Barbri 12/7/00 Impeaching Credibility of a witness by showing bias is not in Fed. Rules – but nonetheless and important part of Evidence I. RELEVANCE - you cannot analyze any ? of evidence whether it’s evaluating an out of court document, hearsay, etc. without first asking what is the purpose of this evidence – how is it relevant? Threshold ? – should be first sentence of any Evidence essay exam 1. LOGICAL RELEVANCE 1. easy standard of admissibility 2. logically relevant if it has any tendency to make a material proposition more probable or less probable then it would be without the evidence (material fact more likely or less likely) 3. 401: is the law everywhere 4. only time you worry about this is when someone else throws out a warning signal – some other time, event, or person, – then it may be too remote 2. PRAGMATIC/DISCRETIONARY/POLICY BASED RELEVANCE 1. Stricter Standard of Admissibility 2. Substantial Auxiliary Considerations: Prejudice, Confusion of the issues, misleading the jury, undue delay, waste of time, cumulative evidence – even logically relevant evidence can be excluded when its probative value is outweighed by the danger of these things 3. 403: is the law everywhere 4. What’s missing from that list of auxiliary considerations? UNFAIR SURPRISE is missing 5. What is the least likely reason for the exclusion of relevant evidence: UNFAIR SURPRISE – it is no reason for the exclusion of relevant evidence according to 403 - LOGICAL RELEVANCE: 3. there are situations where the evidence concerns some other time, event or person which can still be included. 4. 8 Situations where is admissible even though they concern other: SIMILAR OCCURENCES (bottom of 3-5 – big outline): 1. To prove complicated issues of causation 2. Prior Accidents or Claims a. Not admissible except to show scheme of fraud or when relevant to issue of damages. 3. 4. 5. 6. b. Can show – say it was an accident – you crash into bridge abutment - can show prior of others accidents if they really are just like yours was. – involving same instrumentality -tends to show notice to municipality Where the intent or State of Mind of a Party is in Issue a. You can do it by conduct – from conduct you can infer intent b. Say it’s a sex discrimination case - sues for sex discrimination, says it’s a coincidence no other women work here – no qualified women ever applied – if you can show qualified women did apply – OK To Rebut and in Particular, to Rebut the claim or defense of impossibility a. Principal of general applicability b. Opening the Door Doctrine Value of Land – you can show what other parcels were selling for to prove the value of your own Habit Evidence a. How do you tell if it’s habit: its 3 rules that overlap i. Disposition evidence: disposition of a person to be careful of careless – NOT ADMISSIBLE to show person was careful or careless at time of litigated event ii. Prior Act Evidence: evidence a person acted in a certain way on a prior occasion once or twice – NOT ADMISSIBLE to infer conduct on occasion in question iii. Habit evidence is admissibile – so how do you tell the difference 1. in terms of recognizing habit evidence 2 key words: a. Specificity – there must be specifc detailed conduct b. Reccurence – must have occurred often enough for us to say it was habitual i. Say you’re involved in an intersection accident – “so and so is a cautious driver” – No Good – general – how so and so always stops for a stop sign –Maybe OK – how many times did you observe him? Once – no good – six times – maybe OK ii. If you see anything 4 times or more – mention possibility of habit – in essay question iii. In Multiple Choice Question -- in past has always, or instinctively or invariably or automatically done something a certain way – then it is habit. 7. Industrial or business Routine a. Habit evidence all over again 8. Industrial Custom as Evidence of Standard of Care a. Custom of business or trade as nonconclusive evidence of standard of care – different from habit/business - DISCRETIONARY RELEVANCE 5. liability insurance 1. tries to show carries liability insurance and therefore had reckless attitude and I want jury to know they can be generous – NOT ACCEPTABLE – but if liability insurance is relevant to some other aspect of the case it may be OK: a. To prove ownership and control when it is in dispute b. To Impeach Credibility of Witness by showing bias to misrepresent or exaggerate 6. subsequent remedial measures 1. subsequent repairs – basic rule: NOT ADMISSIBLE to show negligence or culpable conduct or strict liability. But you can get it in if: a. to prove ownership and control when it is controverted b. to impeach or rebut i. to show the feasibility of a precautionary measure when feasibility is controverted 7. Settlements 1. Compromises are not admissible – broad rule – the compromise, the settlement and an offer to settle is not admissible – offer to settle a claim which is disputed as to liability or amount not admissible. An offer to plead guilty, a withdrawn plea of guilty, a plea of nolo contender? NOT ADMISSIBLE 2. An Admission of fact an admission of liability or damage made in the course of an offer or discussions to settle – not Admissible. a. Makes sense b/c courts want to encourage settlements 3. An offer to pay medical/hospital expenses is not admissible either – if there’s nothing in return for it it’s not even a true offer to settle – doesn’t necessarily suggest consciousness of guilt – may be motivated by humanitarian motives. a. Unlike situation of offer to compromise, HERE, if you offer to pay the medical and there is an admission of fact – the admission of fact WILL BE ADMISSIBLE. - CHARACTER EVIDENCE 4 preliminary considerations/questions: 8. what is the purpose for the use of character evidence? 1. Purpose #1: b/c the character of a party is itself one of the elements of the claim or defense 2. Character as Circumstantial Evidence to Infer Conduct 3. Character to impeach the credibility of a Witness (we’ll deal with this one later) 9. Method, technique, - how do you prove character evidence? 1. Possibility #1: by specific acts of conduct 2. by opinion testimony 3. the common law/traditional way to do it – by reputation evidence a. which one you can use depends on the purpose for which you offer character evidence 10. What kind of case is it? Civil or Criminal 11. Character for what trait? What trait is involved in this litigation? 1. important b/c under our evidence law you can’t just have general – has to be a good or a bad reputation for some pertinent trait of character – not just a good or bad reputation – and it must be the trait that is substantively at issue in the case - CHARACTER IN CIVIL CASES 12. Rule: No Character in Civil Cases – no character as circumstantial evidence to infer conduct in civil cases – no purpose #2. 1. sued for personal injury in car accident. Witness to testify that is known as daredevil, reckless – NOT Admissible. Wants jury to infer he was careless and reckless this time because he was in past. 2. Say says I’ve been driving 40 yrs. – no tickets, no accidents – NOT Admissible – same thing. 13. Admissible in the rare situation where we are talking about purpose #1 – where the character of a party is itself one of the elements 1. Defamation case – where truth is a defense. A calls B a crook, B says I am not a crook and sues. A defends himself with truth – you are a crook and there was no damage to your reputation – your reputation was so bad. 2. When it is purpose #1, you can prove it by any of the three techniques. 14. If it’s purpose number 2 – not admissible 15. If it’s purpose # 1 – you can prove it 16. If it’s purpose #1 – you can prove it by any of the 3 methods. - CHARACTER AND SPECIFIC ACTS OF MISCONDUCT BY THE ACCUSED IN CRIMINAL CASES 17. You are essentially talking about purpose # 2. Can character of a party be admitted as circumstantial evidence to infer conduct? 1. Suppose is charged with assault on an elderly woman. He looks like an angel during trial. His rap sheet shows 6 arrests for robbery, 2 for perjury, twice a youthful offender, everyone in neighborhood knows him as a thug. Can jury be let in on how he really is? General Rule is: a. No bad character evidence in any form at the admission of the prosecution if the purpose is to show criminal conduct – general propensity for crime so jury will infer – Not allowed until defense opens the door by showing good character evidence. b. If testifies as to merits of the case – says I wasn’t there – that’s not character evidence and does not open the door to substantive use of character evidence i. If is a witness his credibility is an issue and you can impeach him so some char, evidence might come in for that purpose. c. If he calls witness to testify to his character – in this case what trait – assault so peacefulness. What method can you use – if it’s a situation where character is directly an issue you can use any of the three techniques. Here you cannot do it by specific acts of conduct. Reputation Evidence is OK – and now under the FRE – opinion is also allowed i. How does prosecution respond one or both of two ways: 1. Cross Examination of accused’s own good character witness. a. Prosecutor is allowed to inquire on Cross about any specific acts which would tarnish the reputation of the accused or which would effect the opinion of the witness. b. Say ’s witness testifies I know ’s reputation for peacefulness in community and in my opinion he is a peaceful person. i. Prosecutor can say: have you heard has been arrested 6 times for robbery? It IS a permissible question ii. Rationale: all the prosecutor is doing is testing the witness’ knowledge of reputation – prosecutor is saying I[m not saying these arrest were valid – I’m only saying that if the guy gets arrested 6 times people talk about it. And this witness is saying “I know what people say about him” so this is actually testing that. iii. Suppose witness says no and I don’t believe he was – Prosecutor cannot produce evidence or witnesses to show that he was arrested 2. Prosecution can call its own bad reputation, bad opinion witness. a. Limited to reputation and opinion – no specific acts can be testified to. d. Victim character: can also take initiative to show bad character of the victim when it tends to support the defense and then prosecution can respond by showing the good character of the victim i. Typically used in self-defense cases ii. Specific acts not OK b/c again we are talking about purpose #2. iii. If is being charged with sexual misconduct, is NOT entitled to attack character of victim for purpose of showing victim’s prior sexual disposition b/c of RAPE SHIELD STATUTES – except for limited circumstances. 18. Prosecution may not show any prior acts of uncharged misconduct unless accused first opens the door – this is NOT what we are saying 19. Prosecution cannot take initiative to show prior acts of uncharged misconduct to prove general propensity for criminal behavior unless opens door. 1. Vice president of bank loses $500 gambling illegally – borrows the $ from the bank informally – he embezzles it – to cover up he falsifies the books and then he steal key to bank and burns the book – gets caught. Pros. Says there are so many crimes what do I charge him with –charges him only with arson. Does that mean pros cannot show the illegal gambling, embezzlement, etc? NO a. It all comes in because it is all relevant apart from criminal disposition b. Shows motive, opportunity c. In this kind of situation you are not talking about character evidence – it is relevant apart from character evidence i. Crim case and has not opened the door and pros. Wants to show some prior act of misconduct on part of accused? Is this improper or relevant and OK? Typical independently relevant categories which allow in these uncharged acts – in order of popularity: 1. To Show motive a. charged with killing detective – can pros. Show that 3 yrs. Ago he killed his wife. Improper – but suppose the reason he killed det. Was b/c det. Was investigating the wife’s murder – Now it can get in. 2. To Show the Intent or State of mind of the Accused a. Specific Intent Crime – pros. Must prove specific intent, or absence of mistake. Typically you prove it by conduct – that’s how you infer intent. b. charged with receiving stolen property – he says he didn’t know it was stolen. Can pros. Show that he has received stolen property 4 previous times from the same guy? Yes – if anyone would know it was stolen it’s this guy – he always receives stolen property. 3. To Show Identity a. If he says it wasn’t me – anything that connects him to the crime charged is OK i. Police trace murder gun to mayor of the city – mayor says my house was burgled by who is then charged with murder – can they show that 3 yrs ago he burgled mayor’s house even though he has already paid his debt to society – Yes it connects him to crime b. MODUS OPERANDI: charged with crime that is distinctive and - unusual in its detail – pros. Can show this did it before in same distinctive and unusual manner. – it’s a signature crime. 4. Common Plan and Scheme a. Bank robbery charge – can they show that the day before this stole a truck – yes – IF that truck was used in the robbery – becomes part of same transaction. ii. Remember the word MIMIC: 1. M – motive 2. I – intent 3. M- mistake/absence of 4. I – identity 5. C – Common Plan/Scheme a. All the examples are criminal – but the mimic rule – b/c not character evidence also applies to civil cases. i. can show other acts of discrimination in the sex discrim. Case from before – it’s really an application of the mimic rule b. RULE 403 still applies in this situation i. Even though the prior acts are relevant – trial judge still has right to exclude if its probative value is substantially outweighed by danged of prejudice. In a Civil or crim case which alleges sexual assault or Child Molestation – Evidence of the ’s prior acts of sexual assault in SA case or child molesting in CM case are admissible. This is for the purpose of inferring disposition and guilt D charged with crime of assaulting S – D says it was self-defense b/c S attacked him when he was drunk and belligerent after a football game: 20. As part of Prosecutions case in chief (this terminology alerts us that hasn’t opened any doors), state Atty. Sought to introduce witness saying D had tendency to provoke fights. 1. Not admissible – attacks his character before his character is placed into issue 21. ’s employer wants to enter witness who will say he has peaceful reputation: 1. OK, providing he does it with the right method – here its reputation and providing it’s the right trait – and here its reputation 22. On Cross-exam. They ask if he had heard if Dan had engaged in fights on 3 prior occasions on moonlight tavern? 1. OK – tests witness’ knowledge of rep. 23. Special lesson ?: As part of pros. Case in chief, states atty sought to introduce testimony that 30 minutes prior to altercation w/smith bought hot dog and didn’t pay for it and ran into stands. 1. INADMISSIBLE – it’s essentially a repeat of ? 1 which stated the basic rule. II. WRITINGS - Authentication 1. General Rule: A writing is not admissible until it has been authenticated – preliminary proof must be presented – writing is genuine – what it purports to be. Foundation must be laid showing it is genuine. Writings are not self-authenticating – must be testimonial sponsorship – someone who will vouch for the authenticity 1. is suing for breach of K - admits nothing, admits the K which is signed. Will the K be admitted? No there was no foundation showing that what looks like ’s signature is his signature. 2. How do you authenticate? a. Direct Evidence – and admission – is this your sig. He says yes. Done. If he says no: b. Eyewitness testimony. Suppose there is an argument about that and says he wasn’t in country when eyewitness says he signed. Does it come in now? What is the quantum of proof? i. Not preponderance of evidence that it is genuine. As far as admissibility goes you don’t need to produce much evidence – just sufficient evidence so that a rational jury could find that it’s genuine. c. Prove that handwriting: i. Lay witness – any witness who is familiar with the sig. Can give an opinion ii. Expert Witness – comparing disputed signature with a genuine specimen signature iii. Jury Comparison 1. What is NOT proper to prove 2. Jury can make the comparison but a lay witness who is not familiar with the sig. In ? cannot 3. Lay witness cannot become familiar with a signature solely for the purposes of litigation. d. Circumstantial Evidence i. Ancient Evidence Rule: - 1. If a writing is 20 or more years old – witnesses to it’s execution will probably not be available 2. Regular on its fact 3. Found in a place of natural custody – if you show all 3 – its authentic ii. Mail 1. Suppose K consists of two writings offer and acceptance. If he mailed the offer and he got acceptance back in mail and sig. Is in dispute we say it has been authenticated if offeror says he received it in mail – presumption no one intercepted mail 3. Certain kinds of writing are self-authenticating – there are 6 types: a. Certified Copies of Public Records b. Official publications – books pamphlets purporting on face to be issued by public authority – it is assumed to be as such c. Newspapers or periodicals – prima facie authentic d. Trade Inscriptions or labels – tags or labels affixed during course of business indicating ownership or control. e. Acknowledged documents: 2 signatures – e.g. signature of K and then an signed attached acknowledgment f. Signatures on commercial paper to the extent provided by Commercial Law – UCC 2. Authentication of a photograph: 1. In order to authenticate a photo do you have to call the photographer? NO a. Generally a witness must look at the pic. And state that it is a fair and accurate representation of the people or objects in it. Best Evidence Rule 3. Misnomer – does not require best or most direct evidence. 4. Narrow Rule which: 1. applies only to writings. a. Writings liberally defined: includes not only documents but also films photos x-rays and recordings 2. All it does is express a preference for the original 5. A party seeking to prove the content of a writing must either: 1. Produce the original; or 2. Account satisfactorily for its absence a. If excuse for not producing original is good – the not necessary to have original 6. It Applies: 1. when you are seeking to prove the content of a legally operative document – a writing which creates or destroys a legal relationship which is at issue in the case (e.g. a deed where property is at issue, a divorce decree where divorce is at issue) 2. Involves any kind of writing – where witness’ sole knowledge of a fact is gleaned from a doc. They know something only because they read it somewhere. a. arrested and tried for murder of wife. says I didn’t do it. I had no motive. When he was arrested he had an anonymous letter that said “your wife has been having an affair with many people.Wise Up.” Signed by a friend. Pros wants to get it in b/c it shows motive – they Policeman says I found the letter and then wants to testify orally to the content of that letter: i. objection #1: no authentication – how do we know “a friend” sent it – we don’t care who sent it – it’s relevant that he has it – so cop only has to testify that he found it – overruled ii. objection #2: Hearsay – no it is not hearsay – not offered for its truth – offered simply to show effect it had on - overruled iii. Objection #3: oral testimony is not the best evidence – Cops sole knowledge came from having read it – and what good excuse could he have – if took it back and ate it – good excuse and cop can testify orally – if no good excuse – Sustained. 3. Ask yourself: a. Has it been authenticated? b. Is there a best evidence requirement? c. Is this being offered for purpose of establishing its truth? If yes – you have a hearsay problem i. If yes: is there an exception – most common w/ regard to writing: 1. admission of a party 2. recorded recollection 3. business records 7. Best Evidence Rule Does not Apply: 1. Where the fact to be proved has an existence independent of the writing a. Example: legally operative document like a divorce decree. Best Evidence Rule Applies. Proving a birth – do you need the birth certificate to prove a birth, receipt to prove payment, death certificate to prove death – if you have a witness that can do this – not necessary to have doc. b. Did X make payment? Witness says I saw him pay $3,000 and I saw him get a receipt – you’re trying to prove payment – not the content of the receipt so no Best Evidence Rule. It applies only when you are trying to prove the content of a writing. 2. Collateral Document Exception: does not apply to writings of minor importance to the controversy – it would too greatly encumber the litigation. 8. 2 additional modifications of best evidence rule (you can’t say its an exception and you can’t have oral testimony but you can have something other than original) 1. you don’t need original of public record – you can’t get it, you can have a certified copy. 2. When original documents are so voluminous that they can’t be examined in court – you can prove their content by summaries, charts, calculations a. That the rules permit them to be admitted in first place – i.e. can’t be barred under hearsay b. You make the voluminous original available to opposing counsel so they can make their own summary chart or calculation 9. What is an original and what is a copy? 1. Carbon or a Xerox – original or copy? FRE describe duplicate as any copy made in a way that avoids casual errors – just about every copy is a duplicate except for a handwritten copy. Otherwise all the other copies are duplicates a. If a duplicate, admissible like original unless: i. A genuine question is raised about the authenticity of original; or ii. It would be unfair to admit the duplicate 1. what is unfair? Maybe you want to test the signature but you can’t on duplicate. 10. There are no preferred degrees of secondary evidence – once you lay a foundation and explain absence of original adequately, you can resort to any kind of secondary evidence. III. WITNESSES AND TESTIMONIAL EVIDENCE - anything that can go wrong will with a live witness and that’s why we have so many rules re: live witnesses Competency of Witness: 1. A witness is competent to testify in Fed court if 2 basic requirements are met: 1. witness has perceived something – has personal knowledge 2. witness demonstrates a commitment to tell the truth – the oath a. Infancy – fed rules – no set rule at which child is deemed automatically incompetent – can he communicate - b. Judicially declared incompetent: not automatically disqualified – if person can still give testimony that is helpful – its OK c. Prior convictions are not disqualifying as far as competency goes i. Deadman’s statute: the interested survivor cannot testify – is incompetent to testify for his/her interest against the decedent or the decedent’s representatives about communications or transactions with decedent in a civil case unless there is a waiver. Confrontation of a Witness: 2. Witness not lawyer is supposed to testify 1. On direct – no leading/suggestive questions 2. On Cross, you are supposed to ask leading questions 3. On direct you can ask leading questions on preliminary, noncrucial matter 4. You may ask leading questions when you are having difficulty eliciting the testimony. – witness is old or forgetful or stupid 5. You may ask leading questions when you are examining a truly hostile witness or someone under the opposing sides control. (i.e. employee of corporation) a. “tell me sir have you stopped beating your spouse, yes or no.” – “were you lying then or are you lying now” – these types of misleading questions are never permissible 3. When can a witness use a writing in aid of oral testimony? 1. typical scenario – you call your witness and they are a professional – police officer, dr., etc. and at a certain point they ask to refer to their report and you say of course and witness looks at report and starts reading. 2. Basic Rule: Witnesses are not supposed to read in court – unlike congressional testimony or administrative hearings. Even if it is the witness’ own prepared statement it would be hearsay – 2 EXCEPTIONS: a. Refreshing Recollection i. Say A’s house is burgled, and A is key witness and she is nervous and upset and on the stand you ask her what was stolen and after a while she can’t remember so what so you do? 1. Ask a leading question: she’s forgetful – so it’s OK, but say it doesn’t work, she’s deaf with fright or it is going to take forever. 2. You can use a writing to refresh recollection a. Does not have to be a reliable writing b. The 3 standard objections overruled – its just allowing her to have her recollection refreshed so that she can then testify from her own recollection – no foundation needs to be laid. You can use hearsay, it doesn’t have to be best evidence, it doesn’t have to be reliable – doesn’t even really have to be a writing – could be something to trigger smell ii. Anything you use to refresh recollection – opposing counsel is entitled to see it; use it on crossexamination; or put into evidence any writing you use to refresh. b. Recorded Recollection i. We are talking about situation where witness does not remember and witness cannot be made to remember. ii. Here, you must lay a foundation and show that the writing is reliable. 1. A can’t remember what was stolen from her house, but in your file you have an inventory which A prepared day after burglary. What do you do? a. You can show it to her and see if it refreshes her recollection, but if she says “I can’t say that I now remember from my own recollection that all of these were stolen.” b. You can get it in lay foundation in 5 steps: i. The witness once had knowledge/was knowledgeable about it ii. Show that the writing was made by the witness, under the supervision of the witness, or at the very least, if made by someone else, adopted by witness at time of its making iii. Must have been timely made iv. Witness must somehow vouch for accuracy or reliability - - - - v. Witness must be unable to remember all or part of the details iii. Recorded Recollection is an exception to the Hearsay doctrine Lay opinion testimony is admissible if: 4. rationally based on perception of witness; and 1. lay witness has personal knowledge – has observed something now being described in the form of an opinion or conclusion 5. Must be helpful to the trier of fact Cross Examination, Credibility And Impeachment Cross Examination: 1. you are limited to the scope of the direct examination 2. you can cross about any issues raised on direct either expressly or impliedly 1. if witness testified only with respect to liability, you shouldn’t cross on damages Credibility and Impeachment 3. can you bolster the credibility of your witness before there has been an impeachment attack? 1. NO, no bolstering unless and until there has been an appropriate impeachment attack – bad must come before good. 2. If a prior statement of Identification made by a witness – it is excluded from Hearsay and comes in for its truth a. Say I make an in court ID and testify that previously I picked him out in a line-up or say I say that’s him and I don’t testify and then Police officer later testifies I picked him out of a lineup – or say I say I am not sure – he looks a little difference and police officer then says at the lineup I picked him – police officer is not making a consistent statement but it is still a prior statement of ID and it comes in. Or Say I am not at the trial and cop says I’m not there but cop also says I picked the guy out of line-up – NOT Admissible – pure hearsay – not a prior stmt. Of ID 4. Can you impeach your own witness? 1. Yes, but of course in the typical situation it is you opponents witness you want to impeach 5 Traditional Impeachment Techniques: 1. Prior Inconsistent Statement 1. showing that at some time in the past this witness made a statement different from and inconsistent with some material portion of witness’ present trial testimony 2. Most important thing: as a general rule the Prior Inconsistent Statement does not come in for its truth, rather it comes in with limited purpose to impeach – otherwise would violate hearsay 3. Cannot be used as affirmative evidence – can not be used to help party meet its burden of production or persuasion a. Exception: a prior inconsistent statement given under oath and as part of a formal trial hearing proceeding or deposition comes in, not only to impeach, but also for the truth of the matter contained within the statement i. It is excluded from hearsay prohibition expressly by the rule 4. sues for car accident at trial says he wasn’t speeding - asserts he was speeding. There’s no cross but in rebuttal they call the investigating officer who says told him he was speeding. Cop is admissible as prior inconsistent statement by Dan and comes into impeach but not for its truth – is this statement correct? a. Yes it is a prior inconsistent statement b. It comes in for its truth because a prior inconsistent statement by a party () is a party admission. c. didn’t even have to testify i. admissions are very common on exams so always be aware of it 5. Can you use Extrinsic Evidence to Drive home the Impeachment technique – call other witnesses – produce other documents or are you limited to cross? a. yes, if witness denies making prior inconsistent statement you bring in witness or document. – Richman makes distinction: i. Collateral Matter: if statement is of collateral nature (fringe details not having to do with crux of the testimony), then it cannot be contradicted with extrinsic evidence ii. Material matter: if statement is of a material nature (facts relevant to case itself and critically important to witness’ credibility) they can prove it with extrinsic evidence 1. this kind of goes without saying though because courts hate collateral anyway 6. If you can use extrinsic Evidence, do you first have to lay a foundation by inquiry on Cross-Examination – do you have to ask witness if its true or not first? a. Here the Fed rule takes position that there is a somewhat limited foundation – target witness must have opportunity to explain or deny the making or the prior inconsistent statement – but it doesn’t say when. So you don’t necessarily have to give the opportunity beforehand. 2. Showing of Bias or Interest or Motive to Exaggerate or Misrepresent 1. You can prove it by extrinsic evidence after you lay a foundation. 2. Don’t overlook this impeachment technique – it is a wonderful vehicle for letting in things which otherwise seem inadmissible 3. If witness testifies against me, can I ask him if it was true he was arrested for drug dealing? You would think no, but if he is testifying for prosecutor who is going to handle his drug charges, then he has motive to try and please the prosecutor – tends to show an interest, a bias, so it is OK. 3. Prior Conviction of Crime 1. Fed Rules say 3 parts to the discussion: a. Any crime involving dishonesty or false statement be it a felony or a misdemeanor is usable to impeach any witness. i. What is a crime of dishonesty? 1. they really mean deceit or false statement – not robbery or ordinary larceny (must be larceny by trick) we are talking about fraud, perjury, misrepresentation, embezzlement b. Suppose it is a Felony not involving dishonesty or false statement (i.e. assault): i. Trial judge will balance probative value and prejudice – and if it’s a misdemeanor, forget about it. c. It can’t be too remote i. If ten years have passed, too remote even if crime involves false stmt. Or dishonesty 2. You can use extrinsic evidence but is must be a certificate of conviction 3. You don’t have to lay a foundation 4. Specific Acts of Deceit or Lying which may be inquired into on Cross examination – did not result in convictions 1. You just ask: did you do it? Not were you arrested/indicted for it – just isn’t it true you did it. 2. It has to be a specific act of deceit or lying – not just any old bad act 3. You have to have a reasonable basis for asking the question and it must be asked in good faith 4. The most important thing about this techniques is NO Extrinsic evidence allowed – you must take the answer of the witness a. It is the only impeachment technique which doesn’t allow extrinsic evidence 5. Bad Reputation for Truth and Veracity 1. You HAVE to use extrinsic evidence for this one – it’s the only way 2. Witness can also give an opinion – his reputation is dishonest and in my opinion he is not to be believed. - - IV. When can you show good reputation for truth and veracity? 1. only when your witness has been attacked (3,4,&5) – direct character attack – liar by nature, not just in one particular case 1. If prior inconsistent statement, or if showing of bias -- you cannot show good reputation. What about prior consistent statement? 1. If the impeachment attack is showing a prior inconsistent statement can you come back and show a prior consistent statement? NO 2. You can use it to rebut a charge of recent fabrication or improper influence or motive 1. Your witness is attacked, not because of an inconsistency in the past but b/c he has a motive to fabricate in which case you can say – that can’t be b/c before the time of that motive he made a consistent statement – so even if the motive existed it didn’t influence HEARSAY - - - Part I: Definition: is it hearsay or not Part II: Exceptions 1. the exceptions are hard to overlook, the definition is harder. Definition: An out of court statement offered for the purpose of establishing the truth of the matter contained in the statement. 1. Is it an out of court statement 2. What is the out of court statement 1. mentally put quotations around the out of court statement 3. Is it being offer to establish its truth 1. If yes – hearsay and you need an exception Cast of characters: 1. Decalarant: one who makes out of court statement 2. Witness: someone come in and says what declarant said – writing can report what dec. said too – in both situations there is the same Hearsay problem Sometimes this definition doesn’t work very well – sometimes it’s awkward – so it is important to understand the rationale: 1. Hearsay is suspicious because it denies to the opponent the opportunity to cross examine the one whose perception/memory/sincerity is really important. 1. i.e. Declarant makes out of court stmt. Witness wants to report what the decl. Said. If it is being established for the purpose of establishing its truth then we care about decl’s perception/memory/sincerity. But if witness is allowed to report what decl. Said, decl. Is not subject to cross and it is hearsay. 2. But say witness wants to report what decl. Said and the key question is did the decl. Really say those words b/c if he did, it’s a big deal in this case – b/c the mere making of the stmt. In this case - - is relevant. Here, we don’t care about the decl’s memory/perception/sincerity – we care about the witness’ – and witness is subject to cross Take the out of court statements asked about that are not excluded and they fall into 3 categories: 1. Verbal Act – legally operative act – all we want to know is did decl. Say those words 1. I heard decl. Say “I accept your offer” If you technically apply the def. Of Hearsay it seems like hearsay – IT IS NOT. All we want to know is did the decl. Say “I accept your offer” b/c under the substantive law they constitute acceptance. So words of offer and acceptance to prove oral K are not Hearsay, conspiracy words in consp pros – NO HS, words of Bribery, defamation, misrepresentation, waiver, cancellation, in their respective suits are not hearsay. 2. An out of Court statement offered not for its truth but to show the effect that it has on the person who heard/read it 1. offered to show notice or knowledge or good faith on the part of the person who heard it or read it. 2. Shows why person acted in a certain way whether it was mean’t or not. 3. Victim says to police officer “so and so mugged me arrest him” so an so is wrongly arrested and then sues police officer for wrongful arrest. Cop takes stand with defense of probable cause and says “victim told me he did it” it is admissible to show the effect it had on the cop – it gave the cop probable cause. a. If cop has to explain probable cause for a 6’6 red haired Irishman at corner of X street. He testifies that he heard his sergeant says that captain says that bystander says – 6’6 red hair --- just robbed liquor store – COMES IN NOT HEARSAY 3. Circumstantial Evidence of the Declarants state of mind (as long as declarants state of mind is relevant to the case) 1. is using self defens. Witness testifies that on night of murder he heard say “I am pope on mission from God” – comes in, not Hearsay – we’re not asserting the truth. If declarant and witness are same person -- witness’ own prior statement is being offered – it is hearsay if it is being offered for the purpose of establishing its truth 1. takes stand in his own behalf and his lawyer says “when you were arrested what did you tell the police” and wants to say “I told them I was innocent” This is inadmissible evidence b/c it is hearsay – if he is saying it in order to infer that he really is innocent. There is no exception. 1. Why isn’t that an admission – it’s not being offered against the party that made the statement – it is being offered by the statement so not an admission - 3 Witness Statements that are not hearsay: 1. Prior Inconsistent Statement given under oath and as part of formal trial, hearing proceeding 2. Prior consistent statement used to rebut 3. Prior statement of ID made by a witness - If it is an out of court statement and it is being offered to prove its truth we let it in if it fits an exception or an exclusion: 1. Certain out of court statements are deemed to be specially reliable, so we deal with these exceptions/exclusions The Key 6 Exceptions: 1. The admission of a party 1. declaration of a party inconsistent with the position of the party at the time of trial. 2. When admission is originally made it could be self-serving could be intended to misrepresent 3. So there is no special reliability – doesn’t even need to be based on personal knowledge 4. Admission can be in the form of an opinion or conclusion we would never allow a live witness to testify to. We let it in under theory of estoppel – the party is stuck with it let them explain it – there is no one to complain – you are not being prevented from crossing yourself 5. They call this an exclusion and not an exception – it makes no difference – it’s coming in. 6. The Vicarious admission: admission by an employee doesn’t bind employer or corporation – especially the post accident statement of employee – Statement by an employee concerning a matter within the scope of employment is admissible against employer is made during employment situation – must be said before fired. 2. Former testimony 1. the special reliability is evident. There are always two proceedings in this case – witness testifies live in proceeding #1 and now in #2 which involves sanctioning the same party and same issue witness is unavailable – transcript or first testimony can typically be admitted 2. There must have been a meaningful opportunity to cross in the first proceeding when witness first testified live a. This means the issue has to be the same in order 3. The former testimony will be admissible if it is offered against someone who had opportunity to cross in the first proceeding or at the least in a civil case – was in privity with a party who had opportunity to cross-examine a. Two passengers in bus accident. P1 sues bus company and witness testifies live and hung jury, now P2 sues for same thing – now witness is not available – can the transcript be - admitted? We don’t know – there is not enough info. Against who is the transcript being offered – if bus company it comes in. If against P2 – P2 was not a party or in privity w/passenger #1 so it can’t come in 4. Unavailability is required a. Unavailability: death, absence from jurisdiction, physical/mental illness so witness cannot testify, and refusal to testify – either b/c of privilege or stubbornness, failure to remember 3. the statement against interest 1. Here, you can say a person does not make a statement against there interest unless it it probably true – b.c it must be against interest at time it is made – not like admission at time of trial 2. Declaration of any person now unavailable as a witness against that persons pecuniary or proprietary or penal interests at time statement is made a. Do not confuse with admission of a party: admission of a party is not an admission against interest. Different in 4 ways: i. This exception has to be against interest at the time it is made (hence the special reliability) ii. An admission is by a party but this can be made by anyone iii. Here, personal knowledge is required, declarant has to know what he is talking about and has to know it is against interest iv. An admission is by a party and the party is usually there, but here unavailability is required and this requirement is what usually keeps this exception from applying 1. unavailability is required for statement against interest and former testimony 4. the dying declaration 1. Statement made under sense of impending death 2. Special Reliability: A person who is about to die will not lie – there is every motive to tell the truth 3. This has 4 basic elements: a. Most important: State of mind requirement: declarant must be conscious of the approach of death i. Say victim is lying in gutter and tells cop “A did it” and dies – not a dying declaration – maybe an excited utterance but not dying declaration b/c nothing indicates he knew he was going to die in this fact pattern ii. Dying woman cops take statement – and last sentence says she made statement fearing death w/no hope of any recovery – she changes it to no hope at present – not a dying declaration – if you’re really afraid of dying you don’t negotiate terms b. The declarant need not actually die – just needs to truly think they are going to die, as long as they are unavailable at trial and any unavailability grounds will suffice c. The dying declaration is admissible in homicide cases or in any civil case – but not in a criminal case that is not homicide d. Subject Matter Limitation: Must concern the cause or circumstances of the impending death i. X is shot 4 times, falls in gutter. X says he has hopeless expectation of death and then says I don’t know who shot me, my will was the product of undue influence. Does this come in in the will probate proceeding? NO 5. Group of exceptions (used to be called res gestae) including (for all of these, unavailability is not required – better to know what declarant said back then then to hear what he thinks about it no when there is now motive to lie, etc. 1. declaration of existing state of mind when decl’s state of mind is at issue 2. declaration of intent to do something in the not too different future a. admissible to infer that the future intended act was done i. cops find decl’s dead body. He said earlier “ I will kill myself in ten days” comes in 3. Excited utterance a. There must be a startling event b. Statement must be made under the stress of excitement from the startling even c. Statement must concern the facts of the startling occurrence i. What was the event – would it cause excitement in anyone? ii. There can be a time lapse between event an statement and it can still be an excited utterance – the question is what is going on during that time lapse – has the excitement worn off – 30 minutes after a car accident – not likely to be an excited utterance. If decl. Was in a coma for two days and wakes up and makes a stmt. That could be an excited statement – on test look for words like “holy shit, Oh my God, and the declarant exclaimed, shouted, exclamation point 4. present sense impression a. Declarant is describing something at the very moment it is happening – there is no appreciable time lapse – no memory problem i. typical is a 911 call ii. mother calls victim and while mom is on phone V gets door – X is at door- and says I can’t talk to you now I will call you later and V is found stabbed – and in order to show that was in apartment mom testifies – my son said “X is at the door” comes in as present sense impression 5. present physical condition a. declaration of present pain, suffering – admissible by anyone who hears it – it is a specific type of present sense impression 6. past physical condition a. declaration of past pain, suffering or cause thereof to extent it is relevant w/regard to treatment or diagnosis if it is made to medical personnel i. typically on test it involves medical history. Suppose Dr. hired on eve of trial to give testimony and says I am not the treating physician I was hired to give an opinion and my opinion is whatever based in part on ’s medical history and the Dr. testifies as to everything told him about his medical history. It comes in for limited purpose of explaining the basis of the opinion – it also comes in for its truth under this exception 6. Business records exception 1. 2 important preliminary issues: a. What is the rationale for this exception? i. If you have ABC company, you have employee A who must observe facts and report them to B who must give them to C who records them – they all have an incentive to be accurate – they don’t want to get fired – they have a business duty b. What is the function of the business record exception i. It allows the record itself to substitute for the live in court testimony for the live in court testimony of the employees in the unit. 1. Exam ?s are usually one of two things: a. Does the exception apply at all and it hinges on the question of whether entry is germaine to the business b. Suppose the entry is germaine to the business, but suppose the info contained in the record came from an outsider – there is a business record exception b/c it is germaine, but can it come in? outsider has no incentive to be accurate – it is inadmissible hearsay unless it fits another exception. The record is recording what the employees say that X said – there are two hearsay levels and you need an exception for both i. Police report in civil case – car accident – cop makes two entries – 1 is statement of witness 1 is statement of driver and X says I saw it 30 minutes ago and D ran red light. 2nd entry – D says I was driving and I guess I ran the light. sues D and offers this police report as a business record – in a civil case cop report can be a business record. Witness statement: it is germaine so you have a bus. Record exception so entry can substitute for anything cop could testify to live. He could not testify to X’s statement live – it would be hearsay – so you need 2 exceptions. – no exception for the statement of X. Statement of D – germain, yes, but could cop testify live to what D said – yes – it is an admission. You have the combo of bus. Record and admission so it comes in.
