), would that have
any tendency to make an issue disputed in case more or less likely to be true?
- Yes -- makes it more likely (at least slightly) that he killed her
- Probative value is not super strong tho since he is in solid financial
shape → But even tho it’s not that probative, it’s still relevant
- If Alan says that it should be excluded cuz it’s not real evidence of his motive cuz
he didn’t need the money ( he was debt free and had $100K in the bank) → but
that still doesn’t strip the evidence of all of its probative force
- Reality Hypothesis -- everyone knows more money is better
- Court should let info in and let jury interpret it as they will
- If you were the prosecutor, would you actually strategically want to put in the
evidence of the $25K policy?
- Downside to it: open the door for Alan that otherwise would not be open
- Cuz prosecutor would have to put it in before Alan responds
- Gives Alan reason to respond with fact of his finances
- So you’re allowing him to show jury that he was in
solid financial straits
- Evidence of the life insurance policy is probably admissible since it is still relevant
because the jury could infer from it that he might’ve killed her because he wanted
money. It is more probative if he was in debt orl if the policy were for $250,000
than $25,000 cuz it’s a much bigger enticement.
- FRE 401: Definition of Relevance → “Evidence is relevant if:
- “(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and
- (b) the fact is of consequence in determining the action”
- FRE 104(b): Relevance That Depends on a Fact: “When the relevance of
evidence depends on whether a fact exists, proof must be introduced sufficient to
support a finding that the fact does exist. The court may admit the proposed
evidence on the condition that the proof be introduced later” ??? IDK IF IT’S
CONDITIONALLY RELEVANT
III-5 (page 242): Rollin is indicted for arson. Prosecution introduces an
authenticated photo showing a portion of the smoldering remains of the house in
the background, with the anguished faces of the homeowners in the background.
- Defense Arguments:
- 401(a): IRRELEVANCE → the photo does not make the fact that David
Rollin set fire to the house more probable
-
-
403: UNFAIRLY PREJUDICIAL → The anguished faces of the victims
will probably appeal to the jury’s emotions, persuading them to be more
concerned about helping the homeowners rather than determining
whether or not D actually committed the arson.
- Could argue its CUMULATIVE -- how many times do you have to prove
house burned down -- other ways to prove it
- But this is dependent on what prosecution brought in to that point
(if the didn’t have anything else on record for this, could keep it)
- Could offer to provide a stipulation that house burned down (but
prosecution would probably not want to accept stipulation cuz prosecution
really wants emotional picture...jury doesn’t just want judge to read out
line saying house burned down)
- Prosecution Arguments:
- Importance of telling the narrative relevance of the story - putting face to
victims (Old Chief) -- should consider whether other photos available to
show house’s remains
- Pieces of story accumulate and make story
- Litigants do have some ability to choose the pieces of the story to
prove what they want to prove
- It’s not just the lowest impact / potential for prejudice method of
proof, as long as its within certain parameters, lawyers should be
able to prove case how they want to
- Can’t go too far for the probative value thing contributes
- But there is a range of what’s allowable
- The prosecutor could prove house burned down in way
that creates less prejudice to D, but doesn’t necessarily
mean P can’t bring this info in
- It is relevant → this is arson case so want to show house was burned
- WAY TO SOLVE THIS → CROP THE PICTURE
- Show the part of the picture that shows burned house….crop out the
anguished faces (which is part that would prejudice the jury)
- If judge doesn’t accept, judge can probably choose to exclude under 403
III-6 (page 243): Yes it is both relevant and admissible under FRE 401 and 403, because
it is not super unfairly prejudicial. Something is impermissibly prejudicial if it has NO
plausible relationship to the probability of crime but might conceivably affect judgment by
appealing to the fact-finder’s biases or emotions. It does have a plausible relationship to
the probability of the crime cuz it shows he was in the area that night.
- To minimize the prejudicial effect of the evidence, Wooster can point out that the
evidence could possibly be in his favor since the fact that he was arrested three
houses away for selling narcotics actually shows that maybe he was busy doing
something else. Most people don’t go straight from selling narcotics to burglary.
He probably wouldn’t wanna rob a house right near where he sells drugs. ????
-
-
Is it relevant under FRE 401 -- YEs -- cuz places him in the area - very close to
where burglary occurred on night incident occurred
- Since it’s relevant, must ask if it is admissible?
- Old Chief -- have a right to tell the narrative as you see fit
- Perhaps unfairly prejudicial (FRE 403) -- cuz introducing he was arrested
for selling narcotics
- Probative value is fairly high -- puts him in area at appropriate time
- Simultaneously Permissible and Impermissible Inferences
- Allowable -- D arrested nearby for selling drugs → D was near
burglary scene → D is guilty
- Forbidden -- D arrested nearby for selling drugs → D is a criminal
→ D is guilty cuz criminals are criminals
- How to soften the prejudicial element?
- Make a stipulation that he was in the area
III-20 (page 276): I think that it is irrelevant and not unfairly prejudicial. The video is
probably relevant under the rules of FRE 401 since “(a) it has any tendency to make a
fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action”. Something is impermissibly prejudicial if it has
NO plausible relationship to the probability of crime but might conceivably affect
judgment by appealing to the fact-finder’s biases or emotions. It does have a plausible
relationship to the probability of the crime cuz it shows the impact the injury has had on
his life.
- Does it make it impermissibly redundant or irrelevant? -- No
- What if would say they’d stipulate to all of the things shown in the video,,, is that
gonna be enough to save the D from having video played to jury?
- Probably not
- Could argue that only playing 23 min of activity from 3 hours → so probably
selective in showing -- so might be picking the most sympathetic scenes
- If you’re concerned about selectivity, you can bring it up during cross-examination
→ challenge the videographer if he authenticated the video
- What about hugging the daughter and putting cig in mouth of quadriplegic brother
- Might be excludable cuz being too prejudicial under FRE 403
- Not relevant to his injuries,,, just appealing to emotion
- More emotion than information by which jury can gauge the impact of the
injuries on P’s life
- All scenes should be allowed besides hugging daughter and putting cig
- Maybe something like showing him peeing would be going too far too
RELEVANCE (PART 2)
LOGICAL RELEVANCE -- BAYES’ THEOREM
A MATHEMATICAL RESTATEMENT
-
BAYES THEOREM
- An item of evidence is logically relevant only when the probability of finding that
item of evidence given the truth of some hypothesis at issue in the case differs
from probability of finding the same item of evidence given the falsity of the
hypothesis in issue.
- IN OTHER WORDS, If a factual proposition is as likely to be true WITHOUT
knowing the evidence as it is WITH knowing the evidence, then evidence is NOT
logically relevant
- Really just another way of stating the basic rule of FRE 401
- Bayes’ theorem is a way of quantifying the amount of impact evidence will have
- Don’t actually use math -- cuz no special value in actual numbers that get used
- The probability that a defendant is guilty, given the introduction of a new item of
evidence, is equal to (1) the probability that the evidence would be presented to
the jury if the defendant is in fact guilty, (2) divided by the probability that that
same evidence would be presented to the jury if the defendant is in fact not guilty,
(3) times the prior odds of the defendant’s guilt
- Logical Relevance -- “LIKELIHOOD RATIO” AND FRE 403
- The more a piece of evidence points toward the truth/falsity of a disputed
factual hypothesis, the more its probative value weighs in relation to -- Its potential prejudicial effect or the danger of jury misestimation;
AND
- Its potential for delay, confusion, or waste of time
- If likelihood ratio of evidence is small (evidence has some logically
relevance ...but low probative value, so might not win over risk of
prejudice)
- If likelihood ratio is large ( probative value is likely to be substantial
enough that it’ll warrant admission even at risk of pretty large risk of
prejudicial evidence)
- Highlights risk of misestimation -- formula ampulates mistakes on way in
- Jurors often misestimate evidence so draw unpredictable
inferences from evidence -- so can skew dimensions of how
evidence plays out in front of jury
- So judges are given discretion in FRE 403 -- making
functional equivalent of Bayes Theorem decisions
- The effect of the evidence on the decision maker’s final judgment as to
guilt turns entirely on the likelihood ratio
- In terms of the Bayesian model, it will always be the case that the impact
of new evidence on the prior odds of guilt, or on any other disputed
hypothesis, will be solely a function of the likelihood ratio for that evidence
- When it’s not 1 = it is logically relevant
- Hence an item of evidence is logically relevant ONLY when the
probability of finding that item of evidence given the truth of some
hypothesis at issue in the case differs from the probability of
-
finding the same item of evidence given the falsity of the
hypothesis in issue.
- Estimation Problems
- Irrelevant if likelihood ratio is 1 or very close to 1
- On other occasions courts are concerned with the possibility that the
fact-finder will misestimate the probabilities that make up the likelihood
ratio
- Other issues -- evidence could be given more weight then it should or
there’s too little information about the relationship of certain evidence to
the hypothesis in question
- Under FRE 403 and at common law, courts have discretion to exclude
logical relevant evidence likely to pose estimation problems if the
probative value of the evidence is substantially outweighed by the danger
that it will mislead the jury
- The bayesian model suggests that in exercising this discretion, the
more the court’s estimation of the proper likelihood ratio for an
item of evidence deviates from 1:1, the less willing the court
should be to exclude that evidence despite a danger of substantial
misconception
PREJUDICE AND THE REGRET MATRIX
- Illustrates how badly a juror would feel if she made decision wrong
- Jurors have allegiances, sympathies, etc. that interact with the evidence → jurors
are influenced in ways that are detached from the logical relevance of the
evidence -- the essence of what we call PREJUDICE
- Evidence can be both prejudicial and relevant
- There’s some categorical exclusions of evidence -- like FRE 411 and 404(b)
- Cuz so likely to pervert juror decision making that they should not be
allowed to be heard
- FRE 411 -- Evidence and Liability Insurance is not admissible to show negligence
- Not because it might harm likelihood of guy ACTUALLY being negligent,
but because, on the average, it is assumed that jurors are less likely to
worry about regret in finding a D liable in case like that if know D has
insurance (cuz know it’s just insurance, not guy, paying it anyway)
- FRE 404(b) -- Evidence of a person’s prior crimes is not admissible to show
action and conformity with a bad character trait on a different occasion
- Jurors are less likely to feel regret convicting someone they think is
already a criminal - they’ve already been to jail, send em back
- A regret matrix is not a normative model since the law does not necessarily
expect its ideal decision maker to acat in a manner consistent with it
- The model assumes that individuals wish to minimize the expected regret felt in
the long run as a result of their decisions
- Expected regret for each verdict can be calculated by multiplying the regret
associated with the verdict, given the defendant’s actual negligence or
non-negligence, times the probability that the defendant actually was negligent or
not negligent.
- The sum of these products for a given verdict equals the total regret to be
expected in the long run if that verdict were to be reached in all cases
having the same regret matrix and probability of negligence.
- FRE 411 provides that evidence of liability insurance may not be
introduced to show negligence
- Can’t usually admit evidence of D’s past crimes
EYEWITNESS EXPERTS, DNA EXPERTS, AND PERMITTED OPINIONS
- Expert in the psychology of eyewitness identification adds nothing to the objective
probability of the existence of any fact in issue
- What the eyewitness expert provides is information that bears on the likelihood that an
eyewitness testified accurately
- Need expert to interpret scientific info presented by other witnesses like DNA evidence
- But jurors are able to assess eyewitness testimony without expert help
- Usually not the basic relevance hurdle precludes eyewitness expert testimony
- When eyewitness testimony is excluded it is usually by judicial discretion on FRE
403 grounds -- on basis of a similar analysis of the “helpfulness” requirement of
FRE 702 or because it might mislead or confuse the jury
- Where an eyewitness’s identification is corroborated by other evidence and so appears
likely to be true, trial judges frequently exclude eyewitness expert testimony by FRE 403
- Conversely, where eyewitness testimony is all or almost all that implicates a
defendant, trial courts often admit eyewitness expert testimony
- To decide whether to admit -- balance between probative value and opposing concerns
- Associate expert opinion with “subjective relevance” → without making the
existence of a particular consequential fact more or less likely, the expert’s
opinion gives the jury REASON TO BELIEVE in that fact’s existence
- So RELEVANCE = evidence that “has any tendency to make a material fact
REASONABLY APPEAR more or less probable than it would be without the
evidence” -- covers both ordinary factual testimony and reliable expert opinions
NARRATIVE RELEVANCE AND DEMONSTRATIVE RELEVANCE
- Demonstrative evidence can be the best, and sometimes the only, way to communicate
some aspect of what a witness saw or inferred
- Value in illustrating information already presented to the court
- Does nothing to affect the probability that a consequential fact was true
- Not admitted to instruct jurors on how they should think about other evidence, nor
does it tell jurors how an expert would interpret evidence too esoteric or technical
for most people to understand.
- Demonstrative evidence is part of the WAY lawyers tell their case stories to juries
- NARRATIVE RELEVANCE
- Probative value is totally subjective
-
Must be linked to the otherwise relevant facts it illustrates tho
PROBLEMS
- III-8 (Page 264): Child dies, father is suspected. P seeks to introduce doctor expert
who will testify regarding the child’s injuries and the fact that she suffered from
battered child syndrome.
- D objects, saying the testimony is inadmissible because there is no
evidence linking Ryan to these injuries.
- Is it relevant? -- YES
- There’s a collection of old injuries that are nonfatal and then
maybe there’s some new injuries too
- Is there a difference between old and new with respect to
relevance? -- YES - don’t tell us who did it, but tell us
injuries were repeatedly caused by people (not accidents)
- Is label “Battered Child Syndrome” relevant under FRE 401?
- Kinda relevant,,,,but does have lot of prejudicial inferences
- Doesn’t make it any more or less likely that Ryan killed the
child BUT has explanatory/subjective relevance
- EXPLANATORY RELEVANCE / SUBJECTIVE
RELEVANCE (not logical relevance) -- tells jury how to
understand information they’ve already heard
- Doctor telling them how to understand other
information that has been put before jury
- Doesn’t matter that cannot connect him to injury
- Witness just has to provide a link in the chain, doesn’t have
to be the whole chain of inferences
- The basis for D’s objection is that the doctor cannot connect him to the
battered child so the doctor can testify that someone hurt the child, but
cannot actually connect him to the child’s injuries
- Reality hypothesis would support the idea that a parent would
have been the most likely one to cause this harm
- So evidence is still relevant -- does make more probable
- Should the court sustain the objection?
- Pro Sustaining Objection -- FRE 403 -- Relevant evidence MAY be
excluded if Its probative value is substantially outweighed by unfair
prejudice, confusion of or misleading the jury, or delay
- Con Sustaining Objection -- FRE 401: Evidence is relevant if -- It has any
tendency...To make any fact of consequence…More or less probable.
- FRE 402: Relevant evidence is presumptively admissible
- FRE 702 -- HELPFULNESS -- to help the trier of fact understand
the evidence or to determine a fact in issue
-
-
This is a core issue in the case, whether baby was
suffering from battered child syndrome and didn’t just fall
off the couch in an accident
- Solution → Doctor could just testify to the actual injuries sustained but not
link father to them
- The job that the expert does here is to provide a tool or framework to make
sense of the facts that have already been introduced → explanatory relevance
- What if the mother testifies that she beat Tara the day of her death before
Ryan came home? Could potentially confuse the jury but would likely reduce the
harmfulness of the doctor’s information to D
III-9 (page 267)
- Trying to show the jury that the victim did not have his hands in his pocket when
he was shot by creating an animation that depicts the victim with his hands in
various positions → in the animation, when his hands are in his pocket, the exit
wound of the bullet doesn’t match the actual exit wound on the victim
- Should the jury be allowed to see the animation?
- Is it relevant under FRE 401 → Doesn’t really make it more probable
whether he was actually shot by police officer …..
- But Is SUBJECTIVE RELEVANCE -- model makes the likelihood
of whether his hands were reaching for pockets much lower - by
helping the jury to see the location of the bullet holes
- So will improve jury’s decisionmaking - so subjectively
relevant
- Needs to authenticate video - by expert who has knowledge/expertise
beyond the average person (so like videographer)→ show that
information they used has solid connection to the actual facts
- From that judge can get an idea whether it is reasonably accurate
representation or more likely to be misleading
- But I guess it could be redundant -- because then video shows
same thing that expert also has to talk about
- But has narrative importance -- animation helps jury understand
what expert saying -- provides something that expert does not
- So that’s enough -- admissible
- What might Defense counsel ask for to try to minimize amount of
damage this does?
- Try to change color of circle showing exit point of bullet → cuz red
looks too much like blood - to dial back potential for prejudice
- What foundation is needed?
- FRE 901(4) → Distinctive Characteristics and the Like → The
appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the circumstances
- FRE 901(9) and 901(10) → would have to establish the methodology and
that it was accurate representation of all potential variables
-
-
Why not just have an expert testify?
- Demonstrative evidence purposes → visuals make more compelling
narrative; more confusing to get this through verbal explanation
III-18 (page 274) - Purse snatching - black man driving and blonde girl in ponytail
- About Product Rule -- the probability that a number of independent events will
occur together is equal to the product of the probabilities that the individual
events will occur
- What should be admissible?
- All these factors are independently relevant -- pass FRE 401 test
- Especially when all true and taken together
- (a) Testimony that when the police came to arrest the Collins,
Malcom was seen streaking from the back of house - relevant under
401 ;; although could be determined to be unfairly prejudicial under 403
- juror could just interpret it as him fleeing cuz he was scared of
cops busting - big risk of misestimation
- (b) Testimony that Malcolm had a beard when - possibly admissible
because somewhat relevant but --- very not-probative
- (c) Paid parking tickets even though he had no money before -potentially admissible to establish motive - relevant (FRE 401)
- But why would he commit bigger crime to pay off smaller tickets -so not very probative -- but still admissible
- (d) - product rule → probabilities - PROBABLY NOT ADMISSIBLE
- Where did they come up with the probabilities? → they’re not
scientifically derived….just made up pretty much
- So could OBJECT under FRE 403 that this evidence is
MISLEADING -- especially cuz mathematician giving
testimony (cuz jurors will just believe it as objective)
- Cuz you can’t rely on these made up numbers
- And problem cannot be fixed -- how do you calculate
things so changeable as ponytails
- ALSO -- product rule doesn’t work unless variables are
INDEPENDENT -- here they are not (ex: man with mustache and
man with beard have lot of overlap)
- FRE 702 → failure because it is not sufficiently supported
- 702(a) - does it help the fact-finder to understand the
evidence or to determine a fact in issue
- 702(b) - the testimony is based on sufficient facts or data -here probably no
- 702(c) - reliable principles and methods --here no
EXHIBITS (AND AUTHENTICATION)
Exhibits
- The means other than live testimony by which evidence gets presented to a fact finder
- Witness Testimony -designed to TELL factfinder info you think they need to know
- Exhibits -- designed to SHOW factfinder info you think they need to know
- Often desirable + effective way to do storytelling → increases interest; increase juror
comprehension; make things described verbally seem more real
- HYPOTHETICAL SCENARIO: Imagine I was walking down the street and an assailant
jumped out from dark alley and beat me with what I think is a hammer
- What questions could you ask me to get at physical description of hammer?
- How big was the hammer? How heavy was it? Do you know the brand?
What material was it made of? What color was it?
- But jurors don’t really get a great image from this
- Would be much more effective to actually bring hammer in → jurors appreciate
much more what it would be like to be hit by it
TESTIMONY VS. EXHIBITS
- Testimony:
- Speech, under oath, from a witness
- Value/force depends on judgments about reliability of witness as reporter
- Objectionable under FRE 401, 402, 403 (and others we’ll encounter)
- Exhibits:
- Objects of any sort that can be marked, handled, and perceived directly, usually
be being SEEN, but sometimes by being heard, touched, even smelled
- Objectionable
- For lack of authentication; and
- Where CONTENT violates any other rule of evidence (e.g., 403
balancing, hearsay, etc.)
THREE Rs of EXHIBIT ADMISSIBILITY
- To be admissible, an exhibit must be:
- RELEVANT -- FRE 401-402
- RELIABLE -- FRE 901-902; 1001-1008
- That exhibit is what it purports to be
- Just cuz reliable doesn’t mean jury should believe it
- RIGHT -- FRE 403
- It can’t be something that ought to be excluded under 403 if it’s
misleading, confusing, a waste of time, etc.
TWO TYPES OF EXHIBITS: REAL and DEMONSTRATIVE/ILLUSTRATIVE
REAL
DEMONSTRATIVE/ILLUSTRATIVE
Object/item that played an actual role in, or
Object/Item prepared by a party to
was formed or altered by the underlying event demonstrate, explain, or clarify witness
-- e.g.
testimony at trial --- e.g.
- Weapon used in homicide
- Diagram of building floor plan
- Contract signed by parties
- Photos of accident or crime scene
- Cocaine seized from D at arrest
- Computer animation of bullet trajectori
Admissibility requires AUTHENTICATION
[FRE 901, 902] -- Usually a witness with
personal knowledge to say this object/item is
what it purports to be
- Judge screens for authenticity [901]
and relevance [104(b)]
- Jury decides ACTUAL authenticity
and assign weight
Admissibility requires witness testimony that
the object/item “fairly represents” what is
being demonstrated/illustrated [FRE 901,403]
- Judge screens; jury decides, usually
by reference to related testimony from
witness(es)
- Meaning of “admitted” varies; no set
practice -- judges do different things
- So tell judge if you want it to
be heard in front of jury, etc.
Probative Value inherent in object/item itself
Probative value comes from object/item’s
relationship to credible witness testimony
-
-
-
-
Some courts do not distinguish between real and demonstrative evidence because the
procedures governing use of exhibits are similar in both cases
- Proponent must, as a foundational matter, present evidence that it is what she
represents it to be.
- Difference is that if it is real evidence then, once the jury decides what it is, it has
probative value in itself, independent of any witness. If an exhibit is merely
demonstrative, its probative value (even after the jury decides what it is) depends
entirely, or in part, on the credibility of one or more witnesses
One is not necessarily more probative than the other
Illustrative Evidence → must be relevant, but does not need to be essential to jury’s
understanding. → just needs to be HELPFUL AT ALL in jury’s understanding
- But FRE 403 balancing is still in plat
- Consider also time required to explain the exhibit
Objections that an exhibit distorts the facts, exaggerates an injury, or is misleading are
more likely to succeed against demonstrative evidence than against real evidence
because the former is subject to manipulation.
If the real thing is so dramatic or emotionally compelling that it will be excessively
prejudicial or distracting, illustrative evidence may be required.
Why Have an Authentication Requirement?
- Exhibits cannot be questioned/cross-examined
- Authenticity/legitimacy must be policed at admissibility step with scrutiny of
foundation.
-
-
-
Someone has to monitor whether things are reliably shown to be what it is
purported to be at this point,,, cuz otherwise jury can be misled
- If it’s not reliably shown to be what it’s purported to be, fact-finding process can
be quickly and irreparably corrupted
Exhibits can carry a lot of weight/power
- E.g., gory photos, murder weapon
- Must avoid allowing them to have disproportionate effect
Exhibits can have immediate effect that can’t be rolled back
- Foundation has to be complete and right--and opponent
- COPY FROM SLIDE
AUTHENTICATION -- 901(a)
- In General : “To satisfy the requirement of authenticating or identifying an item evidence,
the proponent must produce evidence sufficient to support a finding that the item
is what the proponent claims it is”
- Advisory Committee Note -- So essentially authenticity is a CONDITIONAL
RELEVANCE QUESTION under FRE 104(b)
- So exhibits can also be screened out based on 401 relevance problem
- Screening by judge who simply decides if there is SUFFICIENT evidence
to support a jury finding of authenticity. If the exhibit passes that test, the
jury may consider it for whatever the jury believes it’s worth
- FRE 901(a) assumes (contrary to most of us in real life) that an item/object is NOT what
it purports to be, and requires EXTRINSIC EVIDENCE to prove it is
- Where the drafters did not want to require extrinsic evidence they explicitly
mentioned it,,,,so since they didn’t here, assume you need it
- Still can have hearsay problems causing items to be excluded
- The fact that an exhibit has been “authenticated” does not necessarily resolve the
question of its identity
- D can still dispute genuineness of document after it’ been authenticated/admitted
- For demonstrative exhibits, the requirement of authentication is generally quite simple
since the proponent’s claim about the evidence is limited
ROLES OF THE JUDGE AND JURY UNDER FRE 901(a) and 104(b)
JUDGE
Per 104(b), judge acts as a screener,
determines whether proof has been offered
“SUFFICIENT TO SUPPORT A FINDING” of
authenticity
- Note: Proof offered for authentication
under 104(b) must ITSELF be
JURY
Once judge has screened and admitted, jury
decides both
- Whether exhibit is REALLY authentic
(i.e., what it’s purported to be),
- AND
- How much WEIGHT to afford the
admissible. This is not a 104(a)
relevance assessment in which
inadmissible info may be considered
If “sufficient” proof of authenticity has been
presented, and if exhibit is not otherwise
inadmissible, it is admitted and jury does the
rest.
exhibit within the totality of the
admitted evidence
Back to Hammer Example
- If had real hammer used in assault -- it would be real exhibit
- To authenticate it, judge would have to establish:
- Get guy to testify that he saw this specific hammer being wielded against
me and grabbed it from his hand
- Wouldn’t be able to authenticate it, if just found it on site later
- Establish chain of custody → cuz want to make sure it hasn’t been
tampered with or swapped out - so needs to be some basis put on record
sufficient to support a finding by the jury that this is the right hammer
- Essentially that I have basis for identifying that this is the hammer used
- Don’t have to convince judge that it is real one,,, just that a rational jury
could find that it is
- But if it was not actual hammer, but just same exact brand and model -- it would be
demonstrative/illustrative exhibit
- Offer it as hammer that is “practically identical in all material respects to the
hammer used in accident”
- Need to be clear that what you have offered is same thing you
authenticated -- so nobody can claim you’re trying to smuggle in
something other than what you said it was
- So make your description in offer match what you say in authentication
- To authenticate, think about sources that could support argument that this is what you
say it is
FRE 901(b) Examples
- (1) Testimony of a Witness with Knowledge -- Testimony that an item is what it is
claimed to be
- Vast majority of authentication work is done by this
AUTHENTICATION PROCEDURE
- FRE 602 - requires sufficient evidence “to support a finding that the witness has personal
knowledge of the matter”
- Generally, evidence of personal knowledge is implicit in the context
- Three differences for exhibits:
- The exhibit must be INCORPORATED in the record as an object
-
-
The foundational requirement (authentication) is more problematic → proponent
is required to make a specific showing that the item is what the proponent claims
it is (FRE 901)
- The proponent is generally required to move specially to admit the item in
evidence, and the opposing party is routinely allowed to object in advance and to
attempt to undercut the proponent’s showing
7 Stages to Process of Admitting Exhibit in Evidence
- 1. Mark the exhibit for identification
- Pre-mark if possible → it’s more efficient and good for organization
- 2. Show exhibit to opposing counsel → Opposing counsel is entitled to see
the exhibit in advance in order to decide whether to object before jury sees it
- 3. Authenticate the exhibit (identify and contextualize the exhibit ; show it is
what it purports to be)
- 1) Proponent must present evidence describing what the exhibit is, in
general terms
- 2) Proponent must present sufficient evidence to support a finding of
“authenticity”--that the exhibit is what the proponent claims it to be
- 4. Motion → Move the exhibit into evidence
- 5. Opportunity to Object and Voir Dire
- Voir dire the witness means to cross examine the witness before cross is
normally permitted in order to obtain information that can be used to
clarify the admissibility of the evidence and, if appropriate, object
- 6. Ruling → Court concluding whether minimal requirements of FRE 901 are met
- 7. Publication → witness can read the document; text shown on monitor;
attorney can read it; etc.
- Counsel or witness may read to jury; may use an enlargement; item or
copies provided to jurors
PROCEDURAL SHORTCUTS
- Procedures to Resolve Routine Questions of Authenticity before Trial:
- FRE 16(c)(2)(C) -- lists “obtaining admissions and stipulations about facts and
documents to avoid unnecessary proof, and ruling in advance on the admissibility
of evidence.”
- FRCP 36 -- governing Requests for Admission, specifically lists among its
purposes obtaining an admission of “the genuineness of any described document
- In civil cases, some judges routinely order a pre-trial exchange of all the exhibits that the
parties plan to use in their cases-in-chief, and require them to make objections in
advance outside the presence of the jury.
SUBSTANTIVE SHORTCUTS: SELF-AUTHENTICATION
- Most of the times, the appearance and contents of a document are not sufficient to
authenticate it
- SELF-AUTHENTICATING DOCUMENTS (under FRE 902)
-
-
Ex: Foreign and domestic public documents, copies of public records,
commercial paper and related documents, documents made self-authenticating
by a federal statute, official publications, trade inscriptions and the like, and
newspapers and periodicals
FRE 902 merely asks that the exhibit purport to be such a document
To protest these -- can try to convince the jury that the exhibit was not genuine
even though authenticated or object under FRE 403 that the probative value of
this exhibit is substantially outweighed by its tendency to confuse and mislead
the jury or waste time.
ADDITIONAL REQUIREMENTS
- CHAIN OF CUSTODY
- A simple method for proving a NON-UNIQUE item is what the proponent is what
the proponent says it is
- Non-unique item -- baggie of drugs; vial of blood; shell casing of bullet
- Why is it necessary? ---> Because proof of a fact or occurrence often depends
on introduction of non-unique items collected or generated at a time or place
remote from the court proceedings.
- And since it is non-unique, you have to make sure one from incident was
not swapped out or something
- THREE KEY COMPONENTS TO SHOW:
- Item was collected at scene / from person involved in underlying incident;
AND…
- Item’s whereabouts and condition between then and now have been
continuously accounted for; such that….
- Item now presented in court can be trusted to be the same one originally
collected at the scene / from the person.
- Typical Chain of Custody Questions:
- Do you recognize Exhibit __ marked for ID? How? When did you first see
it? How did you come to possess it? Describe its condition when you
received it? What did you do with it while it was in your custody? Was
anything done to distinguish this item from others? Was anything done to
secure the item against tampering? Did it ever / when did it leave your
custody? What was its condition when it left your custody? To whom was
it given?
- Follow this for every witness til you tracked the whole chain
- Requirement applied to real evidence in criminal prosecutions
- Involves more than the usual showing of conditional relevance required by FRE
901 → it requires a high degree of care in the handling of evidence to avoid
damage and tampering
- Some courts have special requirements for audio recordings
- For unique exhibits, a chain of custody is not generally required
-
-
FRE 901 makes no reference to a chian-of-custody requirement in any type of
case -- but most federal courts still apply it based on FRE 403
- The chain of custody foundation is not required for periods before the evidence
comes into possession of law enforcement personnel
ATTESTING WITNESSES
- Today attesters do not have to be called unless the writing is one required by law
to be attested
- When a jurisdiction adopts a rule requiring the testimony of a subscribing
witness, it is signifying that it seeks a STRONGER guarantee of reliability as to
certain documents than that which the normal rules of authentication ensure.
PROBLEMS
- X-1 (page 1281) → suing your law school, seek to introduce your admissions letter
to prove that you were admitted to the school. For these purposes, the letter is not
hearsay.
- What does this thing purport to be? (How will you describe it to the judge when
you offer it)?
- A letter of acceptance from Cornell Law School → reflects
decisionmaking by institution and their intentions
- Reflect considered judgment of someone of decisionmaking power
- A letter from a responsible school official offering a student a place in the
law school class
- How could you make a foundational showing to authenticate?
- 901(b)(1) - Testimony that it is what you claim it to be; admission offer
testimony that it is an authentic admission offer letter
- Call Jane Jones (admissions director) to authenticate it → that it is
identical to all other admissions letters sent out, etc.
- 901(b)(2) -- Handwriting signature
- A non-expert making the identification on the basis that this
person has seen the handwriting before the CURRENT litigation
→ could use someone who has gained familiarity with the
signature in question through the course of a previous litigation
against the same Ds
- As long as done by person outside of litigation. Needs to be
someone who knows the signature in context not created for
litigation → could even use the same P (if they received more than
one letter with same signature)
- 901(b)(3) -- Comparison by an expert witness that it looks like all other
admissions letters that were sent out that year
- Known specimen of handwriting -- if there’s another doc in P’s
possession which is known by both parties to be signed by same
person .. and then can calll in handwriting/signature expert and
-
have them evaluate whether the unknown one matches known
one
- 901(b)(4) -- Distinctive characteristics of the letter
- Have someone testify that the seal, type of letter, etc., that it was
printed from a printer in the admissions office
- Content - Cornell LAw school letterhead; info of person’s title
- Context - written context of having received this letter as reply to
application
- You can go outside 901(b) too → 901(b) are just examples
- Could have student testify that he showed letter with signature to
someone at law school before and they treated it as genuine
- How could you authenticate it if it were an email?
- Same as above
- 901(b)(9) -- evidence about a process or a system -- evidence about the
inbox --. Through showing the email database that you received email on;
showing the date, email address that sent it to you, etc.
- 901(b)(3) -- Tech person to show when the email came in
- 901(b)(4) -- Characteristics of the letter in your inbox
X-2 (page 1282)
- Are the recorded conversations admissible at Let’s trial for smuggling?
- Probably -- under FRE 401, evidence is relevant if (a) it has ANY
TENDENCY to make a FACT MORE OR LESS PROBABLE than it would
be without the evidence; AND (b) the fact is of CONSEQUENCE IN
determining the action
- The phone conversations make the fact that Let was engaged in a
conspiracy to smuggle drugs more probable than without the
evidence, and it is of consequence in determining the action.
- FRE 403 -- could argue that it’s prejudicial because the probative value is
outweighed →
- FRE 404 -- propensity evidence -- if he’s charged with a specific act of
smuggling, but recordings only go to more general talk of smuggling -and therefore was more likely to smuggle on particular day
- Conditional evidence under FRE 104(b) - there might be something else
in the record that would support the argument that the “stuff” is in fact
- Has to be possible to believe that “the stuff” is a reference to drugs
- What steps to establish the foundation? --->
- AUTHENTICATE -- 2 things (recording itself; and if content is what
gov says it is )
- RECORDING ITSELF
- FRE 901(b)(9) → bring in person from FBI or something to show
how equipment works
- FRE 901(b)(1) → person with knowledge about how it was made
- CONTENT - VOICE IS HIS
-
-
-
FRE 901(b)(5) -- Opinion about the voice
- You can bring someone in to recognize that voice
regardless of when they would have acquired this
information
- Unlike handwriting, there’s no limitation when it
comes to voice -- can be somebody who knows in
connection with litigation
- FRE 901(b)(4) -- Argument that taken in the context, it seems to
suggest that they are in fact talking about drugs
- Content of conversation in context might be enough
- FRE 901(b)(6)(A) -- That the calls were made from Let to other
individuals suspected to be involved in the smuggling operation
and vice versa
- Need some idea of person answering call → him saying
“this is Let” when he answered call
X-4 (page 1291) - FRE 902(6) makes newspapers self-authenticating. Thus, in fed
court in litigation arising out of an automobile accident there would be no need to
authenticate an account of the accident in a local newspaper. Yet the accident
would remain inadmissible as evidence of how the accident occurred. Why?
- Hearsay (FRE 801) → The problem with this is that the content of the article is
hearsay → the article contains out of court statements offered for the truth of the
incident (that the reporter’s memory was correct, her perceptions correct, etc)
- So inadmissible for point of truth of accident
- Shows there is a functional difference between point of authentication and
admissibility → just cuz something authenticated, doesn’t mean it is
automatically admissible
- Even if the authenticity of the newspaper is self-authenticating, the contents of
the article would still need to be authenticated - so kinda conditional evidence
under FRE 104(B) that needs additional evidence to show its contents accurate
X-5 (page 1291): What evidence would you present to authenticate each of the
following exhibits?
- A. A video recording of P changing a tire on his car introduced by D to
show that P had not been crippled in an automobile accident.
- FRE 702 -- Expert witness testimony from a medical professional to opine
on the fact that P has full mobility and does not appear to have been
crippled
- FRE 1007 -- Testimony by the person who took the video, or deposition
statements regarding the content of the video to prove the contents
- FRE 901(b)(1) -- Testimony of a Witness with knowledge that item is what
it is said to be ---> that he looks like he did in the video
- FRE 901(b)(4) -- testimony about video’s distinctive characteristic and life
- FRE 901(b)(5) -- testimony identifying his voice to show it’s him in video?
-
-
-
-
-
-
FRE 901(b)(9) -- Evidence about a process or system -- to show video
isn’t prone to being edited or something
B: X-ray of P’s knee to show the damage done to the knee
- 901(b)(9) -- Evidence about how X-Ray process works / it’s accurate
- 901(b)(1) -- testimony of a doctor or other witness to confirm it is xray of
patient ; date taken, etc.
- 901(b)(4) -- distinctive characteristics to establish it’s an x-ray and x-ray of
P’s knee and there’s damage on knee
- Probably gonna have to have orthopedic come in -- who did surgery -confirm that what he saw matches damage seen on X-ray
- 702 and 703 -- expert witness testimony interpreting x ray
- 1002 -- original version of x ray
C: Can of peas to show that the D was responsible for the presence in the
can of a stone on which P broke a tooth
- 901(b)(4) -- demonstrative evidence taken with the circumstances;
distinctive characteristics of pea can of that brand
- 901(b)(1) -- testimony by a witness who can confirm the item is what it
claims to be → have P testify as a plaintiff with knowledge
- 901(b)(9) -- linking the can with the company’s production system
- 902(7) -- public records showing can’s production ?
- LAbel is self-authenticating….but need to authenticate the particular can
to keys to this incident
D: Testimony that a voice on a recorded phone conversation is D’s
- 901(b)(5) -- opinion about a voice -- someone who familiar with D
- Even jury could do its own comparison between voice of him on
recording and him in court (901(b)(3))
- 901(b)(6)(A) -- evidence that the D made the call to the witness’ number
(or vice versa) and that the D identified themselves, and the other person
recognized the voice
- 901(b)(1) -- testimony by witness who heard convo -careful about hearsay
- 901(b)(4) -- distinctive characteristics -- of his voice, etc.
E: A bill prepared by a computer to show that the D owed P $900 for
purchases charged to his credit card
- 901(b)(9) -- evidence of process that made bill -- evidence to show the
computer’s bill generating mechanism is accurate
- 902(11) → it might be self-authenticating if verified machine
- But need to bring that in before trial
- 901(b)(1) -- employee/accountant from the oil company to testify
regarding what the bill was for or how system generates bill
- Hearsay problems with these bills
F: A copy of the D’s birth certificate to show she is not deportable
- 902(4) -- certified copies of public records (must be CERTIFIED)
-
-
Would be self-authenticating -- as record of __ statistics over
hearsay objection
- IF it was not certified, it can still be authenticated by custodian
- 901(b)(1) -- custodian of records to come down and testify
that the document is what it purports to be
- 901(b)(7) -- evidence about public records, chain of custody
- 901(b)(8) -- ancient document, that the document is in such a condition to
create no suspicion regarding its authenticity, is in a place where it would
be if authentic, etc.
- 1002 -- original copy of the birth certificate if available
- G: A telegram to show that the grain company contracted to buy the P’s
wheat
- Normal way to authenticate telegram would be through its distinctive
characteristics -- content and circumstance ---> those combine to make
this unique and identifiable based on its relationship to rest of the case
- To do this, requires evidence from another source -- there was
offer from grain company earlier that day and terms of offer
consistent with content of reply telegram
- “REPLY LETTER DOCTRINE” of FRE 901(b)(4)
- 901(b)(9) -- evidence to show that the telegram software is accurate
- 901(b)(1) -- witness from the Grain Company who sent the telegram or
had knowledge of the decision to contract
- 901(b)(4) -- distinctive characteristics as a message sent from P to D
regarding the purchase
- H: Testimony that a voice on the other end of the telephone answered
“Police Headquarters.”
- 901(b)(6)(B) -- evidence that the call was placed to a certain business
X-6 (page 1298): ABOUT CHAIN OF CUSTODY -- Sam Slade arrested for
possession of crack cocaine
- Should the crack be admitted into evidence?
- FRE 901(a) -- probably not sufficient to support a finding of authenticity
- FRE 901(b)(4) -- based on the circumstances of the crack cocaine, and
the officer’s testimony regarding the circumstances under which it was
recovered and handed to him
- FRE 901(b)(3) -- comparison to establish that this is in fact a crack crystal
- Chain of custody issue → there is a break in the chain
- Whole hour with Officer Wind unaccounted for → but that’s not that
long….and he probably was still at scene with other officer or something
- Even if you can get through the chain problem, you can’t get through
authentication problem because there is no available vehicle for authentication
- Nobody can definitely say that rock of crack that was in Mimi’s possession
- All there is is hearsay
- So evidence is insufficient -- and will probably win on directed verdict
ORIGINAL DOCUMENT OR “BEST EVIDENCE” RULE (1001-1008)
- Purpose of the Rule: To exclude a category/type of evidence from consideration by a
jury simply because it is comparatively weak -- i.e., weak as compared to a different type
of evidence conveying the same information
- Accomplished through FRE 1001-1008
- The Basic Arrangement
- FRE 1002: “To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as provided in
these rules or by Act of Congress.”
- “Original” defined in FRE 1001(d)
- FRE 1003: “A duplicate is admissible to the same extent as the original unless
a genuine question is raised about the original’s authenticity or the circumstances
make it unfair to admit the duplicate.”
- “Duplicate” defined in FRE 1001(e)
- FRE 1004: “An original is not required and other evidence of the content of a
writing, recording, or photograph is admissible if:” there’s a good reason the
original is unavailable. See FRE 1004(a) - (d)
- FRE 1005 -- Public records can be proved by copy
- FRE 1006 -- Summaries okay when the original voluminous as long as the
original also is made available
- FRE 1007 -- Can prove content through testimony of opponent → cuz it’s
basically admission by opponent
- FRE 1008 -- Judge decides technical compliance; jury decides rest
- Important Notes
- Original Document Rule applies only when evidence of a writing, recording, or
photograph is presented to prove the content of that document.
- E.g., it does NOT prevent testimony about an EVENT that is also
documented in writing, etc.
- It’s really just a rule of Preference for the original. If there’s a good reason the
original can’t be produced, a duplicate, or even oral testimony about the
document can be used. See FRE 1004.
- And that means…
- There is usually no good excuse for being blocked by the Original Document
Rule. When that happens, it’s probably a sign of poor preparation or ignorant
lawyering.
- If counsel spots an ODR issue coming, the rules provide ample
opportunity to work around it.
- Failure to spot the issue is counsel’s fault, not the fault of the Rules.
- Original Document Rule → “In proving the terms of a writing, recording, or photograph,
where the terms of the content are material to the case, the original document must be
-
-
-
-
-
produced unless it is shown to be unavailable for some reason other than the serious
fault of the proponent, or unless some secondary evidence is otherwise permitted by rule
or statute.”
FRE makes 2 changes to common law version of rule
- Rule is applied to wider range of items -- “writings and recordings of any wort,
plus photographs, movies, and videotapes.”
- Copies made by reliably accurate processes receive special treatment as
“duplicates.”
FRE 1001 → defines types of exhibits that are subject to rule: writing, recording,
photographs
FRE 1002: Requirement of the Original → “An original writing, recording, or photograph
is required in order to prove its content unless these rules or a federal statute provides
otherwise.”
- Photocopies and stuff can qualify as original if parties had INTENT that each
copy be an independent legally binding document rather than a copy of such a
document.
- FRe 1003 makes all duplicates presumptively admissible
Original Document Rule ONLY applies when evidence of a writing is presented TO
PROVE ITS CONTENTS
It does not apply to testimony that books or records have been examined and found not
to contain any reference to a designated matter
But, sometimes even when there’s no dispute about contents, original document
required for disputes over authenticity.
Although a written record of an event is likely to be the most reliable evidence of what
happened, the Original Document Rule does not require the production of such a record,
if one exists, in preference to other evidence.
- The Original Document Rule does not prevent the witness from summarizing
what was said or giving the gist of it as she remembers it, even if the exact words
are important, as in a perjury trial
However, in a case in which the applicable substantive legal rules make a writing
indispensable -- e.g. a case that turns on the terms of a written contract -- the OG Doc
Rule may exclude the ONLY available evidence on a critical issue
OG Doc rule is a rule of preference → OG docs are preferred, but if there is a good
reason why the original cannot be produced, secondary evidence, such as written copies
or oral testimony will be admitted.
- FRE 1004 -- situations in which production of original excused:
- (a) Originals are lost or destroyed, and not be the proponent acting in bad
faith
- (b) An original cannot be obtained by any available judicial process;
- © The party against whom the original would be offered had control of the
original; was at that time put on notice, by pleadings or otherwise, that the
original would be a subject of proof at the trial or hearing; and fails to
produce it at the trial or hearing; or
-
-
(d) The writing, recording, or photograph is not closely related to a
controlling issue.
- FRE 1005 -- exception for public documents → don’t need original
FRE says there’s no hierarchy for secondary evidence
FRE 1008 → specifies the roles of judges and jury
- Court determines whether the proponent has fulfilled the factual conditions for
admitting other evidence / whether or not rule applies
THE PAROL EVIDENCE RULE
- Actually a rule of substantive contract law which provides that absent some exception
the terms of a written contract constitute the entire agreement between the parties
PARTICULAR TYPES OF TANGIBLE EVIDENCE
- VIEWS, DEMONSTRATIONS, AND EXPERIMENTS
- VIEWS → take jury out to see locations and objects that cannot be brought into
courtroom or captured in photo
- DEMONSTRATIONS AND EXPERIMENTS → For objects and stuff that can be
brought into courtroom but not made part of record
- Ex: injuries and parts of human anatomy may be displayed to court
- Process -- (Ex: Limping to show consequences of Injury) (or process of
how certain mechanism works)
- Experiments conducted in presence of jury may be excluded if they
involve considerable confusion and delay, but simple experiments by
witnesses are usually permitted
- PHOTOGRAPHS AND SOUND RECORDINGS
- Photographs may be used as demonstrative evidence
- Admissible whenever a witness can testify from personal knowledge that
they accurately portray relevant facts
- Can be excluded if unduly prejudicial
- Two Theories for admissibility of photographs
- Photos not actual evidence in themselves, but rather represent to the eye
what the witness declares was the real appearance of the things at the
time he saw it
- “Silent Witness Theory” → properly authenticated photo is admissible
“not merely as illustrated testimony of a human witness but as probative
evidence in itself of what it shows”
- FRE 901(b)(9) -- permits authentication of an exhibit by evidence
that it has been produced by a “process or system and showing
that it produces an accurate result.”
- Sometimes theories merge → photos presented not merely as illustrative
evidence but as real evidence of relevant facts
-
-
-
-
SOUND RECORDINGS → most jurisdictions require a stronger foundation for
the admission of audio recordings than the minimal showing that is sufficient for
authentication in general under FRE 901 and comparable rules
- Courts may also permit the proponent of a picture of recording to provide aids to
help the jury understand the original exhibit -- as long as not objectionable under
FRE 403
COMPUTER-GENERATED EXHIBITS
- The foundational requirements for these various computer-generated exhibits are
simply applications of the requirements for the admission of comparable exhibits
prepared by other means
- Sometimes role of computer very important
- With real exhibits, there are sometimes disputes about genuineness
- Computers--unlike other tools--perform calculations and manipulate
information, and these calculations and manipulations are often
embedded in evidence
- Must be authenticated under FRE 901(b)(() - showing they were created by “a
process or system and showing that it produces an accurate result”
- Computer-generated business records are used to prove that statements
contained in them are true
- But must satisfy requirements of the “business-records” exception to the
hearsay rule → they must be shown to be based on info transmitted or
recorded by people with knowledge of the events in question, at or near
the time of those events, and kept as a regular practice by the business
(FRE 803(6))
- Typically require greater foundation than paper records
VIDEO RECORDINGS AND OTHER MOTION PICTURES
- Very useful but have lots of issues
- Prejudice and probative value under FRE 403
- Other evidentiary objections like hearsay or unqualified expert opinion
evidence
- Alternative methods of presenting evidence
- Day-in-the-Life Videos
- Can ask to cut parts of video and stuff
RECONSTRUCTIONS, REENACTMENTS, AND SIMULATIONS
- There is a danger that any video re-creation will be unconsciously viewed by the
jury as an actual record of the event
- So courts require foundational showing that the conditions under which
the videotape was made were substantially similar to those involved in the
event under litigation
- Can be problems with the data → reflect unsubstantiated theory or assumption;
data reported in error
- Spectrum of uses:
- To illustrate an expert’s opinion
-
-
Or can constitute an essential basis for an expert opinion that is critical to
party’s case
THE COURT RECORD; PREVIOUSLY RECORDED TESTIMONY
PROBLEMS
- X-7 (page 1308): Identity of an armed robber; photocopy of composite description
of the armed robber.
- Which document would you introduce into evidence? The original, the
photocopy sent to the officer, or one of the other officers in main officer’s
command, or the photocopy prepared a week before trial?
- Any one of these could come in
- Under FRE 1001(d) → allows for duplicates to be considered the same as
the original
- FRE 1001(d) + FRE 1001(e) -- any counterpart intended to have same
effect by person issuing it → Friday disseminated these photocopies so
they’d all be equipped with same information
- So all the copies Friday issued would qualify as counterparts to
have same effect as one he had → which makes them count as
original
- 1003 -- “a duplicate is admissible to the same extent as the original
unless a genuine question is raised about the origins’s authenticity or the
circumstances make it unfair to admit the duplicate”
- So even copy prepared week before trial would be admissible cuz
no reason to doubt it’s authenticity
RELEVANCE RULES - CHAPTER 4
An Overview
- Categorial Exclusionary Rules
- Character → evidence of a person’s trait of character may not be introduced to
establish that the person behaved in conformity with that character trait on a
particular occasion
- Other Crimes → evidence of a criminal D’s other crimes is usually inadmissible to
show that the D committed the crime charged
- Habit → Evidence that a person or enterprise had a certain habit generally
is admissible to show that the subject acted in accord with that habit on a
specific occasion.
- Subsequent Remedial Measures
- FRE 407 → “When measures are taken that would have made an earlier
injury or harm less likely to occur, evidence of the subsequent measures
-
is not admissible to prove: negligence, culpable conduct, a defect in a
product or its design, or a need for a warning or instruction
- But the court may admit this evidence for another purpose, such
as impeachment or--if disputed--proving ownership, control, or
feasibility of precautionary measures
- Reasons for excluding: (1) the evidence has little probative value
- (2) Admitting the evidence might deter people from taking socially
beneficial post-accident precautions
- FRE 407 applies in strict liability as well as in negligence actions (as long
as prejudicial potential does not substantially outweigh probative value.)
Payment of Medical Expenses
Offers to compromise or plead guilty (FRE 408)
- FRE 408 provides:
- (a) Prohibited uses -- Evidence of the following is not admissible-on behalf of any party--either to prove or disprove the validity or
amount of a disputed claim or to impeach by a prior inconsistent
statement or contradiction:
- (1) Furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to
compromise the claim; and
- (2) Conduct or a statement made during compromise
negotiations about the claim--except when offered in a
criminal case and when the negotiations related to a claim
by a public office in the exercise of its regulatory,
investigative, or enforcement authority
- (b) EXCEPTIONS -- The court may admit this evidence for
another purpose, such as proving a witness’ bias or prejudice,
negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution
- So some kinds of impeachment included; other excluded
- So actual admissions of liability are excluded
- All discussions excluded if offered for impermissible purpose
- FRE 408 gives more protection than the common law → protects entire
utterance as long as it was made in compromise negotiations
- If during settlement negotiations the P admits she has no case but
asks the D to pay something anyway to avoid the expense of trial or
the danger that the jury will be fooled, FRE 408 does not protect the
statements.
- If, however, either “validity” or “amount” is disputed, the
rule’s full protection is available, even if the excluded
evidence relates to an aspect of the claim that is not disputed
-
-
As with evidence affected by the other categorical balancing rules,
evidence of an offer to compromise is not excluded for all purposes
- The purpose for which evidence of civil compromise negotiations is
excluded is broader than that for which evidence of subsequent remedial
measures is excluded
- Liability Insurance
- Similar Events → evidence of an event offered to show that another event
occurred in a particular way is scrutinized carefully to assure that the two events
are sufficiently similar to support the intended inference.
In general, these rules exclude evidence when used for the purpose specified in the rule
but not when used for other purposes.
Key Characteristics of the Relevance Rules
- Rules operate to EXCLUDE specified types -- usually particular uses of those types -- of
otherwise relevant (RE 401) evidence
- AND
- Decision to exclude is based on categorical, FRE 403-style balancing, conducted by
legislatures and/or appellate courts, and applied to all cases.
- Trial courts are left with no need to, and no discretion to, do the balancing in
individual cases.
USES: The Substantive / Credibility Distinction
- Substantive: Evidence that is relevant because it tends to show an element of a
claim/defense is more or less likely to be true
- I.e. information that helps in showing “what happened”
- E.g., Witness A’s testimony that the light was red when the car went through.
- Credibility: Evidence that is relevant because if affects the believability of a piece of
substantive evidence / believability of a source of piece of substantive evidence
- E.g. Witness B’s testimony that Witness A was drunk when he saw the car pass
through the light
WHY Do These Categorical Rules Exist? (Why Exclude relevant info for substantive use)
- Because the evidence these rules tend to exclude -- Usually has low probative value anyway;
- If a party has a meritorious case, then nothing excluded by these
relevance rules will likely be necessary for that party to prevail
- Is especially susceptible to problems of misestimation by the jury;
- Which would increase risk of unreliable verdicts
- Would, if allowed, often lead to time-consuming, distracting collateral litigation;
- Ex: if it were admitted, a civil defendant’s decision to repair equipment
would require giving D more time to explain why they did the repair
- Sometimes presents too high a risk of prejudice
- Like evidence of a different crime committed by D
-
Also, in some instances, because excluding the evidence serves OTHER policy
objectives that don’t necessarily bear upon what happens in court
- E.g., encouraging settlement negotiations
SCOPE LIMITATIONS
- These rules mostly exclude certain types of evidence for certain uses;
- This means it’s VERY important to-- Read the fine print specifying exactly what is/isn’t excluded;
- Understand the PURPOSE--i.e., the proposed USE--for which evidence is being
offered;
- Cuz can get it admitted for certain purpose that is permitted even though
it is also inadmissible for other purpose
- Consider whether that purpose/use falls inside or outside the rule;
- Can argue whether permissible use is really just a disguise/farce if
stronger inference is impermissible
- And if outside the exclusion, consider whether some OTHER rule (often FRE
403) might nevertheless kick in to exclude the evidence
- And never overlook the danger of MISUSE by the jury
- Use limitations are notoriously difficult to police for the jury → juries often misuse
the information
- To avoid Misuse:
- The lawyer may stipulate to EVERYTHING the evidence might properly
be used to prove
- Attorney may make a “judicial admission” -- a binding concession that
removes an entire issue (e.g., an element of a crime) from the class of
disputed fact questions
- Or ask for limiting instructions (but not really always helpful cuz
sometimes makes jury realize other ways to use info)
FRE 407: Subsequent Remedial Measures
- “When measures are taken that would have made an earlier injury or harm less likely to
occur, evidence of the subsequent measures is not admissible to prove:
- Negligence
- Culpable conduct
- A defect in a product or its design; or
- A need for a warning or instruction
- But the court may admit this evidence for another purpose, such as impeachment or--if
disputed--proving ownership, control, or the feasibility of precautionary measures”
- NOT AN EXHAUSTIVE LIST -- “such as” - these are just common other uses that
are allowed
- So as long as proposed use does not fall into one of the four uses listed
(negligence….need for warning) then it is not excludable
-
RATIONALE →cuz would deter useful post accident fixes; info not that probative anyway
PROBLEMS IV-14 (Page 325-326):
- (a) What advice would you give Pat about the likelihood that she will win at trial
and receive damages exceeding the settlement offer?
- FRE 407: permits this evidence to come in because it occurred prior to the injury,
and therefore could be used to establish negligence
- Not captured by 407 cuz pre-accident notice
- So she should reject the settlement offer -- cuz this is admissible and pretty
probative
- However, if it were excluded, it might harm the case because of the probative
value--there would need to be some other evidence to show that the negligence
existed without this evidence
- Perhaps the fact that there was no lookout sign on the street, and Pat was
not walking on the sidewalk
- FRE 408 → Settlement offer will not be admissible
- (b1) Would your advice change if you found that the forewoman posted the notice
the day after the accident occurred?
- FRE 407 → would presumably preclude this evidence to come in if you want to
introduce it to show negligence
but you could still try to introduce it by proving that additional precautions
were feasible and to establish that the D had control over the sidewalk
where Pat was injured and not just the construction site.
- Settlement is better option here ;;; but probative value not that different between
notice posted one day before and one day after the accident
- (b2) If the notice was posted the day after, but was ordered to have been posted
before the accident?
- Same as above, but this seems likely to just go to establishing that if posted, it
would have made the injury less likely to occur, which is prohibited by FRE 407.
- D was already aware of the risk before injury occurred so doesn’t really make
injury more or less likely?
- Two potential packages of evidence:
- Maybe testimony/memorandum that the order went out
- This could come in -- not FRE 407 problem cuz before accident
and very reflective of company’s perception of the risk and the
need to do something about the risk
- The actual notice posted
- This is barred by 407 -- cuz true subsequent remedial measure
- (b3) If no notice was involved, but the crane operator was fired an hour after the
accident?
- FRE 407 limits introduction of evidence regarding the discharge of employees
(as subsequent remedial measure)
-
-
-
(b4) If the notice was posted a day after by the municipality, not involved in the
litigation at all?
- Perhaps admissible because they aren’t party to the action and are not likely to
forgo socially useful steps based on what might be admissible in court ;; and
doesn’t reflect risk that company itself actually saw
- Shows policy matters -- courts act based on what policy requires
- BUT NOT ADMISSIBLE -- cuz the notice posted by the local government should
be barred cuz it’s hearsay and inadmissible opinion
- Shows how multiple rules can bare upon piece of evidence → just cuz
admissible under one rule, can still be barred by others
(c1) RI allows for evidence of subsequent remedial measures. Would your advice
change if this were in federal court? (c2) If this were in state court?
- If you can argue that it’s procedural rule, than maybe, under Erie, the federal rule
should apply in state court
- But if you view it as a substantive rule, then under Erie, state rule would
apply
- So this could go either way
IV-3 (Page 309):--- ABOUT RULE 408 Driver, driving Owner’s car without
permission collides with P. P sues Owner, claiming that defective brakes caused
the accident. P calls driver to testify. Owner wants to introduce evidence that the
Driver settled out of court with P by paying $500.
- Why would the Owner (D) want to introduce this information:
- Wants to imply that Driver has at least some of the liability
- (a) May Owner introduce this evidence?
- Maybe similar to compromise? Showing he was wrong??
- If it’s an attempt to prove the invalidity of the claim, FRE 408 will
prevent its admission
- It may be permissible to let in, however, because the settlement offer is so
low, its impeachment value is also low. However, the jury’s inclination to
use it might be extremely high
- Low settlement amount - it would be understood that plaintiff
bought driver’s testimony in an effort to bolster testimony against
Owner → it’s less suggestive of partial liability falling to driver, and
more suggestive of shady side-deal (so being used for
IMPEACHMENT which is allowed under FRE 408(b))
- BUT….there is still some of the forbidden use also
happening
- How does the court deal with it having both permissible and impermissible
uses?
- Could issue limiting instruction (that can use to determine
credibility but not for determining relative liability of driver)
- Other side could stipulate to fact
-
(b) Would the situation be different if P were paralyzed?
- Less probative because the settlement amount is so low ?????
(c) If P were only bruised but claimed he suffered recurring nightmares?
- Probative value shift
3/8/2021
NOLO CONTENDERE PLEAS, WITHDRAWN GUILTY PLEAS AND STATEMENTS DURING
PLEA DISCUSSIONS
- FRE 410(a) provides: can’t introduce
- (1) A guilty plea that was later withdrawn;
- (2) A nolo contendere plea;
- Unlike the other relevance rules, this exclusion makes the evidence
inadmissible “against the defendant” for all purposes rather than
inadmissible to prove some particular claim
- A plea of nolo contendere can NEVER be used as an admission of facts
essential to a finding of guilt, because the rule prevents the opposing
party from presenting evidence of a nolo contendere plea.
- (3) statement made during a proceeding on either of those pleas under the
Federal Rule of Criminal Procedure 11 or comparable state procedure; or
- Avoids factually difficult questions that previously arose when defendants
sought the rule’s protection for what looked suspiciously like
run-of-the-mill admissions to police officers.
- (4) A statement made during plea discussions with an attorney for the
prosecuting authority if the discussions did not result in a guilty plea or
they resulted in a later-withdrawn guilty plea.
- Statements made outside of court WITH THE PROSECUTING
ATTORNEY → if it’s just comments made to detective or police without
prosecutor there, it’s not protected
- FRE 410(b) EXCEPTIONS: The court may admit a statement described in Rules
410(a)(3) or (4):
- (1) In any proceeding in which another statement made during the same
plea or plea discussions has been introduced, if in fairness the statement
ought to be considered together; or
- (2) In a criminal proceeding for perjury or false statement, if the defendant
made the statement under oath, on the record, and with counsel present
- Exclusion is NOT dependent on purpose for which evidence is used → covers any
statement against D for any purpose
- Guilty pleas (that are NOT withdrawn) are not excluded
- Can get around FRE 410 as prosecutor by refusing to engage in plea negotiations
unless defendants agree beforehand to waive their FRE 410 objections
-
FRE 410 is asymmetrical cuz it only excludes evidence offered against the
DEFENDANT
- But if D introduces such a statement, the exception in 410(b)(1) lets the
government introduce other statements made in the negotiations if they
place in context or otherwise elucidate the statement introduced by the
defendant
- In fairness, P can present other side of convo under FRE 410(b)(1)
- So D usually doesn’t bring it up +
- Courts usually don’t let defendant introduce it anyway -- block via FRE 403
PAYMENT OF MEDICAL EXPENSES
- FRE 409: “Evidence of furnishing, promising to pay, or offering to pay medical, hospital,
or similar expenses resulting from an injury is NOT admissible to prove liability for the
injury.”
- Policy incentive of paying or offering to pay for post-accident medical care is socially
desirable → but kinda undermined by FRE 409’s failure to also exclude associated
statements.
LIABILITY INSURANCE
- FRE 411: “Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise wrongfully. But
the court may admit this evidence for another purpose, such as proving a witness’s bias
or prejudice or proving agency, ownership, or control.
- Inadmissible as basis for inferring that an insured defendant, having no fear of paying
accident costs, was careless or that having no insurance gave her incentive to be careful
SIMILAR HAPPENINGS
- Ex: A P in a negligence action may offer evidence that other individuals tripped and fell
on a certain stair in order to show that stair was messed up.
- No hard and fast rules governing use of similar event evidence
- Courts approach evidence of other happenings skeptically because of its capacity to
mislead the jury --- so needs to be substantially similar
- Jurors may overvalue evidence of the other event
- Might cause delays or undue confusion
- Courts often resist using such evidence of “accident proneness” to show negligent
causation of an accident.
PROBLEMS
IV-7 (p. 315) | Plea negotiation. D tells the P in the presence of D’s counsel that “no way
am I gonna plead. I was at the movies when the burglary went down, and I got two friends
who was with me.”
· (a) Can P introduce this statement if the D rests without offering any evidence?
oThis is statement made for prosecuting authority so you cannot introduce
No – protected under 410(a)(4)
o Suppose that Betty during transportation form the holding cell while with
the D counsel, mentions to the court house police officer – are those
admissible?
§ The court would have to apply the two-tiered test
§ Not going to be excluded because it’s not with the attorney with
the prosecuting authority
·
Prosecutors get a lot of useful information that look a
lot like negotiations during a plea deal by getting around this
rule – i.e. talking to a police officer
· (b) If D testifies that she was at home in bed at the time of the burglary?
oShe is lying, but her statements from plea negotiation are protected
anyway (canot introduce)
410(b)(2) permits this evidence to come in when the D has committed
perjury, but in a separate perjury prosecution action
§ This is to address the rare occasions where a D is being charged
for perjury – not going to come in in the burglary negotiations
· (c) If D brings in two witnesses who testify that D was at home in bed?
o Same as above → 410 would still protect the evidence of plea negotiation
(cannot introduce)
o Are there any policy considerations that you could argue for that would
allow you to introduce this evidence?
§ Because we’re interested in protecting the truth finding function –
and 410 is not really implicated anymore
§ But that has wider ramifications on the plea negotiations as a
whole – want to ensure that we are ensuring that the underlying
policy rationale for FRE 410 (i.e. the fact that we are encouraging
plea deals)
o Prosecutors do have some discretion to have them sign the waiver if
they want
· (d) As D counsel, what factors would you consider before resting without
presenting any evidence?
o Whether there would be any evidence to prove that the client was not at
the scene, and whether the P has any evidence that would support the fact
that D were there
· (e) Before presenting evidence that D or her roommates testimony that she was
at home in bed
o Would not want her to prejudice herself or potentially allow the P to bring
a separate action that would undermine her credibility
· (f) If D agreed to waive 410 objections, what effect would the TJ give in the
above situations?
oIf she waives it, 410 won’t protect her. What else could she invoke?
It would be a lot of prejudice → because now assume Betty is liar/can’t
keep her story straight → which owuld be right--- so not unfair or
misleading prejudice
More prejudicial than probative (FRE 403) -- but not unfair prejudice
So judge will probably let it in -- cuz not a lot of probative value but also not
lot of UNFAIR prejudice
Would consider whether she was actually engaged in plea negotiations –
said that she was not going to engage in any plea negotiations – so could
potentially assume that she did not think those statements were protected,
and furthermore waived them
Not covered by mezzanado / Messinato-- so only possibility is 403 → if
Betty doesn’t testify and prosecutor tries to use the inconsistency in their
case and chief
Probative value is pretty low ; prejudice is high (threatens Betty’s
right not to testify; same risks of jury misestimation)
PAYMENT OF MEDICAL EXPENSES
- FRE 409: OFFERS TO PAY MEDICAL AND SIMILAR EXPENSES - “Evidence of
furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses
resulting from an injury is NOT admissible to prove liability for the injury.”
- Very narrow coverage of what is excluded -- can use it for other purposes
- Admissions of liability are not excluded; only payments or offers to pay
- Distinguishes this from FRE 408
- FRE 408 is designed to promote compromise; whereas, 409 is
aimed at more incidental kinds of statements
- Policy incentive of paying or offering to pay for post-accident medical care is socially
desirable → but kinda undermined by FRE 409’s failure to also exclude associated
statements.
- Other Rationale behind this rule → humanitarian reasons to offer to pay even if not
liable, but jury would misestimate this information a lot
- IV-8 (p. 317) | Rollo Rico runs over Sluggo Snyder while driving and rushes over
saying that he is so remorseful, and sure that it was all his fault. Tells him that he
will pay all his expenses and to go to a private hospital. Ran up 80k in bills. Then
Rollo refused to pay saying that Sluggo was negligent.
- (a) If S sues R in tort, which of R’s post-accident statements can come in?
- Only statement clearly filtered out by 409 would be statement “please
repair to the Ritz Hospital” if offered to prove liability
-
-
-
BUT if it was offered to show something about why the amount of
damages should be what it is, it’d be admissible
If sluggo instead sued on the ground that Rollo made a contract and it
was breached when he refused to pay expenses? -- wouldn’t be excluded
by 409 because not being used to show tort liability (action ur suing for)
Only thing that might keep any of other statements out is FRE 403 -- but
probably more probative than prejudicial
- And come right from Rollo himself so no hearsay problem or
anything
LIABILITY INSURANCE
- FRE 411: “Evidence that a person was or was not insured against liability is not
admissible to prove whether the person acted negligently or otherwise wrongfully. But
the court may admit this evidence for another purpose, such as proving a witness’s bias
or prejudice or proving agency, ownership, or control.”
- This rule is double-sided → the exclusion language is very clearly designed to
limit both sides in a case where it applies
- P can’t use evidence of insurance to show D had reason to be careless;
can’t use lack of insurance to show he was careless
- But D also cannot do these things -- can’t say they themselves were
careful because they didn’t have insurance
- Inadmissible as basis for inferring that an insured defendant, having no fear of paying
accident costs, was careless or that having no insurance gave her incentive to be careful
- Rationale behind Rule → insurance really has low probative value but juries draw lots of
misleading inferences from it - messes up the regret matrix too
- Pretty easy to work around → Can bring in insurance about case around 411
- Can bring it in for a different purpose
- Use payments /retention by/ for insurance companies when doing
cross-examinations and such of expert witnesses (who are paid by insurance
company) →
- Ostensibly impeach them by showing they’re paid by insurance
companies,,,but also bringing up fact that D has insurance
- IV-9 (p. 319) | Same problem as above. R has no insurance.
- (a) May he introduce evidence that he lacks insurance to support his
argument that he was driving with caution?
- NO!
- (b) May R introduce evidence that his car was custom built and he loves it
to prove that he was driving cautiously?
- Would not be excluded by 411 -- not covered by411 at all cuz not
insurance problem
- But does raise some issues:
-
-
Is it relevant under 401? -- maybe a little, but probative value very
low and risk of confusion/misleading jury is quite high so maybe
excludable under 403
Really amounts to character evidence and should be prohibited
under FRE 404(a) -- cuz really just saying that he acted in
conformity with his disposition to take care of his car during this
time
CHARACTER AND CREDIBILITY
CHAPTER 5 ROADMAP
- FRE 404-406:
- The character rule, which presumptively forbids use of character traits as a basis
for inferring action in conformity with those traits;
- AND
- The “substantive: exceptions to that rule
- FRE 607-610, 613 and uncodified common law rules
- The rules governing tests of witness credibility via character or other inferences
- FRE 412-415 - The rape victims’ shield rule and the exceptions to the character
evidence exclusion for prosecutions of sexual assault and child molestation
FRE 404: Character Evidence; Crimes or Other Acts
- 404(a)(1): Prohibited Uses -- “Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance with
the character or trait”
- 404(a)(2): EXCEPTIONS for a D or Victim in a CRIMINAL Case:
- (A) A defendant may offer evidence of the D’s PERTINENT TRAIT, and if the
evidence is admitted, the prosecutor may offer evidence to rebut it
- What counts as pertinent trait depends on the case being tried → ex: if
trait is known to be nonviolent or especially egalitarian, might be pertinent
- Idea is to give the opportunity to D to let jury consider their character - put
their character at issue
- RISKY THo -- cuz when D does this, P gets the right to rebut it
- Classic circumstance in which doors are opened → even if just
say “I’m not the kind of guy that would murder, etc.”
- (B) Subject to the limitations in Rule 412, a defendant may offer evidence of an
alleged victim’s pertinent trait, and if the evidence is admitted, prosecutor may:
- (i) offer evidence to rebut it; and
- (ii) offer evidence of the defendant’s same trait; and
- (C) In a homicide case, the prosecutor may offer evidence of the alleged
victim’s trait of peacefulness to rebut evidence that the victim was first aggressor
-
-
-
(N.B.: This trait of peacefulness is the only time prosecution can fire the
first shot with character evidence)
404(a)(3): Exceptions for a Witness : Evidence of a witness’ character may be
admitted under Rules 607, 608, and 609
- Impeachment evidence pretty much ----> we’ll come back to this later
FRE 404(b): CRIMES, WRONGS, OR OTHER ACTS
- Very similar to 404(a) -- kinda just a subset of 404(a)
- So why have 404(b) → emphasize how serious it is;;; also that there are some
non-propensity uses to which this evidence can be put
- Has generated a disproportionate amount of appellate litigation → it comes up in
a lot of criminal cases and decisions are usually close/arguable
- Turns on issue framing and subjective assignments of relative weight and
ranking of inferences that jurors might draw
- (1) Prohibited Uses
- (2) Permitted Uses
- (3) Notice in a Criminal Case
KEY CONCEPTUAL AND POLICY DISTINCTION
- MUST LEARN TO DISTINGUISH BETWEEN:
- FORBIDDEN USES of character evidence (i.e., evidence inviting the
inference that a person acted in conformity with trait(s)...
- And
- NON-FORBIDDEN USES of character evidence (e.g., evidence presented
simply for a different purpose or propensity evidence simply not covered
by the prohibition.
REASONS TO EXCLUDE/REGULATE CHARACTER EVIDENCE IN COURT PROCEEDINGS
- To prevent decisions by jurors based on whether they like/dislike someone
- Jurors not very good at assigning the correct weight to character evidence → tend to
overestimate the probative value of a piece of character information, especially when it
suggests a person has a bad character
- Making accurate (rather than misleading) proof of character is very difficult and
time-consuming to do → pulls jury, lawyers, and judge away from issue at hand
- People aren’t defined by the worst thing they ever did → judge people based on what
they did in this situation at hand, not what they’ve done in the past
FRE 404: CHARACTER
- (a) CHARACTER EVIDENCE
- (1) Prohibited Uses: Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person acted in accordance
with the character or trait
- (2) Exceptions for a Defendant or Victim in a Criminal Case: The following
exceptions apply in a CRIMINAL case
- (A) A DEFENDANT may offer evidence of the DEFENDANT’S
PERTINENT trait (of own trait), and if the evidence is admitted, the
prosecutor may offer evidence to rebut it;
- (B) Subject to the limitations in Rule 412, a DEFENDANT may offer
evidence of an alleged VICTIM’s pertinent trait, and if the evidence is
admitted, the prosecutor may:
-
- (i) offer evidence to rebut it; and
- (ii) offer evidence of the defendant’s same trait; and
- (c) In a homicide case, the prosecutor may offer evidence of the alleged
victim’s trait of PEACEFULNESS to rebut evidence that the victim was the
first aggressor
- (N.B.: This trait of peacefulness is the only time prosecution can
fire the first shot with character evidence)
- (3) Exceptions for a WITNESS: Evidence of a witness’s character may be
admitted under FRE 607, 608, and 609.
- FRE 607: “Any party, including the party that called the witness, may
attack the witness’s credibility”
- FRE 608: A Witness’s Character for Truthfulness or Untruthfulness
- (a) Reputation or Opinion Evidence -- A witness’s credibility may
be attacked or supported by testimony about the witness’s
reputation for having a character for truthfulness or untruthfulness,
or by testimony in the form of an opinion about that character. But
evidence of truthful character is admissible only after the witness’s
character for truthfulness has been attacked.
- (b) Specific Instances of Conduct -- Except for a criminal
conviction under Rule 609, extrinsic evidence is not admissible to
prove specific instances of a witness’s conduct in order to attack
or support the witness’s character for truthfulness. But the court
may, on cross-examination, allow them to be inquired into if they
are probative of the character for truthfulness or untruthfulness of:
- (1) the witness; or
- (2) another witness whose character the witness being
cross-examined has testified about.”
- FRE 609: Impeachment by Evidence of a Criminal Conviction
(b) Crimes, Wrongs, or Other Acts
- (1) Prohibited Uses: Evidence of a crime, wrong, or other act is not admissible
to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character. [ GENERAL BAN OF
PROPENSITY EVIDENCE ]
- (2) Permitted Uses; Notice in a Criminal Case: This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
On request by a defendant in a criminal case, the prosecutor must:
- (A) provide reasonable NOTICE of the general nature of any such
evidence that the prosecutor intends to offer at trial; and
- (B) do so before trial--or during trial if the court, for good cause, excuses
lack of pretrial notice
THE PROPENSITY RULE: WHAT IT DOES AND DOES NOT EXCLUDE
-
The propensity rule bars the circumstantial use of character evidence to show action in
accordance with character
Propensity evidence is RELEVANT, but policy reasons make courts exclude it
- Ex: juries overestimate probative value ; regret matrix; plea bargaining; etc.
PROBLEM V-1 (page 356): | Prosecution charges Z with premeditated murder of V
using a pistol. Z claims EED as a defense. Prosecution seeks to introduce evidence that
Z is disposed to look for opportunities to kill, that he did so in this instance, and that he
premeditated the killing.
- P seeks to introduce: (1) evidence that Z keeps an arsenal of guns in his house;
(2) past convictions for assault, robbery and 2nd degree murder; and (3)
testimony of bartender that Z has a reputation as a violent person.
- (a) Should these items be admitted or excluded?
- First -- what question is before the jury? -- key disputed issue here is
INTENT or PREMEDITATION (what was going through his head when he
pulled trigger)
- Basic sequence of presentation of facts followed inferences prosecution
hoping to achieve
- Guns in home + prior conviction + reputation for violence ----->
traits/dispositions to be inferred by jury (that he has bad violent
character) -----> Action in conformity with this propensity (when he
shot him) -------> Material Fact - Premediation (D chose to resolve
this with violence)
- These inferences, however, are NOT permissible under 404(a) -they’re forbidden inferences that are purposed toward making jury
assume he acted in conformity with these traits
- This evidence isn’t super strong anyway -- doesn’t give jury a real reason
to think that he acted in conformity with this character trait
- So might be rejectable under FRE 403 anyway cuz prejudice
surpasses probative value
- If they’re all being sought to prove that Z is disposed towards violence,
then it should all be excluded
- Arsenal and bartender testimony under FRE 404(a)(1)
- Past crimes under FRE 404(b)(1)
- Cuz prosecution is trying to have the jury infer a set of traits that he acted
in conformity with the propensity
- Also probably excludable under FRE 403
- (b) Different for the arsenal evidence if Z dropped his wife off at home
before returning to the site and shooting V?
- Suggests he went home and got a gun too -- makes it more intentional
- The potentially permissible use would be to infer that the evidence is
being offered to show that he had a chance to cool down, and that
negates premeditation → he’s acting even more intentionally cuz
-
-
provocation would have dissipated a bit by the time he dropped her off
and returned back
- Still probably not admissible under 404(a) cuz still based on a lot
of speculation - still just action in conformity with propensity
- And probably not very probative - so excludable under 403 too
Focusing on evidence of his prior convictions
- All relevant under 401 and at least minimally probative about his ability
and willingness to violate the law
- But not admissible under 404(a) because the inferences that make them
relevant are all propensity inferences
- No non-propensity inferences that make them relevant → just
being introduced to infer he has bad character and acted in
conformity with it
- 404(b) also not gonna be any help cuz propensity is not a permitted use
and these are just about propensity
What if Zach chose to testify in his own defense?
- The convictions might be admissible to IMPEACH Zach by 609(a)(1)(B)
- Defendant’s prior convictions are allowed to be used to impeach
them when they take the stand
- If the 403 balance would not otherwise prevent it
- Alert the jury’s attention to the convictions and raise jury’s concern
about his credibility as a witness to facts he is reporting from the
witness stand
EVIDENCE THAT IS NOT EXCLUDED BY THE PROPENSITY RULE
- FRE 401(a)(1) emphasizes that the propensity rule excludes character evidence ONLY
IF offered as a basis for inferring action in accordance with a trait of character.
- A good deal of unnecessary prejudice can be eliminated if the proponent of “other acts”
evidence (1) articulate clearly the chain of inferences for which the evidence is being
admitted, making sure that no link in the chain depends on an inference of action in
accordance with bad character, and (2) sensitively balance the probative value and
prejudicial potential of the evidence under FRE 403, with due regard for the probability
that the jury will misuse the evidence for the forbidden inference
- Courts may also reduce prejudice by limiting character evidence to issues that actually
are “in dispute”
- CHARACTER IN ISSUE:
- Sometimes evidence of a character trait is offered not so the jury may INFER
some other material fact but because that trait is ITSELF of consequence in the
suit. ---> so that is permissible
- Ex: evidence that an individual is an unfit parent when parental “fitness” is
at issue in a custody battle.
- (But note that FRE 403 is still at play -- can exclude if unfairly prejudicial)
-
-
FRE 405(b) recognizes the special nature of cases in which “a person’s character
or character trait is an essential element of a charge, claim, or defense” by
providing that in that situation a person’s character may be proven by “specific
instances of the person’s conduct,” as we;; as by reputation of opinion testimony.
Proof of trait is admissible when it’s at issue and not barred by 404(a) (offered for
forbidden inference like conformity with propensity)
Applies to civil cases too
PROBLEM V-2 (p. 361): P sues D for wrongful death of her son. Alleges that
D was negligent in retaining Elrod as foreman and Elrod’s negligence in
failing to warn of imminent detonation was the proximate cause of her
son’s death. P seeks to introduce general reputational evidence regarding
foreman’s: (1) character for carelessness; (2) testimony from two people
who worked with Elrod, that he was the most careless foreman; (3)
testimony describing 3 instances in which he failed to give sufficient
warning.
- BEGIN BY ASKING WHAT THE ISSUE HERE IS? (ALWAYS DO THIS)
- Claim here is basically “NEGLIGENT ENTRUSTMENT”
- P alleging that the D company that hired Elrod was negligent
in having Elrod be the blasting foreman
- Means that Elrod’s character has been PUT IN ISSUE
- So we gotta consider 405(b) -- which tells us
character is in issue when a person’s character
is an essentially element of a claim or defense
- That is a NON-FORBIDDEN use of
character information --cuz being offered
not to show action in conformity with
trait, but possession of a trait that is
material to the action
- Reputation, opinion, + specific instances evidence bein introduced
- All of which goes to essential element of claim of
- Is any of this evidence admissible? On what issues?
- Yes ALL OF IT IS ADMISSIBLE, because the carelessness of the
foreman is at issue in a negligence case → being used to show an
essential element of claim (that they were negligent when
entrusting to Elrod the foreman job)
- FRE 405(a): would permit the testimony regarding
reputation/opinion about the foreman being the most careless
- FRE 405(b): would permit the specific instances of conduct to be
admitted
- IF, HOWEVER, this was negligence action against Elrod himself (Elrod as
D)
- It would not be admissible -- cuz would be propensity evidence
prohibited by 404(a)
-
-
This problem emphasizes how the rules of evidence influence pleading
practices and selection of defendants
- Ex: in a straight negligence action against Elrod or even also with
company on respondeat superior theory, you couldn’t admit this
- But by pleading negligent entrustment and naming company as
defendant instead, the door is opened wide → all this salacious
evidence about Elrod can come in
- V-3 (p. 361): Duvall is charged with conspiracy to sell cocaine. Claims the
government entrapped her. ENTRAPMENT as defense is essentially
asserting that you were not PREDISPOSED to do the crime on her own, she
got duped into it. Government offers evidence that a month before the
entrapment, D approached the undercover officer offering to sell cocaine. D
objects.
- BEGIN BY ASKING WHAT THE ISSUE HERE IS? (ALWAYS DO THIS)
- Entrapment → by raising entrapment defense here, she put her
character at issue → was she predisposed to sell cocaine
- So prosecution’s evidence of her approaching agent before
counts as SPECIFIC INSTANCE -- so it is admissible
under 405(b) because it is essential element of defense
- Because of the issue of predispositon -- it doesn’t actually
invite forbidden inference of character trait….instead it is
the trait itself (predisposition or lack of predisposition) is
fact at matter here (answers a different question that is not
forbidden by 404(a)
- So it’s admissible under 404(a)(1) and (2)
- What result and why?
- Permissible under FRE 404(a)(2)(A) because the D has offered
the defense of entrapment - so prosecutor permitted to rebut that
- One of the elements of the entrapment defense is that the
D would not have otherwise been inclined to commit crime
- What inference is the government trying to establish? Not entrapment
because of her past criminal behavior
OTHER CRIMES, WRONGS, OR ACTS
- FRE 404(a)(1) does NOT BAR evidence of a persons’s character if the inference
it is offered to support is something other than that the person acted in conformity
with the character traits
- Ex: 404(b)(2) - may be admissible to prove motive, opportunity, intent,
prep, plan, knowledge, identity, absence of mistake, or lack of accident
- Crimes, Wrongs, or Acts that are not at issue in the trial for any
nonpropensity purpose
- PROBLEM V-4 (p. 362): Dooley is charged with illegal sale of narcotics. At
trial, P seeks to introduce evidence D tried to hire someone to kill main
prosecution witness.
-
-
Does this evidence come in?
- Prosecutor’ argument would be that this evidence was introduced
to show consciousness of guilt
- Maybe? A juror would infer consciousness of guilt -- a guilty D is
more likely to have someone killed than an innocent D
- Guilty state of mind is not character trait - so admissible??
- Consciousness of guilt is not forbidden inference of action
in conformity with a character trait -- so not excluded by
404(a)(1) or (b)(1)
- Relevant evidence is admissible unless barred by
particular rule -- so even though this isn’t listed in
404(b)(2) as permitted use, it’s ok → that’s just a
“such as” list -- not exhaustive
- But Dooley could maybe make a FRE 403 argument → but
it’s not necessarily UNFAIRLY prejudicial
- So it’s probably admissible
- HYPO: If he had in the past tried to kill main witness before
and defendant wanted to bring in that evidence that he’d
done it before?
- NOT admissible -- cuz now that evidence is not to
show consciousness of guilt here, but just to show
that he’s type of guy who kills witnesses → so
- Shows how analysis changes when evidence is
not connected to this specific case
- US v. Mendez-Ortiz -- evidence that the D bribed a potential
witness in the D’s narcotics trial is admisisble to prove the D’s
consciousness of guilt, even tho not listed in 404(b)
“RES GESTAE”
- Wrongs committed or detected simultaneously with the conduct at issue
in the case are admissible to give the jury a fuller understanding of the
events surrounding the crime charged. - FRE 404(b)
- PROBLEM V-5 (page 363): Orly is charged with possession of a
known substance. It was found after he was chased down the street
by store clerk from whom he shoplifted pants after the clerk told him
his credit card was stolen. P seeks to introduce the evidence of the
credit card and the pants. What result?
- It is not being introduced to show any part of his character trait,
but it could potentially allow the jury to infer that because he
shoplifted and used a fraudulent card, he likely committed crime
- However, it might explain identity/knowledge
- It is not prohibited by FRE 404(a) and (b) (not offered to show
action in conformity with character trait) so can come in
- Has narrative relevance from Old Chief
-
-
- Story wouldn’t make sense without it
- So permissible under RES GESTAE → otherwise, how
would you explain why the foot chase is happening (jury
might make impermissible inferences (prejudicial
speculation) to figure out why chase happening)
- EVEN THO jury might also make impermissible character
evidence too, it should be admitted anyway
Could try to mitigate impermissible inference by stipulating what to
include (just say there was a disagreement at the sales counter,
etc.) ; make judge give limiting instruction
IDENTITY
- Courts frequently admit other-crimes evidence to show identity.
- 404(b)(2) - “opportunity,” “ability,” “skill,” etc. really just showing identity
- PROBLEM V-6 (page 365): Sandy Suttry is charged with theft from a
locked safe at a supermarket on April 3. There was no evidence of
forced entry. P offers evidence showing: (1) that when S was
arrested the next day, he was holding a leather bag containing metal
files, small crowbar, a stethoscope and skeleton keys (all of which
are usually used in cracking into safe); (2) 8 weeks earlier S made a
deposit including a marked bill that was stolen 3 days earlier from
the safe; (3) 10 weeks earlier S was the getaway driver for another
bank robbery involving a supermarket employee.
- Is there legitimate probative purpose for which this evidence could
be offered? → YES -- to show she had access to the safe
- Legitimate inference not barred by 404(a) or (b)
- Could argue that access is similar to opportunity,
ability, skill to show identity under 404(b)(2)
- Or that it’s not even covered by 404(b)(2) so ok
- She charged with robbing locked safe without signs of
forced entry → so one question in the case is whether she
had unauthorized entry to the inside of the safe
- All this evidence, however, does ALSO lead to inference that she
acted in conformity with larcenous character inference as well
- If dominant inference is legitimate, then probably admissible
- What objections should S make to this evidence?
- Have impermissible inferences from them ; 403
- How should the judge rule?
- (1) ADMISSIBLE goes to her identity
- The next day, so pretty relevant to showing she had
access to the safe
- (2) ADMISSIBLE maybe goes to identity/ability -- shows
she has gotten into same safe before
-
-
-
Relevant - same bill was inside locked safe and
ended up in her possession, so suggests she might
know how to get into the safe + has done it before
- Doesn’t really matter it was 8 weeks before
- Legitimate inference about her access outweighs
illegitimate ones about her bad character
(3) probably impermissible cuz previous crime but also
could argue that it shows opportunity/ability
- Some relevance to question of whether she had
unauthorized entry → cuz shows she had a
connection to someone who intimately knows that
supermarket
- Even though 10 months ago -- just
decreases probative value but doesn’t make
it irrelevant
- But probably not admissible under 403 because not
super probative cuz old and cuz there’s only distant
connection between her and the employee, AND
heightened risk of prejudice cuz crime there is bank
robbery which generally seems worse than stealing
from safe in Supermarket
MOTIVE
- Other crimes evidence is particularly important in when the jury doesn’t
think that a motive exists or to show that a motive for the prior offenses
carried over to the offense charged
- Usually motives like money are implied and don’t need to be established
- Perhaps the D’s record of committing crimes against a particular victim is
so probative of whether he committed a similar crime against the same
victim that its value outweighs the associated dangers
- PROBLEM V-7 (page 366): Tom Hartford charged with murdering
store clerk in attempted robbery. P offers evidence that Tom: (1) was
homeless on the day of the robbery; (2) had a $200-a-day morphine
addiction; (3) physically threatened a friend a week before the
robbery when she said she couldn’t pay back a loan Harford made to
her; (4) was turned over to the police 6 months prior for shoplifting
by the same clerk.
- What purpose/use woud this evidence have for a murder during
an attempted robbery case?
- Crucial question here is IDENTITY → which often is helped
by evidence of MOTIVE
- So all these technically go to motive,,,but take a more
nuanced look at the inferences this evidence is likely to
promote in jurors
-
-
Central Question under 404(a)(1) and (b)(1): Is the evidence being
offered as support for an inhererne that D acted in conformity with
a GENERAL trait of character?
- If YES, then it’s inadmissible -- EVEN IF that general
character inference supports a conclusion that D had a
relevant “motive” or indicates “identity” as perpetrator
- PAY ATTENTION TO SPECIFIC VS. GENERAL
Is any of this evidence admissible?
- Homeless -- Not really relevant under 401 ; but maybe
show he was very desperate for money (motive)
- BUT INADMISSIBLE cuz only bad inferences that
need money, + people who need money rob others
- Morphine addiction -- Propensity is that drug addicts need
money -- people who need money rob others (so maybe
establish motive under 404(b)(2))
- INADMISSIBLE cuz only bad inferences that need
money, and people who need money rob others
- Physically Threatened a Friend -- inadmissible to show he
had a violent propensity under 404(a) + prejudicial effect
outweighs any probative value
- INADMISSIBLE cuz only bad inferences that need
money, and people who need money rob others
-
Previous Arrest -- Might establish a motive / grudge that
the D had against the store clerk and also go toward
establishing identity under 404(b)(2)
- Not propensity → It is a SPECIFIC inference
- Hartford had an above average motive to harm this
clerk → which is not action in conformity with a
general trait of character but rather to harm a
specific person
- So not excluded by 404(a)(1)
- Distinction between propensity and
non-propensity is one of degree, not of kind
- The closer the relationship between the
stimulus and response in the inference and
-
-
-
in the case???, the less likely to be
forbidden?
Hartford’s specific hostility toward this clerk
is enough to make it admissible
Would it make a difference if the attempted robbery were of a
pharmacy?
- Would make the evidence regarding (2) the drugs more
probative → provides extra measure of particularization
between the D and the target of the robbery
- Targeting the specific business that can fulfill his
need -- gives him stronger motive to rob pharmacy
than other people would have, so maybe (2) might
be admissible
COMMON PLAN OR SCHEME
- Can be viewed as a variant of the res gestae category
- Sometimes one crime is in fact predicated on the commission of another
- Sometimes used when the defendant is charged with an offense based
on his connection to an event with innocent as well as criminal
explanations. Here, evidence of a connection to several similar events is
offered to rule out the innocent explanations
- Less prejudicial than usual because the FORBIDDEN propensity
inference does NOT arise UNLESS the DESIRED inference is drawn
- Most frequently used when two or more crimes appear to have been
plotted by same individual because they exhibit a similar unusual pattern
- PROBLEM V-8 (page 369): Maude is charged with robbing a grocery
store after pulling a snub-nosed revolver on the proprietor.
Prosecution has 2 other grocery store owners who are willing to
identify Maude as the person who robbed their stores with a
snub-nosed revolver.
- Should these witnesses be permitted to testify?
- Prosecution’s Argument: evidence tends to show identity
or common plan, which are permitted under FRE 404 -she has shown same behavior on multiple occasions
- The uses deemed permissible under 404(b)(2) are only
permissible if their uses are separable from forbidden
inference of propensity to commit crime
- How do we tell if something is a prior plan or scheme
-
-
-
-
-
Have to look for SIGNATURE -- if there’s signature
/ unique discernible modus operandi → then more
likely to be legitimate nonpropensity 404(b)(2) use
- So look for points of similarity btwn crimes
- HERE: points of similarity → all grocery stores; all
robbed; all involved snub nose revolver
- But this is pretty generic → not enough to
be signature...instead looks like propensity
- If, on the other hand, person who robbed
had pearl bedazzled gun and was wearing
gold crown in all three cases → would look
more like signature
SO HERE PROBABLY NOT PERMISSIBLE → more likely
used for propensity purposes
We’re talking about “unadjudicated prior bad acts” -- not
confirming / corroborating previous crimes
- Whether they’re adjudicated or not doesn’t impact
result here
- Only reason adjudication would matter would be -help determine whether prior bad act information is
reliable (if jury in past determined she was actually
person who robbed,,,,then makes prior bad act
more likely)
More likely to be allowed if she was woman cuz women
less likely to commit violent crimes (but still not gonna
make a big difference) → probably still not admissible
KNOWLEDGE
- If have to prove D knew certain facts, evidence of other crime tends to
demonstrate that knowledge
INTENT
- When the commission of the prior act is NOT admitted, or when its
circumstances are not clearly established by other evidence, prior-acts
evidence offered to prove intent presents more serious problems
- Can be used in civil trials too
- In criminal cases, where the practice is often controversial, there are three
major safeguards against the inappropriate use of prior-acts evidence to
prove intent
- (1) The judge’s power to require the party offering the evidence to
articulate clearly the chain of inferences for which the evidence is
offered and to review the explanation to be sure it involves no
inference of action in conformity with bad character
- (2) Judge’s power to undertake an explicit balancing of the
probative value against unfair prejudice
-
- (3) Exclusion of the evidence when intent is not actually in dispute
PROBLEM V-10 (page 372): Dave meets Vivian at a bar, they go
home together. He then ties her up, beats her and rapes her and falls
asleep. She escapes and brings the police back to her apartment
where he claims it was consensual. P offers evidence that Dave did
this to two other women.
- (a) Is the testimony for the other women admissible? Under
what theory?
- Yes to show distinctive modus operandi under 404 or
evidence or intent or plan
- This isn’t just straight propensity evidence that he is
bad guy,,,but here there is enough unique
discernible elements of modus operandi that likely
counts as signature
- It’s really unlikely that Dave would be the
subject of three such similar complaints
involving pretty signature behaviors, unless
they were true (or the women colluded)
- Shows Dave intentionally took steps to
make these steps play out → very unlikely
he’d just be in shower all the time
- Suggests he cooked up this plan to
make what he’s doing look
consenssual by showering when
cops come after raping them and
tying them up, etc.
- Dominant Inference = unusual circumstances
are unlikely to happen to same person unless
that person intentionally causes them to repeat
- Which is different than propensity
- So legitimate use under 404(b)(2) as intent
or plan ; or can say just not excluded by
404(a)(1) (propensity)
- There is still a forbidden propensity inference (he’s
a bad guy so he’s more likely to have done this)
- But that’s not dispositive -- It’s only after that
set produces the inference of calculation
that the improper evidence of propensity to
commit this crime is generated
- Because forbidden inference comes
after permissible inference, it’s
incidental and not as probative
-
-
-
When you view the three rapes in isolation,
he could be innocent, but viewed together,
inference of signature and his wrongdoing
emerges
- (NOW under Rule 413, all of this would be admissible
regardless of intent and stuff because it’s a rape
case….but this case was before this)
- (b) Suppose instead Dave is accused of being masked rapist
who lured her into the hall. Is evidence that he stole her purse
2 months earlier admissible? Under what theory?
- Yes -- admissible cuz establishes Dave’s access to her
phone number -- inference to issue of identity or intent
- Inference would go mainly to question of identity
- Also might go to intent→shows he put considerable
effort into getting close to this particular person
(none of which would be necessary if she
consented)
- This is not a 404(a)(1) problem cuz not being used to show
he has propensity to break the law → it’s offered to show
he was one of few people that had access to this
unpublished number + he’s the only one who undertook
such risks and efforts to try to get close to her
- Evidence of knowledge, intent, and access
ISSUE IN DISPUTE
- Before permitting a party to use other-crimes evidence to show something
besides propensity, the court should determine that the issue on which
the evidence is offered is actually in dispute
- Some courts disallow bad-acts evidence offered to prove any element
(especially mental state element) that can be established with other
evidence
NOTICE; PROOF OF INVOLVEMENT IN OTHER CRIMES
- Other-crimes evidence offered for non propensity purposes is no stronger
than the proof that the other crimes occurred or than the link connecting
them to the defendant
- FRE 402(b)(2) requires prosecutors to provide reasonable NOTICE
before trial or during trial if necessary
- Prosecutor can use bad acts evidence even if D was acquitted for the
past crime -- only for sure requirement is that prosecutor believes in
good faith that D committed it
- But clear and convincing standard best
- Huddleston v. US -- applied broad rule of admissibility in FRE 104(b)
- That conditional relevance rule requires the judge to admit
other-crimes evidence as long as a reasonable juror, considering
-
all the evidence, could find b a PREPONDERANCE that the
defendant committed the other crime--and the prejudice doesn’t
substantially outweigh probative value
Courts may use the weakness of the evidence linking the defendant to
other offenses as a basis for excluding them under FRE 403
FRE V-12 (page 377): Milo Massey is charged with burglary of Fannie
Finley aged 79. Saw a prowler in her room, with a white cloth over
his hand. He had cut out a square from a white sheet in her spare
bedroom but nothing else was missing. P seeks to introduce
testimony of another woman (Cox) who lived 12 blocks from the
Finley House who awoke to find a man in her bedroom with one of
her white dishtowels over his hands and he stole $11. The police
arrested Massey on the street near Cox’s home. Massey was tried
for the burglary and acquitted. Should this testimony be permitted?
- For what ostensibly legitimate purpose would Prosecutor be
offering this evidence? → To show Identity + Intent (intent to steal)
- Need to show intent to steal cuz he’s charged with burglary
even though he didn’t actually steal anything from Massey
- Show that since he stole something from Cox’s
house he was probably intending to steal from
Finley’s house too but got scared away
- Similarities btwn cases: target elderly ladies; white cloth in hand;
houses only blocks away; breaking into home; 3 weeks apart
- Is Cox’s testimony relevant because it shows similar (even
signature) occurrence at her house? Or does it need something
else to be relevant?
- IT has no relevance unless we can be confident that when
the something similar happened to her, Massey was
responsible for it
- So what do we know about her identification of
Massey? -- Under Huddleston, standard of proof is that
it is sufficient to support a finding
- Here is a show up identification -- cops grab
suspect to complaining witness right after
crime and ask victim if that’s who did it
- There’s a certain amount of
suggestiveness that comes with
police holding the guy → show up
identifications are notorious for their
unreliability
- So this identification has built in
problem of being product of show up
-
-
Brings 104(b) into play -- is there
enough evidence sufficient to
support a decision by the jury that
the bad act was done by him. If
so, unless 403 objections, this
evidence will get in and jury can
decide
- There is a clear dispute as to whether he committed prior crime
- But under Huddleston standard, this most likely does come
in because a reasonable jury could find that the D
committed the other crime by a
- Prosecution wants to introduce this evidence:
- To establish identity and show intent to steal
PROTOCOL FOR DETERMINING THE ADMISSIBILITY OF OTHER ACTS EVIDENCE
- (1) Identify all the ways in which the other-acts evidence tends to establish
a material and contested fact
- (2) Decide whether any of those uses proceeds without relying on the
forbidden inference that the person acted in accordance with a character
trait that the other acts suggests
- (3) IF the evidence supports a disputed material fact both through the
propensity inference and through an inference other than propensity,
determine whether the prejudicial effect of the evidence substantially
outweighs its probative value when offered for the permissible purpose.
- In reaching this last conclusion, probative value should be
discounted by any doubts about the D’s connection to the other
acts, and prejudice should include the probability that the evidence
will be used for the forbidden propensity inference.
- Also relevant to consider whether there is other evidence that
proves same point.
SUMMARY: OTHER BAD ACTS
1. What are the material and disputed facts?
2. Identify all the ways in which other-act evidence tends to establish a MATERIAL
and DISPUTED fact
3. Decide whether any of those uses occurs WITHOUT reliance on the FORBIDDEN
INFERENCE (i.e., act in conformity with the character trait);
a. If the evidence ONLY has value via the forbidden propensity inference, it
should be EXCLUDED unless covered by an exception (later)
4. If the evidence supports BOTH a forbidden propensity inference and a probative
non-propensity inference, determine whether prejudice substantially outweighs
probative value (FRE 403)
a. When assessing for this:
i.
ii.
iii.
Discount probative value based on doubt about D’s connection to
the other acts; and
Include in prejudice analysis, the risk that properly instructed jury
will use forbidden propensity inference
Also consider other ways party might prove same point
1. If there’s less error-bearing/dangerous way, judge will generally
use that way
HABIT AND ROUTINE PRACTICE [FRE 406]
- FRE 406: “Evidence of a person’s habit or an organization’s routine practice may be
admitted to prove that on a particular occasion the person or organization acted in
accordance with the habit or routine practice. The court may admit this evidence
regardless of whether it is corroborated or whether there was an eyewitness.”
- Habit can be admitted UNLESS some other rule of exclusion (including FRE 403)
applies
- FRE 406 explicitly rejects the so-called EYEWITNESS RULE
- Eyewitness rule excluded evidence of a habit to prove conduct unless there were
no eyewitnesses who could testify as to what happened
- FRE 406’s objective is to confirm that FRE 404(a)(1)’s ban on character evidence does
NOT apply to habit evidence
- CHARACTER/PROPENSITY VS HABIT
- Propensity = a generalized description of a person’s disposition
- Habit = one’s regular responses to a repeated [specific] situation/stimulus
- Habit is admissible because: It is more probative; prejudice is less of a threat (since if
the facts in the case are unlike those that ordinarily prompt the habitual conduct, the
inherence of action in accordance with the habit is destroyed; habit is specific so juries
have less trouble seeing what is probative; juries are trusted to know that habit isn’t
always followed) → so easier to trust juries to figure it out for themselves, so less reason
for judge to keep things out entirely
- This is NOT a conditional relevance question -- this is straight 104(a) admissibility
question for the judge
- PROBLEM V-15 (page 383): Molly F was injured when Chet C’s car collided with
hers on the highway. They were the only ones in their respective cars. F sued C
claiming he was not paying attention when he changed lanes because he was
putting gum in his mouth. F seeks to introduce testimony of T who says that each
of the 6 times she drove with C he was obsessively chewing gum.
- What Result? -- Probably not admissible because her testimony is not enough to
shows that he had a habit of chewing gum while driving to work.
- What habit might this evidence support: He chews gum while he drives in
a car/ when he rides in a car / always
- If one or more of those were considered actual habits under 406,
would they be admissible? -- Yeah (there’s no real other control in
-
406...as long as you prove existence of habit, you’ve done all 406
asks you to do”
- BUT do we know enough to establish that this was a habit from
her seeing him only 6 times? NO -- should ask her:
- How long ago did she drive with him?
- How often does he change the gum?
- He might have bad breath and only chews gum when he’s
with passenger in car cuz he’s embarrassed
- NEED TO MAKE SURE EVIDENCE IS RELIABLE
REPRESENTATIVE SAMPLE FROM WHICH YOU CAN
CONCLUDE THERE’S A HABIT
- Even if admissible, it might not be that probative because we do not know
how often he changes the gum or whether he was at this time changing
the gum….he could have put it in at beginning of drive….-- so you’d
wanna ask Traetor if she knew more specifically about him changing gum
- Need to make sure habit also is relevant to specific legal issue (
- Does this evidence reveal that D’s response to specific
circumstance of driving down the highway trigger him to chew (or
more particularly change) gum
Would the outcome of the lawsuit be more or less reliable in a jurisdiction
that followed the eyewitness rule?
- In such a jurisdiction, the eyewitness rule would not exclude the
introduction of this evidence because there were no eyewitnesses to this
accident.
- This would make the evidence less reliable cuz it might cause the jury to
place undue weight on the testimony that he often chewed gum in the car
and thus must’ve been distracted putting gum in his mouth on this
particular occasion.
FORBIDDEN AND PERMITTED INFERENCES
- The propensity rule does not seem to bar evidence when:
- (1) the evidence reveals a behavioral trait that is highly specific in time and
place (or sufficiently habitual that it semi-automatically appears ACROSS
time and space) and manifests itself in only a limited range of actions; and
- (2) the action alleged in the lawsuit occurred at or in that particular time,
place, and manner
- The bases for inferring action in accordance with a behavioral trait may be aligned along
a strength-of-inference continuum:
- Business Practice > Habit > Modus Operandi > Intent or Motive > Propensity
- The line drawn by FRE 404(a)(1) cannot be defined precisely because many factors
might properly influence judges in close cases, including the linkage between situation,
trait, and behavior and the prejudice likely to be associated with the trait evidence
-
-
PROBLEM V-18 (page 386): Faith F sues Dallas Transit system for injuries
received while alighting from a bus. Claims that the bus driver sped away from the
stop when she was taking the last step off the bus – causing her to fall and break
her hip. F offers testimony of other passengers of buses operated by the same
driver that on different occasions he ran red lights, changed lanes without
signaling, and sped away from stops before passengers had safely existed the
bus. (assume respondent superior, NOT negligent entrustment)
- What is F really trying to prove? → that the driver is a bad driver and he has a
reputation for reckless driving among bus riders
- Same driver, on different occasions, ran red lights, changed lanes without
signaling, nearly struck pedestrians, barely missed colliding with cars → not
response to specific stimulus enough to count as admissible as habit evidence
under FRE 406. (Also is probably irrelevant under 403)
- More about showing he is bad driver -- propensity evidence excluded
under 404(a)(1).
- On different occasions, same driver sped away from stops before passengers
had safely exited the bus → possibly admissible as habit cuz specific response to
specific circumstance (but IDK if we have enough evidence to make this a habit
-- can’t say it’s reliable response to stimulus almost every time)
- “Reputation for recklessness” = inadmissible cuz character propensity evidence
excluded under 404(a)(1)
PROBLEM V-19 (page 387): Same facts except Farnsworth is herself prepared to
testify that during her ride on the bus on the day of the accident, the driver
appeared to be speeding between stops and that, at 3 of the 5 stops before her
own, he barely waited for passengers to step out of the bus before rushing away.
The D objects to testimony. (assume respondent superior, NOT negligent
entrustment)
- This is NOT a habit - cuz all evidence from one day (he could’ve just had to rush
somewhere that day cuz bus running behind schedule or something)
- Can’t argue for it to be admissible under narrative relevance idea of Res Gestae
→ cuz her story doesn’t stop 5 stops earlier
- Is there legitimate 404(b)(2) theory under which evidence would be permissible
cuz primary inference would not be action in conformity with character trait
- Possible to think about this in terms of establishing motive → good way to
establish recklessness or negligence → not just that he’s a bad driver
overall, but that he was driving riskily the day that the accident happened
- He was obviously in a hurry -- so he has a motive to speed and
sacrifice safety a little bit ---> since it was specific to his mind that
day, so it’s not just character propensity to be a dangerous
driver,,,, just that he was speeding that particular day cuz had
some motive to speed
- SO PROBABLY ADMISSIBLE
-
-
Cuz specific inference that he had motive to speed
that day beats general inference he’s bad driver
Admissible under FRE 701 → because this testimony is rationally based on the
witness’s perception?
FURTHER OBSERVATIONS ON THE NATURE OF “CHARACTER EVIDENCE”
- The theory of the propensity rule is that a jury is supposed to base its judgment on
evidence of what the relevant actors in a case DID, NOT what sort of people they are
- If character conclusions are based on this crime, not past crimes, then can characterize
-- cuz not propensity
- Odder yet explicit propensity arguments are regularly tolerated in contexts in which
propensity evidence would be--or ought to be--excluded
- Ex: when otherwise admissible evidence is used by a lawyer for a favorable
propensity argument about the party she represents
- Much of the evidence that goes into character construction is not touched by the rules
pertaining to character evidence, and we don’t even both thinking about character
arguments unless a lawyer crosses heavily contested line--typically by insinuating
inadmissible evidence of prior crimes that are not in the record or by transparently
arguing propensity from evidence of prior misconduct that was admitted solely for
impeachment.
Conclusion
- Despite these rules, character is still all over the courtroom -- how they dress, how they
talk, where they’re from, what their job is, etc.
- Character is central to story → winning story is likely to win the trial
-
So character rules under 404(a)(1) and (b)(1) don’t keep everything out → but 404 does
still impose some control over what lawyers can present
- Without these controls, trials would be much more of a character based free for
all than they are now
EXCEPTIONS TO THE PROPENSITY RULE: SUBSTANTIVE EVIDENCE
1. THE CRIMINAL DEFENDANT’S GOOD CHARACTER -- FRE 404(a)(2)(A) / 405(a)
- FRE 404(a)(2)(A)contains an exception to the propensity rule that applies only to a
CRIMINAL CASE -- “a D may offer evidence of the D’s pertinent trait [of character],
and if the evidence is admitted, the prosecutor may offer evidence to rebut it.”
- Makes a true EXCEPTION to “character” prohibition
- Applies ONLY to Ds in CRIMINAL cases
- Restricted to D’s “pertinent trait” (dictated by what’s relevant in case)
- Prosecution “may offer evidence to rebut” the evidence of that trait
- Not deemed prejudicial cuz D decides whether to open up the issue
- Probative value of evidence outweighs disadvantages of admitting it → a good
character trait, unlike bad, is strongly predictive of behavior
- RATIONALE BEHIND RULE: give criminal D a chance to show he’s not the type
of person who would commit that type of crime
- Has impact on regret matrix - just less likely to convict someone they think
is good person
- Some Costs → misleading ; hard to actually establish this character exists cuz traits
cannot be observed directly, and inferential evidence about them is unreliable
- Not that commonly done because:
- Under FRE 404(a)(2)(A), once the accused offers evidence of good
character, the prosecution may present evidence of bad character.
- Opens the door for prosecutor’s rebuttal ;;; invites questions about
the witness’ true knowledge and specific instances of stuff D has
done in past
- Most of the time it’s not worth it
- Good character hard to prove; but bad character very easy to suggest
- A D’s character witnesses may be cross-examined about particular bad acts she
may have committed.
- A D’s REPUTATION witnesses may be asked if they have HEARD of a
D’s bad acts; OPINION witnesses may be asked if they KNOW of them
- Tests the credibility of the character witness
- So courts forbid inquiry about bad acts unless the
prosecutor believes in good faith, not simply that the
allegations are sufficiently credible and well known to affect
a person’s reputation and opinions about her, but also that
the D actually COMMITTED the alleged bad acts.
-
-
-
Cross-examination is limited to RELEVANT bad acts → ones that relate to
the character trait about which the witness has testified
- Michaelson v. United States - A prosecutor may cross-examine a D’s
character witness about whether he has heard of a D’s prior arrest or
conviction unrelated to the charge for which the D is on trial.
- Allowed P to ask character witness about prior crime not brought
up in direct examination, but that D didn’t contest and admitted to
- Justice Jackson’s opinion is widely accepted as a justification for
placing almost no limits on the specific acts on which a D’s
character witnesses may be cross-examined
- Doesn’t matter if it’s 25 years ago
- (N.B.: FRE 403 can still exclude tho)
Exception applies only to PERTINENT traits of character
As with all potentially redundant evidence, judges have discretion to limit the number of
character witnesses who testify.
FRE 405 admits both REPUTATION and OPINION testimony -- “When evidence of a
person’s character or character trait is admissible, it may be proved by testimony
about the person’s reputation or by testimony in the form of an opinion. On
cross-examination of the character witness, the court may allow an inquiry into
relevant specific instances of the persons’ conduct.”
- Limits D’s character proof on DIRECT to “REPUTATION” or “OPINION” evidence
- Allows Prosecution to CROSS on “SPECIFIC INSTANCES”
- Amounts to an exception to the hearsay rule (see 803(21))
- FRE 405 doesn’t have many limitations, but courts have usually applied sensible
and fairly tight restrictions. For example: a foundation is required, expert
testimony is not allowed, and testimony is limited to dry litany
Allows criminal Ds the unusual advantage of being able to choose witnesses freely from
among their friends and associates
PROBLEM V-21 (Page 406-407): Sigmund Sign-Felled is charged with armed
robbery for mugging an elderly man. Defense calls friend Tom Spoon as character
witness, and asks:
- (1) Describe Sign’s reputation for honesty?
- Honesty is probably not a pertinent trait needed for FRE 404 → cuz
charge is armed robbery (which isn’t really about honesty)
- (2) What is your opinion of Sign’s character for violence or nonviolence?
- Permissible under FRE 405(a) -- they’ve laid an adequate foundation to
introduce this evidence and the form of the question (i.e., asking for an
opinion) is fine --- 405 says seeking opinion is fine
- Violence is a pertinent trait here -- cuz not armed robbery unless there’s
violence or threat of violence
- (3) What is the basis for your opinion? Permissible under FRE 405 as long as
witness not blurting out inferences or specific instances (which aren’t allowed)
- A lawyer could object if specific instances were being said
-
-
A lawyer could already object that this is repetitive/waste of time because
guy already said that they were like brothers and knew each other for 5
years (which is essentially the basis for his opinion)
- (4) Would you give us an example of Sign’s nonviolent behavior?
- This is attempt at specific instance testimony which is Plainly prohibited
by FRE 405(a) →
- only prosecutor is allowed to be asking about specific instances
about the D’s character
- May Spoon testify that he gave Sign the Core Battery Personality Test,
assuming that Spoon is an expert?
- Generally expert testimony is NOT allowed for this purpose under 403 →
cuz it might eat up a lot of time, be misleading, etc.
- Nothing in the Rule 405(a) indicates that expert opinion testimony is
disfavored -- but most courtrooms don’t allow it
- When the exclusion happens, it happens under FRE 403
- Theory for exclusion here is that methods endorsed in 405(a), there is a
pretty clear preference for evidence that has probative value that is easily
recognizable and that does not take much time to present/interpret
- So when you let an expert do it instead, it’s time-wasting and
probative value is a lot more difficult for juries to figure out (cuz
juries are prone to overestimate the probative value of exper testi)
- So courts tend to combine the high cost and high risks of
misestimateion with the low probative value that inherent in
evidence liek this → balance under 403 results in exclusion
PROBLEM V-22 (Page 407): Same facts as above – the judge permits Spoon to
testify that “In my opinion S is as nonviolent as the day is long.” On cross, the
prosecutor asks the following questions (cuz exercising right of addressing
character evidence introduced in direct on rebuttal):
- (1) Have you heard that 4 years ago, S used false pretenses to swindle
Widower Constancia out of his entire pension?
- This statement is about dishonesty so Object to this cuz not pertinent trait
to armed robbery charge
- But if judge thinks dishonesty is pertinent trait for the overall crime of
armed robbery,,,,,, this is still objectionable
- Door opening was Spoon’s testifying that S was nonviolent
- Issue with this is that it’s not responsive / not rebuttal right granted by the
rule → it’s not addressing the character trait that was raised in direct
(which is nonviolence)
- Spoon saying he’s nonviolent doesn’t open the door to rebuttal about trait
he didn’t bring up before (dishonesty)
- Doesn’t matter if he is doing this on cross on D’s witness or on rebuttal of
their own witness
-
-
-
-
-
Also FORM PROBLEM -- proper way to challenge opinion testimony (“Do
you know...?”)
- Way he asked(“Have you heard….?”) is more reputation testimony
(2) Did you know that 7 years ago, S was convicted of the felony of forcibly
stealing candy from babies?
- Form of Question is Okay → cuz asking for Opinion Testimony (so should
use “did you know”)
- Forcibly so goes to violent so ok cuz pertinent trait
- Doesn’t matter that it was 7 years ago according to Michaelson
- (Michaelson uses 20-27 year old bad act and it wasn’t too remote)
- YOU CAN ASK ABOUT A SPECIFIC INSTANCE ON REBUTTAL/CROSS
- So it’s fine he asked about specific instance
(3) Did you know S was arrested only last year for smoking pot on street?
- Is there problem with the form? -- NO
- It’s a specific instance ; did you know --- both fine
- Has SUBSTANCE ISSUE: Not admissible because it’s not getting at the
pertinent trait → it doesn’t go to violence/nonviolence
- So not appropriate rebuttal
- Also ok that this goes to an ARREST, not a conviction (unlike 609 which
goes to impeaching witness ….this is merely a specific instance use
under 305 to test Spoon’s knowledge and background (Spoon’s
competence as a testator on Sign’s character)
- Attack on credibility of Spoon’s opinion testimony, rather than an
attempt to impeach him under 609
- Not all judges are super strict → some judges would admit this if say
Spoon opened the door for all evidence about Sign’s character for
lawfulness/unlawfulness
If court permits questions and Spoon denies knowledge, may the
prosecutor present the testimony of Constancia (widower who was
swindled) or either of the police officers (from candy and weed incidents)
that the events occurred?
- FRE 405(a) says Prosecution is allowed to inquire into specific instances
on cross
- Calling these witnesses is NOT on cross → this is introducing
extrinsic evidence that is NOT ALLOWED under 405(a)
- But prosecutor could call their own witnesses to testify that Sign has bad
character and stuff (but couldn’t call them just to testify that Spoon isn’t to
be trusted)
If the judge allows (1) and Spoon says “No,” may Sign call Constancia to
testify that the alleged swindle never took place and all their other dealings
with each other have been honorable?
- No because the only trait put into play is nonviolence
-
-
Can’t call Constancia to essentially just give specific instance testimony
→ can’t rebut specific instance
- There’s no provision in 405(a) by that type of showing by the defense
- D’s options instead are to take the stand itself or call Constancia as
character witness (and she can testify with reputation and opinion
evidence (as long as not saying specific instance testimony)
If instead of testifying about Sign’s nonviolence, Spoon testifies that
Sign-Felled and he were volunteering at soup kitchen when the mugging
occurred, may the prosecutor then ask Spoon question (1), (2), or (3)?
- No → Spoon wasn’t giving character testimony, he’s giving alibi testimony
- The character inferences the jury might draw from this testimony (that
he’s good person cuz volunteers at soup kitchen) is secondary → so not
what Spoon opened the door too
- This is alibi testimony, not reputation or opinion
- There is i guess character component by saying their at soup
kitchen
2. THE ALLEGED VICTIM’S BAD CHARACTER [FRE 404(a)(2)(B) / 405(a)]
- FRE 404(a)(2)(B) restates the common law exception to the propensity rule which
provides that a D in a criminal case “may offer evidence of an alleged victim’s pertinent
trait” or character (FRE 404(a)(2)(B)), and “if the evidence is admitted, the prosecutor
may…(i) offer this evidence to rebut it” and (ii) offer evidence of the defendant’s same
trait” (FRE 404(a)(2)(B)(i)).
- Another exception to “character prohibition
- Still applies only to Ds in criminal cases
- Restricted to V’s “pertinent trait”
- Prosecutor may offer “evidence to rebut it” and “evidence of the defendant’s
same trait”
- FRE 405(a): “When evidence of a person’s character or character trait is admissible, it
may be proved by testimony about the person’s reputation or by testimony in the form of
an opinion. On cross-examination of the character witness, the court may allow an
inquiry into relevant specific instances of the person’s conduct.”
- Limits D’s proof of V’s trait on DIRECT to “reputation” or “opinion”
- Allows Prosecutor to CROSS on “specific instances”
- Amounts to an exception to the hearsay rule (See FRE 803(21))
- Mostly offered in self-defense cases
- Under FRE 405(a), a D is restricted to attacking the alleged victim’s character with
reputation or opinion testimony; he may not present evidence showing, for example, that
the victim is known to have started several other fights.
- Questions about specific instances of the alleged victim’s conduct are permitted on
cross-examination by the prosecutor but ONLY TO TEST THE CREDIBILITY of the
character witness and NOT as substantive evidence of the alleged victim’s character
-
-
-
-
Prosecutor can also respond with REBUTTAL witnesses who offer reputation or opinion
testimony attesting to the victim’s good character
- FRE 402(a)(2)(C) permits the prosecution “in a homicide case” to present
“evidence of the alleged victim’s trait of PEACEFULNESS to rebut [ANY, even
noncharacter] evidence that the victim was the first aggressor.”
In homicide cases, however, the victim cannot testify, so FRE 405(a) lets the prosecutor
answer the defense with character evidence about the victim in the form of reputation or
opinion testimony
BUT the prosecutor can use reputation or opinion testimony to demonstrate the D’s
aggressive or violent character whenever the D first attacks the victim’s character for that
same trait.
- But if it’s not propensity evidence, P cannot attack
PROBLEM V-23 (Page 410): Duke and Paster are both frequenters at a bar. D is
alleged to have hit P over the head with a whiskey bottle. At trial, D wants to:
- (1) Testify to his opinion, based on his long association with P that P is
violent. (N.B. THIS IS A CIVIL TRIAL)
- No because this is not a criminal trial. (if it was he could)
- Not allowed under 404(a)(2)(B) -- cuz it’s a civil trial not criminal
trial -- 404(a)(2)(B) only applies in criminal case
- So he couldn't get away with it if he’s introducing it as
character evidence
- Could introduce it as self-defense in civil trial tho
- An element of self-defense is that person had reasonable fear that
they were in imminent danger - as explanation for their own violent
response
- There’s no rebuttal right because this is not under 404(a)(2)(B)
- IF, HOWEVER, THIS WAS A CRIMINAL CASE:
- He could testify that he was a violent man → 404(a)(2)(B) cuz it’s
pertinent trait
- Form and substance is good
- (2) Give 10 examples of occasions when he observed P’s behavior
- NO (not as character evidence) - cuz specific instance testimony is not
allowed on direct under FRE 404
- Doesn’t matter if it’s civil or criminal case
- But could introduce as element of self-defense (and not character)
- Because it’s relevant under 401, it’s presumptively admissible
under 402. And no other rule is going to get in the way to bar its
admission. Not hearsay cuz evidence not offered for truth about
what he heard about him being violent, just to explain P’s thought
process at time/what P’s believed
- (3) Introduce evidence of P’s reputation for unprovoked violence at another
Tavern that D has never visited
- No under 404 -- because doesn’t apply in civil cases
-
-
-
-
Could also not use it to support a self-defense claim → cuz this testimony
has no bearing on D’s own knowledge at the time of the attack; if he had
known about it, then it would be admissible but if he had no clue, not
relevant to self-defense defense.
- In criminal case, could come in because 404(2)(B) and 405(a) -- this is
pertinent trait and this is reputation
(4) Present testimony about two fights that P had previously started at
Tenth Round Tavern (not place where altercation occurred).
- NO not for propensity purposes -- because specific instances -- specific
instances cannot be offered under 405(a) on direct
- Might come in for self-defense if D had knowledge of these events at the
time of the attack though
- If D keeps bringing in a lot of these witnesses -- judge might not allow cuz
it’s too collateral and cumulative -- can stop from bringing in so many
under FRE 403
Assume that D is charged with homicide and only presents Item 1 as part of
his defense. Should the prosecutor be permitteed to introduce the
testimony of Frazier, the longtime bartender at Out for the Court Inn that-- That in his opinion Paster is as gentle as a lamb?
- Yes
- Also via 404(a)(3)??? -- Prosecution could present evidence of
Passer’s passivity regardless of what Duker may or may not say
about Paster’s character as long as there’s a first aggressor
question in the case. -- his character for nonviolence
- That in his opinion Duker has a violent temper?
- 4(a)(2)(b)(2) -- yes
- That on 3 separate occasions he has seen Duker attack patrons for
little or no reason?
- No because it’s specific instance testimony and it’s on direct????
- Under FRE 404(a)(2)(C), the prosecution could introduce evidence of P’s
passivity without D opening the door as long as it’s a homicide case and
that P is purporting to rebut the first aggressor defense.
Would your answers to any of these questions be different if item (2) were
the only evidence of Paster’s aggressive nature that Duker presented?
- Would mean he was trying to introduce this for self-defense purposes
NOT propensity
- So it would not allow -- none of this stuf comes in cuz prosecution has not
been giving the right of rebuttal
- This is all propensity prohibited under 404(a)(1) and (b)(1)
EXCEPTIONS TO THE PROPENSITY RULE: IMPEACHMENT
EVIDENCE
USES: THE SUBSTANTIVE / CREDIBILITY DISTINCTION
- SUBSTANTIVE: Evidence that is relevant because it tends to show an element of a
claim/defense is more or less likely to be true
- I.e., information that helps in showing “what happened”
- E.g. Witness A’s testimony that the light was red when the car went through
- CREDIBILITY: Evidence that is relevant because it AFFECTS THE BELIEVABILITY of a
piece of substantive evidence / source of substantive evidence
METHODS OF IMPEACHMENT
- Character (for truthfulness) Evidence:
- Opinion and Reputation -- FRE 608(a)
- Specific Instances of Conduct -- FRE 608(b)
- Evidence of Conviction of a Crime -- FRE 609
- Prior Inconsistent Statements -- FRE 613
- Bias -- FRE 401 - 402
- Sensory and Mental Defects -- FRE 401-402
- Contradiction -- FRE 401-402
IMPEACHMENT GENERALLY
- Evidence of a witness’s character may be admitted under Rules 607, 608, and 609.
- Ways to discredit adverse testimony
- Cross-examining witness who offered it
- Offer independent evidence designed to show that the testimony cannot be
believed.
- Showing flaws in testimony, the witness, or both
- Because there are often good reasons for a party to impeach witnesses on direct
examination, the common law rule precluding such impeachment had many exceptions:
- If they were surprised by unfavorable testimony
- If the witness was an opposing party or “hostile”
- If the party was required by law to call the witness
- If judge called the witness \
- FRE 607 provides that “any party, including the party that called the witness, may attack
the witness’s credibility.”
- Party presenting a witness may impeach any aspect of witness’s testimony even
if the bulk of testimony is friendly
- FRE 611(c) → permits leading questions on direct “as necessary to develop the witness’
testimony” → gives judge discretion
-
PROBLEM V-24 (page 413): Mike Mussel charged with conspiracy to commit
extortion. A and B have described overlapping parts of the conspiracy--but both
stories are needed for a complete picture of crime. P calls A as his first
witness--with trepidation, having heard a rumor a week earlier that Argent was
having “cold feet”; sure enough, A lies on the stand, denies knowing Mussel or
anything about an extortion scheme.
- (1) In a jurisdiction where parties must vouch for their witnesses, may the
prosecutor cross-examine A?
- Maybe no, because P doesn’t seem to be too surprised by A’s
unfavorable testimony
- Depends on the judge whether this will count as surprise
- (2) What about if the jurisdiction follows the federal rules?
- Yes, under FRE 607 → there’s no prohibition to impeach own witness
- But there’s not really anything for him to impeach
- Nothing in FRE will prevent him from impeaching A with prior inconsistent
statement
- But there’s not really anything to impeach him with → he just said he
doesn’t know, so nothing to impeach him with
- If prosecutor brings in prior inconsistent statement and reads it in
front of the jury, the jury won’t really know what to make of it
- It’s really a double detraction from prosecutor’s case
- So only real use of out-of-court statement would be for its truth -as substantive evidence (not to impeach)-- and the prosecution
cannot do that because it would be HEARSAY problem
- Not allowed to use out of court statement for its truth
- (3) If the prosecutor is allowed to impeach, how should the jury be
instructed?
- Just supposed to give substantive effect to the evidence -- just treat it as
evidence of impeachment; they cannot use it as substantive proof of guilt,
just for credibility purposes (cuz would be hearsay problem)
- (4) May the P present reputation evidence that A is a liar?
- Yes -- under FRE 608(a), the witness’ credibility may be attacked or
supported by testimony about the witness’s reputation for being untruthful
- (BUT he’d probably not want to show he’s a liar because...if Argent ever
starts actually admitting to what he knows, then you won’t want him being
discredited. Jury won’t believe him if you show he has a reputation for
dishonesty)
- (5) Assume the P is permitted to impeach A, what is the D’s strongest
argument for reversing his conviction? Does your answer cause you to
reconsider the propriety of allowing Argent to be cross-examined about his
sworn statement? Why or why not?
-
-
Insufficiency of the evidence, because if you take seriously the restriction
between substantive and credibility then can only use impeachment
evidence for credibility, not substantive stuff.
Insufficiency of the evidence because Prosecution only substantively
proved half the case
IMPEACHMENT BY EVIDENCE OF BAD CHARACTER
- Another exception to the rule against propensity evidence
FRE 608: A WITNESS
- FRE 608: A Witness’s Character for Truthfulness or Untruthfulness
- (a) Reputation or Opinion Evidence: “A witness’s credibility may be attacked or
supported by testimony about the witness’s reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness’s
character for truthfulness has been attacked.”
- (b) Specific Instances of Conduct: “Except for a criminal conviction under FRE
609, extrinsic evidence is not admissible to prove specific instances of a witness’
conduct in order to attack or support the witness’s character for truthfulness. But
the court may, on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness of:
- (1) The witness; or
- (2) Another witness whose character the witness being cross-examined
has testified about.
- By testifying on another matter, a witness does NOT waive any privilege
against self-incrimination for testimony that relates to the witness’s
character for truthfulness.”
- FRE 608(a) ---- ALLOWS REPUTATION OR OPINION TESTIMONY ABOUT A
WITNESS’ CHARACTER FOR UNTRUTHFULNESS/TRUTHFULNESS
- Testimony on truthfulness only permitted in response (rebuttal) to attack
- Only if witness’ character for truthfulness has already been attacked on
direct
- Similar to FRE 405(a) in limiting form of testimony to REPUTATION or OPINION
- Narrower than FRE 405(A) in confining to (un)truthfulness rather than any
“pertient trait”
- FRE 608(b) -- Limits SPECIFIC INSTANCES of conduct to show character for
(un)truthfulness
- Except for criminal convictions (FRE 609), specific instances of character for
untruthfulness are only permitted on CROSS
- Even on cross, specific instance inquiry is NOT AUTOMATIC -- rule says “may,”
and courts can limit using FRE 403 (prejudice > probative value; misleading; time
wasting; etc)
-
-
-
-
FRE 608 allows a party to introduce evidence of a witness’s propensity to lie as the basis
for an inference that a witness is behaving dishonestly on the witness stand.
FRE 608 incorporates the same preference as FRE 405 for reputation and opinion
testimony, as opposed to specific instances of conduct, when character evidence is
offered to show a propensity.
FRE 608 applies in civil and criminal cases ; can be invoked by all parties
Rationale:
- Danger of prejudice is lower when character evidence used to attack or
rehabilitate a witness than when it goes to the merits.
- Excluding character evidence creates incentives to search for better evidence →
search is more productive when it is aimed at finding noncharacter evidence of
what happened than noncharacter evidence of credibility
Most courts limit the “opinion” testimony allowed by FRE 608(a) to LAY witnesses
- No expert testimony on witness’ disposition to lie or tell the truth
FRE 608(a) includes a PERTINENCE REQUIREMENT, limiting testimony to “character
for truthfulness or untruthfulness”
- Must (1) know the person reasonably well OR (2) be acquainted with person’s
current reputation for truthfulness in a community
Can be asked about specific instances on cross-examination
- Under FRE 608(a), a witness whose character for truthfulness has been attacked
may be rehabilitated with reputation or opinion testimony from other witnesses
who attest to the original witness’s good character for truthfulness
- But FRE 608(b)(2) then allows the opposing party to ask the rehabilitation
witnesses about specific instances of dishonest behavior by witnesses
whose truthfulness they have affirmed
- Judges have discretion to exclude specific instances question even if would pass
muster under FRE 403
IMPEACHMENT BY BAD ACTS
- If prior dishonest behavior has resulted in a felony conviction, evidence of that conviction
is very likely admissible under FRE 609 if it’s not too old
- If the dishonest behavior has NOT resulted in a felony criminal conviction or is not a
crime, FRE 608(b) gives the trial court discretion to allow the cross-examiner to inquire
into the matter but does NOT allow “extrinsic” evidence that the bad act occurred
- So if she denies she did them, can’t introduce other evidence to prove she did
- Evidence of prior bad acts is allowed to impeach (or rehabilitate) a witness, but only in
the relatively quick and weak form of cross-examination questions put to a witness who
is testifying for another purpose
- FRE 608(b) further limits bad-acts evidence by requiring that the acts be probative of
truthfulness/untruthfulness and by giving the trial court discretion over whether to permit
bad-acts cross-examination
- Witness can’t lie with impunity tho
- You can challenge her with evidence of dishonesty
-
- PErjury charge
Lazarus Example -- shows bad-act evidence works to expose dishonesty in courtroom
FRE 609: IMPEACHMENT BY EVIDENCE OF PRIOR CRIMINAL CONVICTIONS
- A special rule governing use of a prior conviction to attack the witness’ character
for untruthfulness --and ONLY that trait
- Presumptively permits use of convictions less than 10 years old (FRE 609(b))
- Presumptively permits use of convictions indicating dishonesty, but ONLY “if the court
can readily determine that establishing the elements of the crime requirign proving -- or
the witness’ admitting-- a dishonest act or a false statement (FRE 609(a)(2))
- Fairly restrictive; designed to keep category confined;
- But FRE 608(b) can fill gap by allowing CROSS on dishonesty-related conduct
not meeting FRE 609(a)(2)
- Can’t ask about explicit convictions but can ask like is it true on this day
you did/said this.,,etc.
- Sets specific rules and balancing requirements for NON-DISHONESTY felony
convictions (or even misdemeanor convictions as long as punishable by more than one
year) of-- Criminal Ds (FRE 609(a)(1)(B)) and
- Non-criminal D witnesses (FRE 609(a)(1)(A))
- Impeaching a CRIMINAL DEFENDANT under FRE 609(a):
- If the testifying witness is the defendant in a criminal case, that witness’s
character for truthfulness may be impeached with a prior conviction less than
10 years old if -- The conviction (regardless of punishment) involved dishonesty or false
statement (FRE 609(a)(2))
- The conviction did NOT involve dishonesty, but was punishable by death
of more than a year behind bars (FRE 609(a)(1)) AND its “probative
value...outweighs its prejudicial effect to that defendant” (FRE
609(a)(1)(B))
- Non-dishonesty conviction is presumptively INADMISSIBLE unless
proponent shows probative value outweighs prejudicial effect
-
Impeaching a witness OTHER THAN the criminal defendant under FRE 609(a):
-
-
-
-
If the testifying witness is NOT the defendant in a criminal case, that witness’
character for truthfulness may be impeached with a prior conviction less than 10
years old if -- The conviction (regardless of punishment) involved dishonesty or false
statement (609(a)(2)) OR
- The conviction did not involve dishonesty but was punishable by death or
>1 (609(a)(1)) AND its probative value is not “substantially outweighed by
a danger of ….unfair prejudice….” (609(a)(1)(A) / 403)
Non-dishonesty conviction is presumptively ADMISSIBLE UNLESS proponent
shows prejudicial value outweighs probative value
Usually admissible (especially if about honesty)
Prior to adoption of FRE → Luck v. United States
- Discretionary approach
- The probative value of the convictions as to credibility must be balanced against
the degree of prejudice which the revelation of his past crimes would cause
- D had duty to present sufficient reasons for withholding past convictions from jury
- Court must find prejudice of criminal convictions “FAR OUTWEIGHS” the
probative relevance to credibility, or that even if relevant the “Cause of truth
would be helped more by letting the jury hear the defendant’s story than by the
defendant’s foregoing that opportunity because of the fear of prejudice founded
upon a prior conviction.”
- Those convictions that are from the same crime should be admitted sparingly
- Temporal Nearness / remoteness of prior conviction matters
FRE 609: Impeachment by Evidence of a Criminal Conviction
- (a) In General. The following rules apply to attacking a witness’s character
for truthfulness by evidence of a criminal conviction:
- (1) for a crime that, in the convicting jurisdiction, was punishable by
death or by imprisonment for more than one year, the evidence:
- (A) must be admitted, subject to Rule 403, in a civil case or in
a criminal case in which the witness is not a defendant; and
- (B) must be admitted in a criminal case in which the witness
is a defendant, if the probative value of the evidence
outweighs its prejudicial effect to that defendant; and
- (2) for any crime regardless of the punishment, the evidence must
be admitted if the court can readily determine that establishing the
elements of the crime required proving — or the witness’s admitting
— a dishonest act or false statement.
-
-
Doesn’t apply to shoplifting, theft, burglary, robbery, smuggling,
and drug dealing
- (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies
if more than 10 years have passed since the witness’s conviction or release
from confinement for it, whichever is later. Evidence of the conviction is
admissible only if:
- (1) its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect; and
- (2) the proponent gives an adverse party reasonable written notice
of the intent to use it so that the party has a fair opportunity to
contest its use.
- (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence
of a conviction is not admissible if:
- (1) the conviction has been the subject of a pardon, annulment,
certificate of rehabilitation, or other equivalent procedure based on a
finding that the person has been rehabilitated, and the person has
not been convicted of a later crime punishable by death or by
imprisonment for more than one year; or
- (2) the conviction has been the subject of a pardon, annulment, or
other equivalent procedure based on a finding of innocence.
- (d) Juvenile Adjudications. Evidence of a juvenile adjudication is
admissible under this rule only if:
- (1) it is offered in a criminal case;
- (2) the adjudication was of a witness other than the defendant;
- (3) an adult’s conviction for that offense would be admissible to
attack the adult’s credibility; and
- (4) admitting the evidence is necessary to fairly determine guilt or
innocence.
- (e) Pendency of an Appeal. A conviction that satisfies this rule is
admissible even if an appeal is pending. Evidence of the pendency is also
admissible.
FRE 609(a)(1)(B) -- asks if probative value outweighs prejudice if crime not related to
dishonesty
FRE 609 has 3 different balancing tests:
- (1) When a recent felony conviction for a crime not involving dishonesty is offered
as a basis for attacking the character for truthfulness of a witness other than a
criminal defendant, the impeachment is presumptively permissible, and the court
should allow it unless the party whose witness is being impeached can satisfy the
usual FRE 403 balancing test by showing that prejudice substantially outweighs
probative value (FRE 609(a)(1)(A))
- (2) If the witness being impeached with a recent felony conviction for a crime not
involving dishonesty is the criminal defendant, the impeachment is presumptively
impermissible and is forbidden unless the party offering the prior felony can
-
demonstrate that probative value “outweighs its prejudicial effect to that
defendant” (FRE 609(a)(1)(B))
- (3) If any crime more than 10 years old is offered as a basis for attacking any
witness’s character for truthfulness, it, too, is presumptively impermissible and
will not be allowed unless the party offering the evidence shows that the
conviction’s “probative value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect” (FRE 609(b)(1))
PROBLEM V-27 (page 438): Dan is charged with armed robbery of a hot dog
vendor. He wants to take the stand and testify that he was not person wearing ski
mask and was 1000 miles away that day visiting his now deceased aunt. He has
no one to verify his story. He was convicted of armed robbery 5 years earlier.
- Would you advise him to testify or not?
- Presumptively inadmissible → If the witness being impeached with a recent
felony conviction for a crime not involving dishonesty is the criminal defendant,
the impeachment is presumptively impermissible and is forbidden unless the
party offering the prior felony can demonstrate that probative value “outweighs its
prejudicial effect to that defendant” (FRE 609(a)(1)(B))
- Must weigh probative value against prejudice:
- No this crime does not involve dishonesty/untruthfulness -- so doesn’t fall under
609(a)(2) cuz too tangential
- Armed robbery is punishable by more than 1 year
- No 609(b)(1) problem cuz only 5 years old
- So has to be a 609(a)(1)(B) situation cuz witness is criminal defendant
- So rule requires showing that probative value of this prior conviction
outweighs its prejudicial effect on the Defendant → effectively
presumptively inadmissible unless prosecutor shows it
- Prosecutor must thus make a showing that probative value outweighs
prejudicial effect ------>
- PROBATIVE VALUE -- Not much -- Prior conviction doesn’t tell us
much about Dan’s character for truthfulness
- Offense is 5 years ago
- For felony conviction’s probative value ------- Just look
to extent to which conviction reflects on character for
truthfulness/untruthfulness
- 609 is exception to propensity rule -- limited to issue of
credibility, not to the fact that D is guilty of crime for
which he stands accused
- So while his armed robbery says a lot about his
propensity to commit the crime, that propensity
does NOT count as probative value going to
question of 609 -- which is just credibility as
witness
-
-
Actually the danger that the court will
see it this way counts as prejudice
- But IRL -- courts might give some probative weight to this
past crime as evidence of his dishonesty ----> even tho
really shouldn’t
- PREJUDICE VALUE -- HIGH Risk that juries will interpret his
conviction as probative + make forbidden propensity evidence
- Probative value does NOT outweigh Prejudicial Value → so
do not admit this evidence of prior conviction
- Btw - But under (a)(1)(b) -- doesn’t need to actually have dishonesty in actual
part of crime (not categorically excluded) -- balancing still has to happen
SHOULD HE TESTIFY?
- Idk -- if no real other person to testify for you, you kinda have to testify
- BUT there’s big chance that jury will interpret conviction propensity way
- CAN DAN APPEAL RULING IF EVIDENCE WAS ADMITTED
- Luck case → anyone in Dan’s situation has to get on the stand and let the
error happen in order to preserve his right to appeal on the adverse ruling
- D can’t just say that he didn’t testify because the judge said he’d
let P use the prior conviction against him if he did
- If you wanna complain on appeal about 609 ruling, you have to
endure the impeachment that you say is wrongful
- Coler??? V. United States case → sometimes lawyers when they know
they have witness on the stand who is vulnterable to impeachment like
this when they get up to cross ; Lawyers will ask about prior conviction on
direct to lessen the sting of opponent bringing it up on cross
- But ourt in Coler said -- if attorney brings it up on direct, D waive
right to complain about judge’s ruling on appeal
- Does the balance change under 609 if he got convicted on trial for armed
robbery conviction but on appeal, court said there was insufficient
evidence for armed robbery but was sufficient for threatnening with deadly
weapon offense? (so now the prior conviction is not for the same exact
crime as the charge that D’s is on stand for now)
- Probative Value on Dan’s character for truthfulness == the reduction of
seriousness of the prior conviction decreases probative value of this
evidence
- Prejudicial Value == since less serious prior conviction, perhaps less
prejudicial as well (slightly less likely for jury to make as strong propensity
evidence about him being a bad guy)
- So maybe closer call for a judge, but will likely still exclude the evidence
When balancing look at:
- Age of offense
- Whether the offense is same one that he’s on trial for now
- Relation of past conviction to indiciations of truthfulness
-
-
-
Importance of defendant’s testimony → if defendant’s testimony is central
to the case , ripple effects of the error are bigger than if there was lots of
other evidence
N.B.: The classification step of it being (a)(2) offense or not is supposed to be very fast
with No inquiry into underlying facts
- So if it’s armed robbery conviction, it’s not dishonesty-based crime (even if irl in
the actual armed robbery talking about it was armed robbery that involved
subterfuge or something) → it’s whether GENERAL OFFENSE in the code
involves dishonesty
PROBLEM V-28 (p. 439): Rocky Reid lost an arm when a three-wheeler he was
driving overturned. There is a disagreement between the two parties as to how
fast he was travelling. D seeks to ask the following questions:
- (1) 1 year ago, Webb caught you with 2 oz of weed
- Not allowed cuz no conviction and no relevance to honesty -- just
forbidden propensity inference
- 609 doesn’t provide anything extra cuz there’s no conviction to
use
- 608 question -- does having been caught suggestive/probative of
Reid’s character for truthfulness or untruthfulness → no - only
inference about marijuana is forbidden one that he’s criminal
- (2) 4 years ago, you were convicted of a misdemeanor possession and
sentenced to half the maximum sentence
- This analysis should follow under the 609 rule -- this conviction is serious
enough cuz it would have carried more than a year and falls within 10
year duration permitted by 609(b)
- FRE 609(a)(1)(a) → presumption that it is admissible cuz here he’s a
witness in civil case (not criminal defendant) so presumptively admissible
unless 403 balance shows it should be admitted
- Comes down to a 403 argument → not relevant but
- Not a lot of probative value about character for truthfulness ; risk
of unfair prejudice isn’t huge → probably admissible
- (3) 6 years ago you were convicted of felony of having sex with a 14 year
old girl and given 18 months suspended, right?
- If the witness being impeached with a recent felony conviction for a crime
not involving dishonesty is the criminal defendant, the impeachment is
presumptively impermissible and is forbidden unless the party offering the
prior felony can demonstrate that probative value “outweighs its
prejudicial effect to that defendant” (FRE 609(a)(1)(B))
- 403 question
- To the extent judges equate seriousness of offense with probative
value for character for truthfulness -- then this is pretty probative
- There’s a lot of unfair prejudice too
- So judge can go either way
-
-
-
(4) 13 years ago you were convicted of felonious possession of weed and
sentenced to a year and a day suspended, correct?
- If any crime more than 10 years old is offered as a basis for attacking
any witness’s character for truthfulness, it, too, is presumptively
impermissible and will not be allowed unless the party offering the
evidence shows that the conviction’s “probative value, supported by
specific facts and circumstances, substantially outweighs its
prejudicial effect” (FRE 609(b)(1))
- Presumption is against letting it in → exception if where probative
value, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect
- So to bring this in, you’d need to show specific facts and
circumstances to support your case
- Judge would hear these specific facts outside the presence
of the jury… and if the judge were convinced that the facts
and circumstances of this otherwise old conviction were
very probative, then judge can decide to admit it
- And then jury just hears main fact, not all the
background facts and circumstances used to
support your argument to admit it
- Likely excluded cuz not related to honesty and probative value low
- Cuz over 10 years old and just minor weed conviction -- not very
probative
- Not as much unfair prejudice too
Assuming of these questions are allowed and Reid denies all those
allegations, may D call Webb to testify that the facts alleged are true to his
personal knowledge?
- This would be bringing in extrinsic evidence,,,,but 608(b) permits it???
- On first one (nonconviction one) is there any way to admit extrinsic
evidence? -- NO cuz not criminal conviction
- 608(b) says the only admissible extrinsic evidence is prior criminal
convictions
- Could call Officer Webb to the stand to give testimony on the
existence of fact of prior convictions → but only of the ones he
personally witnessed conviction of
- What comes in is fact of conviction, not facts supporting the
conviction -- cuz would be collateral if did
What logic supports the pattern of rulings that FRE 609 permits?
- The court is likely to assume this guy is not upstanding citizen
- 609 places a lot of discretion with the judge to control the flow of
information such that it can make some informed inferences regarding the
witness’s character for inferences
-
-
-
For the basis of giving the jury an opinion about the witness - to
gauge the witness in an informed way
If a witness is a known miscreant, trial judge is gonna want the jury to
have some sense that this person is walking around trailing a record of
run-ins with the law
But judge doesn’t wanna make too great of a danger that the forbidden
inference would come to dominate the picture the jury saw of Reid
So judges typically will be aware of the range of material that will be able
to be used by the jury and then pick and choose -- to give jury an
accurate impression without letting the impermissible inferences dominate
- Judge trying to give the whole picture
CHARACTER FOR TRUTHFULNESS VS. BIAS / MOTIVE / INTEREST
- Character for Truthfulness
- Witness’ REPUTATION outside court indicates GENERAL DISHONESTY
- Witness’ prior (i.e., remote) convictions involving dishonesty or suggestive of
dishonest character
- Message: “Witness is a LIAR BY NATURE”
- Bias / Motive / Interest
- Witness unworthy of belief because he has PERSONAL INTEREST in shading
the truth (or worse)
- Reason to believe witness has a SPECIFIC reason to lie (so more
probative than general character for truthfulness)
- Interest derives from the specific context, transaction, or other external stimulus
- Message: “Under these circumstances, witness is a liar”
BIAS / MOTIVE / INTEREST:
- The favored Mode of Impeachment
- Why favored? A SPECIFIC REASON TO LIE is usually MORE PROBATIVe
than a general (and possibly inaccurate) reputation for untruthfulness
- Evidence of bias/motive/interest is easy for jurors to understand-- They get it instinctively;
- They’re less likely to misestimate its probative value
- FRE
- No special rule for impeachment via bias/motive/interest
- In general, bias is ALWAYS relevant -- and therefore presumptively admissible
under FRE 402
- No FRE specifically limits “extrinsic evidence” of bias
- Contrast with FRE 608(b)’s tight control over “Character for
trustworthiness”
- No requirement to live with witness’ unsatisfactory answer
-
-
-
-
-
Thus, the only real limit is FRE 403 (probative value SUBSTANTIALLY
OUTWEIGHED by danger of unfair prejudice, etc.)
- This was the common law approach -- effectively codified through silence
US v. Abel → Abel and two accomplices were indicted for bank robbery; government got
Ehle to testify that they all were members of a secret prison organization whose
members would “lie, cheat, steal, and kill” to protect one another -- to impeach etc.
- It’s admissible cuz NOT propensity → it’s specific to the context
- A person may lie to get out of prison or keep a friend from going to prison,
yet be honest in other situations
Evidence of basic compelling biases have to be admitted -- ex: a familial relationship
between witness and party ; a romantic relationship ; or a direct interest in the verdict; or
a bribe
When apparent motive is weaker, just have discretion to admit
BIAS IS FAVORED MODE OF IMPEACHMENT -- Three Manifestations
- (1) Introduce evidence of prior criminal conviction of that witness to make jury
infer witness is less likely to be truthful in testimony (general attack) or
cross-examination directed toward revealing possible biases, prejudices, or
ulterior motives of the witnesses as they may relate directly to issues or
personalities in the case at hand (specific attach)
- Davis case → cross-examination for bias is protected by a criminal
defendant’s Sixth Amendment right to confront adverse witnesses, even
in the face of significant counterveiling state interests
- There is NO similar protection for cross-examination addressed to
general attacks on the character for truthfulness
- But not allowed to take away D’s right to show witness bias
- (2) Bias is not collateral → You can bring in extrinsic evidence (i.e. evidence
(including documentary evidence) other than the testimony of the witness being
impeached) to show bias
- Cuz not forbidden by any FRE, FRE 402 implies it should be admitted
- There’s no FRE “foundation” requirement for extrinsic evidence → but
some federal courts nevertheless require cross-examination on alleged
bias as a foundation for impeachment by extrinsic evidence
- If impeaching facts are admitted or if their sting has already been
pulled on direct examination, extrinsic evidence becomes
cumulative and may be excluded for that reason under FRE 403.
- (3) The preferred status of bias as a means of impeachment help avoid 403
objections of prejudice outweighing probative value
- Can get around a lot of situations FRE 403 would otherwise block
PROBLEM V-29 (p.445): Barbara Chin was injured in car accident. She sued GM,
alleging that a fault in the electronic ignition system caused the car to suddenly
lurch forward. She calls a witness supporting this statement. GM wants to cross
with “Mr. Davis, isn’t it true that in 2006 you were permanent laid off by the Ford
Motor Company?” Is this permissible to ask?
-
-
Bias is always relevant and therefore this evidence is presumptively admissible
under FRE 402
- Supposed inference is that because Chin was laid off from Ford he will have a
bias against big car companies - and thus we should trust him less
- This should be admissible under FRE 403
- (b) Would it make a difference if he had been laid off by GM?
- Would make even more prejudicial but more probative as well, so likely
still admissible because the preferred status of bias as a means of
impeachment help avoid 403 objections.
- Very specific and tightly tied
- Suppose Davis denies being laid off. Can GM Motors introduce letter from Ford
alerting him of his dismissal?
- Would this extrinsic evidence be barred by 608(b)? -- no because
impeachment theory isn’t character for truthfulness so doesn’t apply at all
so doesn’t matter it’s not criminal conviction
- It is probably admissible
- It is relevant -- cuz bias always relevant -- under 402 it’s
presumptively admissible cuz relevant
- Up to opponent to persuade judge that prejudice outweighs
probative value under 403 -- not likely
- This very probative, not that prejudicial unfairly
- But judge could maybe say that this is wasting time -- but this is
probably not enough;;; if it kept going on and on and wasting too
much time trying to prove other things admissib;e
- This letter would also impeach Davis by contradiction
- If it was offered to show only contradiction, then it might violate
collateral matter rule
- But not problem here cuz also goes to bias which is not
collateral -- a reason why it would get in despite 403
objection
PROBLEM V-30 (p.446): Cynthia Simon files suit against police officer, claiming he
violently beat her during a drug raid in 2013. She calls a witness to testify that he
saw the officer drag her out of the house where the raid took place and she was
already bleeding from a head wound and he saw the officer kick her. Defense
wants to introduce evidence that the witness (Rich) was:
- (a) Arrested for drunk driving in 2009 (pled guilty to reckless driving)
- (b) Arrested in 2011 for public drunkenness and released without charges
- © Arrested in 2012 for outstanding traffic and parking fines
- (d) Questioned in 2008 in connection with a robbery but not arrested
- (e) Rich’s brother was arrested several times for misdemeanors and
felonies and served 2 years in state prison for unarmed robbery
- None of these are conviction, so can’t introduce it under 609
- Can’t introduce it as character for untruthfulness
-
-
-
Could maybe introduce it as evidence of bias → cuz he’s had so many run ins
with the police that didn’t actuall lead to anything → so he probably doesn’t like
the police
- Bias impeachment isn’t controlled by any FRE besides 403 -- only
question is 403 question
- Risk of Prejudice → Not that much (especially cuz he’s just a
witness, not the plaintiff or defendant); might be guilt by
association tho as risk of prejudice (if think he’s bad character,
might think P is also cuz she’s associated with him) (but we don’t
know much of a link)
- Probative Value -- tells jury about likelihood that Rich would like to
harm a police officer D in court due to his past
- So probably come in
The defense also wants to show that Rich’s brother was arrested several
times for misdemeanors and felonies and served two years in state prison
for unarmed robbery. Can brother’s past crimes be used to impeach
witness?
- NO -- You can’t use the history of someone who is not the witness to
impeach the witness’ character for truthfulness under FRE 608
- BUT could be offered as more proof of Billy’s BIAS against cops
- Just do FRE 403 balancing test to see if testimony should be
admissible
- At some point, if keep admitting stuff like this tho, judge could say it’s not
admissible because it’s too collateral (so call it inadmissible under 403)
Defense also wants to call 2 police who testify that Officer didn’t beat her.
She wants to show that the officers have been disciplined for excessive
force in connection with unrelated drug raids:
- Weak but probably allowed
- There is potential for bias -- police trying to protect other police ;
especially trying to protect since they’ve also been disciplined for things
done on the job, so more bias toward supporting fellow office in covering
up his wrongdoings
- Especially allow it if judge allowed other side to introduce stuff about
witness and his brother -- cuz otherwise would look too imbalanced if let
one side do, but not other
- (b) If the court allows the impeachment,may Simon use departmental
records to show the officers have been suspended, or must Simon
first question the officers about these suspensions?
- No requirement to question them first; but it’s usually preferable to
judges to question them first
IMPEACHMENT BY CONTRADICTION: THE COLLATERAL MATTER RULE
- Most common way to discredit witness is by introducing contradictory evidence that is
more convincing
- When contradictory evidence is directly relevant to facts at issue, it presents no problem.
- Tricky issues occur only when the contradictory evidence that a party wishes to offer has
no independent relevance in the case (i.e., when, but for its value for impeachment,
there is no reason the jury should hear this evidence at all)
- “COLLATERAL MATERIAL” RULE → Extrinsic evidence offered for the sole purpose of
contradicting a prior witness is INADMISSIBLE if it is NOT relevant independently of the
contradiction (if not the sole purpose, then will be admissible)
- By contrast, evidence showing an adverse witness’s biases, interests, + motives,
or his inability to observe and report coherently, is not considered collateral
- So even tho it may have no relevance besides impeachment, it avoids
collateral matter rule cuz its relevance is independent of any tendency it
might have to contradict what the witness said
- Even at common law, judges often allowed extrinsic evidence to be used for collateral
contradiction when it seemed to have substantial probative value
- Common Law Rule -- there was no right to impeach an opposing witness with extrinsic
evidence of collateral contradictions; that to call contradictory testimony collateral was a
valid objection which if true was likely to be sustained at trial without fear of reversal on
appeal; that a trial judge’s failure to sustain an objection of this sort was also almost
never cause for reversal; and that there were situations in which trial judges could and
did allow impeachment by extrinsic evidence on collateral matters.
- FRE neither codifies nor rejects the collateral matter rule
- Not under FRE 608 (which applies only to impeachment based on inferences
from a witness’s propensity to lie)
- Impeachment by contradiction relies on difference more SPECIFIC to case at
hand -- i.e., that the witness’s testimony deviates so substantially from accurate
accounts of what happened that the witness must lack either the ability or desire
to tell the truth about the particular matter”
- So usually balance probative weight against prejudice, distraction, and waste of
time to determine the admissibility of such evidence
- PROBLEM V-31 (p. 450): Jackie Kerouac is charged with interstate transportation
of stolen vehicle. Defense calls witness (manager of movie theater) to contradict
Haggard’s denials on cross:
- (1) That the movie showing was China 9, not Paris, Texas
- Probably excluded under 403’s version of Collateral Matter Rule cuz not
probative at all → even if she were wrong about it, it’s such trivial detail
that doesn’t affect her testimony / recollection of event at al
- If date was different tho, maybe can come in
- (2) That Haggard purchased Milk Duds not Junior Mints
-
-
-
Probably excluded under Collateral Matter Rule cuz not probative at all →
even if she were wrong about it, it’s such trivial detail that doesn’t affect
her testimony / recollection of event at all
(3) That Gibson never allows anyone to park in front of the doorway to the
theater which is a no parking zone
- This is not trivial detail → if she’s misremembering a key detail, then there
may be good reason to doubt her ability to recall the events accurately
- Also because it’s important cuz of how witness saw the car
- Also admissible as routine business practice under 406 (like habit)
- This is implicating the Collateral Matter Doctrine
- Under the common law doctrine, it does need to have some kind
of relevance -- otherwise the collateral matter will keep it out
- BUT the federal rules are not as demanding -- there is no
particular rule that pertains to this kind of collateral evidence
- Under 403 probably comes in
Defense then calls Fonda to contradict P’s witness:
- (4) That she and Nelson spent evening bowling together
- NOT admissible under Common Law Rule → the only function it’s
performing is to contradict the testimony that H stole the truck
- Doesn’t go to bias ; has no independent relevance
- Irrelevant to theft issue except to contradict Nelson
- BUT THis SHOWS HOW DUMB COMMON LAW
RULE IS -- cuz it’s obvi important because it shows
she wasn’t in town so she couldn’t have seen what
she claimed to have seen
- Under 403 (modern approach) this evidence is admissible → if
she was not in town she couldn’t have seen what she purported to
see
- (5) That Nelson complained that a gal named Jackie Kerouac ran off
with her man
- Comes in both under Common Law and under FRE 403 → cuz
offered as bias
- This would not have been barred by the hearsay rule cuz it’s not
being offered for its truth -- just bias
- TElls us about what was in her head, not whether it was
true or not
- (6) Testimony of car mechanic Campbell who examined the stolen
vehicle and determined passenger side door had been tampered
with
- This testimony goes to manner of theft
- Does it have independent relevance? Yes cuz goes to manner of
mechanics of how entry to car was gained
-
So more than contradiction -- so admissible under common
law and under 403 → there’s an adequate connection to
core events of stealing of the car
IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS
- Obvious utility as impeachment, but always a risk that Prior Inconsistent Statement will
be considered as substantive evidence too
- Risk jury will credit it for more than just the witness’ ability to tell a straight story)
- In Practice:
- FRE 613(a): PIS need NOT be shown to Witness, but content must be shown to
counsel on request
- FRE 613(b): Extrinsic evidence of a Prior Inconsistent Statement is admissible
AT ANY TIME (e.g., even after Witness is off the stand), so long as the witness /
opposing counsel gets SOME opportunity to deny/explain
- But, where possible, most lawyers / courts provide that opportunity during
Witness’ testimony
- FRE 403: Remains as potential barrier to Prior Inconsistent Statement evidence
- Probative value depends on extent of inconsistency, centrality of issue,
importance of Witness
- Prejudice driven by danger of use as substantive evidence, risk of
distraction / time-wasting
- Although impeachment by prior inconsistent statements is a form of impeachment by
contradiction--the witness’s prior statement contradicts her testimony--it does not, in
theory, depend on the accuracy of the contradictory prior statement
- When a person first says one thing and then another, the inconsistency cases doubt on
BOTH statements
- Often, the jury will believe that the witness’ prior statement is true and rely on it not only
to impeach the witness’s contradictory testimony but also as a basis for deciding what
happened
- Mixeduse of evidence presents serious problem- Prior statement is often hearsay
- Common Law:
- At common law, extrinsic evidence of inconsistent statements could be used only
if the proper foundation was laid in cross-examinaiton
- Usually by asking the witness whether or not she recalled making a
specified statement at or about a certain time
- A witness’ qualified or tentative admission of a prior inconsistent
statement did not, however, prevent extrinsic proof. --. The details of the
previous statement were fair game for the examiner and had to be fully
conceded before extrinsic proof was barred
- Also at common law, impeachment by prior inconsistent statements--like
impeachment by contradiction--was subject to the collateral matter rule
- Cannot introduce a witness solely to contradict D’s testimony
-
FRE 613 (which governs procedure for impeachment by prior inconsistent statements)
changes common law practice somewhat
- FRE 613: Witness’s Prior Statement
- (a) Showing or Disclosing the Statement During Examination: When
examining a witness about the witness’s prior statement, a party
need not show it or disclose its contents to the witness. But the
party must, on request, show it or disclose its contents to an
adverse party’s attorney
- (b) Extrinsic Evidence of a Prior Inconsistent Statement: Extrinsic
evidenc of a witness’s prior inconsistent statement is admissible
only if the witness is given an opportunity to explain or deny the
statement AND an averse party is given an opportunity to examine
the witness about it, OR if justice so requires. (This subdivision
does NOT apply to an opposing party’s statements under FRE
801(d)(2))”
- Modifieis common law practice in two ways:
- (1) FRE 613(b) substantially broadens the admissibility of extrinsic
evidence of a witness’s prior inconsistent statements by allowing the
statements to be proven by extrinsic evidence EVEN BEFORE the
witness has a chance to explain or deny them, as long as at some point
the witness gets to explain or deny and the opposing party gets to
question the witness about the statements.
- (2) FRE 613 abandons the rule n Queen Caroline’s Case, under which,
before a witness could be questioned about a prior written statement, the
statement had to be shown to the witness
- Rule 613(a) insists only that the written prior statement or the
substance of an oral statement be disclosed to opposing counsel
when the witness is being examined about it
- A prior statement does not impeach a witness unless it actually
contradicts her testimony → so courts have to decide whether it is
actually inconsistent
- Test for determining inconsistency: Whether the testimony
and the statement--even if they are not logically
incompatible--appear to be based on different beliefs about
the truth
- EX: if witness testified she saw X at 10pm at a
football game, she might be impeached with an
earlier statement she saw him at 9:50 that night at
a bar two miles away
- Details omitted from one statement but included in another
can make the two statements inconsistent if the details are
important enough that they “naturally would have been
asserted” by someone who observed them
-
-
If there’s a significant inconsistency between the witness’s testimony and
her prior statement, the prior statement still may be excluded if its
probative value is substantially outweighed by its likely prejudice.
- Probative value depends on the extent of the inconsistency, the
centrality of the issue on which the statements differ, and the
importance of the witness being impeached
- Prejudice is largely a function of danger that the jury will rely on
the prior statement for its truth, despite the hearsay rule
- Waste or time and danger of distracting disputes on
subsidiary issues may also be weighed in the balance
- It is improper to call a witness who is expected to give damaging
testimony for the sole purpose of impeaching the witness with evidence
that is inadmissible on substantive issues
- When witness’ failure to testify favorably surprises prosecutor, virtually all
courts let the prosecutor impeach the witness with her prior statement
- Generlaly permit impeachment with all prior inconsistent
statements if the government’s primary purpose in calling the
witness was not to impeach her
- Impeachment of one’s own witnesses by prior inconsistent statements
should be prohibited (absent surprise) if the probative value to the party of
the witness’s testimony as a whole, on all matters that are favorable to the
government, is substantially outweighed by the likely prejudice from the
jury’s probable misuse of the prior inconsistent statements for the truth of
the matter asserted
PROBLEM V-32 (p. 459): Howard Hyde, a customer service rep for airlines
in San Diego, is charged with conspiracy to import heroin. Ivana Ifsher flew
from Bangkok to San Diego and realized she forgot her cosmetics case on
board and thus asked if someone would retrieve it for her. Another flight
attendant discovered the heroin when looking for the case. Prosecutor
asks Hyde if he ever delivered heroin in the past -- he said never. P seeks to
introduce 5 rebuttal witnesses: Is any of this admissible? Need foundation?
- (1) Theresa Torres to testify that H told her that 3 years earlier he
gave heroin to a friend for his birthday
- This is a prior inconsistent statement that is coming in as extrinsic
evidence and being used to impeach
- There is INCONSISTENCY, so some impeachment value
- FRE 613(b) does say H should be afforded the opportunity to
explain or deny making a statement and opposing counsel be
given chance to rebut it , but that’s not happening here → cuz
Howard is the defendant -- he’s a party
- FRE 613(b) → parties are exempted -- so this comes in
- His statements are also admissible as admissions under
801(b)(2)????
-
-
-
-
-
Is this a collateral matter that should not come in?
- 613 doesn’t exclude collateral stuff, so only rule that might
is FRE 403
- Potential Prejudice -- jury could get bad idea of someone
giving heroin as birthday present (invites forbidden
Propensity Inference)
- Potential probative value -- pretty high
- And he said it himself, so he invited it himself → so
probably admissible
- This probably gets in → maybe introduced under 404(b) as
evidence of motive or opportunity
(2) Chester Cartaret to testify that he would sell cocaine if the price
was right
- This is not prior inconsistent statement
- This is not necessarily inconsistent
- PRobably not admissible -- more like propensity evidence?
- But prosecutor might successfully argue that this is evidence of
motive or intent or knowledge of what drug delivery inference will
entail -- so maybe fits under 404(b)(2)
- Another problem → this is coming in on rebuttal → rebuttal is
supposed to be limited to what came out in case in chief
- So if you trying to argue 404(b)(2) stuff, you probably can’t
bring it in because you should’ve raised in on case in chief
(3) Debroah Freeman to testify that Hyde told her 2 years prior that
he frequently went to the pharmacy and picked up morphine for his
then-wife
- Only inconsistent in the most hypertechnical sense -- it’s clearly
not what he was talking about when made his denial on cross
- Probably not admissible although maybe shows access???
(4) Preston Pittman to testify that H gave him a gram of heroin as a
birthday present three years earlier
- Admissible as evidence that he made a previously inconsistent
statement
- Helps narrative of (1) -- admissible (unless judge thinks it’s getting
cumulative)
(5) Lucy Lassley to testify that she was on a flight with Isla a month
prior, and saw her hand H a package and say see you in a month
- This isn't really a prior inconsistent statement, so wouldn’t come in
under this theory
- Maybe admissible under 404(b)(2) as evidence of a plan / intent /
common scheme → doing this more than once
- But also vulnerable to the you should;ve raised this in case
in chief
-
-
But could’ve raised it for impeachment because it is prior
inconsistent statement to , so can get around thing of not
supposed to be raising it in rebuttal through that
- Probably don’t require foundation under 613
PROBLEM V-33 (page 464): Gene Bandy is charged with conspiring to distribute
heroin. Two key government informants--Sydney Sharp and June Greedy--say
they saw D sitting in a car with other Ds shortly before the other Ds delivered half
a kilo of heroin to the warehouse where the police were waiting. D wants to cross
examine these witnesses on their use of heroin:
- (1) Whether they are / ever have been heroin addicts
- Main inference introducing it for → propensity to be criminals - criminals
aren’t believable
- Is there better purpose you could attach to purpose like this? → not really
cuz so general and vague → not asking if they used it recently so like
they’re memory isn’t good or whatever
- General questions usually aren’t ok cuz more likely to lead to
propensity inferences than specific questions
- This is really just straight propensity evidence under 404(a) by suggesting
that if they were heroin addicts they aren’t believable sources cuz
criminals + more likely to be dishonest, etc.
- So question should NOT be permitted cuz straight propensity
- (2) Whether they used heroin during 48 hours prior to time they saw him
- Probably admissible cuz closer in time so maybe
- Specific evidence of drug use while testifying (which affects memory and
clarity of description) is permissible for impeachment purposes
- 48 hours might be too long, might not be → it depends on how
long heroin takes to exit the system, etc.
- If this is an appropriate time window, then judge will let it in
- (3) Whether they used heroin at any time in the 3 days since the trial began
- Same answer as in (2) -- probably admissible but depends how long
heroin stays in the system
- Cuz if using drugs during the trial, it could be screwing up your
testimony and memory → not propensity… goes to quality /
competence of these people as recallers/ relaters of fact
- (4) Whether drug agents have ever supplied them with heroin or the money
to purchase it
- Idk if relevant → maybe has to do with bias -- that the officers are buying
allegiance / testimony with these witnesses
- How long did thse payments happen, what was frequency, etc.
- If they’ve had these kinds of benefits before, they might expect
that if they give a good performance, they might get more too →
might be particularly interested in making this happen
-
-
-
Potentially a conditional relevance issue → needs to be some evidence
that this happened somewhat recently or is expected to happen in the
future → if payments too far removed, might not be suggestive of bias,
motive, or interest
(b) If S denies ever using Heroin, may B call one of her friends to testify:
- (1) S is addicted to heroin Admissible -- generally can use extrinsic
evidence to contradict (???)
- Extrinsic evidence offered to impeach the testimony of S and G.
- Admissible under 613 →
- Impeachment by contradiction --- if extrinsic evidence were to be
believed, would be a time specific defect in time and memory too
- (2) S took heroin on morning she claims to have seen B This
testimony is specific enough to warrant introduction of evidence cuz
shows S’s testimony isn’t reliable cuz she’s under the influence
- Because he did it, then this evidence is allowed to come in more
cuz gets further away from the impermissible propensity
(c) If G testifies that she was addicted to heroin, but does not remember
whether she took it at the time she saw B, can B introduce G’s friend to
testify that G had injected heroin on that morning?
- This isn’t necessarily contradicting a proper statement cuz G says I don’t
remember
- Probably guest in tho cuz still does contrast with what G has said
- Form of contradiction impeachment
- Impeachment by contradiction can sometimes be collateral → but
same subject matter that give rise to contradiction also suggests
something about defect in memory → that’s it’s own more directly
relevant hook for authorizing the testimony to be given and the
jury to hear
- So only control left was 403 -- which wouldn’t get in the
way here
REHABILITATION: (BACK TO) FRE 608
- (a) Reputation or Opinion Evidence: A witness’ credibility may be attacked or
supported by testimony about the witness’ reputation for having a character for
truthfulness or untruthfulness, or by testimony in the form of an opinion about that
character. But evidence of truthful character is admissible only after the witness’
character for truthfulness has been attacked.
- Bolded line -- opportunity to rehab does not open until there has been an attack
- Ex: After a favorable character witness has been crossed on specific
instances that are designed to undercut the usefulness of the favorable
testimony -- the opportunity to rehab would come at the next step which is
redirect of that witness
-
-
-
(b) Specific Instances of Conduct: Except for a criminal conviction under FRE 609,
extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in
order to...support the witness’ character for truthfulness. But the court may, on
cross-examination, allow them to be inquired into if they are probative of the character
for truthfulness or untruthfulness of :
- (1) The witness; or
- (2) Another witness whose character the witness beign cross-examined has
testified about
By testifying on another matter, a witness does NOT waive any privilege against
self-incrimination for tesitmoyn that relates only to the witness’ character for truthfulness
Once attack has been made, rehab is permissible, BUT ONLY to RESPOND TO THAT
ATTACK
Rehab after a character based impeachment may be bolstered by proof of criminal
conviction under 609
608(b) limits specific instances of honesty based on who is called to witness or what
they’re called to testify on
608(a) allows evidence of truthful character after the witness’ character for truthfulness
has been attacked
- What constitutes an attack has its own elasticity → understood to include some
responses to things that aren’t explicitly direct attack
- Like bias and prior inconsistent statement
- Even if lawyer not expressly setting out to attack character for
truthfulness, that can be perceived by court as having occurred and that
can open up the door to the the rebuttal right under 608(A) and make
some way for truthfulness on rebuttal
Under 801(d)(1)(B) (hearsay) -- it is permissible to use a prior consistent statement to
rebut a charge of recent fabrication → which is sometimes explicit or implicit in
impeachment by prior inconsistent statement
- Permits introduction of older statement that is consistent of what person said on
the stand ---> it comes in as substantive evidence that story is true, not just
credibility evidence
- Limit-- statements made under this rule have to have been made before there
was a motive to fabricate
REHABILITATING IMPEACHED WITNESSES
- Limitations on Rehab evidence:
- Evidence that is admissible only to support a witness’s credibility may not be
offered until AFTER her credibility has been attacked
- FRE 608(a) makes this limitation explicit in the case of character evidence
offered to support credibility; same rationale is understood to apply for
other methods too
-
-
-
-
-
FRE 608(a) limits evidence supporting a witness’ character for truthfulness to
testimony that the witness has a good reputation for honesty and to opinions that
the witness is generally honest
- Under FRE 608(b)(2), specific instances of honest behavior may be brought out
only on cross-examination of a character witness who provides UNFAVORABLE
reputation or opinion testimony about a prior witness, or on redirect examination
of a favorable character witness who has been impeached on cross examination
with specific instances of dishonesty on the part of the witness whose credibility
is at issue
FRE 608(a) allows character rehab when a witness’ character for truthfulness “has been
attacked” without limiting the triggering forms of attack to testimony about the witness’s
bad character for truthfulness
FRE 801(d)(1)(B) makes prior consistent statements that rebut an express or implied
charge of recent fabrication admissible not only to rehabilitate the witness’s credibility
BUT ALSO as independent evidence of the matters asserted in the prior statements
Generally, permit a prior consistent statement whenever it tends to rebut a specific attack
on the witnesses credibility, subject to FRE 403
- This evidence ought to be admissible, moreover, whether the challenge to the
witness’s memory is made by introducing a prior inconsistent statement, by
skeptical questioning on cross-examination by claims made in the opposing
party’s opening statement, or by other means.
PROBLEM V-36: Portia Pool sues Daphne Dayne, claiming D clobbered her with a
beer bottle at the ball park over a dispute about the umpire’s call. P calls David
Rhombus, who describes the argument over the umpire’s call and testifies that the
argument ended when D hit P.
- (1) P calls Clemons Rocket, a business associate of Rhombus, who is
going to testify that Rhombus is “as honest as they come”
- (a) What ruling on D’s objection to Rocket’s testimony?
- Cannot admit -- the second witness cannot immediately testify
unless something happened on cross that impeached her
- FRE 608(a) -- Rhombus hasn’t been attacked yet -- so can’t rehab
(can’t offer evidence of truthful character without being attacked)
- (b) Does it make a difference if D’s lawyer shows on cross that
Rhombus is P’s brother in law?
- This is 608(a) character for truthfulness evidence → which is just
about character for truthfulness
- Him being his brother-in-law has impeachment value → BIAS
- Does having that family relation suggest something about a
witness’ character for truthfulness?
- NO → suggests a motive to try and help P, but doesn’t
suggest he’s generally got untruthful character
- So 608(a) right to rehabilitate is not triggered
- (c) OR that P paid him $2000 to travel to the court and testify?
-
-
-
This is not a witness fee - this is a flat out bribe which probably
triggers the rebuttal right
- Triggers 608(a) rebuttal right → large enough money to suggest
he was paid to bribe
- Not reputation or opinion evidence, but does suggest something
about Rhombus’ character → he’s shown a willingness to engage
in corruption
- That might be considered an attack on his character for
truthfulness → enough to trigger FRE 608(a)
- (d) Or that Rhombus stated to business associate that he took his
sister to the hospital but didn’t see how the injury occurred?
- That’s a prior inconsistent statement
- Is impeachment with that prior inconsistent statement
enough to trigger the 608(a) rehab opportunity?
- Yes, cuz goes to heart of the case that it was false
- Counts as character for truthfulness - cuz maybe
willing to lie on the stand
- That’s probably a close question -- doesn’t always trigger rehab
requirements
(e) May D’s lawyer cross Rhombus on understating his income on the
previous year’s tax returns?
- Use of previous year’s tax returns is specific instance
- FRE 608(b) governs specific instances → when you combine that
with last line of 608(a) -- you do get that specific instances can
trigger right to rehabilitate
(2) Suppose that P rests her case after R is called, and D calls David
Submohr, who testifies that she saw the argument over the disputed
umpire’s call, that D never hit or tried to hit P. Can Rocket now testify?
- If testimony really did go to the heart of the case, then the court would be
more likely to allow rehabilitation under 608(a)
- But if it’s really not a big issue, then it creates the possibility that this will
spin out of control and start to be trials within trials
- Discretion that rests with the judge
- Rocket comes up at different point in trial -- after P has rested her case
and given opposing testimony
- What kind of impeachment is being carried out by Submohr on Rhombus?
→ impeachment by contradiction
- Submohr’s testimony coming in and contradicting his testimony
about what he saw at the ballpark -- opposite accounts
- Jury will think that one of them is lying → if testimony went
to heart of the case (which it does seem to), then court will
probably allow the 608(a) Rocket testimony as
rehabilitation
-
Now in the absence of the perception that the stakes were
that high, most courts would probably resist admitting the
“as honest as the day is long” testimony
- Cuz not that probative
- But risks opening up /starting a feedback loop in
which every blow landed on one witness about their
character for truthfulness can open the door to
another attack / rehab
- So court would probably invoke 403 and say no cuz
don’t want cascade of witnesses saying they’re all
liars or truthful back and forth
CHARACTER + CREDIBILITY IN SEXUAL ASSAULT AND CHILD MOLESTATION CASES
- Before 1970s:
- Can cross-examine complainant about her previous sexual history
- Big jury bias against complainants
- Could introduce evidence of D’s lustful disposition
- Propensity rule didn’t really apply in rape trials
- Race was considered factor showing rape
- Evidence of prior consensual sex could be used to support two inferences:
- Unchastity suggests consent
- But this had high prejudice and not very probative
- Especially not probative because the fact that the woman had
consensual sex with other men whom she did not accuse of rape
tends, if anything, to suggest that her accusation against the
defendant is true.
- General propensity to lie under oath
- RAPE SHIELD RULES
- State has a substantial interest in protecting privacy of rape vicitim’s sex lives
- Prevent defendants in rape cases from exploring various aspects of the sexual
histories of their alleged victims and preclude the admission of specified types of
sexual history evidence for specified purposes
- Designed primarily to exclude evidence that otherwise might be offered by
criminal defendants (unlike most relevance rules which are more about
preventing prosecution from offering certain evidence)
- FRE 412: Sex-Offense Cases: The Victim’s Sexual Behavior or
Predisposition
- (a) Prohibited Uses: The following evidence is NOT admissible in a civil
or criminal proceeding involving alleged sexual misconduct (so applies to
rape, sexual harassment, etc) ---> evi PRESUMPTIVELY INADMISSIBLE
- (1) Evidence offered to prove that a victim engaged in other sexual
behavior; or
-
-
(2) Evidence offered to prove a victim’s sexual predisposition
Only evidence of sexual behavior not presumptively barred is
evidence of sexual activity that is part of the misconduct charged
- Excluded REGARDLESS OF PURPOSE
(b) Exceptions
- (1) Criminal Cases: The court may admit the following evidence
in a criminal case:
- (A) Evidence of SPECIFIC INSTANCES of a victim’s
sexual behavior, if offered to prove that someone other
than the defendant was the source of semen, injury, or
other physical evidence
- (B) Evidence of SPECIFIC INSTANCES of a victim’s
sexual behavior with respect to the person accused of the
sexual misconduct, if offered by the defendant to prove
consent or if offered by the prosecutor; and
- (C) Evidence whose exclusion would violate the
defendant’s constitutional rights
- There is some tension between what 412(a)(1)
keeps out and the Constitution
- Judge needs to do fact-specific analysis to
determine this -- see what material factual
questions are that need to be answered
- READ PAGE 496 (TEST FOR ADMISSIBILITY) to
see if should be admitted under 412(c)
- If all answer yes, then Constitution probably
requires admission
- If any answer is NO, probably do not need
to admit
- (2) Civil Cases: In a civil case, the court may admit evidence
offered to prove a victim’s sexual behavior or sexual predisposition
if its PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS the
danger of harm to any victim and of unfair prejudice to any party.
The court may admit evidence of a victim's reputation only if the
victim has placed it in controversy.
- “With respect to the person accused” = includes a victim’s
statements expressing an intention or desire to have sex
with the defendant, even if didn’t occur on that occassion
- Only allows SPECIFIC INSTANCES of alleged victim’s sexual
behavior
- Reputation and opinion evidence is NOT admissible UNLESS
Constitutionally required
-
-
-
Ex: Doe v. US → when offered to show D’s state of mind
(that he knew she was promiscuous and so thought she
wanted it) it’s constitutionally needed to be admitted
- To predict whether Constitution requires admission of
evidence of prior sexual conduct:
- (1) Is the evidence relevant to an issue that is
plausibly in dispute?
- (2) Is it offered for some purpose other than a
propensity inference?
- (3) Does its probative value outweigh its
prejudicial impact ,including prejudice to the
complainant?
- IF YES -- constitution requires admission
- Do permit evidence of the complainant’s prior sexual conduct with
respect to the accused
- Can still exclude if 403 balance or other rule says so
- Exceptions limited to evidence of sexual behavior → Sexual
predisposition evidence remains absolutely precluded
- Statemen expressing intent to have sex or sexual fantasies
involving the accused may be considered sexual behavior
(c) Procedure to Determine Admissibility
- (1) Motion: If a party intends to offer evidence under Rule 412(b),
the party must:
- (A) file a motion that specifically describes the evidence
and states the purpose for which it is to be offered;
- (B) do so at least 14 days before trial unless the court, for
good cause, sets a different time;
- (C) Serve the motion on all parties; and
- (D) Notify the victim or, when appropriate, the victim’s
guardian or representative
- (2) Hearing: Before admitting evidence under this rule, the court
must conduct an in camera hearing and give the victim and parties
a right to attend and be heard. Unless the court orders otherwise,
the motion, related materials, and the record of the hearing must
be and remain sealed
FRE 412 targets propensity evidence in particular enumerated categories
- Ex: in (a)(1) - victim’s sexual behavior
- Ex: in (a)(2) - victim’s sexual predisposition
- Kinds of evidence that could easily get in around 404(a)(1) as
impeachment or something, it can do bigger damage in sex
offense cases → can corrupt and distort how jury sees the case in
uniquely harmful ways
-
-
Excluded regardless of the proferred purposes (if one possible
purpose/use would be prohibited under 412(a) (unless exception
under 412(b))
- Exceptions under 412(b) → judge has to walk the line between letting in
information needed for criminal conviction, and impermissible inferences
PROBLEM V-38 (page 499): Charles Dale is charged with the rape of
Margaret Stover. At trial, S testifies that D invited himself over to her room,
got drunk and refused to leave, raped her and then fled when her friend
heard her cries. Rick Jamison heard her cries “Don’t! Stop!” D’s attorney
wants to argue that it was consensual and S was shouting “Don’t stop.”
Can D address these issues on cross with S or Jamison:
- (1) S had consensual sex with three other men in her dorm room
- Not admissible under FRE 412(a)(1) cuz proving other sexual
behavior → this is straightforward propensity inference (that since
she slept with other men, she’d want to sleep with him)
- Even under just 404, it would be excluded cuz it’s pure propensity
and 404(a)(2) exceptions won’t work either cuz this is specific
instance testimony
- (2) S had consensual sex with D three years prior
- Maybe admissible under FRE 412(b)(1)(B) ( Evidence of
SPECIFIC INSTANCES of a victim’s sexual behavior with respect
to the person accused of the sexual misconduct, if offered by the
defendant to prove consent or if offered by the prosecutor) → cuz
specific instance with right people offered to prove consent
- But because it was 3 years prior, the probative weight on issue of
consent is likely significantly lower than the prejudicial effect -exclude it under FRE 403
- (3) S was in a longstanding sexual relationship with J
- How would this testimony be relevant? → MOTIVE
- Trying to get at motive for victim lying about being raped →
trying to claim she wasn’t cheating on her boyfriend
- If it was only offered as evidence of motive, it would fall outside
the propensity rule of 404(a)(1) BUT we still have to consider 412
question
- It’s still under 412(a)(1) cuz evidence of victim’s sexual
behavior
- BUT could be constitutional problem to not let it in →
because it’s part of D’s defense (and you have 6th
Amendment right to a defense in criminal trial) -- and this is
genuinely evidence that’s probative of issue of his defense
- So I guess do 412(c) balancing
-
-
Maybe judge could only let D introduce that Stover
was involved in just a longstanding relationship (not
explicitly longstanding sexual relationship) with J
- (4) D knew of (1) and (3) before the alleged rape
- D would use this claim of knowledge to show that she was
consenting with him → he’s saying his intent and consent are
relevant quesitons so should be able to bring it up
- Suggesting she cheated on her boyfriend before
- This is presumptively FRE 412(a) evidence → D is trying to argue
that it goes toward his reasonable belief that she consented
- DO 403 BALANCING -- Probative value is really low (for reasons
that justify the reasons of 412) and prejudice is high
- Probative value low cuz it doesn’t matter if she consented
to different people in the past; it has nothing to do with her
now
- Judges ask -- if I exclude this, will it get me reversed on
appeal -- here, no (cuz error of exclusion will be so low cuz
so unprobative) -- so not a threat of violating D’s
constitutional rights
PRIOR OFFENSES BY THE DEFENDANT
- These rules never really caught on
- Sharp departure from principles of other rules of evidence
- SO JUST BE AWARE OF THESE RULES
- They really just show the influence of politics on these rules
- FRE 413: Similar Crimes in Sexual-Assault Cases
- FRE 414:
- FRE 415: Similar Acts in Civil Cases Involving Sexual Assault or Child
Molestation
- Main effect is to permit evidence of prior rapes and child molestation in support of
a propensity inference
- FRE 403 does govern admissibility of evidence under FRE 413-415
- Controversial rules
4/6/2021
HEARSAY
HEARSAY INTRODUCTION
- Broad Rule -- the trier of fact may be asked to believe only those statements made by
witnesses testifying at the tria;
-
-
-
-
Testimony by witness that another person said something may NOT be
considered by the fact-finder as evidence that what the other person said is true
Inferences From Testimony --Triangles:
- Does the actor really have the belief? -- the jurors must infer that W really
believes what she has said
- Does that belief reflect reality? -- If jurors are prepared to answer yes to both and make the double inference from
statement to belief and belief to reality, excluded by hearsay
Reasons Hearsay Excluded
- No opportunity to cross-examine the person who said it
- Person who said it wasn’t saying it under oath
- Because O is out-of-court speaker, the jurors cannot view his demeanor
- So no consistency checks
Hearsay Dilemma → while there may be a danger that jurors will be misled if hearsay
evidence is admitted, jurors may be more likely to be misled if they never learn of the
evidence
FRE 801: Defining HEARSAY RULE
- (a) Statement: “Statement” means a person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion
- Oral assertion ; written assertion ; non-verbal conduct of a person IF it’s intended
by the person as an assertion (e.g., nodding of head)
- (b) Declarant: “Declarant” means the person who made the statement
- People ONLY -- NOT animals or machines
- (c) Hearsay DEFINED: “Hearsay” means a statement that:
- (1) the declarant does not make while testifying at the current trial or
hearing; and
- (2) a party offers in evidence to prove the truth of the matter asserted in the
statement”
- Three Main components:
- A statement
- Other than one made by the declarant while testifying in the current trial or
hearing
- Offered to prove the truth of the matter asserted
- ESSENTIALLY: Hearsay is an out-of-court statement offered for the truth of the
matter asserted
- “Out-of-court” statements → any statements except those made by witnesses
during the CURRENT trial while testifying before the trier of fact
- So any oral or written statement by someone other than witness will be
hearsay, as will all statements by the witness herself from outside THIS
trial (doesn’t matter if statement was in other previous trial)
- ANY statement
- Made by ANYONE (including a witness currently testifying)
-
-
Outside the CURRENT court proceeding
Ex: If the witness testifies, “So then I told him, ‘The light was green,” what
the witness “told him” at that other time and place is an out-of-court
statement subject to hearsay rule
- Offered for “The Truth of the Matter Asserted” -- statement’s relevance to
some fact in issue lies NOT in the fact that the statement was spoken or written,
nor in some inference that can be drawn from the fact that the speaker believes it
to be true, but rather in a conclusion that is justified only if the statement is true
- So statement is NOT hearsay UNLESS it’s offered to establish the
existence of a fact or facts therein asserted.
- Assessed by examining how statement DERIVES ITS RELEVANCE
- A statement IS offered for the truth if its relevance lies in a
CONCLUSION that is justified ONLY if the CONTENT of the
statement is TRUE
- A statement is NOT offered for its truth if its relevance lies
merely-- In the fact that the statement WAS MADE; or
- In some INFERENCE that can be drawn from the
speaker’s apparent BELIEF that the statement was true
- This means PURPOSE IS CRITICAL. And it must always be analyzed
carefully.
- In terms of triangle --- An out of court statement is hearsay IF AND ONLY IF the
inference that the proponent seeks to establish depends upon an affirmative
answer to both right and left leg questions
Not Hearsay
- Verbal Acts -- Out-of-court statement is not hearsay when an utterance has legal
significance in itself
- Ex: in action disputing formation of a verbal contract, the out-of-court
statements allegedly constituting the contract are not hearsay because
the issue is not whether the statements are in some sense true, but
whether they were made
- Verbal Parts of Action -- In some situations, conduct is ambiguous, but
accompanying words clarify the conduct, indicating its proper legal significance.
-- so not hearsay
- Statements Manifesting Awareness -- Often a claim or defense rests to some
extent upon the allegation that an individual was or should have been aware of a
particular fact. When that is so, the fact that an individual made or heard a
particular statement may be strong evidence that awareness existed.
- Ex: in self-defense (showing he heard X was trying to kill him so he acted
in self-defense) or negligence cases (showing D was aware that he had
problem with his car’s brakes)
- When statements are offered to show an EFFECT ON THE LISTENER
-
-
-
-
Whether the fact is true is irrelevant -- statement offered only to
show that the listener was or should have been alerted to certain
facts
The reasonableness of discounting info or ignoring a warning will almost
always affect only the weight of the evidence -- will not determine its
admissibility
When a statement supports both a permissible nonhearsay inference and
a prohibited hearsay inference, the statement is (subject to FRE 403)
admissible to prove the permissible inference. However, the opponent will
be entitled to an instruction that the statement should not be considered
for any hearsay purpose. Also, the statement’s tendency to support the
hearsay inference may not be considered on a motion for directed verdict.
The purpose for which statement is offered is critical to determining
whether it’s hearsay
PROBLEM VI-1 (page 565): Morgan Banker sues Tabloid Press for
publishing an editorial with libel: “Banker’s nefarious career began
when he embezzled $2K from the Macrosoft National Bank of which
he was at the time the cashier.”
- (a) Can this statement be introduced by Banker over a
hearsay objection? Yes because a libel case depends on
whether a slanderous/offensive statement was in fact made. It’s
not being introduced to prove statement is true.
- Purpose of introducing statement → that statement was
made (regardless of the truth of its content)
- So this is a VERBAL ACT
- So it’s NOT hearsay -- cuz not bringing it in to show the
truth of the statement
- If it was being introduced to show that he
embezzled $25,000 from Macrosoft ; or to show
that the banker had a nefarious career; or to show
that he was banker at the time → then WOULD be
hearsay
- Tabloid’s defense is that at the time the statement was made,
it reasonably believed it to be true. Banker seeks to produce a
secretary who worked in Tabloid’s office at the time of
publication. She testifies that the day before the editorial was
published, she overheard a conversation between the author
of the editorial and Gates (president of bank) in which Gates
said: “I tell you, Banker did not steal the $25K. It was loaned
to him by the bank on my authority.”
- (b) On what issues, is this evidence hearsay?
- Hearsay if being introduced to show Banker didn’t
steal the money and it was a loan
-
-
-
-
Hearsay if being introduced to show the amount
that was taken
© On what issues, is this NOT hearsay?
- Not hearsay if being introduced to show an effect
on the listener (i.e. a reasonable belief) -- here, to
show Tabloid’s defense that they didn’t think it was
libel when published it → which is part of libel
defense so ok to bring it in
- To show to the jury that the author of the
editorial had been put on notice
States of Mind
- When sanity disputed → can introduce statement if statement itself is a
symptom of mental disorder
- Also statements offered to prove other mental states, such as fear, intent
to steal, alienated affections, and donative intent
- Most perplexing problem in identifying hearsay arises when statements
assert exactly the state of mind that is in issue.
- Better off classifying these as hearsay but having them come in under
exception for statements describing a speaker’s existing state of mind
- Impeachment → Prior inconsistent statements used to impeach the testimony of
a witness are admitted not to prove the truth of what they assert, but rather to
suggest that a witness’ testimony should not be believed because he has said
different things about the same event
- It is the making of the inconsistent statement that is important and not
whether it is true
- Opinion Surveys → statements generated by opinion surveys typically escape
the hearsay objection because they are used to show a belief or state of mind
and not the truth of the respondent’s answers
“STATEMENT”
- FRE 801(a) -- statement = a person’s oral assertion, written assertion, or
nonverbal conduct, if the person intended it as an assertion
- Typically judges require the conjunction of two conditions for it to be
assertion;
- (1) There must be, either implicitly or explicitly, a claim that some
fact or circumstance exists.
- (2) The speaker must intend to make such a claim
- Intentional claims need not take the form of declarative sentences
- But declarative statements r not always assertions cuz intent can still be missing
- FRE 801(a) also recognizes that speaking and writing are not the only ways to
make intentional claims. Any action intended to claim that some fact or
circumstance exists qualifies as an assertion, and hence as a statement for
purposes of the hearsay rule.
-
-
Silence: Silence is probative of guilt only if the implication of guilt reflects the
accused’s belief and only if the accused’s belief reflects reality
- The most severe hearsay danger is obviously the extreme ambiguity of
the failure to respond to an accusation
- Most courts have treated silence in the fact of an accusation as a
statement and therefore hearsay
- Non-Assertive Conduct: Excluded from definition of hearsay
- Assertions Implied from Other Assertions: An out-of-court statement, offered
not for its literal truth but for the truth of some proposition implicit in it, should be
considered hearsay so long as the validity of the implicit proposition depends on
the existence and accuracy of a belief that the speaker of the actual statement
apparently INTENDED to convey.
- A person who asks a question may in the process assert a fact, and the
question may then by used as evidence of that assertion rather than as
evidence of the speaker’s doubt about some aspect of that fact
The Core Rationale for Excluding Hearsay
- Information obtained from a person directly is more likely to be accurate/ reliable
than information obtained through one or more intermediaries
- Any time we’re asked to believe something somebody told us, there’s always
chance it’s not true → Testimonial Infirmities
- TESTIMONIAL INFIRMITIES
- Sincerity; ambiguity; perception ; memory
- Might diminish the reliability of witness’ testimony
- Mechanisms for detecting or limiting testimonial infirmities
- Witness in Court:
- The oath
- The “crucible” of cross-examination
- Observable demeanor under questioning
- Presentation of that witness’ part of the story in context →
the context in which statement is made can also be
explored through questioning
- Declarant NOT in Court
- No oath
- No cross-examination
- No chance to observe demeanor
- No context for story / statement
- PLUS risk of mistaken transmittal from declarant to witness
to jury
- The risk of testimonial infirmities and unavailability of mechanisms for detecting
and limiting them creates the need for the hearsay rule
- Justifications for Exceptions:
- Information is likely to be reliable enough even without the typical
mechanisms for detecting infirmities
-
Information contained within the hearsay statement is just NECESSARY
-- substance is too important to the case to allow case to be decided
without it
HEARSAY TRIANGLE
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-
-
Tool for determining whether a statement is really being offered for its truth, or something
less than its truth
Triangle does that by focusing on two essential inferences that must be drawn for
statement to be accepted for the truth of its content
- Declarant actually believes the truth of content of statement
- Declarant was correction believing content of statement (accuracy of content of
statement)
If statement doesn’t fulfill both inferences, then NOT hearsay (doesn’t go all the way
from bottom left of triangle to bottom right)
Based on how far factfinder has to reason before the statement’s relevance to the issue
for which it’s being offered
Left Leg Question
- Common problems that come into play
- Factfinder, to credit it, must be confident that both the declarant and
person transmitting it to jury was accurate?
- Factfinder has to believe person isn’t deceidving the
Right Leg
- Does the actor’s belief, as dealt with on the left side of the triangle actually reflect
reality.
-
-
-
-
Factfinder gotta be confident in declarant’s ability to perceive and remember
- And it’s impossible to explore either of these questions if declarant hasn’t
come into court to testify
If a statemnet can’t become relevant until factfinder can believe Statement was made ;
declarant believed it; declarant was correct ---> then hearsay
If issue is whether girl was conscious after she fell off the horse, her statement after she
fell off the horse is admissible cuz Relevant regardless of whether she believed it or not
→ she spoke therefore she was conscious
- Testimonial infirmities don’t matter
If issue is whether girl was distressed from fall from the horse and she makes statement
that “she’ll never ride again.” Statement is only relevant i
- Fact that she declared it when she did indicates whether she was distressed from
the fall
- Requies factfinder to do the left leg questions, but it does not require them to go
to the right leg (cuz doesn’t matter if she actually never rode again, just that she
was distressed from fall (belief of declarant) → so not hearsay
If issue is whether duderanch negligently gave the girl a dangerous horsse. She makes
statement that horse was skittish since the moring
- Factfinder has to determine that statement was made, that she believed it, and
that the statement was accurate → only until go through all triangle does it
become relevant to what court is trying to decide → HEARSAY
OTHER HEARSAY-RELATED PROBLEMS
- Hearsay Distinguished from Lack of Personal Knowledge
- The personal knowledge requirement applies even to hearsay speakers.
- If, for example, it is clear that a hearsay speaker did not speak
from firsthand knowledge, evidence of what she said ordinarily is
excluded even if a hearsay exception applies--except in the case
of admissions
- PROBLEM VI-2 (page 575): On a rainy day, Eve slipped and fell on
the floor of the supermarket and broke her hip. Eve claims the floor
was dangerously slippery because of the rain, and the manager was
negligent in not putting down some substance to soak up the water.
The manager testifies that the floor always gets wet when it rains,
and in 12 years no one has ever complained the floor was slippery.
- There’s also 602 objection (he doesn’t have personal knowledge
of what he’s testifying) -- cuz how would manager actually know
whether there’d been a complaint in last 12 years
- (a) Should a hearsay objection to this testimony be sustained
- Going toward establishing that the silence of every
customer supports the inference that the floor was not
-
-
slippery --typically silence through implication is hearsay
BUT Nonassertive conduct is not hearsay
- Hearsay requires a statement -- both (1) an implicit and
explicit claim that some circumstance exists and (2) an
intent on part of speaker to make that claim
- Most people going through supermarket were
probably not trying to assert by their silence (by not
complaining) that this was grippy floor
- The silence on the part of the customers would probably
fall into the category of nonasserted conduct -- which does
not count as hearsay
- Alternatively, If offered for purpose of showing that this lack
of complaint made management think there was not a
problem → would be admissible cuz not hearsay cuz
doesn’t go all the way around the triangle, just showing
their state of mind
(b) What arguments that the evidence is not hearsay?
- If the testimony is being offered to support the fact that the
manager had no reason to believe that the wetness from
the rain would cause the floor to be slippery such that
someone could fall and injure themselves--could be
classified as nonassertive conduct?
- Could be introduced to support the state of mind of the
manager--i.e. Awareness, but this would be silence as
suggesting awareness, does this rise to level of double
inference?
(c) If the manager testifies that in the 12 years no one has
ever slipped, would this be objectionable as hearsay?
- Goes to the effect on the listener -- the effect was that it did
not put them on notice that the slippery floor could
potentially cause injury
-
-
Multiple Hearsay
•Not really seeming like hearsay, not really relaying an out
of court statement
•But they are testifying beyond their own personal
knowledge, so other possibility is that they are reporting
laundered hearsay got from other employees over the
years without saying so, no way she could know this on
her own
(d) Would any other objection be available?
- Personal knowledge objection
-
-
Occasionally one hearsay declaration will be embedded in another. This
frequently happens when a party seeks to introduce a written report of another’s
out-of-court statement.
- To be admissible, both the chief’s statement and the report’s assertion that the
chief made the statement must qualify under a hearsay exception, though they
need not qualify under the same hearsay exception.
- FRE 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”
Machine or Animal “Statements”
- The rule does not apply to statements from nonhuman sources whose evidence
is not given under oath and cannot be tested by cross-examination
- Occasionally, a machine will retrieve or compile statements people have made on
a topic --- there is twofold problem:
- First, the proponent of the statements must show that the machine
accurately compiles and reports the information it receives
- tHen, if the compilation is offered for the truth of what’s asserted, the
proponent must show that the statements reproduced in the report are
either not hearsay or are admissible under a hearsay exception.
HEARSAY PROBLEMS
- VI-3 (page 577): W is a witness; X may or may not be a hearsay declarant. Evaluate
whether W’s testimony is objectionable as hearsay.
- (1) On issue of whether D struck P,W’s testimony that she saw D strike P
- W is testifying to something she perceived and can be cross-examined on
-- this isn’t hearsay ---> admissible
- Ordinary testimony based on personal knowledge
- (2) On the issue of whether D struck P, W’s testimony that X told her that he
saw D strike P
- Inadmissible → this is hearsay cuz being introduced for the purpose of
showing what statement says --- simple hearsay
- (3) On the issue of whether D struck P, W reads the entry she made in her
diary that she saw D strike P
- Yes hearsay -- even out of court statements by the witness are
hearsay (if attempting to report statement made some time else)
- This hearsay could still get in tho under exception of 805(3????) tho
- (4) On the issue of whether D struck P in self-defense, W testifies that she
heard X say to D shortly before the fight, “You better watch out, P is out to
get you.”
- Not hearsay → purpose is to show D’s state of mind -- to show D acted
reasonably in responding to threatening behavior
- (5) The same testimony as above, on the issue of whether P was the first
aggressor in his fight with D. D offers W’s testimony.
-
-
-
-
-
-
-
Inadmissible (Hearsay) -- cuz offered for truth of statement
- Purpose is to show that P probably struck first cuz he was out to
get D -- i.e., the truth of the matter asserted in the diary entry
(6) On the issue of whether X was a citizen, W’s testimony that she saw X
swear allegiance to the US as part of the citizenship ceremony
- Admissible (not hearsay) -- cuz being offered to show she was in
citizenship ceremony, not whether she actually is in allegiance with US
- Not hearsay -- verbal act -- truth of pledge doesn’t matter; all that
matters is that W personally observed X swear allegiance
(7) On the issue of whether Z was X’s sole devisee, X’s will in which it is
written, “I leave all my worldly possessions to Z, who is the most loving
and honest of my seven children.”
- Admissible (not hearsay) -- verbal act -- Purpose is to show X designated
Z as devisee. The writing in the will to that effect is all that matters.
(8) The same will as in #7 on the issue of whether Z was more honest than
his 6 siblings.
- Inadmissible (hearsay) → cuz being offered for truth of its statement that
Z was more honest
- You would have to believe both that X believed it, and that the
belief was ACCURATE. But X could easily be mistaken, perhaps
because Z had deceived him
(9) The same will as in #7 on the issue of whether X loved Z more than his
other children.
- Not hearsay → just goes to show X’s state of mind (so doesn’t take you
all the way around the triangle)
- Statement shows X’s state of mind. Even if X is wrong in his assessment
of Z as “most loving and honest,” that would only STRENGTHEN the
proof of X’s love for Z by showing X was blinded to Z’s faults
(10) On the issue of whether X had drunk a 5th of whiskey before leaving
the Bar, W’s testimony that just before he left, she heard X say in a very
slurred voice, “I got to go now, did pretty god, killed me a fifth of mountain
Jack in 45 min”
- Inadmissible (hearsay) -- it’s only relevant if he in fact drank the whiskey
- Statement is only relevant to the issue if X both believed he drank
a 5th of the whiskey and that the belief was accurate
- Statement is only relevant to the issue if X both BELIEVED he drank a
fifth of whiskey AND that the belief was ACCURATE
(11) The same testimony in #10, on the issue of whether X was drunk when
he left the bar.
- Admissible (not hearsay) -- the act of X’s speech punctuated by the
laughter is relevant to the issue of whether he was drunk regardless of
truth of his statement
-
-
-
-
-
Act of speech punctuated by laughter suggest that X was not
sober, regardless of truth of statement he might convey
(12) The same issue in #10, W’s testimony that she saw X enter a booth
alone with Jack and when she passed the booth 40 min later, she noticed
there was only an ounce left.
- Not hearsay -- ordinary testimony based on personal knowledge /
observation
(13) The same issue as in #10, W’s testimony that as X stood at the cash
register, she heard the cashier ask “Are you the one that downed that
whole fifth of Mountain Jack?”
- If you put the cashier’s question in front of a jury, what conclusions must
that jury reach before the question can acquire relevance?
- That the cashier must believe that the question / statement is true
before statement acquires any relevance -- so it’s being
introduced for it’s truth ---> HEARSAY
- Question implies that he was the one that downed the Jack → implies an
assertion, so question can have truth value
- Relevant only if jury believes th
- Cashier intended to claim that X drank fifth of the Jack → so doesn’t
matter that it’s a question not declarative statement -- it’s still assertion
- As in 10, the statement is only relevant to the issue of whether X drank a
fifth if cashier both BELIEVED her id and that belief was ACCURATE.
That was clearly the cashier’s intended claim when she posed the
question
(14) On the issue of whether X, a child, was saddened when the cat
knocked over his goldfish bowl, W’s testimony that X cried when he picked
up the goldfish.
- Not hearsay -- crying is not a statement under the FRE
- Merely an inference of a belief; makes no sense to ask if belief is
true
- The point of introducing the fact that the child cried is inviting the jury to
infer something -- that child was distressed
- Even if thought of it as hearsay, This would still come in under 808(3) -cuz it expresses state of mind
- Would be different if suggested that the crying started on cue → in that
sort of situation, there’d be much stronger chance of it being hearsay cuz
more likely they’re trying to assert something
(15) On the issue of whether P had suffered a disabling back injury in an
auto accident, a movie taken by one of D’s investigators two months after
the accident. The movie shows P shoveling snow and changing the tire on
a car.
- Not hearsay -- statement by machine
-
-
-
-
-
-
No. There is no INTENT on P’s part to ASSERT anything. Nothing
depends on any belief held by P.
(16) On the issue of whether the burglar had entered a house before
daybreak, testimony by W, a farmer, that she heard the cock crow about 15
minutes after she had been awoken by the sounds of an intruder and that
her cock always crows when the sun rises.
- Animal conduct -- not hearsay
- A rooster is not a person, and therefore cannot be a source of
hearsay.
(17) On the issue of whether X and Y had been involved in some sort of
wager, W’s testimony that she saw X and Y shake hands and heard X say
“It’s a bet.”
- Not hearsay -- convention is to treat “it’s a bet” as the verbal part of an act
- Cuz accompanies
- Verbal part of an act is treated as NOT hearsay, cuz incidental to the act
- But there is a tension, cuz it is really being offered for truth of its
content -- only when we get verbal part of the act does the shaking
of the hands really mean anything (otherwise wouldn’t know if just
greeting each other or making a deal, etc, etc,)
- Convention is to treat “It’s a bet” as the VERBAL PART OF AN ACT. Of
course, the statement is offered for its truth, which sure seems like
hearsay, but courts generally don’t treat it that way. Just get used to it lol
(18) On the issue of D’s loyalty to the US, testimony that the FBI, after a
security check, had cleared D for access to top secret information
- If you admit this, you’re trying to have jury infer person is loyal to US
- Not hearsay under the FRE -- this is non-assertive conduct
- No under FRE; probably yes under the old rules.
- This is NON-ASSERTIVE CONDUCT -- but it is close to the line even
under FRE 801(a) since the award of security clearance was arguably
intended to say, “D is loyal.”
(19) On the issue of whether X who had moved to Hawaii 12 months earlier,
had the requisite domiciliary intent to qualify as a resident for voting
purposes, W’s testimony that X had once said to her, “the tropical breezes,
the sun, the sand, the perfume, I know of no place that is nicer.”
- Not hearsay -- not being offered for its truth, but to show X’s state of mind
is consistent with intent to remain as a resident
- Pure expression of state of mind about affection for place; but not
being offered for its truth of his intent to say
(20) On the same issue as in #19, W’s testimony that X had told her
“because I love Hawaii so much, I intend to live here forever.”
- Maybe -- statement could be analyzed as in 19, but unlike in 19 this
assertion also overlaps completely with the fact in issue. This could mean
-
-
it’s offered for its literal truth, and would therefore fit the definition of
hearsay.
- But no need to worry, there’s a 803 “state of mind” exception that
covers statements like this.
- Book says → A statement that overlaps with the matter of issue this much
likely belongs in the hearsay category
VI-13 (p. 582): Harold Wolfman on trial for selling crack. At his trial, P questions
Robinson the arresting officer. Is any of his testimony objectionable as hearsay?
- Technically not hearsay, but because of policy reasons it shouldn’t be admitted
- Prosecutor establishes through this questioning that Robinson went and talked to
Rosen about who supplied her with the cocaine. At that point, prosecutor has
brought out that Robinson had a convo with a third party and that person was
forthcoming with the information (so made a statement to her).
- Prosecutor wants jury to think, from Rob’s statement that “I went to Mr.
Wolfman’s house and arrested him” → suggests that Rosen told him that
Wolfman sold him the crack.
- So trying to avoid hearsay by not getting direct statement of what lady
said; just let jury imply from his actions
- As a practical matter, because of how clearly they stipulate, it is pretty much a
statement that Wolfman sold him the crack
- And that statement is being offered by the prosecution for its truth (cuz
trying to prove that Wolfman sold the crack)
- SO it is objectionable as hearsay probably -- this is just hearsay smuggled in a
package
- You should object and push back on it
- Judge could rule either way due to smuggling
VI-16 (p. 583): Carl Rhinehart on trial for fraud. Claims mistaken identity.
- (a) Was the judge’s decision to overrule these objections correct?
- Testimony that he looked in the directory and couldn’t find person
named Hannibal → Yes -- under 803?
- If officer relayed that Mayor said that “Hannibal didn’t live in the
town” for the issue of whether Hannibal lived in the town, then that
is hearsay.
- Because it’s offered for its truth
- If instead mayor said that he never heard of Hannibal when asked
in Hannibal lived in the town?
- Still hearsay even tho statement doesn’t line up exactly
with issue in question. It’s still used for truth of content
within statement
- Went to a number of bars and asked patrons -- this is hearsay
- Yes hearsay -- but maybe less bad cuz increased number of
respondents reduces the credibility issue at the heart of hearsay
cuz less concern over testimonial infirmities
-
-
-
Probative value of their testimony increases cuz large number of
people -- cuz no reason to think they all got together and made
conspiracy to lie and say they don’t know him
- Stronger evidence for jury ot hear and rely upon than they
were to get it by just bringing in random people off street
- There’s really not a better way to prove that person didn’t
live somewhere -- there’s not obvious better way to do it
- Balance can be shifted by need within the case for informaiton
Telephone directory -- Non-assertive conduct so not even hearsay
- Content of directory should be admissible as long as can be
authenticated under 902(5) which they would do easily
Investigator cruised around town and couldn’t find Barthurst
Avenue → clearly not hearsay
- He’s testifying from personal knowledge, not what someone else
said
- It’s relevant cuz shows Swindler didn’t live here - address is fake
9/12/2021
HEARSAY EXCEPTIONS
Range of Rationales for Hearsay Exceptions
- Personal Responsibility
- “An Opposing Party’s Statement” (AKA “Admission”) exception (801(d)(2))
- A party should be responsible for what comes out of its own mouth or out
of the mouth of those who it has authorized to speak / assented to
- You can go
- Adequate Procedural Substitute, e.g. ==
- “Prior Testimony” Exception -- 804(b)(1)
- Don’t get to cross-examine statement in court today, but you had the
chance to cross-examine in previous trial
- “Past recollection recorded” exception -- 803(5)
- Can cross-examine about method of recording, the circumstances, etc
- (so you can’t do full cross-examination but can get something close enough that
rationale for hearsay rule doesn’t apply)
- (Rely upon access to and use of forms of cross-examination to deal at least
partially with the possibility of testimonial infirmity)
- Available cross-examination is likely to be inadequate, but considered
good enough to provide enough indicia of trustworthiness
- Specific Attributes of Statement(s) Mitigate Infirmities
-
-
Statements NOT presenting problems of insincerity / ambiguity, e.g. - Statements against Interest -- 804(b)(3)
- Statement under Belief of Imminent Death -- 804(b)(2)
- Statement made for medical diagnosis / treatment -- 803(4)
Statements NOT presenting problems of memory / perception, e.g. - Then existing, mental, emotional, or physical condition -- 803(3)
- Excited Utterance -- 803(2)
- Present Sense Impression -- 803(1)
EXCEPTIONS TO THE HEARSAY RULE
- Coherent (but general) central principle
- The decision to EXCLUDE hearsay generally but INCLUDE statements that
fall within an exception is driven by BALANCING -- GAINS to be made from accepting potentially probative information;
AGAINST
- LOSSES taken in the form of living with potential TESTIMONIAL
INFIRMITIES
- Kinda like one leg of the triangle is good enough
- The hearsay exceptions we shall examine in this section specify the situations in which
hearsay statements are ADMISSIBLE FOR ALL RELEVANT PURPOSES
- Quit of hearsay exceptions complicated
- Some exceptions admit hearsay evidence only if the speaker is not available to
testify at the trial, while other exceptions allow hearsay to be used regardless of
the speaker’s availability.
- The Confrontation Clause of the 6th Amendment guarantees that “in all criminal
prosecutions, the accused shall enjoy the right to be confronted with the
witnesses against him.”
- This provision promotes some of the same values as the hearsay rule, but
it can bar the admission of evidence that state or federal hearsay rules
permit, and the hearsay rules commonly bar evidence that the
Confrontation Clause does not forbid.
- Confrontation Clause applies only in criminal cases
- Most courts believe that the probative value of hearsay evidence usually outweighs the
danger that it will mislead the jury. → leads to liberal interpretation of hearsay exceptions
- ADMISSIONS
- The statements of a party to the litigation
- Allows one party to introduce into evidence ALMOST ANY NONPRIVILEGED
STATEMENT MADE BY AN OPPOSING PARTY or by certain people with a
special relation to the opposing party, such as a party’s agents, employees, and
co-conspirators.
- Only exception that admits statements that do not, at least in theory, carry some
special guarantee of reliability or provide some extra test of the speaker’s
credibility
-
-
-
-
A statement that was self-serving or neutral when made is as readily
admitted as a statement that was against interest when made
- Exception kinda just rooted in ideas about the responsibility individuals
have for their actions -- expected to tell truth even when not under oath
The opinion rule and firsthand knowledge objection are unavailable when
hearsay is offered as an admission
- If a statement was made by the opposing party, it is not only an
“admission,” it is, in effect, a ticket for ADMISSION in evidence that often
is good against most objections including hearsay
- DON’T NEED PERSONAL KNOWLEDGE FOR ADMISSION
Very broad scope
Admissions may be disputed by the party who allegedly uttered it
Distinguished from Judicial Admissions
- A judicial admission binds a party and may not be controverted except by
amending or withdrawing it, which may require the approval of the court.
- Because hearsay admissions may be disputed, some jurisdictions
consider these statements as LESS BINDING than statements made by
parties testifying in court.
The Federal Rule
- Admissions not technically included as hearsay at all under FRE
- Under both FRE and common law, statements that qualify as admissions
may be introduced to prove the truth of the matter asserted.
- FRE 801(d)(2) specifies five kinds of statements that are admissible as
admissions:
FRE 801(d): A statement that meets the following conditions is not hearsay:
- (2) An Opposing Party’s Statement: The Statement is offered against an opposing
party and:
- (A) was made by the party in an individual or representative capacity;
(PERSONAL STATEMENT)
- Admits a party’s statement against her in a representative capacity, even
tho the statement was not made in that capacity
- Ex: statements made in the course of compromise negotiations are
admissions, but excluded for reasons specified in Rule 4;
- Ex: incriminating statements are type of admission, but their admissibility
depends on the circumstances in which they were received
- Ex: withdrawn guilty pleas are admissions, but other policies, like those
expressed in FRE 410, may prevent the admission of withdrawn pleas of
guilty or of statements made in connection with them.
- Ex: Guilty please not withdrawn and civil pleadings later amended are
admissible
-
-
The admissions exception may be used against criminal defendants so
long as the statements are, as a matter of constitutional law, otherwise
admissible
(B) is one the party manifested that it adopted or believed to be true;
(ADOPTIVE STATEMENTS)
- FRE 801(d)(2)(B) refers to what the common law referred to as adoptive
admissions
- This exception recognizes that parties often agree with statements others
make
- It holds parties responsible for statements they agree with or otherwise
assent to in the same way they are held responsible for their own
assertions
- Silence can count as assent
- PROBLEM VI-18: Santilukka and her child, Dolly, go to Dodi
Hannah’s salon. H suggests D and S (child of another woman) play
in the yard. Hear cries. Santi says that H said “I’m so sorry, my dog
has bitten your child.” H says the remark was “I’m so sorry, S says
my dog bit ur child.” For the purpose of admissibility, does it matter
which version is correct? Why or why not?
- NO → the statement would be admissible under both cuz party
said it either way
- Santi’s version → This is statement by party opponent in an
individual capacity being offered against that same party -- so
admissible under FRE 801(d)(2)(A)
- When it is an admission/statement by a party, the jury gets
to hear it -- doesn’t matter that party didn’t actually have
personal knowledge of thing she said (since she didn’t see
dog)
- Under 801(d)(2)(A), does NOT have to be in your
personal knowledge to be admissible → you can
defend yourself from the stand
- Hannah’s version (Sara says my dog has bitten) -- Adoptive
admission (if it’s Sara says my dog version) (under 801(d)(2)(B))
- Hannah has personal knowledge here - cuz just reporting
statement of someone else -- which would probably make
this inadmissible hearsay generally BUT can classify it as
ADOPTIVE ADMISSION under 801(d)(2)(B)
- If “I’m so sorry” is shown by judge to be an endorsement /
acceptance of what S said, then probably qualifies as
adoptive admission under 801(d)(2)(B)
- BUT it might be seen as simply her expressing
empathy for child ; not saying I’m so sorry I’m
responsible for kid’s suffering → so then would
-
-
NOT be an adoptive admission - so not admissible
cuz includes express mention of other informant
- There’s not really any difference in the sources of this knowledge;
she must’ve been relying on someone else’s account in both ways
- Difference is all in the sequence of words -- and yet one
could get in and the other could not
- Cuz law is highly formal in being willing to waive the
firsthand knowledge requirement for admission
- 801(b)(2)(A) is willing to admit it even if there’s no
personal knowledge if looks like admission
- Outside of true admissions, courts kinda
uncomfortable with letting in some of these factual
statements cuz can have big probative value
- PROBLEM VI-19: HH, testator, has died and 4 beneficiaries meet with
ED (executor of estate). ED opens the safe and pulls out 7 bundles
of money, saying there’s $500 in each bundle. SS (one of
beneficiaries) says “No, there’s $5000.” ED doesn’t respond, but
moves on. ED is later charged with crime of not reporting $23,500 in
cash taken from safe. Can another beneficiary testify to the
statements of ED and SS to show bundles contained 5000 each?
- YES -- initial ED statement and SS statement is admission
exception to hearsay
- ED silence can also be presented as exception under 801(d)(2)(B)
if court determined ED would likely have corrected that assertion if
believed it to be untrue
- When statement made and another person makes statement
correcting original statement, and original person didn’t correct it
- Then it’s admission by silence == under 801(d)(2)(B)
- Failure to correct it will be treated as acceptance
- Or can be 801(d)(2)(A) statement by a party or an
801(d)(2)(B) adoption
(C) was made by a person whom the party authorized to make a statement
on the subject (AUTHORIZED STATEMENTS);
- Refers to kinds of statements that the common law treated under the
hearing of REPRESENTATIVE or VICARIOUS ADMISSIONS
- When a party has explicitly authorized another to speak for her with
respect to some subject, the speaker’s statements regarding that subject
will be admitted as if they were the parties own statements
(D) was made by the party’s agent or employee on a matter within the
scope of that relationship and while it existed; (VICARIOUS STATEMENTS
OF AGENTS) or
- Treats the vicarious admissions of agents generally.
- Usually used to admit the statements of business employees
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-
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But statements stil have to relate to matters within the scope of the
agency relationship
- Specific authority is not the test
- FOUNDATION: Judge must be persuaded as a preliminary
question governed by 104(a) that at the time the statement was
made the speaker was the principal’s agent and that her
statement concerned matter within scope of agency
Bourjaily v. United States → a judge in a FRE 104(a) hearing could
consider a co-conspirator’s hearsay statements in deciding whether the
conspiracy that rendered one conspirator’s statements admissible against
others existed
Even in the FRE 104(a) hearing, some otherwise admissible evidence of
the relationship must be presented
Does not distinguish criminal from civil cases or government employees
from other agents. → BUT most courts still refuse to admit statements of
government agents as admissions against the government
PROBLEM VI-20: Dam gave way and caused flooding. Can any of the
following be admitted against the company that owns+operates dam
- (a) The statement of RS, an engineer, “This repair won’t do
much good if there’s a heavy storm. The whole system is bad.
- Yes, under FRE 801(d)(2)(D) if RS was an agent of the
company
- 801(d)(2)(D) -- this is a statement on a matter
within the scope of the agency relationship -- so
admissible
- Is this admissible under the common law rule for
admissions -- common law excludes statements from
people whose job was to do something other than speak
- RS isn’t spokesperson, just engineer -- so ineligible
to make statement that would be considered
authorized agent of party
- (b) Same statement made to her husband when she went
home that night?
- 801(d)(2) -- no exception made for admitting statements
made in comfort of own home
- Made by an agent; concerns a matter within the scope of
her employment as an engineer (cuz matter of the
performance of the dam is within her covered duties)
- Probably made while the agency relationship EXISTED
- Arguable tho -- Employed but not on job.
- Reliability? Nothing to suggest really it isn't but should
power company be responsible for something she said to
spouse away from workplace?
-
-
(c) Statement of the president of the company to reporters:
“we were negligent in maintaining it.”
- Yes under 801(d)(2)(C) -- authorized rep
- Doesn’t matter that it’s in the middle of the night -- a
president of a company is pretty much always on
the job
- There’s no such thing as being “on the job”
cuz speaking as president
- If he claims he wasn’t competent at time cuz tired,
he can take the stand
- It doesn’t matter that he doesn’t have personal
knowledge -- he’s authorized to make statements
as president
- Could also come in under 801(d)(2)(D)
- (d) Report the company prepares stating that there is danger
of collapse.
- Yes, under FRE 801(d)(2)(C) (cuz, unlike under common
law, external vs internal distinction doesn’t matter)
- This was statement from a firm that was authorized
- (so would be inadmissible under common law)
- If admissibility based on responsibility theory, this shouldn’t
be admissible -- company didn’t expect this to go outside
the company
- If admissibility based on reliability theory, this should be
admissible --cuz there’s ample reason to believe it’s
accurate so it’s probably a net good that this accurate
piece of info makes it to a jury
- IF THIS WAS OFFERED NOT TO SHOW NEGLIGENT
CONSTRUCTION, BUT TO JUSTIFY PUNITIVE
DAMAGES?
- Should be no problem for letting this in for punitive
damages purpose -- cuz not even hearsay - just
being offered to show that company knew that they
would be a problem (left leg is satisfied)
(E) was made by the party’s coconspirator during and in furtherance of the
conspiracy (PARTNERS AND CO-CONSPIRATORS)
- When business partners make statements relating to partnership
activities, the statements of one partner are usually admissible against the
partnership in suits arising out of partnership activity.
- Although a partnership, like any business, might authorize only certain of
its members to speak for it, courts have generally assumed that partners
who purport to speak for the partnership have the authority to do so.
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A partner’s statements are admitted AGAINST THE PARTNERSHIP, a
joint enterprise that has authorized its partners to speak for it, or is
assumed to have done so
Except, insofar as a partner may be obligated by his relationship to the
partnership, the out-of-court statements of his partners are inadmissible
against him.
Unless the offense is one for which the firm might be held liable (e.g., a
violation of some regulatory legislation), criminal activity is assumed to be
beyond the scope of the partnership, and the statements of one partner
are inadmissible against another because they do not relate to
partnership business.
Situation of conspirators derives from the fact that the activity of the
enterprise they have joined is itself illegal
- Statements of co-conspirators that are in furtherance of the
conspiracy are verbal actions taken for illegal ends -- so need not
be hearsay if offered against a conspirator on a conspiracy count,
for they can be admitted not for their truth but simply to show what
the conspirators did
Federal Rules follow common law in providing that one conspirator’s
statements may be treated as the statements of another only if they were
made in furtherance of their conspiracy AND during its existence
- Courts routinely slight the “in furtherance” requirement tho
Exception for co-conspirators’ statements is not limited to cases in which
conspiracy is charged
Recent development -- the conspirator’s exception may allow the
government to actively elicit or shape statements designed to incriminate
individuals whom the government has targeted
Once two people are shown to have been participants in the same
conspiracy, the statements of one are treated as admissions of the other if
two conditions are met --- CONDITIONS:
- (1) statements must have been made IN FURTHERANCE of the
conspiracy (court’s kinda slight this)
- (2) a co-conspirator’s statement is admissible ONLY if it was made
DURING the life of the conspiracy
- Conspiracies are considered over when the conspiracy has
achieved its goal or when it’s been broken up or
conclusively determined
VI-21: Conspiracy to rob Glendale Bank. SEt of co-conspirators; and
a set which may be co-conspirator admissions. (This problem
assumes that enough has been put forward to show that conspiracy
existed.) We’ve got one person testifying to what another person
said and being offered against other person
-
-
-
-
-
Needs to be in furtherance of conspiracy and made during life of
conspiracy
Evers says to Chance while planning robbery: “Tinker has
this all set up. This is the map of the bank that he’s drawn and
Tinker will be at the end with a getaway car” This is admissible
-- made during and made in furtherance
Two days before robbery, Evers said to Chance “Maybe we
shouldn’t go through with this. Tinker is clever but idk if a VW
has enough acceleration to be the getaway car and the noisy
muffler and pink decals will give us away. Should I tell Tinker
it’s off?” Some might argue that this is not in furtherance of the
conspiracy cuz Evers is trying to end the conspiracy
- But most judges will admit it -- cuz he still did participate in
conspiracy (didn’t actually withdraw) and could be pointing
out the errors to improve plan
The night of the robbery after robbing it and waiting for
Tinker to pick them up in car in trench, Evers said “That
bastard Tinker is responsible for our problems. He never
showed up in the car. We were lucky to escape on foot.”
- Debatable whether it was still DURING the conspiracy cuz
already stole it -- but probably still during it cuz not home
yet or anything -- still trying to get away
- IDK if super in furtherance of the conspiracy -- but maybe
could count as it morale raising or something -- but weak
- (however, Judges don’t often view the in
furtherance requirement super seriously)
- PROBABLY NOT ADMISSIBLE
After Evers and Chance were arrested but Tinker wasn’t,
Evers told Chance “I’ve gotten word to Tinker where we hid
the money. He’ll get us a good lawyer.”
- ADMISSIBLE -- still ongoing cuz Tinker isn’t in prison
- In furtherance -- cuz trying to use the proceeds of the
robbery to get them out of jail
During the robbery, Chance said to the bank president who
was in his office when the break-in occurred, “If you don’t fill
this sack with money, I will blow off your head.”
- NOT Hearsay at all -- one of the charges against Tinker is
extortion by threat
- Putting it forward to show he made the threat, not
for the truth of his statement
- Tinkerton liability -- everyone in conspiracy responsible for
actions of all conspirators
-
-
-
-
Tinker is responsible for Chance’s uttering of the
threat → when it’s offered for purpose of showing a
threat was made, it’s not hearsay cuz not offered
for its truth
- The act of the making of the threat is enough to
meet the element that the gov has taken on
responsibility for proving
- Not a 801(d)(2) question
- Does the admissibility of any of these statements depend on whether
Tinker is charged with conspiracy to engage in the offenses charged?
- NO
Privity → If a person acquires an interest directly from another, statements made by the
other person while possessing that interest may be introduced against the acquirer as
admissions.
- But no such exception is found in Federal Rules.
PROBLEM VI-27 (p. 615): FJ sues WW after car collision. FJ puts his passenger SS
on the stand. SS testifies they both had 2 beers before setting out. FJ recovers
$25K. One month later, prosecution brings a case against FJ for drunk driving.
- Can the prosecutor introduce SS’s statement that FJ had two beers?
- This is hearsay cuz out-of-court statement, even tho during a trial
- This doesn’t seem like admission cuz SS not a party to current case
- Maybe admissible tho under FRE 801(d)(2)(B) if FJ manifested that he
adopted or believed the statement to be true
- FJ put SS on the stand to testify about what he knew
- Party that called a witness could be deemed to have adopted
things that that witness said
- (N.B.: Adopted requires less formality than authorized)
- But this statement came out on cross-examination → so
overall it doesn’t seem like FJ meant to adopt this
statement
- Cross = if not elicited by FJ and was brought out on
cross, then there is less support that this was a
statement that should be adopted by FJ.
- Probably will not come in cuz probably not adoption
- Is it different if asked on deposition, rather than on cross?
- (Difference is that the deposition happened before trial -- so FJ woul’ve
been present during deposition and would have known everything SS
said during deposition under oath -- and had time to deal with it)
- He decided to offer the deposition as evidence, knowing what he said, so
he can be deemed to have adopted it → so probably admissible
PROBLEM VI-31: EM, police officer, shot and killed FJ. She is sued civilly; Lawyer
responds to the claim in the civil suit by responding in part that EM ___ ; only
lawyer of EM signs document; Em herself does not.
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-
(1) May prosecution introduce EM’s pleading that was prepared + signed
only by lawyer not EM herself in the civil case for purpose of showing EM
shot FJ?
- Yes under FRE 801(d)(2)(C) because EM made this statement through
her authorized representative (lawyer)
- Or under 801(d)(2)(B) -- adoptive statement
- Or under 801(d)(2)(D) -- agent or representative
- Potential difficulty is that treating EM as having adopted or authorized or
whatever to fall within (B), ©, or (D) cuz she didn't’ sign it; just lawyer did
Possibly a wrinkle cuz don’t always authorize what lawyer is sayin
-- want clients to have final say in whether he/she is admitting
something
- Probably will be admissible tho
- Some courts tho say parties need to sign -> it really depends on
court
- Considerations to make:
- IF pleading was admitted, if Masters was uncomfortable
with that -- he can call the lawyer as a friendly witness to
testify and try to blunt the fact of the admissions
- Some courts think about this as a policy matter to
encourage and keep open the possibility of full and free
pleading at pleading stage of the case, even if there’s
inconsistent pleading (or in the alternative positions)
- So then it gets really tricky to determine what’s an
admission and what’s just there for argument
- Not easy to say what party has embraced
as being the truth
- So view it in the context statement has arisen → do case-by-case
analysis
(2) May the prosecution introduce the driver’s testimony as to what EM’s
lawyer said after drinking that “I think they’re caving. I think they’ll settle
for under $15,000. They’ll be fools if they do. If they had decent experts, it
would be clear to them that the shot was fired from less than 4 feet away”?
- Admissible under 801(d)(2)(D) if the lawyer is representative of EM
- But it feels kinda outside the scope of his employment
- Or 801(d)(2)(C) if lawyer was authorized to make a statement on the
subject
- For some purposes in some settings, this lawyer is an agent and is an
authorized spokesperson for EM
- To the extent you have misgivings, they’re centered on the setting
in which this spokesperson spoke
- Content is relevant to role; but audience and setting are
NOT relevant
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-
If goal is to facilitate truth-finding ---> The lawyer is in the best
position to know the facts of the case -- so in a way it is better to
let the jury know this cuz this is good probative evidence
- But way to get it in to 801(d)(2) which is about making
client responsible for what they said in a setting → which
isnt’ really true here cuz client isn’t responsible
- So depends what you think is more important → probably
admissible
(3) May evidence of the final settlement be introduced for any purpose?
- Somewhere along the way, Masters probably adopted the terms of the
settlement -- so admissible under 801(D)(2)(B)
- Is there problem with the introduction of settlement at all?
- Not really relevant -- lots of reasons to settle that have nothing to do with
- Not good info jury can get out of settlement --- would probably
mislead jury
- So beter ruling here would be to exclude this evidence, not cuz it’s
potentially hearsay, but because it’s just not good evidence
- Doesn’t belong under FRE 403
4/14/2021
EXAM FORMAT !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
- Will follow guidelines he set forth in the syllabus
- There’s only one old exam → he’ll post it on canvas
- There will be limits on how long your answers can be
- Unless otherwise specified in the question, he is looking for answers based on
FRE (but sometimes common law comes up -- he might ask for comparison to common
law)
OTHER HEARSAY EXCEPTIONS
- Advice →
- Do not approach these exceptions seeking complete coherence
- THey don’t all make sense and they aren't’ all justified in ways you’re
likely to find objectively correct
- Do not approach them expecting clean, clear cut right and wrong answers of
whether an exception would apply
- Often turns on framing; quality of arguments on each side; balance of
considerations on the case/issue
- Recommended Approach → Concentrate on three Things when you encounter a
hearsay exception:
- (1) JUSTIFICATION FOR THE EXCEPTION (usually reliability or necessity)
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(2) RATIONALE FOR THE EXCEPTION
- WHY this particular exception is regarded as likely to-- Yield reliable information; or
- Fill a genuinely important/necessary evidentiary gay
- (3) KEY REQUIREMENTS -- What marks must be hit to trigger applicability of the exception?
- And -- where the answer is not obvious -- what factors tend to
influence courts as they decide whether the marks have been hit?
Justifications: Either the exception’s conditions suggest the statements they
admit are especially likely to be reliable, OR the hearsay speaker has faced or may
still face the test of cross-examination
- Exceptions of both types rest on circumstances that supposedly negate one or
more of the hearsay dangers
Some exceptions exist only when the speaker isn’t available
Judgments about requiring unavailability, like judgments about creating exceptions in the
first place, are based on judicial intuitions about the situations in which out-of-court
statements are likely to be trustworthy
Professor Stewart presents a psychological perspective
- Perception of height, weight, age, and personal identification are especially
vulnerable to inaccuracy
- Stereotypes cause problems
- Perception and memory are especially unreliable when the initial stimulus
is words → cuz people generally retain verbal descriptions of events less
accurately than they do visual perceptions
- “Sharpening” produces selective perception, retention, and reporting of a limited
number of details
- “Closure” = the tendency to make a report coherent and meaningful by
supplying material even though the material was not perceived.
- “Assimilation” = the process by which memory drops, transposes, imports,
and falsifies details as a result of the intellectual and emotional context
existing in the listener’s mind”
- Why right to cross examine is so important
- The way questions are worded profoundly affects the answers received
AVAILABILITY IMMATERIAL (FRE 803 EXCEPTIONS)
- 803 exceptions apply regardless of whether declarant is available or not available
→ doesn’t matter if witness is available to come in and give statement
- If statement exists in an out of court form and fits one of these exceptions,
it can be entered even if there is witness who could come in and testify to it
- Cuz out-of-court statement is thought to be at least or maybe more
reliable than statements declarant would make if they came in and
gave testimony in court instead
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Tactical exceptions 803 exceptions raise → how do you chose whether to
call the witness in or just admit it as out-of-court statement
- N.b. -- other side can call in the witness you decided not to call and
cross-examine them for statement you admitted as out-of-court
statement
Present Sense Impression
- FRE 803(1): PRESENT SENSE IMPRESSION: “A statement describing or
explaining an event or condition, made while or immediately after the declarant
perceived it.”
- Rationale: The absence of emotion enhances the reliability of perception; speed
avoids memory problems while limiting the time for reflection and falsification; the
presence of the person hearing the statement often means that an observer of
the event is present for cross-examination
- Ten indisputable characteristics of the 803(1) exception:
- (1) The described event or condition need not have caused excitement
- (2) The declaration need not directly relate to the principal litigated event
- (3) The speaker need not have been a participant in the perceived event
- (4) The speaker must have been a percipient witness
- (5) The speaker need not be identified
- (6) The speaker need not be shown to have been oath-worthy
- (7) Subject matter is restricted to a description of the observed event
- (8) Minimal time-lapse is permissible
- (9) Present sense impressions are NOT cumulative (i.e., a speaker’s
present sense impression is not inadmissible simply because the speaker
is a witness who testifies to the described event from the stand)
- (10) Impressions in opinion form are admissible
- FRE does not require corroboration (but some states do)
EXCITED UTTERANCES
- FRE 803(2): EXCITED UTTERANCE: A statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that it
caused
- Justification: Excitement stills reflective capacity, so statements made by
individuals feeling the stress of startling events are unlikely to be colored by
motives to deceive
- Requires that: (1) the event giving rise to the statement be startling enough
to still reflection and that (2) the speaker be under the influence of the
startling event when he makes his statement AND must be (3) relevant to
the subject matter
- Most courts allow the speaker’s excited statement to be used to establish the
event; some do not
- It should be a 104(a) decision, so should be allowed to consider it
- More difficulties have been caused by the requirement that the speaker be under
the influence of the exciting event
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-
Courts listen to testimony about the speaker’s apartment state of excitement in
determining admissibility, but they generally pay more attention to LAPSES OF
TIME. The shorter the lapse between the statement and the exciting events, the
more likely it is that the statement will be admitted.
In determining whether an individual is speaking under the influence of an
exciting event, courts look closely at the apparent spontaneity of the speech.
Self-serving statements arouse judicial suspicion, and remarks made in
response to questions are often excluded.
The excited utterance exception admits statements “relating to a startling event
or condition.” → This means that statements admitted under 803(2) need not
directly recount the event perceived so long as they relate to it in some way
A bystander remark, upon observing the fall, that about two hours earlier she had
told the supermarket to clean its floor, was held to relate sufficiently to the
exciting event to be admissible as an excited utterance.
Had the bystander remained calm after the fall, the remark could not have come
in as a present sense impression (cuz FRE 803(1) is limited to statements
“describing or explaining an event or condition.”
PROBLEM VI-42: Anonymous 911 caller -- description of two burglars.
- (1) Can the tapes of either or both calls be introduced against either
of the burglars?
- Are these statements hearsay? -- If offered Preliminary hearing, at which a question arises
about whether these officers had probable cause to detain
and arrest the two guys based on the 911 call that came
from this caller --->
- If it’s offered to show that these police officers had
probable cause -- it’s not hearsay
- Cuz for that issue, purpose is to show its
effect on the officers, not to show that
statement was true
- If it was offered instead at a trial as proof that they were
breaking into the restaurant -- would be hearsay - cuz now
out-of-court statement cuz offered for the truth for the
content (jury has to credit both 911 caller and that 911
caller was telling the truth-- gotta go all the way arond the
triangle; jury can’t make any use of it unless there’s
- If introduced for truth of matter they’re asserting (that these are the
guys the caller saw) then would be hearsay
- First: Call -- Present sense exception (803(1)) and excited
utterance (803(2)) → so admissible
- PRESENT SENSE EXCEPTION
- First call still happening
-
-
STatement describing or explaining ___
during/while proceeding …..
- Excited Utterance
- DO CRITERIA ---> find that
- (1) the event giving rise to the
statement be startling enough to still
reflection and that (2) the speaker be
under the influence of the startling
event when he makes his statement
AND must be (3) relevant to the
subject matter
- 1. Person possibly startled? → listen
to recording -- if person’s voice
sounds calm, maybe not startled
- But there’s something
inhernetly exciting about
watching a crime unfold
before your ideas -- whether
of not person sounds excited
- And they decided to call
cops, so probably startled
- 2.Still happening so probably still
under the influence
- 3. Statement relates to subject
matter
- So comes in under 803(2)
- Second Call -- Probably present sense impression under 803(1)
they say “they arrested the black guy”
(perfect tense) ; but some of it is still present
(describing white dude is still on roof)
- But they’re kinda linking the white guy to the
past event -- saying it’s same white dude as
they saw before
- But past statement he’s drawing
from is in itself admissible as present
sense impression, so even tho it
contains info from past statement,
it’s probably okay
- Excited Utterance → closer call than for 1st call
- But probably still cames in
(2) Different if the caller identified himself but died before trial?
-
-
Not different -- FRE 803 applies regardless of whether the
declarant is available
- As long as there’s good proof statement was made and
accurately reported, it’s admissible regardless of whether
declarant is available
- (3) Different if the tape recorder was not working, so introduced the
911 operator?
- 911 reporter’s statements would be hearsay of other non-excluded
hearsay
- There’s a much greater likelihood of misreporting,
misperception, more difficult to tell there was excitement in
the utterance under (2) ,etc.
- That’s not necessarily gonna keep it out → it’ll still
fit within 803(1) or (2) .
- A court might be concerned -- but can do
adversarial testimony to try to discredit her or
something
- Does NOT change the applicability of the hearsay exception
STATEMENTS OF PHYSICAL CONDITION
- WHEN STATEMENT IS MADE TO A LAY PERSON ---->
- FRE 803(3): Then-Existing Mental, Emotional, or PHysical Condition:
A statement of the declarant’s then-existing state of mind (such as motive,
intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not including a statement of
memory or belief to prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s will
- Admissible under the general exception for spontaneous statements that
reflect states of mind
- Two Basic Requirements:
- (1) The statement must reflect a condition that exists when
the statement is spoken
- (2) The statement must be spontaneous
- Judges have discretion to admit
- Statements admitted under the exception for bodily condition are usually
statements about pain or other bodily feelings.
- Usually must be based on personal knowledge or opinion rule
grounds UNLESS offered to show the speaker’s pain
- WHEN STATEMENT IS MADE TO A PHYSICIAN OR OTHER PERSON IN
ORDER TO SECURE MEDICAL TREATMENT ----->
- FRE 803(4): Statement Made for Medical Diagnosis or Treatment: A
statement that:
- (A) is made for--and is reasonably pertinent to--medical
diagnosis or treatment; and
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-
-
-
(B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause
FRE 803(3) → Any statement about physical condition that is admissible if made
to a layperson is, of course, admissible if made to a treating physician. Even
self-serving statements are not barred.
- Modern trend admits description of past symptoms made to secure
treatment and statements about the causes of illness and injury, if the
statement was made for diagnosis or treatment.
- Statements introduced only as the basis for an opinion are not considered
hearsay
FRE 803(4) → in providing an exception for statements made for the purposes of
medical diagnosis or treatment, it makes NO DISTINCTION between the
diagnoses of treating physicians and the diagnoses of doctors employed solely to
testify.
- Admissible statements include statements describing past symptoms as
well as statements about the cause or source of the ailment to the extent
that these are pertinent to either diagnosis or treatment.
- Not limited to statements made to a physician.
- Cuz it’s about patient’s belief in making the statement that
provides a guarantee of truthfulness
PROBLEM VI-44: KK suffering from severe headaches and muscle spasms
that led him to contact a neurologist. Tells the neurologist the story of
when his symptoms started. Also told the physical therapist, acupuncture
specialist and faith healer the story of what happened. Can KK call any of
the “doctors” to testify to any of the information he gave them before they
began treatment?
- Yes -- under FRE 803(4), it doesn’t matter that they are not all physicians
as long as he told them the story with the intention that they would help to
diagnose/treat him
- What are the requirements for 803(4):
- (a) statement is made for--and is reasonably pertinent
to--medical diagnosis or treatment -- And
- (b) statement must describe medical history; past and
present symptoms or sensations; their inception; or their
general cause -- Which statements qualify under the exception:
- (1) “I didn’t feel so bad immediately but I began to get several real
headaches” to neurologist
- Tells us about Inception of the illness , so yes under
803(4)(b)
- Describes symptoms - fits under 803(4)(b)
- (2) The headaches continued
-
-
-
Then existing physical condition, so it’s going to come in
under 803(3)
- (3) Two minute attack driving over here
- Yes, past symptom under (4)(b)
- Gas was type used to kill rats and bugs
- Yes under 803(4)(a) (reasonably pertinent) or (b) (general
cause)
- This guy worked for Ace
- Probably -- the doctor might want to know, so he can call
up the company and ask what kind of gas they use → so
pertinent to medical treatment/diagnosis (804(4)(B))
- Ace exterminating person was told Kasper would be working in the
well
- NO -- Not necessary for doctor to hear -- doesn’t come in -much more about assignment of fault than account of
circumstances necessary for cases
- Extermination Didn’t look in hole or even notice my ladder → no →
doesn’t have to deal with diagnosis or anything
- (BUT WHAT ABOUT OLD CHIEF NARRATIVE RELEVANCE? →
NO -- narrative relevance only goes to question of relevance; and
hearsay question does not deal with whether it is relevant or not
(doesn’t remove it’s inadmissible hearsay character)
- Narrative relevance is not the right solution for hearsay
problems when it comes to these statements within larger
report
Can you object that physical therapy and acupuncture and stuff is NOT
medical so doesn’t fall under FRE 803(4)?
- NO -- because rationale behind 803(4) is that people have the
inherent incentive to tell the truth to someone whom they’re
seeking medical care from → so doesn’t matter if it’s not a core
medical doctor M.D. (still incentive to tell the truth if you’re trying to
get help)
From whose perspective do we view PERTINENCE?
- If patient tells doctor something they think is pertinent, but it isn’t
actually pertinent for medical diagnosis to doctor, does it come in?
- If rationale behind FRE 803(4) is that you’re telling the truth
when you’re seeking medical care from person, then info
still probably has probative value / still telling truth
- But some patients meander a lot and tell like 20
stories to try to get to the point that don’t really
have to deal with injury
- Trial judges are vested with DISCRETION
-
-
Cut out stuff that’s too unrelated/disconnected from
what’s legitimately necessary for medical diagnosis
and treatment
- What about acupuncturist?
- Not in America treated as traditional medical treatment; but not
non-medical
- Person performing acupuncture here also is M.D. so
- Comes in cuz still counts as medicine
- Doesn’t matter that he didn’t believe in acupuncture → he
still went so had no reason to lie to acupuncturist
- What about the faith healer?
- Kasper was a big believer in this; but faith healer has 0 medical
degree + treatment provided was not anywhere close to
mainstream medical care
- But we can’t make this category of medical help too elastic
- This isn’t arguably medical treatment anymore
- So probably does NOT come in -- this is too far outside
medical treatment -- FRE 803(4) doesn’t apply
- But Kasper here had same incentive to tell the truth -- so maybe
there’s a way to get it in under some exception
- FRE 807 -- Residual Exception → “Under the following
conditions, a hearsay statement is NOT EXCLUDED by a
rule against hearsay even if the statement is not
admissible under a hearsay FRE 803 or 804, can be
admissible if……..
- (1) The statement is supported by sufficient
guarantees of trustworthiness--after considering the
totality of circumstances under which it was made
and evidence, if any, corroborating the statement;
and
- (2) It is more probative on the point for which it is
offered than any other evidence that the proponent
can obtain through reasonable efforts”
- Essentially if it doesn’t fit under 803 or 804 but still
seems trustworthy and more probative than
anything else
- Here, FRE 807 would only probably have a chance
if only faith healer was available
- Cuz needs to be under 807 more probative
on the point for which it is offered than any
other evidence that the proponent can
obtain through reasonable efforts
OTHER EXISTING STATES OF MIND
-
-
When state of mind is at issue in litigation, statements that circumstantially
suggest a speaker’s state of mind are not hearsay
- HOWEVER, if a statement asserts the very state of mind in question,
most courts view the assertion as hearsay because the jury can take the
statement at face value rather than try to reason circumstantially from it.
Hearsay statements asserting relevant states of mind are admissible under FRE
803(3) and similar common law exceptions
To Show Feelings:
- FRE 803(3) admits statements describing a speaker’s THEN existing
state of mind → this means that assertions of states of mind qualify for
the exception only if they purport to describe the speaker’s feelings when
she speaks
- Whether a state of mind at one time tends to prove a state of mind at
another time is a RELEVANCE and not a hearsay question
- The last clause of FRE 803(3), consistent with the practice in most states,
creates a special exception for statements describing past states of mind
or other past facts when those facts relate to the execution, revocation,
identification, or terms of the speaker’s will
- In other circumstances, hearsay references to past states of mind
are inadmissible
- The exception does NOT require speaker unavailability
- Courts seldom exclude statements relating states of mind because
they were responses to questions or because of obvious motives to
falsify
- Trial judge has considerable discretion in admitting -- if too
prejudicial can exclude it
- A statement that does not directly assert feelings may be offered as
INDIRECT EVIDENCE of a state of mind and not for the truth of what
it asserts
- Statements used to imply a state of mind are not technically hearsay, and
there is no way to eliminate the prejudicial aspects while still using them
to establish the relevant mental condition.
- PROBLEM VI-45: Kyle tells his friend that he is feeling great for a
number of reasons. Two days later, he is found dead due to apparent
carbon monoxide poisoning. Insurance Co. wants to introduce email
messages he wrote in past 6 months where he was upset?
- For what purpose can the email messages which Kyle had
written to friends during the preceding six months + cost of
divorce etc by introduced?
- To show that he’s bothered, and not for theri truth -- no
hearsay problems
- For what purpose can email message recent (2 weeks ago)
expressing that he had a potentially cancerous mole?
-
-
Can introduce to show he’s fearful / believed he was going
to die soon cuz he thought he had cancer maybe
- But issue is that there’s almost total overlap
between content of statement and his state of mind
- That’s not enough → can say it’s not
hearsay or hearsay that fits 803(3)
- Couldn’t introduce to prove mole was cancerous
- Court still has to do 403 balancing
- (1) Can his ex-wife put his friend on the stand to testify to
everything Kyle told him?
- Most of these statements are not hearsay -- cuz not being
introduced for their truth, but circumstantial indicators
instead to show his general mood
- Offered to show mood of despair does not persist
- Doesn’t matter they overlap entirely what she’s
trying to show such that they’re hearsay, they come
in under 803(3) cuz show his mental state
- Probative -- cuz show he was doing well
- The ones that might be hearsay are: big raise, clean bill of
health, poems → cuz kinda offered for truth of content
- Offered as yet more statements by Kyle as
evidence of his general state of mind
- BUT they’re backward looking → means there’s a
real risk they don’t satisfy the “then existing” state
of mind under 803(3) -- so can’t be introduced for
their truth (can just come in for what they say
circumstantially about his state of mind at the time)
- Would your answer be the same if Honesty had not introduced the
evidence it did? No
- (2) Would an open letter from the New Yorker rejecting his
poems affect the admissibility?
- No -- maybe decreases probative value tho, but doesn’t
necessarily affect admissibiltiy as not hearsay or as
hearsay admissible under 803(3)
- Doesn’t really affect admissibility, but does affect relevance
(so could be excluded under FRE 403)
- (3) Does the fact that the temperature decreased the day after
the game affect the admissibility of Kyle’s expression of joy
at the arrival of spring?
- Doesn’t change the admissibility of the evidence, but does
strongly go against the interest to introduce the evidence
because it’s potentially not that relevant
TO SHOW BEHAVIOR
-
-
-
More difficult problems arise when statements asserting or implying a
state of mind are offered to establish BEHAVIOR consistent with that
state of mind
One can distinguish two situations in which state of mind evidence is
offered to prove behavior:
- (1) To prove that the speaker has taken some action
consistent with her state of mind (Ex: when statements of
intent are offered to show action in accord with intent)
- (2) When an existing state of mind is offered to show the behavior
that caused it
The hearsay rule would be undermined if statements were admissible to
show beliefs when beliefs were relevant only as evidence of the facts that
may have given rise to them, courts ordinarily do not admit out-of-court
statements for this purpose
- SHEPARD V. UNITED STATES → statement did NOT meet dying
declaration hearsay exception Cuz had been offered at trial for its
truth and, even if the statement had been offered only to negate
an implication of suicide, the jury would almost certainly have
treated it as proof of what Dr. Shepard did.
- When the risk of confusion is so great as to upset the
balance of advantage, the evidence goes out
- There are times when a state of mind, if relevant, may be
proved by contemporaneous declarations of feeling or
intent.
- Declarations of intention, casting light upon the future,
have been sharply distinguished from declarations of
memory, pointing backwards to the past
- MUTUAL LIFE INS. CO V. HILLMON → marks the high water line
beyond which courts have been unwilling to go
- Statement of intent to go on the trip with Hillman should’ve
been admitted → whenever the intention is of itself a
distinct and material fact in a chain of circumstances, it
may be proved by contemporaneous oral or written
declarations of the party
- The letters in question were competent NOT as narratives
of facts communicated to the writer by others, nor as proof
that he actually went away from Wichita, but as evidence
that, shortly before the time when other evidence tended to
show that he went away, he had the intention of going, and
of going with Hillmon, which made it more probable both
that he did go and that he went with Hillmon than if there
had been no proof of such intention
-
-
-
Courts allow a statement of an intention to do something with
another to support not only the inference that the speaker did
what he said he would do in the company of the other person,
but also, since the two are not separable, to support the
inference that the other person did what the speaker
expected in the speaker’s company
- BETTER POLICY --- to exclude statements of intent like Arnie’s to
prove another’s actions when the statements are the only
evidence of the speaker’s actions or when the speaker is likely to
have acted as intended, even if he was wrong about who else
might be involved
PROBLEM VI-48: Henry (black man) is arrested for firing a gun at a
car as it was driving down Sunset Street. In its case-in-chief, the
prosecution presents witnesses who testify that Henry lives on
Sunset Street near the place of the killing, that he owns the gun that
could have fired the shots in question, and Henry left a bar five
blocks from the scene of the shooting with the gun in his pocket. In
his defense, Henry introduces two of his friends who testify that he
did not have a gun with him, and that he left the bar only after
gearing the ….and 911 tape
- Is this tape admissible? It’s an out of court statement offered for
the truth of it’s statement -- so its hearsay
- Is it under an exception?
- Is it a present sense impression (803(1))? -- Yes
- Probably under admissible also 803(2)
- Suppose caller instead ““I was just on sunset Street 15 min ago
and some white guy was firing a gun at the cars driving by?”
- Probably too far to be present sense impression or 803(2)
excited utterance exception
- It would make difference if you could hear shots on the tape? -cuz makes it clear timing of call is really close to time of shooting
- Need to think about ways to prove timing
PROBLEM VI-68: Victim who was stabbed suffered memory loss as a
result of the shock. But also had an elevated BAC.
- (a) Can the statement that the victim made be introduced as
past recollection recorded?
- Yes, under FRE 803(5) - “made or adopted” at a time when
the matter was fresh
- (b) What must be done to qualify for admission?
- The document that is being introduced must be the original
report that the officer took.
RECORDED RECOLLECTION
-
-
-
-
-
FRE 803(5): Recorded Recollection: A record that
- (A) is on a matter that the witness once knew about but now cannot recall well
enough to testify fully and accurately;
- Record must relate to something witness once knew FIRSTHAND
- Witness’s memory of the event described must have faded to the point
that he can no longer testify fully and accurately about the event in
question
- (B) was made or adopted by the witness when the matter was fresh in the
witness’s memory; and
- (C) accurately reflect the witness’s knowledge at the time it was written
- Means that the witness must testify either that she remembers making an
accurate recording of the event in question although she no longer
remembers the facts recorded , OR, if the witness has entirely forgotten
the situation in which the recording was made, that she is confident she
would not have written or adopted some description of the facts UNLESS
that description truly described her observations at the time
- If admitted, the record may be read into evidence but may be received as an
exhibit only if offered by an adverse party
Other records, such as Memoranda, may be introduced under this exception even when
the witness did not make the record.
- It is sufficient that the witness adopted the record as a reflection of her
knowledge.
- Ex: If a witness dictated an account of her observations to a third party and
checked it for accuracy, or read and endorsed an account prepared by a third
party that reported the same facts that the witness observed, the account will be
admitted as the witness’s recorded recollection as long as the other conditions
are met
- Ex: If the witness dictated an account while the matter was fresh in her mind but
without checking the transcript for accuracy, courts generally ADMIT the account
if the witness testifies that her oral statements accurately reported what she
observed and the transcriber testifies that the transcript accurately recounts what
he heard the witness say
Needs to be simultaneous transcription
CanNOT testify orally to a report of another, even if the other swears her report was
accurate when made and the testifying witness states that he has a clear memory of
what the other said
When exception is invoked
- The “original document” or “best evidence” rule requires that the record
introduced be the original memorandum UNLESS the proponent can show that
the original is unavailable through no fault of her own
- FRE 803(5) provides that the record may not be offered as an exhibit unless the
adverse party requests it
Do NOT confuse with the use of recorded information to refresh recollection:
-
-
A witness whose memory of an event is hazy may be given a copy of a
statement, a map, et. to aid recall → if the witness’s memory is jogged by the
information, she is allowed to relate her refreshed recollection of the event
- Since witnesses with refreshed memory purport to be speaking from
present recollection, the information used to revive their recollection never
enters into evidence, is not seen by the jury, and is NOT HEARSAY
- Can refresh witness’ recollection in private before she takes the stand too
- BUT FRE 612 gives opposing counsel a right to see any writings used
before trial to refresh a witness’s memory “if the court decides that justice
requires the party to have those options.”
PROBLEM VI-65 (page 665): Victim who was stabbed made statement while
bleeding out to police officer: “I was drinking with my son’s friends. One of them
(Samson) started being nasty and she told him to shut up + he stabbed me.” She
was immediately taken into operating room and she suffered memory loss as a
result of the shock. Doctors don’t ever expect her to remember. Three hours after
operation ended and she was emerging from anesthetic, police read to her her
statement, asking her if it was her own true recollection and after she nodded yes,
had her sign each page fo the statement. But also had an elevated BAC while
signing.
- (a) Can the statement the victim made be introduced as past recollection
recorded?
- Past recollection recorded vs. Present recollection refreshed
- Refreshed → just showing witness something to refresh their
memory and witness is able to then testify from current memory
- Recorded (803(5)) → They don’t have current memory...relying
fully on past thing
- Requirements for FRE 803(5): Past Recollection Recorded:
- (1) recording is on a matter that the witness once knew about but
now cannot recall well enough to testify fully and accurately
- She experienced it firsthand, but now suffering memory
loss so can’t testify about it from current memory
- (2) recording was made or adopted by the witness when the
matter was fresh in the witness’s memory; and
- She signed it and nodded her head saying it’s accurate →
BUT she’s just out of surgery, under anesthesia, and super
high BAC at time she signed it
- Needs to be somewhat reliable → She needs to have
some level of awareness or understanding of what is being
adopted for judge to find this requirement satisfied
- She nodded -- that shows some awareness →
she’s probably angry about being assaulted so
maybe
-
-
You’d want them to be able to check and verify what was
written based on what she said -- do we trust that she gave
that kind of check
- Could look to other people at hospital and they could help
say whether she’d be in her right mind with that BAC /
under anesthesia, etc. etc.
- (3) recording accurately reflect the witness’s knowledge at the
time it was written
- Yes -- no reason to think police transcribed it wrong
- Also potential issue is that it might not be fully based on personal
knowledge cuz she was stabbed in the back, but is claiming to know who
exactly it was that stabbed her
- She technically lacks personal knowledge cuz she wasn’t able to
observe the attack
- That’s issue of weight, not admissibility
- Same thing with the fact that she’s drunk -- it might have
some weight on her credibility, but let jury make of it as
they will -- it’s not enough to exclude it
(b) What must be done to qualify for admission?
- The document that is being introduced must be the original report the
officer took (Original Document Rule)
BUSINESS RECORDS
- The Shopbook Rule
- To ensure reliability, different jurisdictions have required one or more of the
following guarantees:
- (1) A supplemental oath taken by the merchant as to the justness of his
accounts
- (2) Inspection by the court to determine if the books were fairly kept in the
regular course of business
- (3) Testimony that the merchant kept honest books
- (4) Proof apart from the books that at least some portion of the goods
charged to an account had been actually delivered
- Regularly Kept Records:
- Admits the regularly kept records of business establishments
- Guarantees of reliability are found in three requirements:
- (a) The entries must be original entries made in the routine of a business
- (b) The entries must have been made upon the personal knowledge
of the recorder or of someone reporting to him, and
- © the entries must have been made at or near the time of the transaction
recorded
- Justifications
-
-
-
-
-
-
Businesses usually don’t make big mistakes or lie in their regularly kept
records
- Likely to be error free cuz customers would complain about errors
Statutory Reform
- Commonwealth Fund Act and the Uniform Business Records as Evidence Acts
- Both statutes eliminated the common law requirement that all individuals
who prepared or furnished recorded info be in some way accounted for
- Both eliminated the unavailability requirement
- Both defined business very broadly to include all sorts of businesses,
professions, etc.
- Records were admissible under these acts if they were made in the
regular course of business following ordinary business procedures at
about the time of the event or transaction recorded
Business Duty and Informants
- Cases interpreting the Commonwealth Fund Act -- limited it
- Johnson v. Lutz -- held that the record (accident report prepared by
police officer based on statements of those present at scene of the
accident) was INADMISSIBLE when offered for the truth of the
statements therein recorded
- Court interpreted the “lack of personal knowledge” language as
applying only when those providing information incorporated in the
record had a BUSINESS DUTY to transmit information to the
entrant or maker
Regular Course of Business
- Palmer v. Hoffman -- Did not allow him to introduce statements made by train’s
engineer to his superior because their primary utility is in litigating not in
railroading
- Accident reports are not “typical of entries made systematically or as a
matter of routine to record events or occurrences, to reflect transactions
with others, or to provide internal controls”
Opinions in Business Records:
- When an opinion is incorporated in a business record, the court will
examine the nature of the opinion to determine admissibility
- The more speculative the opinion, the greater the probability of exclusion
- As long as a diagnosis reflects a standard expert judgment based on a
set of reasonably objective criteria, courts have little trouble in admitting it
- To admit expert testimony, it should elucidate the bases of the
expert’s reasoning and indicate the way in which different facts
affect the expert’s ultimate conclusion
Computer Records
- Require a more technical foundation than the typical business record and may
necessitate providing opposing counsel with programming information and/or the
opportunity to run tests on the proponent’s machine
-
-
-
As long as it is using info recorded before litigation was in mind, it should be ok
that printout was prepared specifically for information for litigation
- The time at which information was entered onto the computer is
unimportant if that information accurately reproduces records made at or
near the time of the transaction
Absence of an Entry
- When, as a matter of business routine, an entry in a business record could be
expected if an event occurred, most courts allow the absence of an entry to be
shown as evidence of the event’s non-occurrence
Other Statutes -- The Federal Rule
- FRE 803(6): Records of a Regularly Conducted Activity: A record of an act,
event, condition, or diagnosis if:
- (A) The record was made at or near the time by--or from information
transmitted by--someone with knowledge
- (B) The record was kept in the course of a regularly conducted activity of
a business organization, occupation, or calling, whether or not for profit;
- (C) Making the record was a regular practice of that activity;
- (D) All these conditions are shown by the testimony of the custodian or
another qualified witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification; and
- (E) Neither the source of information nor the method or circumstances of
preparation indicate a lack of trustworthiness
- FRE 803(7): Absence of Record of a Regularly Conducted Activity: evidence
that a matter is not included in a record described in paragraph (6) if:
- (A) the evidence is admitted to prove that the matter did not occur or
exist;
- (B) A record was regularly kept for a matter of that kind; AND
- © Neither the possible source of the information nor other circumstances
indicate a lack of trustworthiness
- So data compilations are specifically made admissible, leaving no questions
concerning the status of computer records
- Opinions and diagnoses are specifically declared admissible
- When, however, records are based on the statements of information, the
rule of Johnson v. Lutz applies and the record is admissible only if the
statement was transmitted as part of a regular business activity
- Does NOT fully accept Palmer v. Hoffman tho → absence of routine renders
records inadmissible under FRE 803(6) only when their non-routine indicates a
lack of trustworthiness (like positive motives to misrepresent)
- PROBLEM VI-66 (page. 673): Mr. Minton is lawyer, and coin collection. It’s a
big chunk of what he does, but coin collecting is not his profession.
Dispute erupts over missing coin. Minton’s widow says they were
supposed to send three but they only received two, so they shouldn’t have
to pay. In order to prove they never received third one, they hope to present
the business record the final page of Minton’s “Coin Register.” The estate
claims the absence of any notation acknowledging receipt of the silver
dollar should be admitted as evidence that the coin never arrived.
- (a) Seeks to introduce that absence of a record as evidence that the
coin was never received. How should court rule
- assertive conduct → probably intended to claim that he did not
receive the third coin
- Is coin record a business record / record of regularly conducted
activity at all? -- Minton is a lawyer primarily, not a coin seller.
- Does it count as a business? -- But FRE 803(6)(B) says
“calling” so hobby is definitely within parameters of this rule
- Probably regularly conducted activity
- Does NOT have to be person’s primary occupation to
count as regularly conducted activity, as long as it is
done with regularity and specificity, etc.
- Make sure elements of 803(6) all met
- FRE 803(6) -- Records of a Regularly Conducted
Activity:
- (A) The record was made at or near the time
by--or from information transmitted
by--someone with knowledge
- YES
- (B) The record was kept in the course of a
regularly conducted activity of a business
organization, occupation, or calling, whether or
not for profit;
- Yes -- he’s very meticulous about it
- (C) Making the record was a regular practice of
that activity;
- Yes
- (D) All these conditions are shown by the
testimony of the custodian or another qualified
witness, or by a certification that complies with Rule
902(11) or (12) or with a statute permitting certification;
and
- Yeah she’s qualified → she’s wife
- (E) Neither the source of information nor the
method or circumstances of preparation
indicate a lack of trustworthiness
- No signs of untrustworthiness
- For 803(6), A, B, and C are shown by person
attempting to invoke it -- then it’s presumptively
admissible; but then it’s on the onus of the opponent
-
of introducing it to raise D and E to show that there’s
some reason why record isn’t trustworthy or whatever
and not what it purports to be
- Burden shifts
- One thing that could be concerning is that they’re only
introducing the last page of it → maybe should show more
of it to prove it’s really all consistent big
- Or if it was at the bottom of the page (like if this
stuff went all the way down to bottom of page), it
could be a problem there like the other coin is
written on the back side of the page
- Then ask 803(7) stuff
- This is 803(7) problem cuz trying to use absence of record
to prove event
- FRE 803(7): Absence of Record of a REgularly
Conducted Activity: evidence that a matter is not
included in a record described in paragraph (6) if:
- (A) the evidence is admitted to prove that the
matter did not occur or exist;
- (B) A record was regularly kept for a matter of that
kind; AND
- © Neither the possible source of the information nor
other circumstances indicate a lack of
trustworthiness
- YES -- its admissible for this purpose
(b) Seeks to introduce portion of the record for an autobiography
that he dictated to his wife the night he died: “I don’t know why I do
business with Midas. They’re so unreliable. They were supposed to
deliver the silver dollar today….If they sold it someone else, I’ll stop
doing business with them”
- It is hearsay → cuz introduced for the truth
- Is this a record kept in the course of regularly conducted activity of
the business? →
- So what is the regularly conducted activity? -- collecting
coins, NOT talking about his exploits with coins
- This not really in the course of regularly conducted
business activity -- so not admissible cuz not within
parameters of exception
- He was trying to write an autobiography -- so this probably more
geared toward that objective than keeping complete record
- RATIONALE BEHIND 803(6) -- people engaged in a
regularly conducted activity which will generate record
-
keeping have a very powerful incentive to keep good
records
- You can’t maintain a smooth, operating enterprise
for very long if you keep bad records
- When activity is about enterprise in which it’s
engaged, FRE assumes they're being honest
because lying in those records will cause business
to fall apart itself...but once you move outside the
interest of keeping good records for the sake of
operating the entity, the basis of trusting the
truthfulness of that record dissipates
- SO here, this doesn’t fit into rationale → especially
cuz in autobiography, people tend to embellish
things -- so it’s not likely to be honest like record
© Testimony of his chauffeur that he did not find the silver dollar
(chauffeur going up to the stand to testify himself)
- Not hearsay -- all admissible as personal knowledge
- It’s relevant -- enough to be admissible,,, let jury decide weight
- Would be even more relevant if chauffeur knew the coins
were always kept there and every night he would check,
etc, etc.
PUBLIC RECORDS AND REPORTS
- FRE 803(8): Public Records: A record or [written] statement of a public office if:
- (A) It sets out:
- (i) the office’s activities;
- (ii) a matter observed while under a legal duty to report, but not including,
in a criminal case, a matter observed by law enforcement personnel; or
- Observations of public officials are admissible so long as they
were made in the line of duty and there was a duty to report them
- Does NOT apply in criminal cases to matters observed by police
officers and law enforcement personnel (ex: Customs Service
chemist; IRS agents; NOT employees of medical examiner tho)
- (iii) in a civil case or against the government in a criminal case, factual
findings from a legally authorized investigation; and
- Opens the door to a lot of evidence -- viewed broadly
- In Beech Aircraft Corp v. Rainey, court held that a report
containing an Air Force officer’s admittedly speculative
conclusions about the cause of the crash had been
properly admitted into evidence
-
-
-
-
BUT lower crts r reluctant to characterize legal conclusions
as “factual findings,” so in admitting reports under FRE
803(8)(A)(iii), they often excise judgments of law
- Courts generally read the word “investigation” broadly -administrative hearings resulting in factual findings ; accident
reports
- A duty to investigate is not needed for a report to be admissible
- It is sufficient that the investigation be authorized by law
- DOUBLE HEARSAY PROBLEMS
- Admits factual findings that are partially based on hearsay
- Gov agent may report to another agent who prepares
the official report
- Agency’s conclusions may be based in whole or in
part on statements of those who had no duty to talk to
gov agents
- The fact that a report is based on the statements of those
with no official duty to speak does NOT mean that the factual
findings it contains will be inadmissible
- BUT hearsay statements included in such reports are
often excluded
- Protects criminal defendants from the introduction of factual
findings resulting from investigations
- (B) Neither the source of the information nor other circumstances indicate a lack
of trustworthiness
FRE 803(8) made evaluative reports generally admissible EXCEPT when offered against
the defendant in a criminal case.
- Those statutes that specifically authorize the admission of evaluative reports are
no longer necessary
FRE 803(8) applies to the records of ALL public offices and agencies, state or federal,
and has been interpreted by some courts to include the public records and reports of the
agencies of foreign governments
PROBLEM VI-75 (page 689): Dr. Waterman (expert employed by Customs Service)
too sick to testify. P seeks to have his colleague authenticate reports that he
prepared as either business or public records: (1) worksheet and (2) final report of
chemical analysis done in lab
- For FRE 803(8) (public hearsay exception), must establish that W is a law
enforcement personnel and was under a legal duty to report
- Someone who works for Customs Service -- is considered law
enforcement personnel → so Waterman is law enforcement personnel
- Large part of job is analyzing substances taken from criminals
believed to be drugs
-
-
-
This is a criminal case → 803(8)(a)(ii) -- “but not including for criminal
proceedings at least where those documents are observed by law
enforcement personnel “
- So is he a law enforcement personnel? Yes
- Also consider 803(8)(a)(iii) -- specifies circumstances under which
it can be used -- can be used only in a civil case or against the
government -- SO CAN’T USE IT AGAINST THE CRIMINAL
DEFENDANT
- This rule intentionally drawn to prohibit introduction of records
against criminal defendants
- So excluded under 803(8)
Probably admissible under 803(6) tho (records of regularly conducted
organizational activity / business records)
- Criteria for 803(6) are met -- (a), (b), and © look like they’re probably met
but Dr. Barrels looks like she’s a good person to talk about it under (d)
- Barrels is only there to talk about what Waterman prepared -Barrels there to say my colleague is sick but I can interpret what
Waterman did and report it to you
- But there is safety mechanism in subpart (e) -- could oakes argue
there’s something inherently untrustworthy about methods they
used to prepare
- Can you defeat it under (e) → Waterman worked for the
government and knew he was doing it for purpose of
prosecuting Oakes → he was on government’s side
(prosecutor’s side) so untrustworthy
- BUT that’s too reaching -- that would cover every
single instance of results arrived at from
government crime labs → saying they can never
be trustworthy
But if 803(8) says you can’t do it, how could you do it through 803(6)?
- This is inconsistent → especially cuz 803(8) is CLEAR in its prohibition of
this , while 803(6) is potentially opening door 803(8) wants to keep locked
- Some courts say government can’t use 803(6)
- Some courts allow some use of 803(6) but it depends on the
nature of the information reported in business record
- Things that are very routine like booking info, things that
are readily observable and not the product of excessive
analysis might be admissible - you can use 803(6)
- If its acquired through investigation or scientific analysis,
you can’t admit through 803(6) cuz it’s so inconsistent with
policy expressed in 803(8)
-
PROBLEM VI-69 (page 682): Testimony of Rachel Duty (passenger in Nyland’s car).
Car accident. There is insurance investigator named (Kalven) to whom some
statements have been made. There’s back and forth between parties in court.
- (1) Can a picture taken two weeks ago be used to refresh memory of the
scene that happened 2 ½ years prior -- Yes under 612
- A picture can be used to refresh memory of witness
- Does NOT matter that photo taken in a different season
- Would not matter if handed her a ham sandwich on a plate and
asked her if this refreshed her recollection -- would not matter to
rules governing the proceedings -- doesn’t transfress any rules
refreshing aids are pretty broad → anything can be used
to refresh a witness’ recollection - if it jogs the witness’
memories, it’s usable
- (2) Should that same picture be permitted to be shown to the jury?
- NO if D (party who called the witness) asked for it → under FRE 612(b)
- When a witness’ recollection is refreshed, the evidence is the
witnesss’ testimony drawn from the newly refreshed recollection,
not from the thing used to refresh
- So there’s no reason to introduce the refresher
- There’d have to be separate basis to introduce refresher
- HOW SHOULD COURT RULE IF P’S COUNSEL MAKES THE
REQUEST TO SHOW THE PICTURE TO THE JURY
- YES -- Under 612(b), the adverse party has the right to introduce
into evidence any portion that relates to the witness’ testimony
- When witness’ witness gets refreshed, people in room
probably haboring doubt whether this is actually refreshed
recollection or just read it off the page or noticed it on the
picture
- So the opposing party is allowed to test the quality
of what refresher was
- And within that, it’s now being claimed that it
was sufficient to refresh recollection so
relevant -- , so the judge can be persuaded
that the jury should see the refresher so
they have a greater basis on which to
assess the quality and credibility of witness’
refreshed tesitmony
- (3) Is the report that Duty made to the insurance company’s accident
investigator Calvin a past recollection recorded (under 803(5)) or a
business statement (under 803(6))?
- Could be past recollection recorded because she signed it and therefore
adopted it under FRE 803(b)(5)(B)
-
-
Duty testifies that her mind is a complete blank → what she’s said
is more than rule requires (it’s enough to satisfy terms of rule to
not be able to testify fully or accurately)
- Under common law was much closer to complete blank -but FRE is less demanding
- She signed it but she’s 50/50 on whether she read it after she
made testimony → so can she adopt it?
- Possibly counts as adopted it --- but very uncomfortable
for lawyer
- What might defense council have done here to
avoid those kinds of problems and strengthen case
for admission?
- Could sit down with witnesses before
testimony and question them -- train them
- (can’t tell them to lie tho)
- But tell them to really think about it
beforehand and see what can pull
from memory -- Frame the question differently -- “does your
signature on your document reflect that you
read the document?”
- Even if you get objection that it’s
leading, when you open it back up,
the witness knows what you’re
looking for
- Counsel could’ve required Calvin (insurance
guy) and asked him whether he took it down
verbatim and saw her read it and sign it, etc.
Could NOT be business record because Duty had no business duty to
record that information
- Works for insurance company -- this is what he does every day -goes out and interviews witnesses and generates documentation
- BUT Duty is the source and Duty has no kind of inherent
obligation of her own based on her position in this scenario
as passenger in the accident to have any obligation to
report
- She’s just person who got hurt in car accident → there’s
assumptio nthat people who make business records have
duty to be accurate; there’s some other reason to be
accurate
- But Duty has no obligation to be accurate, - she’s
not in the business of being in car accidents -- so
probably not a busienss record under 803(6)
-
-
-
business record cuz it doesnt’ fit within rationale for
why should be admitted
What could council have done to strengthen this as business
record? (main problem was Duty didn’t have a duty)?
- Could call Calvin and he could say he did this in
course of his duty, etc etc,
- Would take care of both levels of hearsay
- Duty said what she said out of court
- And Calvin took it down out of court →
admissible as business records cuz He DID
have a business duty
- So only thing needs to be taken care of
is that Duty said in it was accurate, and
could get that in as recorded recollection
(4) Can the past recorded recollection be introduced into evidence?
- Under FRE 803(5), it can be introduced into evidence as an exhibit only if
offered by the adverse party -- so here, cuz the party put this evidence
forward is the party that is seeking to introduce the evidence as an
exhibit, it shouldn’t be permitted to be introduced
- If you satisfy it as 803(5) requirements - is it the content of the writing or
the writing itself that’s admissible? Just the content
- Look in last line of 803(5) -- Recorded recollection exception is only supposed to provide what
would get from oral testimony if testifying witness hadn’t forgotten
- It gets to be read to the jury; document isn’t given to the jury (cuz if
given would get more out of it than they should -- has
disproportionate influence cuz it’s there in front of them and not
just something they heard and don’t remember)
- BUT if offered by adverse party, would be admisslbe as
exhibit
TESTIMONY OF KALVEN
(5) Can only part of the past recorded recollection be introduced into
evidence?
- Are these arguments implicating a rule? -- relevance is going to play a
role (FRE 401)
- FRE 106 -- Rule of Completeness
- Where the remainder of the document in fairness ought to be
considered at the same time
- If one side is putting in part of a document, does fairness
require that the jury gets to see the whole thing? -- will they
be shielded from the rest of the story?
-
-
-
HERE, it’s too soon to tell -- we need to know the
content and why it’s relevant
- If remainder is NOT relevant, then judge
has discretion to say not
- If it is relevant, then judge can grant P’s
request to put the whole thing in
- Or it could be that relevance of the rest of it
is not clear yet- --- if a basis for putting in
the rest in later, then can introduce it later
(6) Should the court permit the question about who the investigator worked
for which will allow the jury to recognize that the true defendant is the
insurance company? (Can P’s counseil elicit from Clavin that he works for
Defendant’s insurance company -- the real checkbook here belongs to
insurance company (insurance company is real defendant)?)
- Under 411 you’re not allowed to introduce evidence of the insurance
company ; but D could argue it shows bias
- Basis of the Defense’s objection is FRE 411 →
- (but P’s counsel might really be trying to elicit this fact for different,
non-prohibited purpose) → purpose P’s counsel would claim is
that it’s to show that Calvin;s report is BIASED for insurance
company’s itnerest/customers
- It’s NOT to show negligence or whatever under FRE 411
- So if that’s the purpose, the objection under FRE 411
should be overruled
- Should let this come in
(7) Should the court permit the report to come in as a business record even
though: (1) the speaker was under no duty to tell the insurance agent
anything; and (2) the report wasn’t made at the time of the accident, and?
- Under FRE 803(6), the record is admissible, even if it wasn’t made at the
exact moment, but was made near the time of the act/event and the
record was a regular practice of that activity
- The objection here is a little incomplete
- This report has two layers of hearsay → (1) the person who took that
report ; (2) report is what someone else said
- Hearsay status of what Bryce said to Kalven:
- Bryce was injured person (P) → Bryce is a party
- The report is being offered against Bryce → so this would
be an admission (since Bryce is a party)(FRE 801(d)(2)(A))
- Cuz it’s actual admission out of mouth of opponent
- Does the fact that this is an admission enough to take care of the
business duty requirement for 803(6) purposes (the
trustworthiness concern captured by 803(6))
-
-
-
Ordinarily you look for independent duty to report good
information for trustworthiness
- But here we don’t really have that concern because the
party is there in the courtroom → so if there’s some
explanation, the party can get on the stand and give it
- So that piece of 803(6) is taken care of cuz Bryce’s
statement is independently admissible
But what about fact that this statement exists in the form of a report by
Kalven → so it also needs to qualify under FRE 803(6) to be admissible
- Only real complaint by P would be that report wasn’t made at or
near the time of the accident (taken 3 days later)
- This statement was made by Bryce to Kalven and it’s trying to be
admitted against Brycel.
- So the timing that counts here isn’t tha
- The real question if how long after the conversation with
Bryce did Kalven write down the statement in the report
- It’s not about the time difference between the
accident and when she gave the report -- that
doesn’t really have to deal with the accuracy of the
business record
- THere’s not really time requirement for 803(6)
anyway
- Since Kalven wrote it down right after Bryce gave
him statement
Could Plaintiff’s counsel have come up with any stronger arguments in
support of her claim that report is inadmissible as a business record?
- Palmer v. Hoffman -- report was prepared with litigation in
mind (accident reports are not trustworthy as business
records) ---> JUST TREAT THIS AS PART OF (E) SHOWING
- Don’t automatically exclude if that
- Kalven basically works for insurance company → so
- Maybe since Kalven works for insurance company (and interest
insurance company has in every accident case in making
defendant win so don’t have to pay out) -- he’s untrustworthy
- So P’s counsel could argue Kalven is inherently
untrustworthy as recorder of facts or statements that might
prove harmful to his employer’s interests in litigation
- BUT Judge would probably overturn this argument + let the
accident report in
- Bryce is present in court -- if he has a problem with her
statement in court, she can take the stand herself
- To the extent that Kalvin has built in interest for one side -is more of a question of WEIGHT than admissibility
-
-
-
How should Defendant’s Counsel respond to the arguments Plaintiff’s
counsel has made?
OBJECTIONS: P’s counsel objects that recollection was not made when accident
was fresh?
- We want to use Kalven’s summary -- so it’s about freshness of Kalven’s
recollection of whatever Bryce said to Kalven as he wrote summary
- (not about the freshness of when the accident was to when
summary made → that’s Bryce’s problem
- For 803(5) it is about how fresh the information was that
went into record -- he’s just recording her statement - so
it’s about time from when statement was made to when it
was written
- Summary was made pretty much simultaneously with when he
heard statement from Bryce → so overturn P’s objections
(8) Does the recorded recollection have to be a transcription of what the
witness said, or can it be a summary to qualify under the exception?
- Fine for it to be a summary -- under 803(5), there is no requirement that it
must be a complete transcript of what the witness said -- however, it must
just have accurately reflected his knowledge at the time that it was written
- It just has to be A record -- doesn’t need to be transcript
- Any always remember, if Bryce wants to protest it, she can get on
the stand and testify
- And P’s counsel can always give other evidence that she’s
- There’s no reason to doubt he made an accurate record when info was
fresh → there’s nobody outside Bryce to contradict him, Kalven’s
self-made foundation is enough
- He said does not have good enough memory to testify accurately testify
- So P’s counsel’s objection is overruled --- this fits under FRE 803(5)
OTHER (LESSER) HEARSAY FRE 803 EXCEPTIONS
- Also don’t require prior proof of the speaker’s unavailability
- These are all pretty straightforward + specific (and less frequently implicated)
- (9) Public Records of Vital Statistics: A record of birth, death, or marriage, if reported
to a public office in accordance with a legal duty.
- (10) Absence of a Public Record: Testimony--or a certification under FRE 902--that a
diligent search failed to disclose a public record or statement if the testimony or
certification is admitted to prove that:
- (A) The record or statement does not exist; or
- (B) a matter did not occur or exist, if a public office regularly kept a record or
statement for a matter of that kind
-
-
-
-
-
-
-
-
If you achieve authentication, you achieve admissibility of substance of document
(unless prejudicial )
(11) Records of Religious Organizations Concerning Personal or Family History: A
statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or
marriage, or similar facts of personal or family history, contained in a regularly kept
record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies: A statement of fact
contained in a certificate:
- (A) made by a person who is authorized by a religious organization or by law to
perform the act certified;
- (B) attesting that the person performed a marriage or similar ceremony or
administers a sacrament; AND
- (C) purporting to have been issued at the time of the act or within a reasonable
time after it
(13) Family Records: A statement of fact about personal or family history contained in a
family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a
portrait, or engraving on an urn or burial marker.”
(14) Records of Documents That Affect an Interest in Property: The record of a
document that purports to establish or affect an interest in property if:
- (A) the record is admitted to prove the content of the original recorded document,
along with its signing and its delivery by each person who purports to have
signed it;
- (B) the record is kept in a public office; AND
- (C) a statute authorizes recording documents of that kind in that office
(15) Statements in Documents That Affect an Interest in Property: A statement
contained in a document that purports to establish or affect an interest in property if the
matter stated was relevant to the document’s purpose--unless later dealings with the
property are inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents: A statement in a document that is (1) at least
20 years old AND (2) whose authenticity is established (as provided in FRE 901(b)(8))
(17) Market Reports and Similar Commercial Publications: Market quotations, lists,
directories, or other compilations that are generally relied on by the public or by persons
in particular occupations.
(18) Statements in LEARNED TREATISES, Periodicals, or Pamphlets: IF
- (A) The statement is called to the attention of an expert witness on
cross-examination or relied on by the expert on direct examination; AND
- (B) The publication is established as a reliable authority by the expert’s
admission or testimony, by another expert’s testimony, or by judicial notice
- If admitted, the statement may be read into evidence, but is NOT received
as an EXHIBIT
- Rule avoids the danger of misunderstanding and misapplication by
limiting the use of treatises as substantive evidence to situations in which
-
-
an expert is on the stand and available to explain and assist in the
application of the treatise if desired.
- Greatest relaxation is found in decisions allowing use of the treatise on
cross-examination when its status as an authority is established by any
means.
- Ex: Reilly v. Pinkus → court pointed out that testing of professional
knowledge was incomplete without exploration of the witness’
knowledge of and attitude toward established treatises in the field
- Does NOT require that the witness rely upon or recognize treatise as
authoritative, thus avoiding the possibility that the expert may at the
outset block cross-examination by refusing to concede reliance or
authoritativeness
- Converts what used to be an impeachment rule into the substantive use of
everything that can be qualified into the category of a “learned treatise”
- Use this generally with EXPERTS (testifying for you or other side)
- Pretty easy to qualify a treatise
- Just call it to the attention of the opposing expert
- Can get your expert to qualify it
- Can get one or the other to call it a reliable authority
- Get judge to say it’s a reliable authority
- Once qualify it, can read it into the record
- Can be used by the jury not only as evidence of inconsistencies of what
opposing party’s expert said BUT ALSO AS SUBSTANTIVE EVIDENCE
- Only real limitation is that the source material document itself does not go
to the jury → (but can remind jury of it in closing if important)
- VERY POWERFUL AND USEFUL TOOL IF YOU’RE DEALING WITH EXPERTS
(19) Reputation Concerning Personal or Family History
(20) Reputation Concerning Boundaries or General History of Land
(21) Reputation Concerning Character:
- Essentially reiteration of Rule 405(a) (proving character by reputation) in the
context of hearsay
- Trustworthiness in REPUTATION EVIDENCE when “the topic is such that the
facts are likely to have been inquired about and that persons having personal
knowledge have disclosed facts which have thus been discussed in the
community”
- RElationship between 403 and character rules → can do it through reputation
(via 405(a)) but really need a hearsay exception to get in reputation evidence as
well (803(21))
- Once you do that, not only is the character evidence is admissible, but the
hearsay quality of it does not prevent the jury from considering it
(22) Judgment of a Previous Conviction: Evidence of a final judgment of conviction if:
- (A) The judgment was entered after a trial or guilty plea, but not a nolo
contendere plea;
-
-
-
(B) The conviction was for a crime punishable by death or by imprisonment for
more than a year (A FELONY);
- (C) The evidence is admitted to prove any fact essential to the judgment; AND
- (D) When offered by the prosecutor in a criminal case for a purpose other than
impeachment, the judgment was against the defendant.
- N.B.: When the status of a former judgment is under consideration in subsequent
litigation, three possibilities must be noted:
- (1) the former judgment is conclusive under the doctrine of res judicata,
either as bar or collateral estoppel; OR
- (2) it is admissible in evidence for what it is worth; OR
- (3) it may be of no effect at all.
(23) Judgments Involving Personal, Family, or General History, or a Boundary: IF
- (A) it was essential to the judgmental AND
- (B) could be proved by evidence of REPUTATION
- Ex: Patterson v. Gaines -- manorial rights, public rights of way,
immemorial custom, disputed boundary, and pedigree; citizenship
PROBLEM VI-79 (page 701): Anthony Gebippe died in 2013 and left his entire state
to the IUF in a will dated 6 months before his death. It is alleged that part of the
estate included a large house + land in Bedford currently occupied by his son
Harry. Harry has challenged the will in probate court, alleging that at his father’s
death, the property in Bedford belonged to him. He also challenged the will on the
grounds that Anthony was NOT competent at the time he executed the will. Can he
introduce the following evidence:
- (1) Certified copy of a deed (from 2007) which appears to pass title to Harry
- Hearsay because it contains out-of-court statements asserted for the truth
of the matter -- but falls into exception FRE 803(14) (as long as statute in
the area authorizes it) (RECORDS OF DOCUMENTS THAT AFFECTS
AN INTEREST IN PROPERTY)
- Self-authenticating under 902(4) -- since there’s seal
- Cuz core dispute is who owns the property
- (ALL THIS STUFF IS ALSO SUBJECT TO BEST EVIDENCE ORIGINAL DOCUMENT RULE BTW under this rule)
- If certified it’ll obvi satisfy original document rule tho
- Yes under 803(14) -- records of documents that affect an interest in
property
- 803(15) statements in documents that affect an interest in property
- (if documents contains collateral statements that are connected to
interest in the property but not directly about who owns the
property)
- Ex: reference to existence of power of attorney or heirs
- (If there was really fight over it, could redact some of these
statements)
-
-
-
Broader in scope, intended to handle other statements as long as
they are rationally related to main purpose of the document
(2) Written court judgment finding Anthony to be dangerous cuz of mental
disease and ordering him committed to state hospital. Dated the day after
the will is signed.
- MAYBE???
- 803(22) Judgment of a Previous Conviction → but this is commitment
order, not a conviction….. Probably as close as you can get tho
- Could try to invoke 807 RESIDUAL EXCEPTION -- by saying that
commitment finding and conviction involve just as much care and
process as a criminal proceeding does, so it suggests many of the
same safeguards were likely observed -- so therefore this
determination that Anthony needed to be committed should be
seen as trustworthy enough (as if it were a conviction under
803(22))
- This might work
- If it does not work, can try to bring it in under 803(22)
- 803(23) -- judgments relating to personal, family, or general history, or a
boundary
- Mental disease finding could relate to personal history
- But must also meet the 803(23)(b) requirement that this must be
proven by REPUTATION evidence →
- Committment is not the kind of thing that tends to be
provable by reputation
- Committment is finding on basis of evidence taken
in court proceeding
- This rule is more from a bygone area -- never intended to operate
for mental health
- So probably not admissible under this
- 803(21) reputation concerning character????? Kinda
- REally designed to facilitate what happened unde r803(5) -- but
maybe
- Finding in the order doesn’t reflect reputation -- it’s a finding on the
basis of evidence taken in court proceeding -- so not really
reputation
- THe judgment committing him to mental hospital is NOT really a good fit
under any of the 803 exceptions → so best option is probably 807
residual
(3) To prove the value of several copyrights that are part of the estate, Harry
offers a certified copy of the tax return from 2012 from the IRS.
- Maybe yes under
- 803(14) records of documents that affect an interest in property →
-
-
-
But © could be problem cuz there's no statute authorizing
IRS to record these records
- IRS does collect + maintain tax returns, but they’re
not in the business of recording them in the sense
meant by the rule -- and certainly not for purpose of
copyrights
- 803(15) statements in documents that affect an interest in property
- Debatable -- it’s a term of art meant to cover things like
“deeds” not tax returns
- But one could argue that statements on a tax return do
affect a person’s interest in property (here copyrights)
- In which way they affect it is a separate question
- (THIS STILLL REQUIRES AUTHENTICaTION - but have
902(4) for that)
- Neither one of these is an especially good fit
(4) Certified Copy of Death Certificate:
- YES under FRE 803(9) Public Record of Vital Statistics
- Also maybe under 803(8) (public records) or 803(6) (business
record)
- Certified so authenticated
THE PURPOSE OF THIS PROBLEM is -- to illustrate the potential value of
thinking creatively with exceptions you have available
- And look for possibilities to find a way through
- There’s quite a bit to work with
4/28/2021
RELATIONSHIP BETWEEN FRE 803 AND 804
- 803 exceptions apply regardless of whether declarant is available → declarant can be
right there in the room
- 804 exceptions only apply if the declarant is determined to be UNAVAILABLE TO
TESTIFY
- IF D could’ve been called or his testimony could’ve been captured in some other
way (like deposition), then the hearsay is NOT admissible
- Hearsay that meets 803 is INHERENTLY MORE RELIABLE than hearsay that falls
within a category of FRE 804
- But Is that really true? -- is an excited utterance under 803(2) obviously /
categorically / always more reliable than prior testimony under oath under
804(b)(1)????
- Not necessarily obvious that that’s always true
HEARSAY EXCEPTIONS CONDITIONED ON UNAVAILABILITY -- FRE 804
- REQUIREMENTS OF UNAVAILABILITY
-
-
-
Under 804(a)(5) -- the showing to be made by the proponent of the hearsay
varies depending on the exception to be invoked
- If (b)(1) of (b)(6) then just that declarant cannot be brought to proceeding
- But (b)(2), (3), or (4)--show that you can’t get declarant to proceeding
AND that you couldn’t obtain testimony in some other way (like
deposition)
Rationale for FRE 804 → hearsay which admittedly is not equal in quality to the
testimony of the declarant on the stand may nevertheless be admitted if the
declarant is unavailable and if his statement meets a specified standard.
- The rule expresses preferences: testimony given on the stand in person is
preferred over hearsay, and hearsay, if of the specified quality, is
preferred over complete loss of the evidence of the declarant
Categories of evidence covered under FRE 804 are less reliable than 803 types
admitted without regard to availability.
It is the fact of unavailability and not the reason for it that matters.
FRE 804(a): CRITERIA FOR BEING UNAVAILABLE: A declarant is
considered to be unavailable as a witness if the declarant:
- (1) is exempted from testifying about the subject matter of the
declarant’s statement because the court rules that a privilege
applies;
- (2) refuses to testify about the subject matter despite a court order
to do so;
- (3) testifies to not remembering the subject matter
- (4) cannot be present or testify at the trial or hearing because of
death or a then-existing infirmity, physical illness, or mental illness;
or
- (5) is absent from the trial or hearing and the statement’s proponent
has not been able, by process or other reasonable means, to
procure:
- (A) the declarant’s attendance, in the case of a hearsay
exception under FRE 804(b)(1) [former testimony] or (6)
[forfeiture by wrongdoing]; or
- (B) the declarant’s attendance or testimony, in the case of a
hearsay exception under FRE 804(b)(2) [imminent death], (3)
[against interest], or (4) [family history]
- (N.B.: showing a witness to be beyond the reach of process is not
enough → one must be unable to secure the witness’s attendance
by means other than a subpoena and, except for the use of former
testimony under FRE 804(b)(1), attempts to depose must have
been unsuccessful before the witness’ absence will be accepted
as tantamount to unavailability.)
-
-
But this subdivision (a) does NOT apply if the statement’s proponent
procured or wrongfully caused the declarant’s unavailability as a
witness in order to prevent declarant from attending or testifying”
Constitutional Aspects
- Civil vs. Criminal
- In civil cases, the states may continue to accept absence from the
jurisdiction as sufficient to establish unavailability
- But in criminal cases, the right to CONFRONTATION guaranteed
by the 6th Amendment requires the state to do more than show
mere absence as a precondition for invoking hearsay exceptions
that require unavailability.
- How much more?
- Barber v. Page → the speaker’s absence from the
jurisdiction did not by itself overcome the
Confrontation Clause objection to the use of prior
testimony
- It’s not enough that he was in prison 225
miles away in Texas
- Rule: In a criminal case, a hearsay speaker
outside the jurisdiction is unavailable for
Confrontation Clause purposes only if the
state makes a good faith effort to secure the
speaker’s attendance at trial and fails.
- Mancusi v. Stubbs → even tho Holms was a crucial
witness, and even though no effort had been made
to secure his attendance, admitting his prior
testimony did not violate the Confrontation Clause
- Cuz he had been contacted and refused to
attend retrial ; etc. (see page 705)
- NOW -- the Confrontation Clause allows a state to
establish the unavailability required to introduce
prior testimony either by failing in a good faith effort
to secure the speaker’s presence, or by showing
that the speaker cannot be compelled to be present
and that the speaker’s prior testimony was
thoroughly tested by cross-examination.
- In criminal cases, there will be instances where findings of
unavailability that were once constrained by the
Confrontation Clause are now only constrained by judicial
interpretations of FRE 804(a), and other instances where a
finding of FRE 804(a) unavailability that once was sufficient
to admit hearsay meeting the conditions of one of the FRE
804 exceptions will now not overcome the Confrontation
Clause bar.
CATEGORIES OF EVIDENCE THAT ARE NOT EXCLUDED BY THE RULE AGAINST
HEARSAY IF THE DECLARANT IS UNAVAILABLE AS A WITNESS -- FRE 804(b)
(1) FORMER TESTIMONY: Testimony that:
● (A) was given as a witness at a trial, hearing, or lawful deposition, whether
given during the current proceeding or a different one; and
● (B) is now offered against a party who had--or, in a civil case, whose
predecessor in interest had--an opportunity and similar motive to develop it
by direct, cross-, or redirect examination.”
● What counts as “testimony” → testimony at preliminary hearing; testimony at
deposition; testimony at trial
(i)
Broader than just at trial
(ii)
That’s true even though the stakes and motives may have been very
different at prior proceeding than they are not at proceeding in which
testimony is offered under 804(b)(1)
● RATIONALE: only admitting statements made under oath in situations of some
solemnity ; less danger of misreporting cuz often proved by transcripts ;
statement made when it was fresher in witness’ mind ; the party against whom
the statement is offered must have had an opportunity to test the speaker’s
credibility by direct or cross-examination and must have had a motive to do so
similar to the motive at the current trial
● Opportunity for Cross-Examination
(i)
If there was an opportunity to cross-examine the speaker when he
testified, the exception admits the earlier testimony regardless of whether
the witness was Actually cross-examined and regardless of the quality of
whatever cross-examination occurred.
1) Rationale -- if waived cross-examination, probably cuz argument
was strong
2) Formalistic, not realistic -- doesn’t matter if didn’t have great
chance to cross-examine as long as technically did
a) As long as the formal opportunity existed ,the testimony at
preliminary hearings of witnesses whose trial testimony
cannot be secured is admitted as former testimony.
(ii)
Under the FRE, the opportunity to develop testimony by direct and
redirect examination is considered an adequate substitute for
cross-examination
● Identity of Issues: Motive to Cross-Examine
(i)
Substantial identity is usually found when “the issues in the first
proceeding, and hence the purpose for which the testimony was offered,
were such that, the present opponent...had an adequate motive for
testing on cross-examination the credibility of the testimony.”
●
●
1) Courts also find it met when the issues are formally similar but the
motivations to cross-examine are markedly different
(ii)
Ex: courts allow testimony recorded in discovery depositions to be
introduced at trial if the speaker is unavailable.
(iii)
The focus of FRE 804(b)(1) on the similarity of motives for
cross-examination--as opposed to the identity of issues--may lead the
federal courts to pay closer attention to the party’s actual motivation at the
earlier trial
1) US v. Salerno → FRE 804(b)(1) requires a specific finding that the
prosecutors’ motives in examining the witnesses before the grand
jury were similar to what they were at trial
a) Similar motivation for examination at the grand jury hearing
and at trial did not exist because: (1) the Ds had already
been indicted, thus the gov did not have a strong interest in
proving the witnesses were lying, and (2) the grand jurors
had already indicated to the prosecutor that they did not
believe the testimony exculpating the defendants
2) Despite Salerno, it is not clear that similar close scrutiny will
extend to cases where prior testimony is offered AGAINST
criminal defendants
a) California v. Green → admission of preliminary hearing
testimony at the D’s trial did not violate the Confrontation
Clause of the 6th Amendment
The Same Party Requirement
(i)
The identity of the person first offering the evidence does not affect
the rationale for the exception ; only the identity of the person
against whom the evidence is offered matters
(ii)
Under FRE 804(b)(1) that person must be the person AGAINST WHOM
the evidence was originally offered or, in civil actions and proceedings, a
“predecessor in interests” (someone in privity with that person)
1) In criminal cases, any relaxation of the same party requirement is
seen as threatening the D’s confrontation Clause rights
(iii)
Rationale -- serves as a safeguard to prevent the admission of prior
testimony that has not been adequately tested by cross-examination
Proving Prior Testimony
(i)
FRE doesn’t require you to present prior testimony through recording or
transcript, even if those are available
(ii)
Earlier testimony may also be proved by the testimony of an observer
who purports to remember what was said in the earlier hearing, by the
testimony of an observer with recollection refreshed from stenographer’s
notes or other memoranda, or by the notes of an observer, if the notes
qualify as recorded recollection or a business record
(iii)
●
●
In none of these situations is the witness required to report exactly what
was said
Objections to Prior Testimony
(i)
Objections which go merely to the form of the testimony--as on the
ground of leading questions, unresponsiveness, or opinion--must be
made at the original hearing when errors can be corrected
(ii)
On the other hand, objections that go to the relevancy or the competency
of the evidence may be asserted for the first time when the former
testimony is offered at trial
PROBLEM VI-80 (page 715): JH is a truck driver for Royalle. Homer’s truck
skidded on ice and swerved into two men by side of road. Two trials; D
share a common lawyer (being paid by same company). At trial, Fisher
called Horner as a hostile witness. Under cross, Horner admitted that he
was returning from a delivery for Royalle and that he was driving 5 miles
over the limit when truck went over. Horner’s lawyer, supplied by Royalle,
failed to examine Horner further on this point. The trial resulted in a verdict
for FISHER. THree months later, Horner dies(so he’s unavailable)
(i)
Can B in the second trial (on respondeat superior theory) introduce
Horner’s former testimony to establish that H was acting in the
course of his employment at the time of the accident?
1) First, does the change of identity in plaintiff matter for 804(b)(1)
purposes? No -- Party doing the using doesn’t matter -- what
matters is against whom testimony is being used
a) Under FRE 804(b)(1) that person must be the person
AGAINST WHOM the evidence was originally offered or, in
civil actions and proceedings, a “predecessor in interests”
(someone in privity with that person)
b) only matters against whom the testimony is introduced
2) BUT IS THIS “AGAINST SAME D”? → Why should testimony be
admitted when it’s against different D? (first trial was against
Horner (driver) and second for Royalle (employer))
a) Horner has motive to protect himself, but not necessarily to
protect company -- but kinda big overlap
b) On paper they’re different defendants → but there is
maybe argument that there’s close enough relationship
between these defendants as parties
i)
Horner’s lawyer was hired by Royalle company --.
Could strengthern argument that they’re connected
in predecessor relationship → Royalle paid for
lawyer for Horner cuz they wanted to protect
themselves → they expected to exercise through
the lawyer what went on in that trial between
Horner and Fisher
ii)
(ii)
What’s more important? -- same lawyer or same
party providing the lawyer (and thus controlling the
action) -- probably more same party providing
c) THe payment of lawyer by Royalle satisfies commonality of
interest enough to make Horner a “predecessor in
interest.”
3) What if Horner got his own lawyer (not from Royalle) --. Would it
be justifiable to use this against Royalle in second trial
a) The commonality of interest disintegrates → there may still
be some but it’s incidential
i)
NOT what 804(b)(1) has in mind -- not what would
motivate someone to think through testimony and
take the stand etc to represent Royalle well
b) There’s not enough of a relationship then
4) Could you make the case here that the Horner testimony being
offered by Bunter in second trial could be admissible under 807?
a) Yes -- there are indicia of trustworthiness if trying to
persuade court to admit prior testimony under 807
(RESIDUAL EXCEPTION)
i)
It is still testimony under oath → so more likely to
be more trustworthy than other out-of-court
statements
ii)
Would probably be more probative on the point for
which it can be offered than other pieces of
evidence could be acquired?
1. YES -- cuz Horner is dead -- he knows
things that nobody else knows
iii)
So pretty solid argument under 807 for admission
of Horner’s testimony
5) Could he admit his statements under 801(d)(2)???? (look at
engineer thing)
a) Scope of the agency → he was still employed by the
company at the time of the trial -- but trial is not part of his
employment
To show that he was driving above the speed limit?
1) Yes under 804(b)(1)
2) If court wants to go item by item, which is gonna be more difficult
to get in -- that Horner was employed by and driving for Royalle at
time of the wreck ; or Horner’s statement that he was speeding
a) Probably easier to get in was Horner’s statement that he
was speeding -- cuz that’s case where he was D -- he
wouldn't’ admit that under oath unless he felt that it was
the truth and he would
i)
ii)
●
●
Admission -- cuz said by party against his interest
Circumstances suggest it is more likely to be the
truth → s
b) The one he would be more likely to get right that he was
returning from delivery in truck -- was not something he
really thought about
i)
So mundane maybe he wasn’t thinking about it so
not trustworthy
(iii)
Does it matter who the D is represented by?
1) Yes, it supports the fact that the D in the second action was in
privity with H
(iv)
What if H’s lawyer had been his private lawyer?
1) Would have made a difference, cuz would have suggested that
they were not in privity and therefore the testimony would not
necessarily be permitted -- would not had a similar motive or
opportunity to cross
PROBLEM VI-81: Same facts as above. Assume that Horner’s lawyer has
Horner testify on his own behalf. Horner testifies that the men he hit were
both wearing dark clothes, were waking at night…..
(i)
Can Royalle as the D in the second action introduce this testimony
against the P in the second action?
1) No cuz P not a party to initial suit so didn’t have opportunity to
cross D in first action ; but maybe Ps were in privity
2) Bunter was not part of first trial at all ; Fisher and Bunter don’t
necessarily share interest (both just walking at same time and got
hit by car)
a) Bunter was not represented in any way in Trial 1
(ii)
Could it be introduced by Royalle against Fisher (P to first action) if
initial action resulted in huge injury?
1) Yes, cuz in first action, both there -- both had opportunity rule
requires
2) Fisher WAS a party in first action (doesn’t necessarily have to
have been crossed -- as long as there was an opportunity to , it
counts)
PROBLEM VI-91 (p. 733): Karen Peabody was eyewitness to a robbery. She
testifies against a D at a preliminary hearing, identifying him as the man
she had seen fleeing the convenience store with a drawn gun. She was
questioned by the defense counsel at the preliminary hearing but did not
change her story. When the case reached trial, Ms. Peabody was in the
hospital with injuries suffered in a car accident. THe doctor’s estimate was
that she would not be able to leave the hospital for two weeks.
(i)
Can the prosecution introduce her former testimony from the
preliminary hearing?
1) A preliminary hearing → usually one of the first appearances a
criminal D makes after they get arrested and charged with a crime
a) Is there sufficient cause to believe that a defendant might
be guilty of this crime to stand trial
b) Give P chance to show that there’s enough to believe there
might be probable cause for D to be guilty of crime
c) Given that it happens very early in the case, likely that P
has done little or no investigation → client and lawyer
sometimes meet for the very first time during hearing
i)
Lawyer knows nothing /next to nothing about case
2) Does NOT matter under FRE 804(b)(1)(A) whether it’s preliminary
hearing ; doesn’t matter whether it was sufficiently developed ; but
if she’s available,,,then can’t introduce ;
a) As long as D testified in some sort of formal proceeding
3) But under 804(b)(1)(B) -- when D’s counsel is new to the case,
they will use the preliminary hearing not so much to try to
persuade the judge that there’s not enough evidence to support
the charge (cuz know v little at that point and charges almost
never get dismissed at preliminary hearing stage) , use preliminary
hearing essentially as way of conducting unauthorized discovery
a) Way to get information from defendant
b) All gets recorded and becomes prior testimony -- and still
all counts as opportunity to cross-examine even though it’s
very uninformed one
c) DOESN’T MATTER
4) 804(a) -- is Peabody (witness) really unavailable???
a) Look at FRE 804(a)(4) “an existing infirmity, physical
illness” → depends on how long trial goes on
i)
Usually robbery trials are short (not two weeks)
b) BUT What if instead of bringing in this hearsay testimony,
what about postponing the trial for a couple of weeks
i)
Depends on how probative she is to the case -- if
she’s not important, than maybe there’s no need to
wait for her (but if she’s not important, than maybe
shouldn’t question her at all)
c) This rests in the discretion of the trial judge
5) Criminal trial has a higher bar--the D has a 6th Amendment right
to confront the witness testifying against him
a) Prosecution would have to show a good faith showing or
by showing that the speaker cannot be compelled to be
present, and the speaker’s prior testimony was thoroughly
tested on cross (Mancusi + Barber)
(ii)
●
Is it different if she were in intensive care following severe burns,
and doctor estimated she wouldn’t be able to be able to leave the
hospital for six months?
1) Strengthens the showing of unavailability
a) Shows question of unavailability is discretionary and
elastic, depending on length of unavailability and
circumstances giving rise to it
“But this does not …”procuring or wrongfully causing”.… in order to prevent the
declarant from attending or testifying” -- what if in this case, the prosecution
affirmatively chose to call this case to trial after finding out that she was in
hospital and thus unavailable
(i)
Does this make it ___? → yes
(ii)
But if judge doesn’t know if prosecutor affirmatively chose to do it but just
that it was placed after she was hospitalized and in time she might be
hospitalized → i guess probably not enough to be “procuring or wrongfully
causing” cuz facts so limited
1) If more came out, then burden would be on the defense to show
that they’re manipulating things intentionally
(iii)
Needs to be showing of intentional manipulation of circumstances to show
“procuring or wrongfully causing”
(2) DYING DECLARATIONS
- Common Law Requirements:
- Only in homicide cases in which the speaker was the victim of the homicide
charged
- Statements had to relate to the homicidal act or the circumstances surrounding it
- Proponent had to be able to show that the speaker was aware of his impending
death
- Must be witness’ own good faith declarations
- FRE Requirements:
- FRE 804(b)(2): STATEMENT UNDER THE BELIEF OF IMMINENT DEATH: In a
prosecution for homicide or in a civil case, a statement that the declarant,
while believing the declarant’s death to be imminent, made about its cause
of circumstances”
- Biggest change from common law -- allows admission of dying declarations in
CIVIL CASES, as long as they concern the cause or circumstance of what
speaker believed was his impending death
- Retained restriction of dying declarations in criminal cases to homicide
prosecutions “where exceptional need for the evidence is present.”
- Speaker’s statement may be offered EVEN IF HE IS NOT DEAD
- Any of causes of unavailability specified in FRE 804(a) will do
- If other statements by the speaker indicate that she lacked firsthand knowledge
of the identity of her assassin, the statement will be excluded. If no evidence
-
-
-
suggests this, the statement will be admitted on the assumption that the speaker
perceived what her statement indicates
Justification for the Exception in Homicide Cases:
- A person who believes she is about to die from criminal assault has little
interest in deceiving listeners about the cause of her impending death
- Special need we feel to bring murderers to justice
- Desire not to let the victim’s death improve the criminal’s chances at trial
Extension to Civil Cases
- Evidence reliable enough for homicide cases is reliable enough for civil
actions
- Doesn’t make a ton of sense to have this extension, but doesn’t make a
big difference cuz most dying declarations can often also easily be
categorized as excited utterances
PROBLEM VI-82 (page 719): Jim Short is found dying--he only nods to
officer’s leading questions, who also tells him he’s going to die. “He
slashed you cuz he knew you were gonna testify against him on the drug
case, right?”; etc.
- Are the officer’s questions and Jim’s answers admissible?
- Nodding is assertive conduct → if it’s a statement at all tho it has
to be adopted by Jim
- Probably can establish this as a statement under FRE
801(a) as “nonverbal conduct if person intended it as
assertion”
- Adopted statements are admissible under 803(5) (past
recollection recorded); 801(b)(2) --. So why not let a dying
declaration be adopted?
- But here Jim’s head nodding is pretty ambiguous -he might be acquiescing cuz he thinks officer
knows and he wants person who stabbed him to be
caught; maybe his blood loss is such that his
cognitive powers have been reduced such that he
doesn’t know what he’s nodding too
- Usually a dying declaration that qualifies under 804(2) is
SPONTANEOUS
- That’s part of the justification for treating that statement as
more likely to be trustworthy
- So since this is in response to leading questions and in situation
where he’s bleeding out so probably not → it probably will be
EXCLUDED
- Head nodding does not count as a statement in the sense
contemplated by 804(2)
- What is reason Jim couldn’t talk was just cuz he was on a respirator so
physically couldn’t speak (not cuz he was bleeding out)?
-
-
Would be more likely to count as a statement (even tho still not
spontaneous cuz in response to leading questions).
- Leading questions were the only way to try to get this
information from Jim cuz he physically couldn’t speak now
- So if this information was very important for trial, could
maybe be admissible
- Still missing the indicia of trustworthiness but it’s more
likely to come in now
- If it can be shown there was no other way to get
this information in and the judge is persuaded that
this evidence is very important
What if Jim just said that “Sandy was out to get me cuz he knew I
intended to spill on him.” If there was other evidence linking Sandy
to the killing, would the statement be admissible to….
- Admissible to prove motive? Discretionary?
- In a classic dying declaration, it’s about RECENT events -recent cause of death ---> this is older and more remote,
so it’s not clear he actually knows who inflicted this wound,
just speculative
- GENERALLY DYING DECLARATION SHOULD BE
ON RECENT EVENT (mostly the thing that caused
the killing)
- Still a discretionary question for the judge -- a judge could
indulge an inference in this situation that Jim said what he
said cuz he knew she inflicted the wound
- If it corrorboares other evidence -- then more likely to be
admissible (if no other evidence, very unlikely to come in)
- PROBABLY EXCLUDED
- Admissible to prove Sandy was killer?
(3) STATEMENTS AGAINST INTEREST
- Whether a statement is “against interest” for FRE 804(b)(3) purposes must be assessed
in light of the CIRCUMSTANCES AS THEY LOOKED TO THE DECLARANT AT THE
TiME THE STATEMENT WAS MADE--not at the (later) time the statement is offered as
evidence.
- Circumstances / consequences change in time ; trustworthiness, if any, derives
from forces acting on speaker at time statement was made
- Use of statement against PENAL INTEREST in a criminal case requires EXTRA
SHOWING of “corroborating circumstances that clearly indicate trustworthiness”
- The fabled “admission against interest” is NOT A THING
-
-
-
-
Admissions and statements against interest are DIFFERENT
Exception rests on the notion that unless there is some benefit to be gained, people
seldom tell lies that make them appear worse off than they might otherwise seem
FRE 804(b)(3): STATEMENT AGAINST INTEREST: A statement that:
- (A) a reasonable person in the declarant’s position would have made only if
the person believed it to be true because, when made, it was so contrary to
the declarant’s proprietary or pecuniary interest or had so great a tendency
to invalidate the declarant’s claim against someone else or to expose the
declarant to civil or criminal liability; AND
- (B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability
Common Law Requirements:
- Speaker unavailable; declaration when made was against speaker’s pecuniary or
proprietary interest; firsthand knowledge
Against Interest Requirement
- Statements often found to be against pecuniary or proprietary interest include:
- Declarations acknowledging indebtedness
- Declarations acknowledging payment of a debt
- Declarations acknowledging contingent contractual liability
- Statements of agents acknowledging receipt of money on behalf of
principals
- Declarations admitting less than a fee simple interest in property
- Declarations by an heir acknowledging that property has been left in a will
to another
- Declarations by beneficiaries of insurance policies tending to defeat
claims thereunder
- Statements acknowledging tortious liability in specific amounts
- Statements that tend to extinguish tort liability
- Whether a statement was against interest will often depend on facts and
circumstances that existed at time statement was made
- It’s for court, not jury, to find the contextual facts that may condition the
admissibility of statements offered as “against interest” (FRE 104(a))
-
-
-
-
-
A declaration may have both self-serving and disserving aspects. When
assertions are separable, a court has three options:
- (1) to admit the entire declaration on the strength of the part which is
disarming
- (2) to admit the entire statement if the disarming part predominates, and
to exclude it entirely if the self-serving part predominates Or
- (3) to admit only those parts of the statement that are disarming
Williamson v. US → court held that word “statement” in rule referred not to
global disclosures by a person, but to each particular assertion a speaker made
- A court’s task is to examine the assertions separately to detmerin whether
each is so contrary to an interest specified in FRE 804(b)(3) that a
reasonable person would not have made the statement unless she
believed it was true
If single assertion is both self-serving and disarming, third option is not possible
- So courts generally take second approach →
- This kind of balancing is commonly required when a creditor’s
statement acknowledges part payment of a debt
Inclusion of neutral observations will not result in the exclusion of those parts of a
statement that are genuinely against interest
- Look at how closet related neutral portion is to the disarming portion
PROBLEM VI-83 (page 723): Horton claiming adverse possession to tract of
land named “Cold Bottom”. Prince (real owner) claims not adverse
possession cuz he was paying her rent -- so there’s dispute over whether it
was hostile poss.
- May the husband testify regarding his wife’s statements?
- “Well I’ve gotten the money out of Horton again” →
- Under 804(3) it must be a statement against interest at
time that she made statement →
- She collects the rent, deducts her commission and then
writes new check for rest and passes it to Prince
- When she declares she got the money out of
Horton again → she’s announcing that she’s
obligated to pass the rest to Prince
- So no reasonable person would announce
they got the money out of Horton if they
didn’t - cuz setting her up
- Law assumes she wouldn’t make a false
statement that brings such consequences
against herself
- Idk why I put up with this, the commission isn’t worth it. He’s
got to be the crookedest man I’ve ever met”
-
-
Whether the acknowledgement of the money is collected is
sufficiently against interest and sufficiently attached to
what follows it
- Look to Williamson -- requires independent analysis of
each assertion to see if it satisfies 804(b)(3) --. Must be
sufficiently connected to statement against interest to
justify riding its coattails into evidence
- The commission isn’t worth it → not really relevant
- The “crookedness man” ⇒ probably inadmissible as
404(a) character evidence
- It’s lay opinion under 701 and not really helpful
- So no this statement comes in -- none of this has a
plausible basis for admissibility
“When Horton gave me the rent today, he said he wouldn’t be
paying for long cuz he had a lawyer friend who told him how
he could trump up a claim for adverse possession”
- Is any of this against real estate dealer’s interest? →
- When she admits to receiving rent -- that’s against her
interest in the same way as before -- still admitting she got
money from Horton and admitting that she’s got a new
financial obligation to deal with
- The stuff about the adverse possession scheme is just
neutrally repeating what Horton said → she’s just a conduit
for his words so not against her interest
- She’s not saying that she’s worried she’s gonna
lose her commission or something
- This stuff about Horton saying is just “hearsay
within hearsay” -- brings FRE 805 into play
- Both layers have to meet and exception or
can’t come in
- Horton is a party to this lawsuit , so his
statement to the dealer is hearsay
- But that counts as an ADMISSION -so that is admissible
- But we need to deal with Dealer level of
repetition to deal with
- Probably inadmissible - but courts
vary
- Under Williamson, each assertion
should be analyzed separately for
whether it counts as statement
against interest
-
-
-
It was neutral here, context
suggests dealer had no
reason to be lying -- so many
courts would want to let this
in to try and prevent Horton
from getting away from this
scam that he described to
dealer
- But that has problems too
since the against interest part
doesn’t lend any extra
admissibility to the horton
admissibion part
The secondary hearsay from Dealer
is just inadmissible
- Is there anything about a neutral
statement that follows a
statement against interest that
suggests should modify treatment
- To get out of unjust
results? And no good
reason for dealer to lie in
these circumstances
(especially when she made
a statement against her
interest right before)
- Could maybe try to insert it in FRE 807
RESIDUAL -- but it probably shouldn’t work
cuz it has a lot of hearsay dangers
- “I was going to tell him that he couldnt so long as he was
paying me rent, but I figured that would make it harder than
ever to collect”
- It’s speculative - she doesn’t have obligation til it comes in
- But it might be seen as a statement of her to have an
ongoing obligation to pass on money to Prince → so
possibly against her interest
Can the D introduce checks that say Horton rent?
- Could also qualify as a statement against interest
- Check is announcing that you owe someone $100 → so probably
a statement against interest (cuz announcing you have a financial
obligation)
Can the D introduce check stubs that say horton rent?
-
-
-
Can ride the coattails of check itself if they’re consistent with each
other
- Just stub probably isn’t enough to be a statement against interest
- Cuz expectation when you make a stub is that nobody will
see it besides you
- Stub stays with you and is part of your record keeping
- Could be a Record of regularly conducted business FRE 803(6)
- If created under circumstances that otherwise satisfy FRE
803(6)
Statements Against Penal Interests
- Broader than common law
- Donnelly v. US
- Reasons to be wary of statements admitting criminal involvement:
- Publicized crimes can attract false confessions
- A criminal on his deathbed or safely outside the jurisdiction might seek to
protect his criminal cohorts by confessing to crimes the’ve committed
- The report of what an unavailable speaker said may itself be a lie
- Requires existence of corroborating circumstances that indicate trustworthienss
when a statement against penal interest is offered either to exculpate an accused
or when the prosecution seeks to use one person’s inculpatory statement against
another person accused of a crime
Statements Against Social Interests
Distinguished from “Admissions”
- The admissions exception, unlike the exceptions for statements against interest,
does NOT require unavailablily or firsthand knowledge, and admissions need not
be against interest when made
- So admissions are broader in those ways; but narrower in that a
statement is only admissible against the person who made it or against a
person whose relation to the speaker makes her responsible for what the
speaker has said
STATEMENTS OF PEDIGREE
- FRE 804(b)(4): STATEMENT OF PERSONAL OR FAMILY HISTORY
- (A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage,
divorce, relationship by blood, adoption, or marriage, or similar facts of
personal or family history, even though the declarant had no way of
acquiring personal knowledge about that fact; or
- (B) another person concerning any of these facts, as well as death, if the
declarant was related to the person by blood, adoption, or marriage OR was
so intimately associated with the person’s family that the declarant’s
information is likely to be accurate
- FRE vs. Common Law:
-
-
Statement need not be ante litem motam (made before beginning of controversy
giving rise to the litigation) and speaker need not be the person, or a relative of
the person whose family status at theissue, but may be someone else --ex: a
servant or close friend.
Admits statements that are not based on firsthand knowledge
Dispensing with common law requirement that the speaker be related to the subject of
the statement
FRE 804(b)(4) overlaps FRE 803(19) → when statements of family history are numerous
enough to constitute a REPUTATION for the matter in the family, among associates, or
in the community, the unavailability of the speakers need not be shown and family
history facts may be established by anyone familiar with that reputation.
FORFEITURE BY WRONGDOING (FRE 804(b)(6))
- FRE 804(b)(6): STATEMENT OFFERED AGAINST A PARTY THAT WRONGFULLY
CAUSED THE DECLARANT’S UNAVAILABILITY: “A statement offered against a
party that wrongfully caused--or acquiesced in wrongfully causing--the declarant’s
unavailability as a witness, and did so intending that result.”
- Requires a judge to find, as a preliminary matter, that an entirely different crime--such as
murder or witness intiminidation--has occurred
- Under FRE 104(a)
- Standard -- preponderance of evidence
- PROBLEM VI-86 (p 730): The only evidence that Grass is part of the conspiracy is
that he purchased 4 trucks in which the marijuana was carried.Grass warned key
witness Shah not to testify against him in grand jury trial. Shah did anyway. Shah
is gunned down on his way to testify against Joey Grass. Grass is smiling in the
courtroom. Nothing else ties Grass to Shah’s death. Is the testimony admissible
under FRE 804(b)(6)?
- Judge makes determination; must be preponderance of the evidence
- This is a 104(a) question → which means the judge makes the final call → cuz
jury not able to isolate the admissibility question from the force
- Judge makes call on whether the evidence is sufficient
- N.B.: when judge making this admissibility decision - he’s not restrained
by rules of evidence
- This is not enough cuz there’s no evidence other than circumstantial evidence
- The smiling and motive does not support by a preponderance of evidence
that he did it
- He would’ve been just as delighted if Shah got killed in a car
accident or by someone else → it’s a good development for him
regardless of whether he killed him
- If that were enough -- that would reduce the standard to effectively a
presumption based on flimsy circumstantial evidence that Grass or any
defendant is responsible for having eliminated a witness
-
-
That presumption would then effectively govern → that’s not what
we want - that’s not same thing as meeting standard of affirmative
proof by a preponderance of evidence
Grass’ earlier statement to Shah → 801(d)(2)(A)? -- ADMISSION -- so it’s
admissible even though hearsay
FRE 806: ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
- “When a hearsay statement--or a statement described in FRCP 801(d)(2)(C), (D), or
(E)--has been admitted in evidence, the declarant’s credibility may be attacked, and then
supported, by any evidence that would be admissible for those purposes IF THE
DECLARANT HAD TESTIFIED AS A WITNESS.
- The court may admit evidence of the declarant’s INCONSISTENT STATEMENT
OR CONDUCT, regardless of when it occurred or whether the declarant had an
opportunity to explain or deny it.
- If the party against whom the statement was admitted calls the declarant as a
witness, the party may examine the declarant on the statement as if on
cross-examination
- PROBLEM VI-87 (p. 732): Hawk is attributing one of statements from
co-conspirator to another co-conspirator? Two people on trial. One of whom
wants to impeach the other’s admissions that were conveyed by a third party ---->
Impeachment testimony against Swift regarding the fact that she faces a murder
charge and has in the past been convicted. Admissible?
- Antagonistic co-defendants
- (1) Swift faces a murder charge when this current trial is over
- THIS IS ABOUT FRE 806 → can impeach a hearsay declarant as if they
are testifying
- If Swift did testify, could this murder charge be used to impeach
her -- if she was testifying in a way that helped government’s case
against the co-defendant → testimony she gives would help
government against Jay
- In that situation, it’s quite possible that the testimony she
gives that is helpful to the prosecution against the
co-defednant might be seen as a manifestation of her
MOTIVE to try to curry favor with the prosecution
- Part of the reason she’s testifying is because she wants
the government to help her in exchange (cuz she’s got this
charge pending against her)
- So an impeachment tactic to use is to show that
she has a pending charge, so if she contributes in
this case, the gov will help her in her trial
- So there is an impeachment rationale for this other than
the character realm in 404
-
-
-
BUT UNLESS SWIFT ACTUALLY TESTIFIES, the circumstances
giving rise to the bias or motive NEVER MANIFEST
- So there is no opportunity for bias or motive
- Since she didn’t take the stand -- then can’t
impeach her for motive for taking the stand
- Not a conviction so evaluate as prior bad act under 404(b)
- Doesn’t invite any other inference from the jury
- SO THIS IS NOT ADMISSIBLE
- So there’s some inconsistency in 806’s language → the impeachment
value of murder charge doesn’t actually materialize unless she takes the
stand and manifests the circumstances
- ***THINK THESE THINGS ALL THE WAY THROUGH
(2) Past convictions
- FRE 608 -- allows impeachment for basis of truthfulness/ untruthfulness
- FRE 609 → impeachment for truthfulness using prior criminal convictions
- If satisfies, prior conviction is admissible for impeachment
- Admissible cuz presumably all felonies -- so as long as latter 2 hpapened
within last 10 years under 609
- 806 TEst -- if Swift was testifying, could he use this against Swift
- YES → his vulnerability on this basis doesn’t depend on whether
she actually testifies or not
- 806 would allow impeachment of Swift using those prior
convictions
- BUT A WRINKLE -- its Swift, not the prosecution for objecting to the
introduction of her priors before the jury
- Might be 403 issue here tho
Two co-defendants being pitted against each other (seeking to impeach each
other) -- apparent clash of Constitutional Criminal procedure rights held by the
defendants
- WHAT SHOULD JUDGE DO TO SOLVE?
- Judge should grant a motion to sever the trial
this problem would not exist if they were in separate trials
- Defendants don’t have to be tried together
MODERN TRENDS -- LOOKING BACKWARD AT PAST JUDGMENTS ON THE FUTURE OF
HEARSAY
- Dallas County v. Commercial Union Assurance Co. (1957): instead of trying to fit the
copy of old newspaper into a hearsay exception (as business record or ancient
document), just says it’s admissible BECAUSE IT IS NECESSARY + TRUSTWORTHY,
RELEVANT AND MATERIAL, AND ITS ADMISSION IS WITHIN THE TRIAL JUDGE’S
EXERCISE OF DISCRETION in holding the hearing within reasonable bounds
- FRE does expand situations in which hearsay evidence is admissible
-
-
-
- By eliminating the restrictive conditions that are part of the traditional exceptions
- By creating new exceptions to the hearsay rule
RELIABILITY AS A PRELIMINARY JUSTIFICATION
NOW CATCHALL EXCEPTION to kinda meet needs of Dallas County type situations
FRE 807: RESIDUAL EXCEPTION
- (a) In General. Under the following conditions, a hearsay statements is not
excluded by the rule against hearsay even if the statement is not admissible
under a hearsay exception in FRE 803 or 804:
- (1) The statement is supported by sufficient guarantees of
trustworthiness--after considering the totality of circumstances under
which it was made and evidence, if any,corroborating the statement; and
- “Sufficient guarantees of trustworthiness” -- look at the content of
statement itself, the circumstance in which it was made, whether
hearsay dangers are absent/reduced
- Corroborating evidence -- just additional support for other signs of
trustworthiness, not sufficient in itself
- (2) It is more probative on the point for which it is offered than any other
evidence than the proponent can obtain through reasonable efforts”
- Intended to ensure that only statements that have high probative
value AND NECESSITY qualify for admission
- Mostly confines 807 to declarant unavailable situations
(cuz if they’re available, they’re probably better source)
- (b) Notice. The statement is admissible only if the proponent gives an adverse
party reasonable notice of the intent to offer the statement--including its
substance and the declarant’s name--so that the party has a fair opportunity to
meet it. The notice must be provided in writing before the trial or hearing--or in
any form during the trial or hearing if the court, FOR GOOD CAUSE, excluses a
lack of earlier notice”
Aim of 807 is to create an exception for trustworthy hearsay that jury should hear
but that doesn’t fit under another hearsay exception
- Both need to admit what’s necessary and reliable and consistently exclude
what isn’t
- Legislative intent is that 807 be used sparingly and in ways that are not
inconsistent with other exceptions in the rules
THIS IN THE BOOK IS THE OLD VERSION OF FRE 807
- (a) In General: Under the following circumstances, a hearsay statement is
NOT excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in FRE 803 or 804:
- (1) The statement has equivalent circumstantial guarantees of
trustworthiness
- Look at what the statement says, the circumstances in which it
was made
-
-
-
-
Idaho v. Wright -- says a court should NOT look at
corroborating evidence (but SHOULD look at whether the
circumstances surrounding the making of the statement
made the speaker particularly worthy of belief)
- DON’T REALLY AGREE WITH THIS NOW -- NOW
CAN USE CORROBORATION
- Huff v. White Motor Corp -- “the circumstantial guarantees
of trustworthiness on which the various specific exceptions
to the hearsay rule are based are those that existed at the
time the statement was made and do not include those that
may be added by using hindsight
- Do not use corroboration cuz in deciding that corroboration
makes hearsay trustworthy, the court is implicitly accepting
as true the evidence one side presents
- Ex of guarantees of trustworthiness -- Turbyfill v. International
Harvester Co -- he wrote the statement on the afternoon of the
accident, while the circumstances were still fresh in his mind.
Moreover, the fat that he made his written account while alone in a
room indicates that the account accurately reflects his knowledge
of events transcribed
- (2) It is offered as evidence of a material fact
- (3) It is more probative on the point for which it is offered than any
other evidence that the proponent can obtain through reasonable
efforts; AND
- (so usually gonna be when declarant is unavailable, cuz can’t
obtain the evidence through reasonable efforts)
- (4) Admitting it will best serve the purposes of these rules and the
interests of justice
(b) NOTICE: The statement is admissible only if, before the trial or hearing,
the proponent gives an adverse party reasonable notice of the intent to
offer the statement and its particulars, including the declarant’s name and
address, so that the party has a fair opportunity to meet it.”
There’s a lot of variation in ways in which judges apply
- Some limit to exceptional circumstances; others treat it as license to admit
whatever hearsay they think essential
PROBLEM VI-118 (page 754): In exchange for dropping a drug charge and
lifting a detainer for a parole violation, Brown agrees to cooperate with
agents from the DEA. Brown, witness to East’s conviction for heroin
trafficking, made several reports to the DEA and testified during grand jury.
Brown was found dead about 1 month before East’s hearing. A month later,
a week before East’s case was scheduled to come to trial, the gov notified
East that it intended to offer the grand jury testimony under 807.
-
-
Can the government admit Brown’s grand jury testimony and
statements made to the DEA under FRE 807?
- No -- fails FRE 807(a)(1) and (3)
- Fails (a)(1) cuz not sufficient guarantees of trustworthiness
- But he did testify under oath since it was a grand
jury trial → so that says something about
trustworthiness
- And he did have a potential reason to do a good job
so they would drop his charges
- BUT he was cooperating with agents from DEA
only in exchange for them dropping a drug charge
and lifting a detainer → so has powerful motive to
curry favor with DEA and the prosecution
- THE CORROBORATING VALUE of these written
statements → the existence of these statements
are not super strong -- DEA agent prepared the
statement; but he did read, sign, and correct these
statements
- He was being handled by DEA agents to
further their objective
- But could argue that this should get in cuz it
does kinda corroborate it cuz they were
made right away
- (a)(2) --More probative than any other evidence that the
proponent can obtain -- Maybe?? Brown is dead. But you
could maybe ask the DEA agents
- DEA agents didn’t go into the buys -- but they were
very careful to document Brown’s condition before
the buys and immediately after returning from the
buys → so there’s quite a bit they could’ve said
- (Could refresh their recollections via the
reports under FRE 612 if needed to → so
then they could testify from present
knowledge and it wouldn’t be hearsay
problem)
- (And they dont come with same impeachment
problems that Brown does)
- Key question for the Grand Jury testimony -- whether that
testimony exhibits guarantees for testimony that are equivalent to
the other hearsay exceptions
- Only real guarantee is that he is under oath
Suppose Brown died from natural causes on the third day of trials,
shortly before he was to be called. At this point, the government
-
-
stated its intention to offer the transcript of Brown’s grand jury
testimony under FRE 807?
- Now causes some problem with FRE 807(b) → cuz not really
giving much notice
- But could argue that it is “Reasonable notice” because he
just died...they couldn’t have given notice earlier cuz didnt’
know
- Now FRe 807 allows it to be introduced during trial → so
now it’s not really a problem -- there’s good cause for late
notice here - cuz he died
- And it could cause significant hardship for defense
- Could try to postpone the testimony tho or modify the
schedule if need to give defense more time to deal with
this new document instead of cross-examining Brown.
- ADMISSIBLE
Under FRE 807, more focused on reliability issues than necessity
- Hearsay is most necessary to a party when it is the only available evidence
tending to prove an important aspect of her case
- But these situations also mean reliability matters a lot -- cuz case’s
outcome may turn on whether the hearsay is admitted
Prior out of court statements of people available to testify should be admitted as
substantive evidence
FRE 801(d)(1): A Declarant-Witness’s Prior Statement
- FRE 801(d)(1): IT is NOT HEARSAY (and can thus be treated as substantive
evidence) if The declarant testifies and is subject to cross-examination about a prior
statement, and the statement:
- (A) is inconsistent with the declarant’s testimony and was given under penalty of
perjury at a trial, hearing, or other proceeding or in a deposition;
- Refers to inconsistent statements generally -- when statements admitted
under this provision were made in other trials, hearings, or depositions,
there will often have been contemporary cross-examination; but neither
actual cross-examinaiton nor the opportunity for it are conditions of the
exception
- Testimony before grand juries arguably should be regarded with more
suspicion than other inconsistent statements (But not case in practice)
- Issue about deciding whether a witness’ testimony at trial that she has
forgotten an incident is inconsistent with an earlier statement describing it
- When courts suspect that a witness’ forgetfulness at trial is
feigned, as it might be in response to a bribe or intimiadation, they
don’t hesistate to find inconsistency
-
-
-
(B) is consistent with the declarant’s testimony and is offered to rebut an express
or implied charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; OR
- TOME V. UNITED STATES → this rule permits the introduction of a
declarant’s consistent out-of-court statements to rebut a charge of recent
fabrication or improper influence or motive ONLY WHEN those
statements were made before the charged recent fabrication of improper
influence or motive
- © identifies a person as someone the declarant perceived earlier”
- Justification: out-of-court identifications are usually more reliable than the
ritualistic courtroom identification of the person sitting next to defense
counsel
- Prior statements of identification are NOT BARRED by the language of
this rule no matter how suggestive or casual the conditions under which
they were made and no matter how great the length of time between the
perception and an identification
FRE 801(d)(1)(A), (B), and © all require the speaker to testify subject to
cross-examination at the trial or hearing at which the statement is offered
- Cross-exmaination requirement is ordinarily satisfied by profferring the witness
- US v. Owens → interpreted FRE 801(d)(1)(C) to allow the admission of a
statement of prior identification by a prison guard who had been beaten with a
metal pipe, despite the fact that at the time of the trial he could not remember
anything that happened at the time he was struck, nor the circumstances
surrounding his later hospital bed identification of the D as his assailant -- except
that he did identify him
- HOLDING: Admissible under FRE 801(d)(1) as long as witness was
placed on the stand, took an oath, and is willing to respond to the
cross-examiner’s questions to the extent he is able
PROBLEMS VI-120 (page 771): Witness who testifies that he was near the scene of
the crime and never saw the defendant. On cross, the prosecution reminds the
witness that he testified to Grand Jury that he saw the D. Witness remember the
statement, but says he was mistaken. Prosecutor argues that the inconsistent
statement of the witness should be treated as substantive evidence by the jury
that the D was near the scene of the crime. Defense argues that FRE 801(d)(1)(A)
does NOT apply, and because he called the witnesses first, he could only redirect
and not cross the witness cuz it was his own witness--argues that 801(d) requires
that the witness be subject to cross regarding an earlier inconsistent statement
BEFORE THAT STATEMENT MAY BE USED SUBSTANTIVELY (jury can read it and
credit it for its truth and use it for deciding who won; not just for credibility
purposes) . Who should prevail?
- D calls witness to come in and say he never saw him -- but trouble is that witness
made an appearance in front of grand jury and said something must less
exonerating
-
-
-
-
So if it were the really the case that there is really no other credible
evidence of the D’s guilt such that D is prepared to move for directed
verdict -- why not do that without taking the chance of introducing this
witness
- Gambling that you’re gonna win the argument with the prosecutor
that the grand jury testimony shouldn’t come in cuz cross
examination requirement
- If D is right about 801(d)(1)(A) then it’s ok but still risky
move; if P wins than this hurts D’s case
801(d) does apply to grand jury testimony
“Subject to cross-examination” in FRE 801(d)
- Doesn’t just say “opportunity to develop” → so D could argue that drafters
of federal rules didn’t intend to accommodate other types of examination
- But D could argue that it seems like sneaky and underhanded and
inconsistent with pursuit of truth and justice to open it to that
(Defense is not impeaching what witness said at trial -- trying to prevent P from
bringing in as substantive evidence that he did see the guy)
Even If P couldn’t prevail on this on 801(d)(1)(A) --- P could still introduce it just
as IMPEACHMENT evidence (but COULD NOT introduce it as SUBSTANTIVE
EVIDENCE)
- Impeachment with a prior inconsistent statement (FRE 613) -- impeach
witness’ credibility
- So jury gets to hear it, just technically not supposed to credit it for its
substance -- just about the consistency or lack thereof of witness’ account
→ which here accomplishes pretty much what P would want it to
accomplish
- But if D wins, if a statement is not allowed to be considered for its truth, it
cannot be used on the government’s side of the analysis when it’s used to
evaluate the case on APPEAL
- Where any piece of evidence [typically prior inconsistent
statement], when jury is allowed to hear it only for impeachment
purposes (and not substantive purposes), the content of that
statement is not available to jury as substatnvie evidence (cuz
only permissible use of it is as something to which to compare the
defendant’s trial testimony)
- On APPEAL, it becomes more important
Prosecution should prevail under FRE 801(d)
FRE 801(d)(1)(A) (not hearsay if it is inconsistent with the declarant’s testimony
and was given under penalty of perjury at a trial, hearing, or other proceeding or
in a deposition;) → so it can be treated as substantive evidence
- It’s inconsistent
- It’s good enough that it was in front of grand jury and under oath
- Grand jury less trustworthy but in practice courts let it in
-
Also for identification in © ---> The rule doesn’t care how much time has passed
→ ok that identification is made two months later
4/5/2021
CRAWFORD V. WASHINGTON
- RULE OF LAW: Testimonial statements of witnesses not present at criminal trial
are admissible only where the declarant is unavailable and the defendant had a
prior opportunity for cross examination.
- Issue: Whether the admissibility of an unavailable witness’s pretrial examination
depended on whether the defendant had had an opportunity to cross-examine him?
- YES
- The principal evil at which the Confrontation Clause was directed was the civil-law mode
of criminal procedure, and particularly its use of ex-parte examinations as evidence
against the accused.
- We reject the view that the Confrontation Clause applies of its own force only to in-court
testimony, and that its application to out-of-court statements introduced at trial depends
upon “the law of Evidence for the time being.”
- Not all hearsay implicates the Sixth Amendment’s core concerns.
- An off-hand, overheard remark might be unreliable evidence and thus a good
candidate for exclusion under hearsay rules, but it bears little resemblance to the
civil-law abuses the Confrontation Clause targeted.
- On the other hand, ex parte examinations might sometimes be admissible
under modern hearsay rules, but the Framers certainly would not have
condoned them.
- The text of the Confrontation Clause reflects this focus
- It applies to “WITNESSES” AGAINST THE ACCUSED -- those who “bear
testimony”
- TESTIMONY = a solemn declaration or affirmation made for the purpose
of establishing or proving some fact
- An accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a causal
remark to an acquaintance does not
- TYPES OF TESTIMONIAL EVIDENCE:
- Ex parte in-court testimony or its functional equivalent
- Ex: affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar
pretrial statements THAT DECLARANTS WOULD REALLY
EXPECT TO BE USED PROSECUTORIALLY;
- “extrajudicial statements...contained in formalized
testimonial materials such as affidavits, depositions, prior
testimony, or confessions
-
-
-
-
-
-
-
-
Statemetns that were made under circumstances which
would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.
- Statements taken by police officers in the course of
interrogation
The Framers would not have allowed admission of testimonial statements from a witness
who did not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination
- Exceptions do NOT apply to admit testimonial statements against the accused in
a criminal case
Testimonial statements of witnesses absent from trial have been admitted only
where the declarant is unavailable and only where the defendant has had a prior
opportunity to cross-examine
When the declarant appears for cross-examination at trial, the Confrontation Clause
places no constraints at all on the use of his prior testimonial statements
- It is therefore irrelevant that the reliability of some out-of-court statements cannot
be replicated, even if the declarant testifies to the same matters in court
- The Clause does not bar admission of a statement so long as the declarant is
present at trial to defend or explain it
RATIONALE CHANGES FROM HISTORY ; BUT RESULT DOES NOT
- Admitting statements deemed reliable by a judge is fundamentally at odds with
the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure
reliability of evidence, but it is a procedural rather than a substantive guarantee.
- It commands, not that evidence be reliable, but that reliability be assessed
in a particular manner -- by testing in the crucible of cross-examination m
- For example, the rule of forfeiture by wrongdoing extinguishes
confrontation claims on essentially equitable grounds ; it does not purport
to be an alternative means of determining reliability
Hammon v. Davis
- Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.
- They are testimonial when the circumstances objectively indicate that there is no
such ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events relevant to later criminal prosescution.
In Davis, Scalia tells us that the Confrontation Clause applies only to testimonial
hearsay, and later, indicates that Crawford did overrule Roberts
- What in Crawford was a right that focused on testimonial evidence, in DAvis
becomes a right that offers no protection unless hearsay is testimonial.
Although the Confrontation Clause on its face negates almost every hearsay exception,
hearsay may still be admissible under the clause if the declarant is unavailable and the
defendant had a prior opportunity for cross examination. In this way, the court modifies
the reliability test laid out in Ohio v. Roberts, 448 U.S. 56 (1980). Although the point of
the Confrontation Clause is to ensure that evidence is reliable, this is a procedural, not a
substantive guarantee. It cannot be done away with simply because the court
determines that the evidence is reliable. In addition, reliability is an amorphous concept,
depending on myriad factors, which produces judicial unreliability and indeed has
allowed admission of testimonial statements the Confrontation Clause clearly means to
exclude. As a result, the reliability test laid out in Ohio v. Roberts (1980) is overruled in
favor of the standard outlined by the Court: testimonial statements of unavailable
witnesses are admissible only where the defendant had a prior opportunity for cross
examination. In this case, Sylvia’s taped statement against Crawford is testimonial
because it was made to law enforcement officials in an interrogation and Sylvia knew or
should have known that the statement was going to be used at the subsequent trial.
Thus, because Sylvia is unavailable at trial due to her marital privilege, and because
Crawford did not have an opportunity to cross examine the statement, its admission
would be a violation of the Confrontation Clause. As a result, the statement is
inadmissible, the judgment of the Washington Supreme Court is reversed, and the case
is remanded.