401: RELEVANT EVIDENCE IS ADMISSIBLE
• 403: Unless unfair prejudice substantially outweighs probative value.
• 404: Also Propensity Reasoning generally not allowed
o NOT Considered Propensity Reasoning
§ Conduct to prove a Trait (405)
§ Conduct offered for a Non-Propensity Purpose
• Motive
• Intent
• Opportunity, Preparation, Plan
• Knowledge
• Absence of Mistake/Accident
• Identity
o Propensity Reasoning IS ALLOWED
§ Habit (406)
§ Propensity for Sexual Assault (413, 414, 415)
§ Criminal D’s (or V’s) propensity, if first offered by D (404(a)(2))
§ W’s propensity for truthfulness or untruthfulness (404(a)(3))
• Ways to Impeach a Witness
o Bias (motive to lie)
o Capacity
o Inconsistency
o Contradiction
o Character for Truthfulness
§ Past Convictions 609
• 802: Hearsay is not allowed
o NOT Considered Hearsay if not offered for truth
§ Prior Inconsistent Statement (offered for impeachment)
§ Verbal Act
§ Effect on Listener
§ Circumstantial evidence of Declarant’s State of Mind (unintentional assertions)
o Hearsay EXCEPTIONS (these are offered for truth)
§ Declarant Testifying
• Prior Inconsistent Statement (offered for truth)
• Prior Consistent Statement
• Prior ID Statement
§ Party Opponent
• Statement by (or adopted by) party used against that party
§ Declarant Unavailable
• Former Testimony
• Statement Against Interest
• Dying Declaration
• Forfeiture by Wrongdoing
§ General Exceptions
• PSP / Excited Utterance
• Then-Existing Condition
• Med Diagnosis or Treatment
• Past Recollection Recorded
• Biz Recs
• Public Recs
• Ancient Docs & Learned Treatises
§ Residual
401: RELEVANT EVIDENCE IS ADMISSIBLE
•
•
To be relevant, evidence must make “a fact of consequence” [A MATERIAL FACT] a little more probable or a little less probable [PROBATIVE
VALUE].
Conditional Relevance
o
o
•
104(b) ASK: Is there sufficient admissible evidence for a reasonable factfinder to find, by a preponderance of the evidence, that the conditional fact exists?
901(a) Authenticating Evidence ASK: Is there sufficient admissible evidence for a reasonable factfinder to find, by a preponderance of the evidence, that
the exhibit is what the proponent claims it to be?
403: Unless unfair prejudice substantially outweighs probative value.
•
Relevant evidence is NOT admissible if the evidence’s probative value is substantially outweighed by a danger of:
o
unfair prejudice
presumption of admissibility
o
confusing the issues
o
waste of time
•
Also relevant evidence is not allowed if it falls into the Minor Rules of Exclusion:
o
407 Subsequent Remedial Measures
§
Subsequent remedial measures are NOT admissible for the purpose of showing:
•
Negligence;
•
Culpable conduct;
•
Product defect, design defect; or
•
Failure to warn.
§
Subsequent remedial measures ARE admissible for ANY other purpose. Common ones are:
•
Impeachment; or
•
IF DISPUTED, ownership, control, or the feasibility of precautionary measures.
o
408 Settlement Offers
§
If there is a disputed claim (dispute about liability or damages),
§
Cannot offer evidence of:
•
settlements, settlement offers/demands, or settlement discussions,
§
To prove liability or damages (validity or amount of the claim).
§
OR this evidence cannot be offered to impeach by a prior inconsistent statement / contradiction.
§
EXCEPTION 1: This evidence can be offered for ANY OTHER PURPOSE.
•
E.g., proving bias, negating contention of undue delay, proving obstruction.
§
EXCEPTION 2: Civil settlement discussions involving an enforcement claim by the government are admissible in a criminal
case.
•
(Statements made in the presence of government officials).
o
409 Offers to Pay Med Bills
§
NOT ADMISSIBLE to prove liability.
o
411 Liability Insurance
§
Existence of liability insurance is NOT ADMISSIBLE for the purpose of showing negligent/wrongful acts.
§
Existence of liability insurance evidence IS ADMISSIBLE for ANY OTHER PURPOSE.
•
E.g., bias, proving agency, ownership, control.
§
EVEN IF evidence is not barred by this rule and there is a potential Dual-Purpose problem:
•
MUST also go through a 403 balancing test (probative value > subs. outweighed by unfair prejudice).
o
410 Crim Pleas
§
Only a criminal defendant may take advantage of this rule.
§
In a civil or criminal cases, evidence of the following are NOT admissible against a defendant:
§
Applies ONLY TO:
•
a guilty plea which was later withdrawn; or
•
to Nolo pleas (no contest = D says I am going to accept these charges but I am not admitting that I did it); or
•
to plea allocutions for withdrawn pleas or nolo pleas (D changes plea during proceeding to guilty; judge asks D if he
did every element of the crime and D says yes); or
•
to plea discussions if the D doesn’t end up pleading guilty.
§
EXCEPTIONS
•
When fairness requires completeness (D 1st offers statement made during plea discussion and more is needed for
context)
•
When D is subsequently prosecuted for perjury.
___________________________________________________________________________________________________________________________
•
404: Also Propensity Reasoning generally not allowed
o 412 In any sexual misconduct case,
412(a) NO evidence of
•
V’s other sexual behavior
•
V’s sexual predisposition
§
412(b)(1) Except (in a criminal case)
•
Specific incidents of sexual behavior w/others offered to prove the source of (physical) evidence;
•
Specific incidents of consensual sexual behavior w/D offered to prove consent; or
•
If the exclusion of this evidence would violate D’s Constitutional right (CC)
o
E.g., bias, correcting false impression of V’s naivete (virginity), D’s state of mind is in question.
§
412(b)(1) Except (in a CIVIL case)
•
Reverse 403: admissible only if probative value subs. > harm to V or prejudice to party
NOT Considered Propensity Reasoning (Character evidence may be admissible for a NON-PROPENSITY purpose).
§
o
§
Conduct offered for a Non-Propensity Purpose
•
•
•
•
•
Motive = evidence of why someone behaved the way they did
Intent = evidence of what was in the person’s mind at the time
Opportunity = evidence that a person had the opportunity to act
Preparation = evidence that a person was preparing for the crime
Plan = evidence that a person was planning for the crime
•
•
•
o
Knowledge = evidence that a person knew or should have known something, often negating a claim
of ignorance
Absence of Mistake/Accident = evidence that the bad result wasn’t an accident or mere mistake
Identity = evidence identifying a person as the perpetrator
Propensity Reasoning IS ALLOWED
§ Habit (406)
•
§
Propensity for Sexual Assault (413, 414, 415)
•
•
•
§
REQUIREMENTS:
o
Repeated observations of a person,
o
In a distinctive situation,
o
Where the person responds in a consistent way to that distinctive situation,
o
And it’s a response that can be unthinking (nonvolitional conduct),
o
And the situation at issue must match the distinctive situation.
413 In a sexual assault case
o D’s other sexual assaults are admissible, for or ANY purpose, including propensity.
o BUT Still subject to other evidence rules (104(b), 403).
414 Court may admit evidence that the party committed any other child molestation.
415 In civil cases, court may admit evidence that the party committed any other sexual assault or child
molestation.
Criminal D’s (or V’s) propensity, if first offered by D (404(a)(2))
•
D in a Crim Case: admissible if:
o
o
o
•
§
Pertinent trait,
Of the criminal D,
Offered:
§ By the defendant; or
§ By the prosecution to rebut (after D offers the trait):
• D’s trait (offered to prove conduct in accordance w/that trait); or
• V’s trait.
V in Criminal Case: admissible if:
o Pertinent trait,
o Of the V,
o Offered:
§
By the defendant; or
§
By the prosecution to rebut (after D offers the trait):
•
V’s trait (offered to prove conduct in accordance w/that trait)
o Homicide Exception (ONLY in self-defense): Prosecution can offer evidence of V’s
peaceful character IF D first offers evidence that the V was the first aggressor.
W’s propensity for truthfulness or untruthfulness (404(a)(3))
•
Evidence of truthful character admissible only after the witness’s character for truthfulness has been attacked.
o
•
WHEN DO YOU IMPEACH?
§ By questioning during cross-examination, or testimony within a W’s
testimony (intrinsic impeachment)
§
Through exhibits or other witnesses (extrinsic impeachment)
Ways to Impeach a Witness
o Bias (motive to lie)
o Capacity
o Inconsistency
o Contradiction
o Character for Truthfulness (using…):
§ Reputation [e]
§ Opinion [e]
§ SPECIFIC ACTS
• Untruthful acts [inquiry w/i only]
•
•
•
•
•
•
Other acts probative of truthfulness and untruthfulness:
Providing false information
o
Under oath: false testimony, false tax return
o
Not under oath: insurance claim, job application, resume
Acts that betray someone’s trust
o
Embezzlement
Fraud
Acts NOT probative of truthfulness and untruthfulness:
Violence
Drug use
Disorderly conduct
•
General criminality
•
•
•
Theft
Up to judge
Depends on the kind of theft (whether it involves lying)
Depends on the specific facts
•
Examples of “crimen falsi”
•
Perjury
•
Fraud
•
False statement
•
Tax evasion
•
Embezzlement
NOT “crimen falsi”
•
Violence
•
Drugs
•
Robbery
•
Prostitution/Pornography
•
Theft/Larceny (usually)
Past Convictions 609
§
§
§
§
1: Is this a crime of “dishonesty or false statement”? (elements req.
dishonest act) 609(a)(2)
•
If YES, admissible.
o
No discretion, no balancing.
•
If NO, go to 2.
2: Is this a felony or misdemeanor?
•
If misdemeanor, not admissible.
o
No discretion, no balancing.
•
If felony, go to 3.
3: Is the W the “accused” (crim D)?
•
If regular W, admissible subject to 403 balancing.
•
If accused is the W, admissible ONLY IF
the probative value > the prejudicial effect to the accused
(flat 403).
o
Does the past conviction show crim D W has a bad
character for truthfulness (and is thus likely to be lying while
under oath)?
4: BUT was the conviction (or release) more than 10 years ago?
•
If yes, not admissible . . . UNLESS the probative value
substantially > the prejudicial effect, then admissible (reverse
403).
Pssst … when ur doing the balancing, look @
Probative Value of prior conviction:
•
It was for a crime of deception
•
Recent conviction
•
It was not an aberration
•
W’s credibility is important to this
case
o
(e.g., opponent argues their
W’s testimony is a liar, case
relies on their credibility).
Prejudice from prior conviction:
•
Similarity of the prior conduct to the charged
conduct
o
Could lead to improper propensity
reasoning (jury: “once a drug dealer,
always a drug dealer)
•
Inflammatory
o
Will make jury hate them; child
pornography, violence
•
W’s testimony is important
o
If hearing this prior conviction would
make the W NOT testify (so the jury will
be missing their “key” testimony.
•
Also… real quick… 601 WHO CAN TESTIFY?
o Everyone is competent to testify.
o EXCEPT:
§
602: personal knowledge
•
§
•
§
§
W not competent to testify UNLESS they have personal knowledge.
603: oath
Before testifying, a W must give an oath or affirmation to testify truthfully. It must be in a form designed to impress
that duty on the W’s conscience.
605: presiding judge (obviously)
606: sitting juror (incompetent to impeach their own verdict)
___________________________________________________________________________________________________________________________
•
802: Hearsay is not allowed BUT FIRST…. Is it hearsay?
§
§
§
STEP 1: Identify that this is an out-of-court (OOC) statement.
•
Statements can be oral, written, or nonverbal
STEP 2: the statement was made by a person,
STEP 3: Intended by that person as an assertion,
•
Assertion = an intended communication
•
Was declarant intending to communicate something?
o
Judge decides this via a preponderance standard under 104(a).
•
Is there a risk the declarant is lying to an audience?
o
If yes, judge will prob say it IS an assertion
o
If no, judge will prob say it IS NOT an assertion
Non-Assertive Conduct
(can’t be hearsay)
•
Ship captain’s inspection
•
Dexter opening umbrella
Non-Assertive Utterances
•
“Ouch!” (reflex)
•
Questions (“Do you
know the time?”)
Assertive Conduct (can be hearsay)
•
Head nodding
•
Taking family to nuclear test site at press conference
Literal Assertions
•
“The light was green”
•
“Heinze is a pig”
•
“It’s raining”
Indirect Assertions: Q: Was the car speeding?
•
“I thought it was going to break the sound barrier!”
•
“Is the sky blue?”
•
“Let’s just say he wasn’t going to be mistaken for a defensive driver.”
STEP 4: Offered to prove the truth of the assertion (Does factfinder care if assertion is true? If yes, offered for truth)
If the truth of the assertion matters to its relevance
•
Does it matter (to the claim) whether declarant was telling the truth?
(aka assertion is material to the claim), it’s hearsay.
•
NOT HEARSAY bc NOT OFFERED to prove the truth of the assertion:
GET IT RIGHT!
§
Effect on the listener (notice)
Hearsay = OOC statements
§
Verbal act with independent legal significance (e.g., that defamatory words were said in public)
that are intended assertions
§
Impeachment by showing inconsistency
offered to prove that assertion.
§
Circumstantial evidence of the declarant’s state of mind (consciousness of guilt or innocence)
NOT Hearsay = not that ^
§
HEARSAY EXCLUSIONS: OOC statements offered for their truth but legislatively defined as not hearsay by 801. (BUT DO NOT say
that these are “not hearsay”—these are excluded from the definition of hearsay)
•
Declarant Testifying: 801(d)(1)
§
IS DECLARANT A WITNESS?
•
Party statements (admissions): 801(d)(2)
§
IS DECLARANT A PARTY-OPPONENT?
HEARSAY EXCEPTIONS: OOC statements offered for their truth but admissible as reliable or important.
•
Unrestricted 803
•
Declarant unavailable 804
§
IS DECLARANT UNAVAILABLE?
•
Residual (catch-all) 807
o
NOT Considered Hearsay if not offered for truth
§ Prior Inconsistent Statement (offered for impeachment)
§ Verbal Act with independent legal significance (e.g., that defamatory words were said in public)
§ Effect on Listener (notice)
§ Circumstantial evidence of Declarant’s State of Mind (unintentional assertions)
o
Hearsay EXCEPTIONS (these are offered for truth)
§ DECLARANT TESTIFYING (D & W same person)
Verbal Act =
statements to
which the law
attaches rights or
obligations simply
because they were
spoken
•
ONLY APPLIES WHEN DECLARANT AND W ARE THE SAME PERSON!
•
Prior Inconsistent Statement (offered for truth)
o ADMISSIBLE IF:
§
§
§
§
•
D-W testifies
D-W is now subject to cross
Prior Statement is Inconsistent
Prior Inconsistent Statement was:
• Made under oath
• Subject to penalty of perjury
• At a trial or proceeding
Prior Statement may be
offered for impeachment
Prior Statement may be
offered for truth (as
substantive evidence)
Prior Consistent Statement
o ADMISSIBLE IF:
§ D-W testifies
Prior Statement may be
offered for rehabilitation by
§ D-W is now subject to cross
consistency
§ Prior Statement is Consistent
§ Prior Consistent Statement was:
• Offered to rebut an express or implied charge of bias
Prior Statement may
• Made before alleged bias arose
be offered for truth (as
• (for truth as substantive evidence); or
substantive evidence)
• Offered to rehabilitate the D-W’s credibility (meaning ONLY to
•
prove D-W is a consistent kind of person, not for truth)
Prior ID Statement
o ADMISSIBLE IF:
§ D-W testifies
Prior Statement may
§ D-W is now subject to cross
be offered for truth (as
§ Prior Statement is Identifies someone as a person the D-W saw before
substantive evidence)
the prior statement was made (repeats an OOC ID)
§
PARTY OPPONENT
• Statement by (or adopted by) party used against that party
§
§
DECLARANT UNAVAILABLE
o
o
•
•
•
Declarant asserts a privilege (after ct. rules the privilege applies)
Declarant refuses to testify despite a court order
Declarant testifies to not remembering
Declarant is physically/mentally ill or dead
Declarant is absent from trial/hearing. But if the grounds for unavailability is absence:
•
No attendance, but you have testimony, must use:
o
804(b)(1) [former testimony] or 804(b)(6) [statements offered against party
that caused declarant’s unavailability]; or then
•
No attendance and no testimony, must use: 804(b)(2) [dying declarations] 804(b)(3)
[statements against interests].
IF the proponent made the declarant unavailable wrongfully, the proponent CANNOT take advantage of
these exceptions (cannot introduce the declarant’s OOC statements even if they fall under these
exceptions).
§
§
§
§
§
o
STEP 2: (b) THE EXCEPTIONS:
o
(1) Former Testimony
§
Declarant is unavailable
§
Testimony (under oath, penalty of perjury)
§
Given at a hearing/trial/deposition/proceeding
§
And the opposing party (party statement is offered against) had
o
An opportunity and
o
Similar motive
•
To cross-examine Declarant at the prior hearing/trial/deposition/proceeding.
Statement Against Interest
(3) Statement Against Interest
§
Declarant is unavailable
§
Statement is contrary to Declarant’s interest (proprietary [property], pecuniary [$], or penal)
•
Consider:
o
Context
o
Conflicting interests
o
Changed circumstances
o
Knowledge
§
Contrary at the time the statement was made
§
So contrary that a reasonable person would not have made this statement unless it were true
§
BUT if offered in a criminal case asserting that someone else did the crime, need clear
corroborating circumstances
•
(and exception only applies to the parts of the statement that are against the interest)
Dying Declaration
o
•
STEP 1: (a) Declarant must be UNAVAILABLE:
Former Testimony
o
(2) Dying Declarations
§
Declarant is unavailable
§
MUST be a homicide or civil case
§
Declarant must (subjectively) believe their death is imminent (when they make the statement)
§
And the statement must be about the cause or circumstances of their death
Forfeiture by Wrongdoing
o
§
Hearsay ADMISSIBLE under this exception when there is:
§
A statement of a party
•
OR party ADOPTS the statement as its own
o
If silence, did party hear/understand, is assertion within party’s knowledge,
do the circumstances indicate it was?
•
OR authorized “speaking” agent makes the statement
o
E.g., attorney, real estate broker, CEO, VP of Communications.
•
OR agent/employee makes statement during their employment & concerning their
scope of employment
•
OR coconspirator makes statement during and in furtherance of a conspiracy
(doesn’t have to be the charged conspiracy)
§
Offered against that same party
(6) Forfeiture by Wrongdoing
§
Declarant is unavailable
§
Is the party is responsible for Declarant’s unavailability?
§
Did party intend to make Declarant unavailable?
§
IF YES, the other party can introduce all of declarant’s OOC statements against the party that
committed the wrongdoing.
GENERAL EXCEPTIONS
• Present Sense Impression
o
o
•
Statement describing event or condition
Made while perceiving it
§
Or immediately after perceiving it
Excited Utterance
o Statement that relates to a startling event
o
•
o
Then-Existing Condition
o
o
o
o
•
o
o
Statement made with the purpose: of medical diagnosis or treatment
Statement describes:
§
Medical history
§
Symptoms (past or present); or
§
Their general cause or inception
Statement is pertinent to diagnosis or treatment
NOTE: It does NOT matter who is making the statement—or to whom they’re making it—so long as the
above requirements are met.
Past Recollection Recorded
o
•
Statement describing a then-existing
§
(what they felt AT THAT MOMENT)
Mental or physical condition
§
(motive/intent/plan, what you feel)
BUT cannot be a statement of memory or belief to prove the fact remembered or believed
§
Statement of memory or belief can only be offered to prove the belief (Declarant’s State of
Mind)
CAN INCLUDE statements of future intent,
§
Even if offered to prove Declarant’s conduct in accordance w/that intent
§
& Even if offered to prove someone else’s conduct in accordance w/Declarant’s intent
Med Diagnosis or Treatment
o
o
•
Made while Declarant is under stress
§ (PTSD does not count)
The stress is caused by the startling event
Past Recollection Recorded: (Point is whether the W’s recollection is recorded)
§
What can be used?
•
Writings and other recordings
•
Writing or recording is made or adopted by the W
§
Under what circumstances can this exception be used?
•
W once knew this
•
W now forgets
•
W made the recording when the knowledge was “fresh”
•
The statement was accurate when made
§
How is it done?
•
If admitted, W can only READ the recording to jury
o
(opposing party can admit record itself)
Biz Recs
§
“Business, organization, occupation, or calling”
•
§
FOUNDATION for
these 3 must be
est. by custodian
or by certification
§
§
§
•
Any organization with any sort of “formality” to it
o
(SBA = yes; study group = no)
Contemporaneous: Record made at or near the time of the act, event, condition, opinion, or diagnosis (in the
record)
Personal Knowledge: Record made by someone with firsthand knowledge (or passed along by someone who
had firsthand information)
Regularity:
•
Record reflects “regularly conducted activity” of the org
•
Making of the record is a “regular practice” of the org
•
Info comes from someone who is part of the org
o
(i.e., someone who is acting as part of that reg activity!)
Reliability:
•
Other side doesn’t show the record has an indication of a lack of trustworthiness
Public Recs
o
o
•
•
o
Record or statement of a public office
That contains:
§
Office’s activities; OR
§
Observations made under a legal duty to report (but NOT law enforcement observations in a
crim case); OR
§
Factual findings from an authorized investigation (but NOT offered against a crim D).
•
(can bring in conclusions that rely on officer’s expertise in conducting an authorized
investigation, e.g., state trooper during MVA)
Reliability: Other side doesn’t show the record has an indication of a lack of trustworthiness
Ancient Docs
o
A statement in a document that was prepared before January 1, 1998, and whose authenticity is
established
Learned Treatises
o
§
o
Once you lay foundation that treatise that is reputable and respected within the relevant community, can
read pertinent info aloud from it.
E.g., Grey’s Anatomy.
Residual Exception
•
RARELY INVOKED and even more RARELY SUCCESSFUL
o
Basically only apply it to something that seems VERY reliable and fits under no other exception.
•
Reliability: Statement is supported by sufficient guarantees of trustworthiness
o
(After considering totality of circumstances, including corroboration)
•
Necessity: Statement more probative than other reasonably available evidence
•
Fairness: Notice that ur offering the statement to the other party)
___________________________________________________________________________________________________________________________
Confrontation Clause: 6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witness against him.
o
o
o
What does it mean for D to“confront” the W?
§
They are face-to-face with them
§
Have the opportunity to cross-examine them.
§
Crim D has this right SO LONG AS not forfeited by wrongdoing.
What does it mean to be a “witness against” criminal D?
§
“Bear testimony”—i.e. to make a testimonial statement
•
So, a hearsay Declarant is considered a W if the OOC statement is “testimonial”
What makes an OOC statement “testimonial”?
o
o
o
DEFINITIELY TESTIMONIAL (Crawford):
§
Ex parte (one-side) testimony at a preliminary hearing
§
Statements taken by police officers in the course of (custodial) interrogations.
PRIMARY PURPOSE TEST FOR STATEMENTS TO POLICE (determined by Judge)
§
Testimonial: When the primary purpose is to establish or prove past events potentially relevant to later criminal
prosecution.
•
CC problem
§
Non-Testimonial: When the primary purpose is to enable police assistance to meet an ongoing emergency.
•
NO CC problem.
PRIMARY PURPOSE TEST FOR LAB REPORTS (determined by Judge)
§
Testimonial: When the primary purpose is to establish or prove past events potentially relevant to later criminal
prosecution.
•
CC problem, D would have right to confront the lab tech
§
Melendez-Diaz: White powdery substance = cocaine
___________________________________________________________________________________________________________________________
Williamson v. US: Harris’s wholly self-inculpatory statement that he knew there was cocaine in the trunk and was taking it to Atlanta,
admissible as a statement against interest.
§
TESTIMONIAL
Williamson: Harris pleads guilty, offered against Williamson to prove Harris’s involvement in the conspiracy, admissible as a statement
against interest.
§
TESTIMONIAL
Charade (video): The victim’s dying declaration in the dust (“DYLE”) offered to prove that Dyle was the killer.
§
TESTIMONIAL (w/possible dying declaration exception)
State v. Knoller: Diane Whipple’s statement to her partner, “That dog just bit me,” offered as an excited utterance.
§
NOT TESTIMONIAL
Hillmon: Walter’s letter to his sister stating his intention to go to Colorado with Hillman, offered under the state of mind exception.
§
CIVIL! No CC problem
Hillman (for Walter’s murder): W’s letter to his sister stating his intention to go to Colorado with
Hillman, offered under the state of mind exception.
§
NOT TESTIMONIAL
State v. Jensen: V’s letter to neighbor, stating fear of husband, offered against husband under then-existing condition exception.
§
TESTIMONIAL
Cell phone records offered against defendant, admissible as business records under 803(6)
§
NOT TESTIMONIAL
Vigneau: Western Union money transfer order, offered against defendant, admissible as a business record under 803(6).
§
NOT TESTIMONIAL
CC & HEARSAY EXCEPTIONS
801(d)(1)
801(d)(2)
804
803
807
Prior Inconsistent Statement
Prior Consistent Statement
Prior Statement of ID
Party-Opponent Statements
Party Agent/Employee Statements
Party Co-Conspirator Statements
Former Testimony
Dying Declarations
Statement Against Interest
Forfeiture by Wrongdoing
Present Sense Impression
Excited Utterance
Then-Existing Condition
Medical Treatment or Diagnosis
Recorded Recollection
Biz Records
Public Records
Ancient Docs
Learned Treatises
Residual Exception
Declarant Testifying
— Party’s own statement
— Not testimonial? rarely testimonial
— Not testimonial: primary purpose of statements = furtherance of conspiracy
— Prior cross-examination D already had chance to confront the W on cross
— Not admissible if testimonial (usually not testimonial but if testimonial could fit under historical exception to CC)
— Not admissible if testimonial Crawford
— Right to cross is forfeited
Not admissible if testimonial (usually not, but could be)
— Declarant testifying
— Not testimonial? rarely testimonial
— Not testimonial? rarely testimonial
— Not testimonial? rarely testimonial
— Not testimonial
Not admissible if testimonial (e.g., child victims statements admitted under state’s Tender Years
exception [but not allowed by FRE])
Lay Opinion Testimony
§ Opinion has to be rationally based on perception
§ Opinion has to be helpful to the jury
§ Opinion cannot be based on specialized expertise
Expert Opinion Testimony
§ Anyone can be an expert if they are qualified by training, experience, education, etc.
§ Experts can testify in the form of an opinion
§ The opinion must be:
• Helpful to the jury
FRE: Judge is the
• Based on sufficient facts or data
gatekeeper who
figures out what is
• Based on reliable principles and methods
/ isn’t junk science
§ That are reliably applied to the facts of the case (reliable concl.)
§
Rule: Guilbert
• Experts cannot give opinions about accuracy of IDs in the instant case.
• BUT it may be an abuse of discretion to not allow D to call an expert when testimony about IDs would be important.
§
BASES FOR EXPERT OPINION TESTIMONY
•
•
An expert may rely on inadmissible information (usually hearsay) in forming their opinion
§
IF such experts reasonably rely on such information
BUT if the inadmissible bases may not be disclosed to the jury… unless
§
Offered by the opponent; or
§
Satisfies Reverse 403 (assumption of inadmissibility unless probative value to the jury
substantially > prejudicial effect)
BEST EVIDENCE RULE
•
•
•
•
1002: Original Record required:
o (1) to prove contents (e.g., cause of action/injury based on the recording, not just the statements on it)
o (2) of a writing, recording, or photograph.
1003: Duplicates allowed unless:
o (1) genuine questions regarding authenticity (have to authenticate it), or
o (2) unfair to allow duplicate.
1004: Recording not required if:
o (1) original lost or destroyed (unless done by proponent in bad faith);
o (2) original not obtainable (by process);
o (3) opponent has original (and notice); or
o (4) relates to collateral matters.
1007: Party’s written admission or deposition can substitute for the original.
PRIVILEGES
Federally Recognized Privileges
o Attorney–Client
o Spouse–Spouse
o Clergy–Penitent
o Psychotherapist–Patient
o
o
o
o
o
NOT RECOGNIZED
Accountant–Client
§
Unless accountant is working for lawyer to help lawyer provide legal advice.
Teacher–Student
Parent–Child
Siblings
Romantic Partners
§
If not married or in a legally recognized partnership).
Attorney-Client
•
•
•
ELEMENTS
o Attorney–Client Relationship
o Communication
§
Intended as communication between client and lawyer.
o Confidential
§
Depends on a client’s intent and whether the client took reasonable steps to make communication
confidential.
o Made for the purpose of getting legal advice.
o Privilege belongs to the client.
EXCEPTIONS 502(a)
o Waiver
§
Voluntary Waiver
§
Waiver by Subject Matter
•
Waiver is intentional;
•
Disclosed and undisclosed communications concern the same subject matter; and
•
They ought in fairness be considered together.
§
Waiver by Assertion
•
D in an insider trading case testifies, “After taking with my lawyer, I thought there was
nothing illegal about the trade.”
o This disclosure waives privilege as to convos w/the lawyer.
o Crime-Fraud Exception
§
Rule
•
Communication that would otherwise be privileged will not be privileged if the
communication was to further/facilitate an ongoing or contemplated fraud/crime.
§
Examples
•
A client tells a lawyer that tomorrow he’s going to kill 30 people.
o NOT PRIVILEGED
•
A client kidnaps someone and hides them and tells the lawyer.
o NOT PRIVILEGED
o Lawsuit between Attorney & Client
o Client Identity & Fee Information
§
Lawyers usually have to disclose who their client is and who is paying the bill for their client
(mafia).
INADVERTENT DISCLOSURES 502(b)
o No Waiver if
§
Inadvertent
§
The holder of the privilege (attorney–client = client’s) or protection (work product = lawyer’s) took
reasonable steps to prevent disclosure; and
§
The holder promptly took reasonable steps to rectify the error (including if applicable FRCP
26(b)(5)(B)).
Spousal Privileges
•
•
Spousal Communications Privilege
o ELEMENTS
§
Spousal Relationship
•
Have to have been married at the time of the communication.
§
Communication
§
Confidential
§
For ANY purpose
§
Privilege belongs to BOTH spouses
•
Meaning one spouse can prevent the other from disclosing even if the other one wants to
disclose.
o EXCEPTIONS
§
Waiver (only if BOTH waive)
§
Crime-fraud exception
§
Lawsuit between the spouses (divorce, custody, or DV tort)
Spousal Testimonial (Immunity) Privilege
o ELEMENTS
§
Spousal Relationship
•
Have to have been married at the time of the testimony
§
Only applies to testimony
§
In a criminal case
§
Against spouse
§
Privilege belongs to the WITNESS