I.
Characteristics of the Adversary System
A.
The Federal Rules of Evidence
i.
FRE 102- Purpose
a. These rules should be construed so as to administer every
proceeding fairly, eliminate unjustifiable expense and delay, and
promote the development of evidence law, to the end of
ascertaining the truth and securing a just determination.
ii.
What is EVIDENCE: What can be considered by a fact-finder in a
trial?
iii.
Many FRE were interpreted by Sup. Ct. in 1980's using plain
language standard that ignores common law history, pre-Rules precedent,
and general policy
B.
Roles of the judge & jury
i.
Judge’s Roles
a. Judicial Interrogation
1.
FRE 614- Court's Calling or Examining a Witness
a. Calling. The court may call a witness on its own or at a
party’s request. Each party is entitled to cross-examine the
witness.
b. Examining. The court may examine a witness regardless of
who calls the witness.
c. Objections. A party may object to the court’s calling or
examining a witness either at that time or at the next
opportunity when the jury is not present.
2.
Court, questions cannot demonstrate partiality
i.
Juries determine if witnesses are telling truth,
judges wield power over juries, therefore judges may not
ask questions that signal belief or disbelief in witnesses
ii.
Inquiries cannot target credibility the way a
prosecutor's would
iii.
Cannot express clear disbelief
iv.
Admonitions by the judge to jurors that they are
sole trier of fact and determiners of credibility can only
offset brief or minor departures from impartiality
v.
What is considered favoritism?
a. OK- if actions/rebukes only make up small portion
b. OK- if actions by judged provoked
c. OK- if opposing counsel not clearly favored
3.
Expressive conduct can reach level of partiality
4.
Reversals are rare
a. Even more so in civil cases
5.
Judicial intervention is not objective
6.
Appellate courts usually defer to trial judges on demeanor
issues
a. Trial judges have info/firsthand knowledge since these do
not become part of record
ii.
b. Admissibility
1.
FRE 104- Preliminary Questions
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.
i.
Decided by judge by PoE
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.
c. Conducting a Hearing So That the Jury Cannot Hear
It. The court must conduct any hearing on a preliminary
question so that the jury cannot hear it if:
i.
the hearing involves the admissibility of a
confession;
ii.
a defendant in a criminal case is a witness and so
requests; or
iii.
justice so requires.
d. Cross-Examining a Defendant in a Criminal Case. 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.
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.
2.
FRE 105- Limiting Evidence that is not admissible against
other parties or for other purposes
a. 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.
3.
Judge not bound by rules of evidence in determining
admissibility
4.
Standard of proof = PoE
Jury Roles
a. Weight/persuasiveness of evidence is left to jury
b. Questioning
1.
Not explicitly authorized or disallowed under FRE
a. FRE 611(a)- court should exercise reasonable control over
the mode and order of examining witnesses
b. Most courts decide it is acceptable in some cases but don't
condone it
i.
Some courts require juror questions to be submitted
in writing, outside presence of jury where lawyers can
object then court puts approved questions to witnesses
ii.
Some courts disallow in criminal cases
c. Pros- increased participation, possible insight
d. Cons- not familiar with rules, may advocate instead of be
fact-finder
C.
Objections
i.
FRE 103- Rulings on Evidence
a. Preserving a Claim of Error. A party may claim error in a ruling
to admit or exclude evidence only if the error affects a substantial
right of the party and:
1.
if the ruling admits evidence, a party, on the record:
a. timely objects or moves to strike; and
b. states the specific ground, unless it was apparent from the
context; or
2.
if the ruling excludes evidence, a party informs the court of
its substance by an offer of proof, unless the substance was
apparent from the context.
b. Not Needing to Renew an Objection or Offer of Proof. Once the
court rules definitively on the record — either before or at trial — a
party need not renew an objection or offer of proof to preserve a claim
of error for appeal.
1.
When "definitive"?
a. Ruling is not definitive if conditional
b. Tentative is not definitive
c. Definitive rulings do not invite reconsideration
i.
Objection not necessary to prevent error
ii.
Motions in limine are designed to avoid delay and
prejudice, only achieve this purpose if objections can be
foregone without penalty
iii.
Also permit parties to adjust strategy according to
pretrial ruling
iv.
Judges control how ruling perceived in language
and would be well to be explicit, but if not explicit presume
unconditional rulings are definitive
2.
Definitive is limited to subject and scope of pretrial ruling
c. Court’s Statement About the Ruling; Directing an Offer of
Proof. The court may make any statement about the character or form
of the evidence, the objection made, and the ruling. The court may
direct that an offer of proof be made in question-and-answer form.
d. Preventing the Jury from Hearing Inadmissible Evidence. To
the extent practicable, the court must conduct a jury trial so that
inadmissible evidence is not suggested to the jury by any means.
e. Taking Notice of Plain Error. A court may take notice of a plain
error affecting a substantial right, even if the claim of error was not
properly preserved.
f. Division on whether reversal required where evidence correctly
objected against, but on the wrong grounds gets admitted anyway
g. Required to indicate particular portions of docs that are
objectionable
h. Exception to objection when apparent from the context, hard to
guess if court will find this to be true
i. Objections usually must be made as soon as grounds are apparent,
before witness answers
1.
If unable to object before answer or answer itself is
objectionable, motion to strike and request for jury instruction are
appropriate
j. If counsel does not understand grounds for objection, judge should
indicate or require objective counsel to do so
k. Objections should be on the record
l. Trial court may allow evidence and later decide if sufficient
evidence exists for jury to make required finding, if failed to provide
enough evidence jury should be instructed to disregard that evidence
m. Error
1.
Technical infraction of the rules is a harmless error
2.
Plain error only exists when affect party's substantial rights,
is obvious, and affects fairness or integrity of process
n. All rules of evidence and procedure apply to pro se ∆s, including
the need for proper objections
D.
Offers of Proof
i.
Offer of proof should be valid, properly presented, detailed, and
recorded to preserve an error for appeal
ii.
Error may not be based on the exclusion of evidence unless
substance of evidence was made known to court by offer of proof or
apparent from context, FRE 103(a)(2)
a. Telling the court the content of proposed testimony is NOT offer
of proof
1.
Must describe evidence and what it tends to show AND
identify grounds for admitting as evidence
2.
Purpose: enables trial judge to make informed decisions
AND creates clear record for appellate court
b. No mandated type of offer of proof, at least four ways
1.
Examine witness before court and have answers reported
on record
a. Costly
b. Most desirable
c. Least efficient
d. Must excuse jury during trial
e. Opposing counsel may cross examine to develop factors
which would place testimony in true light
2.
Statement of counsel as to what testimony would be
a. Least desirable
b. Difficult to decipher because lacking in detail
c. Potentially falls short of standard
3.
Statement written by examining counsel describing answers
witness would give
4.
Written statement from witness of testimony, signed and
placed in the record
iii.
Offer of proof not usually necessary if excluded based on cross
E.
Appeals
i.
Negative Evidence- "The dog that did not bark"
a. Luce v. United States
1.
FRE 609(a)- allows use of prior conviction as impeachment
evidence against ∆ who testifies in own criminal case, but must
have a probative value that outweighs prejudicial effect to ∆
2.
∆ is required to testify to preserve FRE 609(a) claims, will
allow reviewing court to determine impact of any erroneous
impeachment in light of entire record and will discourage motions
just to plant reversible error
3.
In limine ruling in this context is tentative as it is based on
∆'s testimony
4.
Application
a. Required for federal use
b. Many district courts have applied Luce to error regarding
any witness who would have testified but for an in limine
ruling
c. Some states reject Luce
i.
On basis of a proffer of the ∆'s testimony and that
the ∆ chose not testify when faced w/impeachment by prior
conviction, this would give reviewing court enough in the
record to conduct harmless error analysis
b. Questions of applicability when impeachment violates
constitutional principles (self-incrimination, unlawful search and
seizure)
ii.
Invited error- "You asked for it"
a. ∆ cannot create own error by deliberate strategic choice and then
appeal on error
b. Ohler v. United States
1.
∆ who introduces evidence of prior conviction in direct
examination may not appeal on claim that admission of evidence
was in error
2.
Both sides make choices in a trial, this is the nature of trial
strategy
a. Allowing error on these grounds takes away govt's choice
to decide whether or not to impeach w/conviction (which could
be reversible) until after ∆'s testimony
3.
Dissent
a. Different from Luce because not speculative, factual record
to review
b. Defense lawyers do not try to impeach own witnesses, only
reason to make this choice is as a result of the in limine ruling
c. This ruling does not support the purpose of the FRE in Rule
102 because it is focused on tactical advantage vs. uncovering
the truth
4.
Applicability
a. Federal use
b. Some states reject Ohler on goes against notion of fairness
c. Most courts allow for objections to be preserved when crossexamining or rebutting evidence previously objected to and overruled
1.
But majority say may be held to waive objection if go
beyond cross-exam and rebuttal and rely on the inadmissible
evidence and introduce similar evidence through own witnesses
2.
Some states say ANY interaction will waive objection
d. Requires consent or request of ∆ counsel, must be more than
acquiescence to trial judge's erroneous conclusion
iii.
Opening the door- If it weren't for you
a. Bringing up a specific issue (i.e. character) that would not have
been fair game for opposing counsel based on rules or general
relevant, thus opening door for opposing counsel to respond
F.
Limited Admissibility
i.
Multiple admissibility doctrine- when evidentiary fact is offered
for one purpose and is admissible in that capacity, but it does not satisfy
applicable rules in some other capacity because jury might improperly
consider in that capacity
a. When an evidentiary fact falls under the multiple admissibility
doctrine, jury instruction to apply limited consideration is sufficient to
eliminate possible prejudice
b. Court is not required to give limiting instruction unless requested,
and failure to do so is not plain error in a civil case
c. Might be strategic choice not to request limiting instruction
ii.
Multiple parties
a. There are problems w/limited admissibility when looking at
multiple parties
1.
Confession of defendant including a codefendant is
inadmissible is ∆ doesn't testify because co-defendant loses 6th
amendment right to confront witnesses against him, either
confession out, or sever trial
G.
Non-jury trials
i.
II.
Reversal not required where court sits w/o jury and inadmissible
evidence presented because
a. Presumption that judge will only consider proper evidence
b. And appellate course can decide the case itself based on the record
ii.
Exclusion of evidence
a. Whether bench or jury trial, treated the same
1.
No one can consider evidence that was not available
iii.
Standard of review
a. Abuse of discretion+
iv.
Presumption rebutted- rare
a. Presumption that only proper evidence considered can be rebutted
through trial courts express and specific finding of admissibility on the
record or statement on record which discloses judge relied on the
erroneous evidence
Order of Proof
A.
FRE 611- Mode and Order of examining witnesses and presenting
evidence
1.
Control by the Court; Purposes. The court should exercise
reasonable control over the mode and order of examining witnesses and
presenting evidence so as to:
a.
make those procedures effective for determining the truth;
b.
avoid wasting time; and
c.
protect witnesses from harassment or undue
embarrassment.
2.
Scope of Cross-Examination. Cross-examination should not go
beyond the subject matter of the direct examination and matters affecting
the witness’s credibility. The court may allow inquiry into additional
matters as if on direct examination.
a.
Limited approach (majority approach in U.S.)
i.
∆ should be limited in cross examination to the
scope of the direct
ii.
Limits on cross do not apply to cross for purpose of
impeachment
1.
Requires some regulation by judges
b.
Wide open approach (minority approach, supported by
scholarly opinion)
i.
Defense is free to question a witness on any topic
regardless if brought up in the scope of direct
examination, judge has discretion to assure orderly and
intelligible presentation of the facts
ii.
Purpose1.
Rule is likely to be disruptive to trial
procedure
2.
Result in meritless appeals
iii.
Allowing for open questioning on cross is better
served to the purpose of discovering the truth
c.
FRE 611 uses limited approach, but w/board discretion
i.
Rule 611(b) allows questions issues not mentioned
in direct but related to and made relevant by direct and
judge has discretion to allow questioning completely
outside of scope of direct
ii.
Construed to include all inferences and implications
arising from direct
d.
Criminal trial where ∆ is witness
i.
On prelim matters not open to cross on entire case
3.
Leading Questions. Leading questions should not be used on
direct examination except as necessary to develop the witness’s testimony.
Ordinarily, the court should allow leading questions:
a.
on cross-examination; and
b.
when a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party.
B.
Right to open and close
i.
Right to open and close is substantial right belonging to the party
with the burden of proof
ii.
Gets to open first, close last
C.
Rebuttal evidence
i.
Can include evidence used by plaintiff denying facts of ∆ when ∆
has counterclaim against him
ii.
Civil Practice Act §424, where ∆ interposes a counterclaim and
demands an affirmative judgment mode of trial is same as if ∆ brought
original action against plaintiff
iii.
Rebutting evidence= not merely evidence which contradicts
witnesses on opposite side and corroborates those of the party that began,
but evidence in denial of some affirmative fact which the answering party
endeavored to prove
iv.
Ok to hold back evidence as long as it rebuts opponentsandbagging
a. Risks of sandbagging
1.
Defense rests with no evidence, and plaintiff didn't present
good evidence, probably lose
2.
Risk of directed verdict for not establishing prima facie
case
3.
Psychology- want to be first to get info to jury, get them
thinking about facts in your light
D.
Timing and order of proof
i.
Trial judges have broad discretion to control timing and order of
proof
ii.
Not totally unfettered
E.
Reopening evidence
i.
Trial court has discretion to reopen evidence and should do so
when there is no deceit, surprise, or prejudice and can easily be cured
ii.
Limited to timeliness and prejudice
III.
Concept of Relevancy
A.
FRE 401- Test for Relevant Evidence
i.
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.
ii.
Old standard v. New standard
a. Old= has to relate to material fact, outcome determinative
b. New= has to be relevant, broader, evidence tending to prove a
material fact
iii.
Definition
a. Relevancy is not inherent in an item of evidence, is relation
between item and proposition sought to be proved
B.
FRE 402- General Admissibility of Relevant Evidence
i.
Relevant evidence is admissible unless any of the following
provides otherwise:
a. the United States Constitution;
b. a federal statute;
c. these rules; or
d. other rules prescribed by the Supreme Court.
ii.
Irrelevant evidence is not admissible.
a. Irrelevant = Not probative of proposition at which directed
1.
Standards
a. Evidence must render fact more probable than not
i.
Commonly used in evaluating sufficiency of
evidence
ii.
If rigorously applied, exclude a great deal of
evidence
b. Evidence must render fact more probable than in absence
of that evidence
i.
Most commonly applied
ii.
Can be slightly advancing (bunt is sufficient, don't
need home run)
c. Proposition is not provable in case
i.
Decided by substantive law
C.
FRE 403- Excluding Relevant Evidence for Prejudice, Confusion,
Waste of Time, or Other Reasons
i.
The court may exclude relevant evidence if its probative value
is substantially outweighed by a 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.
ii.
Special Application of FRE 403
a. Application will vary with nature of case, issue to be proven,
evidence offered
b. Some applications have occurred frequently enough for rules to
develop
1.
Financial Conditions
a. Evidence of a party's financial condition is prejudicial and
is not admissible in a civil negligence case
b. Courts should be balanced between rich and poor
c. Evidence of financial need is relevant to financially
motivated crimes but not admissible because it is prejudicial
and disadvantages the poor
i.
More specific financial need may be more probative
and be admitted
d. Admissible if can show windfall as result of crime
e. Evidence of ∆'s wealth in civil case permitted but plaintiffs
should be limited to using it to show proper damages.
f. Admissibility in civil cases
i.
Some courts limit admissibility until liability has
been established and punitive damages are supportable
ii.
Others wait until prima facie case for punitive
damages is made
iii.
Question about whether jury can consider
exemplary damages in absence of evidence of ∆'s financial
condition
2.
Prior convictions
a. Old Chief- when element of crime is a conviction for prior
offense, ∆ can stipulate to conviction as opposed to prosecution
sharing name and nature of offense, as doing so would be
prejudicial
b. Usually not used beyond specific facts
c. Weighing the prejudice evidence
1.
Prejudice doesn't mean bad for one party, means unfairly
prejudicial
2.
Island approach: look at evidence alone and its probative
value vs. prejudicial risk
3.
Comparisons approach: take into account full evidentiary
context of the case, look not just at value of item but in comparison
to actually available substitutes
a. This approach is supported the notes and comments to
rules, 401, 403, and 404(b)
b. Mostly approach used
d. Telling the story
1.
Parties may tell story the way they think best, Old Chief
D.
FRE 411- Liability Insurance
i.
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
IV.
another purpose, such as proving a witness’s bias or prejudice or
proving agency, ownership, or control.
ii.
Modern applications
a. Less serious view of disclosure of liability insurance
b. Reversals are rare unless deliberate to invite jury to consider
c. Can use limiting instruction if necessary
d. Questions
1.
Should be considered with punitive damages?
2.
Is potential jury connection to the liability insurer
relevant?
E.
Independent Legal Significance
i.
If a fact has separate legal significance it is relevant and allowed in
regardless of exceptions
Formalized Applications of Relevancy
A.
Other happenings
i.
As evidence to show danger or notice
a. Admissible if instrument/agency is in substantially the same
condition as it was when created cause of action,
1.
Possibility exists of confusion or delay, at judge's
discretion
b. Can be used to rebut extreme claims
c. Degree of similarity
1.
Strict similarity
a. Evidence offered to show dangerousness of condition
2.
Lesser showing
a. Evidence required to show notice
d. Many courts do not classify under FRE 404(b) and rely on
common law or FRE 403
ii.
Products liability
a. Absence of prior injuries admissible if can show would have been
aware if those injuries had occurred
1.
At discretion of court
2.
Use balancing test from 403
3.
More relevant in product design vs. manufacturing
a. Design says product on whole is danger, would be more
relevant that there have been no accidents
4.
Public policy- encourages companies to be aware of danger
of products so can show that they would have known if they were
iii.
Land value
a. The sale price of similar real property is admissible
1.
Must be similar land and nature of sale
a. Factors
i.
Land
a. Size
b. Use
c. Location
d. Character
ii.
Sale
a. Time
b. Mode
iii.
Nature
1.
Forced sales/foreclosures/eminent domain
not usually included
iv.
Experiments
a. Generally admissible if conditions are similar to cause of action
1.
Considerations
a. Human element
b. Purpose of the results of the experiment
c. Danger
b. Trial court has wide discretion
1.
Greater latitude should be afforded experiments not
specifically designed to accompany a suit
a. More fair even if less similar because independent
c. Physical facts
1.
Evidence contrary to unquestionably established physical
facts will be disregarded
B.
Personality Traits and Behavior Patterns- Civil
i.
Habits
a. FRE 406- Habit; Routine Practice
1.
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.
2.
Some states require there to be no eyewitness in order to
allow this
3.
Evidence on existence of a habit should be determined on a
case by case basis
4.
Evidence does not require corroboration (FL does)
5.
The more specific and repeated the action to the cause of
action, the more likely to be admitted as character
ii.
Character
a. Evidence of character or reputation of a party to a civil action,
where character is not at issue, is irrelevant and inadmissible
b. FRE 404(a)- Character Evidence
1.
Character Evidence
a. 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.
b. Exceptions for a Witness. Evidence of a witness’s
character may be admitted under Rules 607, 608, and 609.
2.
FRE 405- Methods of Proving Character
a. By Reputation or Opinion. 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. (ONLY
ON REP IN FL)
b. By Specific Instances of Conduct. When a person’s
character or character trait is an essential element of a
charge, claim, or defense, the character or trait may also be
proved by relevant specific instances of the person’s
conduct.
i.
Character is essential if it alters the rights and
liabilities of the parties under substantive law
a. Very limited
ii.
Must examine the elements of a prima facie case
and defenses
iii.
Defamation or libel typically require damage to
character as an element
iv.
When character is an essential element- ALL
METHODS OF PROVING ALLOWED
iii.
Character vs. habit
a. Character= generalized description of person's disposition, trait
you HAVE, ADJ
b. Habit= person's response to a repeated specific situation,
something you DO, VERB
C.
Personality Traits and Behavior Patterns- Criminal
i.
"Smuggling" character evidence
a. Using mugshot when a photo is needed
b. Must have good faith basis for asking question, can't just ask
question to insinuate
ii.
FRE 404(a)(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, and if the evidence is admitted, the prosecutor may offer
evidence to rebut it;
1.
Opening the door: ∆ opens door to character by introducing
own evidence and prosecution can rebut
a. Why allowed
i.
Balanced by the risk that prosecution can then
present own evidence
2.
Judge may change from initial ruling on keeping something
out if ∆ goes too far to establish they are one way when evidence
that was kept out speaks to the contrary
3.
Prosecution usually cannot bait ∆ into talking about
character on cross thus opening the door
4.
Limit character evidence to traits pertinent to crime in
question
a. Particularly of note when prosecution tries to rebut w/
specific instances
b. ∆ wants to limit the scope of character so as to not open the
door too wide for prosecution to rebut
b. subject to the limitations in FRE 412, a defendant may offer
evidence of an alleged victim’s pertinent trait, and if the evidence
is admitted, the prosecutor may:
1.
offer evidence to rebut it; and
2.
offer evidence of the defendant’s same trait; and
3.
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.
a. Victim can appeal the evidentiary ruling immediately
b. FRE 412- Federal Rape shield law
i.
Excludes reputation or opinion evidence of the past
sexual history of a victim
a. Purpose- irrelevant and not likely to indicate
consent or lack thereof
ii.
Criminal exceptions
a. Evidence of past sexual behavior outside of
reputation or opinion is only admissible in three
situations
1.
∆ may introduce evidence when
constitutionally required
2.
When ∆ claims not source of semen or
injury, may introduce evidence of relations w/other
men
b. When ∆ claims victim consented, may testify about
prior relations w/victim
1.
Not always admissible
iii.
Civil Exception
a. May admit if its probative value substantially
outweighs danger of harm to any victim and of unfair
prejudice to any party
iv.
Extended in 1994 to all criminal cases,
impeachment of witnesses, and civil cases
v.
Prostitution
a. Courts vary on the admissibility of evidence of
prostitution
vi.
iii.
Sexual conduct that is fantasy rather than fact is still
protected
vii.
Prior false allegations
a. Prior false rape allegations are admissible as they
speak to credibility
b. Usually must be demonstrably false
viii.
Constitutional issues
a. Some issues presented on whether rape shield stats
take away ∆'s right to confront or cross witnesses
against him
ix.
Alternate sources of knowledge
a. Sexual conduct is sometimes relevant and
admissible to show that specific knowledge of an act
(particularly with children) does not prove rape
occurred
c. Notice
i.
412 requires detailed notice to be given to victim
ii.
Also requires in camera review
iii.
Failure to follow procedural requirements of 412
such as notice will make evidence inadmissible and not a
violation of constitutional rights
FRE 405- Methods of Proving Character
a. By Reputation or Opinion. 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. (ONLY ON REP IN FL)
1.
Reputation testimony
a. Should have to be part of same community?
i.
What defines community?
b. Does reputation have to actually be heard of to be
admitted?
2.
Opinion testimony
a. Rejected at common law because one person's estimate vs.
reputation is composed of numerous individual's subjective
opinions)
b. Now allowed
i.
Must establish familiarity with ∆
ii.
Some jdx allow expert witnesses on opinion of
character may be introduced
b. By Specific Instances of Conduct. When a person’s character or
character trait is an essential element of a charge, claim, or defense,
the character or trait may also be proved by relevant specific instances
of the person’s conduct.
1.
Specific acts
a. Cannot prove good character by evidence of specific
instances
b. Specific acts CAN be used on rebuttal/crossexam to show
not of character trait shown
i.
Must be done cautiously and be limited
ii.
Must have some reasonable connection to the trait
raised by ∆
iii.
At common law "have you heard" was allowed,
while "do you know" was not
c. Guilt assuming hypos
i.
How would rep be affected if convicted of charged
crime?
ii.
Allowed in some jdx, not in others
2.
Cannot prove good character through religious beliefs
3.
Jury instruction
a. Many ∆ attorneys request stand alone instruction
i.
A reputation of good character, if relevant, would
alone create reasonable doubt
ii.
Most jdx say such an instruction is not required
D.
Bad Acts
i.
FRE 404(b)- Crimes, Wrongs, or Other Acts.
a. 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.
b. 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:
1.
provide reasonable notice of the general nature of any such
evidence that the prosecutor intends to offer at trial; and
2.
do so before trial — or during trial if the court, for good
cause, excuses lack of pretrial notice
ii.
Two pronged analysis
a. First an admissible exception under 404(b)
b. Some jdx require the exception to be at issue in the case
c. Then 303 Analysis
1.
Factors to determine relevance
a. Evidence is directed at establishing an issue other than
propensity
b. Evidence shows other act is similar enough and close
enough in time to be relevant
c. Evidence is sufficient to support jury finding that ∆
committed similar act
d. Evidence has probative value not substantially outweighed
by danger of unfair prejudice
iii.
iv.
Subsequent acts governed by same principles as prior acts
Defense use of past acts of a third party
a. Usually analyzed under 401/403
v.
Acts do not need to be criminal
vi.
Flight evidence
a. Probative value as evidence of guilt based on degree of confidence
with four inferences
1.
From behavior to flight
2.
Flight to consciousness of guilt
3.
From consciousness of guilt to consciousness of guilt from
crime charged
4.
consciousness of guilt from crime charged to actual guilt of
crime charged
vii.
Stipulations
a. To keep evidence of bad acts out
a. Must be
i.
Complete
ii.
Comprehensive
iii.
Unreserved
iv.
Eliminate gov't's need to prove
b. Gov'ts refusal to accept stipulation speaks to purpose in wanting to
use
viii.
Lesser offenses may sometimes be used
a. To show intent
b. To show knowledge
c. Can be used to show lack of mistake or accident
ix.
Doctrine of chances
a. Some evidence of prior bad acts on their own would not be
admissible but considering the probability of similar acts happening
to/by the same person may be considered
x.
Some courts allow for 404(b) evidence for purposes not listed in
the exceptions
a. Some courts will not allow evidence of past crime when ∆ was
acquitted
1.
Some allow but require acquittal instruction
a. Federal usually not
b. State usually
xi.
FRE 413-415
a. History
1.
Enactment delayed by 150 days to permit Judicial
Conference to submit recommendations on admissibility of this
evidence
a. Were against these rules because allow prior bad acts to be
admissible
b. Controversial
b. FRE 413- Similar Crimes in Sexual Assault Cases
1.
Permitted Uses. In a criminal case in which a defendant is
accused of a sexual assault, the court may admit evidence that the
defendant committed any other sexual assault. The evidence may
be considered on any matter to which it is relevant.
2.
Disclosure to the Defendant. If the prosecutor intends to
offer this evidence, the prosecutor must disclose it to the
defendant, including witnesses’ statements or a summary of the
expected testimony. The prosecutor must do so at least 15 days
before trial or at a later time that the court allows for good cause.
3.
Effect on Other Rules. This rule does not limit the
admission or consideration of evidence under any other rule.
4.
Definition of “Sexual Assault.” In this rule and Rule 415,
“sexual assault” means a crime under federal law or under state
law (as “state” is defined in 18 U.S.C. § 513) involving:
a. any conduct prohibited by 18 U.S.C. chapter 109A;
b. contact, without consent, between any part of the
defendant’s body — or an object — and another person’s
genitals or anus;
c. contact, without consent, between the defendant’s genitals
or anus and any part of another person’s body;
d. deriving sexual pleasure or gratification from inflicting
death, bodily injury, or physical pain on another person; or
e. an attempt or conspiracy to engage in conduct described in
subparagraphs (1)–(4).
c. FRE 414- Similar Crimes in Child Molestation Cases
1.
Permitted Uses. In a criminal case in which a defendant is
accused of child molestation, the court may admit evidence that the
defendant committed any other child molestation. The evidence
may be considered on any matter to which it is relevant.
2.
Disclosure to the Defendant. If the prosecutor intends to
offer this evidence, the prosecutor must disclose it to the
defendant, including witnesses’ statements or a summary of the
expected testimony. The prosecutor must do so at least 15 days
before trial or at a later time that the court allows for good cause.
3.
Effect on Other Rules. This rule does not limit the
admission or consideration of evidence under any other rule.
4.
Definition of “Child” and “Child Molestation.” In this
rule and Rule 415:
a. “child” means a person below the age of 14; and
b. “child molestation” means a crime under federal law or
under state law (as “state” is defined in 18 U.S.C. § 513)
involving:
i.
any conduct prohibited by 18 U.S.C. chapter 109A
and committed with a child;
ii.
any conduct prohibited by 18 U.S.C. chapter 110;
iii.
contact between any part of the defendant’s body —
or an object — and a child’s genitals or anus;
iv.
contact between the defendant’s genitals or anus
and any part of a child’s body;
v.
deriving sexual pleasure or gratification from
inflicting death, bodily injury, or physical pain on a child;
or
vi.
an attempt or conspiracy to engage in conduct
described in subparagraphs (A)–(E).
d. FRE 415- Similar Acts in Civil Cases Involving Sexual Assault or
Child Molestation
1.
Permitted Uses. In a civil case involving a claim for relief
based on a party’s alleged sexual assault or child molestation, the
court may admit evidence that the party committed any other
sexual assault or child molestation. The evidence may be
considered as provided in Rules 413 and 414.
2.
Disclosure to the Opponent. If a party intends to offer this
evidence, the party must disclose it to the party against whom it
will be offered, including witnesses’ statements or a summary of
the expected testimony. The party must do so at least 15 days
before trial or at a later time that the court allows for good cause.
3.
Effect on Other Rules. This rule does not limit the
admission or consideration of evidence under any other rules
e. Courts have held that 413-415 are all subject to the probativity
outweighing prejudice test due to “may” language.
f. Factors
1.
Similarity of prior acts to charged acts
2.
Closeness in time of prior acts to acts charged
3.
Frequency of prior acts
4.
Presence or lack of intervening circumstances
5.
Necessity of evidence beyond testimonies already offered
6.
Extent to which prior acts have been proven
E.
Relevancy and Ancillary Policy Considerations
i.
FRE 407- Subsequent Remedial measures
a. 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:
1.
negligence;
2.
culpable conduct;
3.
a defect in a product or its design; or
4.
a need for a warning or instruction.
b. 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.
1.
Impeachment= Narrow application
a. Usually requires an exaggerated claim of safety
ii.
2.
If disputed (conflict over what this means, affirmatively
contested or just not stipulated to)
a. Ownership
b. Control
c. Feasibility of precautionary measures
d. CAN AVOID ADMISSION IN THIS WAY BY
STIPULATING
c. Third party remedial measures may be admissible
d. Measures taken prior to event/accident are not excluded by 407
e. "Self critical analysis"- when a ∆ engages in post accident
investigation or discussion
1.
Most courts rule are covered by 407
a. Lots of debate about this
2.
Some courts do not allow rule 407 to apply to product
liability cases
f. Justifications for rule
1.
Would discourage companies from making safety
improvements to products
g. This type of evidence is poor proof of negligence
h. Subject to 403 test
FRE 408- Compromise, offers, and negotiations
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 a 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’s bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.
1.
Cannot use to prove or disprove validity or amount of
claim
2.
Also cannot use statement of facts made in negotiation
c. Third party compromise offers/settlements/negotiations are
covered under 408
d. Justifications
1.
Promote public policy in favor of compromise and
settlement
V.
2.
Questionable relevance of this type of evidence on issue of
liability
e. Dispute
1.
Dispute exists before the filing of a formal complaint
2.
Dispute= litigation and less formal stages of a dispute, can
be a difference of opinion between parties concerning invoices
3.
Factors to consider in determining if dispute exists
a. Documents/communication evidencing a dispute from both
parties
iii.
FRE 409- Offers to pay medical bills and similar expenses
a. 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.
b. No dispute required
c. No coverage for conduct or statements made
d. Allowed for other purposes even though not explicitly mentioned
iv.
FRE 410- Pleas, plea discussions, and related statements
a. Prohibited Uses. In a civil or criminal case, evidence of the
following is not admissible against the defendant who made the plea or
participated in the plea discussions:
1.
a guilty plea that was later withdrawn;
2.
a nolo contendere plea;
3.
a statement made during a proceeding on either of those
pleas under Federal Rule of Criminal Procedure 11 or a
comparable state procedure; or
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.
b. Exceptions. The court may admit a statement described in Rule
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 statements 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.
c. ∆ can waive 410, as long as waiver was voluntary
1.
Led to many jdx to have prosecutors waive this to engage
in plea negotiations
d. DOES NOT COME INTO PLAY WITH LAW ENFORCEMENT
e. Justification
1.
Farce that would occur if guilty plea later withdrawn were
admissible, extremely powerful jury evidence
Judicial Notice
A.
Used for facts not open to reasonable dispute
B.
Civil trial fact = conclusive
C.
i.
trial
D.
Criminal trial fact = jury has choice to accept as conclusive
Cannot take judicial notice on appeal, infringes on right to jury
FRE 201- Judicial Notice of Adjudicative Facts
Scope. This rule governs judicial notice of an adjudicative fact
only, not a legislative fact.
ii.
Kinds of Facts That May Be Judicially Noticed. The court may
judicially notice a fact that is not subject to reasonable dispute because it:
a. is generally known within the trial court’s territorial jurisdiction;
or
b. can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.
1.
Must be a doc of indisputable accuracy
2.
Should be a primary source of info
3.
Must be offered by party requesting judicial notice
iii.
Taking Notice. The court:
a. may take judicial notice on its own; or
1.
Types of facts typically accepted
a. History
b. Geography
c. Government
d. Science
e. Some info found on the internet
b. must take judicial notice if a party requests it and the court is
supplied with the necessary information.
iv.
Timing. The court may take judicial notice at any stage of the
proceeding.
v.
Opportunity to Be Heard. On timely request, a party is entitled to
be heard on the propriety of taking judicial notice and the nature of the
fact to be noticed. If the court takes judicial notice before notifying a
party, the party, on request, is still entitled to be heard.
vi.
Instructing the Jury. In a civil case, the court must instruct the
jury to accept the noticed fact as conclusive. In a criminal case, the court
must instruct the jury that it may or may not accept the noticed fact as
conclusive.
E.
Legislative facts
i.
Not included in 201
ii.
Basically these = policy rationales
iii.
ARE ALLOWED
F.
Interstitial (between the spaces)
i.
Also not included in 201
ii.
May be done by court on its own
iii.
Must be done if requested by part and supplied data
G.
Analysis:
i.
Is it an adjudicative fact?
ii.
Reliability of source? Primary source?
i.
VI.
iii.
Indisputable?
H.
"Jury Notice"
i.
Assumes trier of fact comes w/ background facts enabling him or
her to comprehend data/evidence presented at trial
ii.
Commonly supported by a jury instruction
iii.
Different from special knowledge
iv.
FRE 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 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 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.
Real and Demonstrative Evidence
A.
Physical evidence tests
i.
Real evidence (object that had direct part in the incident)- object
must be relevant to some issue in the case
ii.
Identifying real evidence
a. FRE 901- Authenticating or Identifying Evidence
1.
In General. To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.
2.
Examples. The following are examples only — not a
complete list — of evidence that satisfies the requirement:
a. Testimony of a Witness with Knowledge. Testimony that
an item is what it is claimed to be.
b. Nonexpert Opinion About Handwriting. A nonexpert’s
opinion that handwriting is genuine, based on a familiarity with
it that was not acquired for the current litigation.
c. Comparison by an Expert Witness or the Trier of Fact. A
comparison with an authenticated specimen by an expert
witness or the trier of fact.
d. Distinctive Characteristics and the Like. The appearance,
contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the
circumstances.
e. Opinion About a Voice. An opinion identifying a person’s
voice — whether heard firsthand or through mechanical or
electronic transmission or recording — based on hearing the
voice at any time under circumstances that connect it with the
alleged speaker.
f. Evidence About a Telephone Conversation. For a
telephone conversation, evidence that a call was made to the
number assigned at the time to:
i.
a particular person, if circumstances, including selfidentification, show that the person answering was the one
called; or
ii.
a particular business, if the call was made to a
business and the call related to business reasonably
transacted over the telephone.
g. Evidence About Public Records. Evidence that:
i.
a document was recorded or filed in a public office
as authorized by law; or
ii.
a purported public record or statement is from the
office where items of this kind are kept.
h. Evidence About Ancient Documents or Data
Compilations. For a document or data compilation, evidence
that it:
i.
is in a condition that creates no suspicion about its
authenticity;
ii.
was in a place where, if authentic, it would likely
be; and
iii.
is at least 20 years old when offered.
i. Evidence About a Process or System. Evidence describing
a process or system and showing that it produces an accurate
result.
j. Methods Provided by a Statute or Rule. Any method of
authentication or identification allowed by a federal statute or a
rule prescribed by the Supreme Court.
b. Real evidence must be shown to be the actual evidence from the
incident
1.
This is usually accomplished by showing how the item was
obtained and the care and custody of the item following the
incident
a. Chain of custody is more or less important based on the
nature of object
b. Usually stricter in criminal cases
VII.
2.
But can be identified by testimony of someone with
knowledge that item is the same that caused the result
c. Condition
1.
When condition of a particular place or thing at a certain
time is in question evidence of its condition at a later time is
admissible if accompanied by proof the condition has not changed
in the meanwhile
iii.
Demonstrative (model, map, etc. a visual aid to jury in
comprehending verbal testimony of a witness)- actually explanatory of
something which it is important for the jury to understand
a. Demonstrative evidence may be abused since people learn better
visually to dramatize or overemphasize
b. Discretion usually given to trial court in deciding relevance or
explanatory value, but review how actually used can be reversible
error
c. Demonstrative evidence requires a 401/403 analysis
iv.
Examples
a. Photos
1.
Photographs are at the discretion of the judge
a. Do not need to have photographer testify
b. Must be verified by testimony of photographer or by
another person with sufficient knowledge to state that it fairly
and accurately represents the object or place reproduced as it
existed at the time of the accident OR if there is a change that it
is specifically pointed out and is readily capable of being
understood by a jury
b. Videos
1.
at the discretion of the judge
2.
Actual footage would be real evidence and authenticity
would be a greater question
3.
Reenactments are fine if match sworn testimony
c. Silent witness theory- using photographic evidence as real
evidence without a witness needed, must be authenticated
d. Other sensory evidence is admissible as well
e. Jury views are evidence
1.
SOME courts disagree
a. Only serve to provide understanding and context
b. Can't be reviewed by appellate court sufficiently
2.
Excluding ∆ is a constitutional issue if viewed as evidence,
not an issue if not evidence
v.
Juries
a. Exhibit usually go with jury into jury room
b. Jury can test and experiment with those exhibits to determine the
truth of testimony regarding them
Writings and related matters
A.
Authentication
i.
a.
ii.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
FRE 901
Evidence requires other evidence to show its authenticity
Written docs
Signature
1.
Can usually be authenticated by a lay witness
2.
Varying degrees of familiarity with the signature necessary
3.
Does not need to have seen the person sign or write to gain
familiarity
Handwriting
1.
901(b)(2)- nonexpert genuineness of handwriting based on
familiarity cannot be acquired via litigation
Authentication via relationship
1.
Showing ownership, publication, manufacture, and
distribution can also require authentication
Exemplars
1.
Authentication by comparison of handwriting can be made
by experts OR by the trier of fact but not lay persons, 901(b)(3)
Required attesting witnesses
1.
Writing whose execution is required to be attested by
witnesses
a. Those witnesses must be called or show to be unavailable
before other evidence of authenticity can be shown
Location
1.
Location where writings found + peculiar knowledge of
scribe had been held to equal authentication
Reply letter doctrine
1.
If proved that a communication was properly dispatched to
a certain addressee, and a response duly received by the sender
purporting to be from the addressee the authenticity of the latter
communication will be considered as sufficiently established
Phone Calls, 901(b)(6)
1.
Circumstances and content of conversation can be used to
authenticate caller
2.
Voice familiarity for authentication can occur after the
conversation in question
3.
If call is answered and person gives first name that matches
name in directory/list than sufficient
4.
If business, person is presumed to have authority to speak
for business
Recordings
1.
Often use same standard as phone calls
Tech
1.
Email/Text message
a. Often use same standard was written communication
2.
Social media
a. More stringent than other forms of communication
b. Issues
i.
No legitimacy was to who is behind the screen
ii.
Issues of creating fake accounts
iii.
Hacking into someone else's account with name and
password
c. Acceptable ways to authenticate
i.
Verify with user that profile/post/etc was done by
them
ii.
Examine user's computer/hard drive to determine if
used to originate the content
iii.
Obtain info from social networking site to verify
who initiated it
k. To avoid difficulty in authentication often try to stipulate
B.
FRE 902- Evidence that is Self-Authenticating
i.
The following items of evidence are self-authenticating; they
require no extrinsic evidence of authenticity in order to be admitted:
a. Domestic Public Documents That Are Sealed and Signed. A
document that bears:
1.
a seal purporting to be that of the United States; any state,
district, commonwealth, territory, or insular possession of the
United States; the former Panama Canal Zone; the Trust Territory
of the Pacific Islands; a political subdivision of any of these
entities; or a department, agency, or officer of any entity named
above; and
2.
a signature purporting to be an execution or attestation.
b. Domestic Public Documents That Are Not Sealed but Are Signed
and Certified. A document that bears no seal if:
1.
it bears the signature of an officer or employee of an entity
named in Rule 902(1)(A); and
2.
another public officer who has a seal and official duties
within that same entity certifies under seal — or its equivalent —
that the signer has the official capacity and that the signature is
genuine.
c. Foreign Public Documents. A document that purports to be signed
or attested by a person who is authorized by a foreign country’s law to
do so. The document must be accompanied by a final certification that
certifies the genuineness of the signature and official position of the
signer or attester — or of any foreign official whose certificate of
genuineness relates to the signature or attestation or is in a chain of
certificates of genuineness relating to the signature or attestation. The
certification may be made by a secretary of a United States embassy or
legation; by a consul general, vice consul, or consular agent of the
United States; or by a diplomatic or consular official of the foreign
country assigned or accredited to the United States. If all parties have
been given a reasonable opportunity to investigate the document’s
authenticity and accuracy, the court may, for good cause, either:
1.
order that it be treated as presumptively authentic without
final certification; or
2.
allow it to be evidenced by an attested summary with or
without final certification.
d. Certified Copies of Public Records. A copy of an official record
— or a copy of a document that was recorded or filed in a public office
as authorized by law — if the copy is certified as correct by:
1.
the custodian or another person authorized to make the
certification; or
2.
a certificate that complies with Rule 902(1), (2), or (3), a
federal statute, or a rule prescribed by the Supreme Court.
e. Official Publications. A book, pamphlet, or other publication
purporting to be issued by a public authority.
f. Newspapers and Periodicals. Printed material purporting to be a
newspaper or periodicals
g. Trade Inscriptions and the Like. An inscription, sign, tag, or label
purporting to have been affixed in the course of business and
indicating origin, ownership, or control.
h. Acknowledged Documents. A document accompanied by a
certificate of acknowledgment that is lawfully executed by a notary
public or another officer who is authorized to take acknowledgments.
i. Commercial Paper and Related Documents. Commercial paper, a
signature on it, and related documents, to the extent allowed by
general commercial law.
j. Presumptions Under a Federal Statute. A signature, document, or
anything else that a federal statute declares to be presumptively or
prima facie genuine or authentic.
k. Certified Domestic Records of a Regularly Conducted
Activity. The original or a copy of a domestic record that meets the
requirements of Rule 803(6)(A)-(C), as shown by a certification of the
custodian or another qualified person that complies with a federal
statute or a rule prescribed by the Supreme Court. Before the trial or
hearing, the proponent must give an adverse party reasonable written
notice of the intent to offer the record — and must make the record
and certification available for inspection — so that the party has a fair
opportunity to challenge them.
l. (12) Certified Foreign Records of a Regularly Conducted
Activity. In a civil case, the original or a copy of a foreign record that
meets the requirements of Rule 902(11), modified as follows: the
certification, rather than complying with a federal statute or Supreme
Court rule, must be signed in a manner that, if falsely made, would
subject the maker to a criminal penalty in the country where the
certification is signed. The proponent must also meet the notice
requirements of Rule 902(11).
m. Certified Records Generated by an Electronic Process or
System. A record generated by an electronic process or system that
VIII.
produces an accurate result, as shown by a certification of a qualified
person that complies with the certification requirements of Rule
902(11) or (12). The proponent must also meet the notice requirements
of Rule 902(11).
n. Certified Data Copied from an Electronic Device, Storage
Medium, or File. Data copied from an electronic device, storage
medium, or file, if authenticated by a process of digital identification,
as shown by a certification of a qualified person that complies with the
certification requirements of Rule (902(11) or (12). The proponent also
must meet the notice requirements of Rule 902 (11).
C.
Rule of Completeness
i.
FRE 106- Remainder of or Related Writings or Recorded
Statements
a. If a party introduces all or part of a writing or recorded statement,
an adverse party may require the introduction, at that time, of any
other part — or any other writing or recorded statement — that in
fairness ought to be considered at the same time.
Proof of contents (best evidence rule)
A.
Policies underlying
i.
Words matter, small variation could make big difference
ii.
Don't want to have to rely on the possibility of human error by
allowing humans to testify
iii.
Based in the history that copies were man-made
B.
FRE 1001- Definitions
i.
In this article:
a. A “writing” consists of letters, words, numbers, or their equivalent
set down in any form.
b. A “recording” consists of letters, words, numbers, or their
equivalent recorded in any manner.
c. A “photograph” means a photographic image or its equivalent
stored in any form.
d. An “original” of a writing or recording means the writing or
recording itself or any counterpart intended to have the same effect by
the person who executed or issued it. For electronically stored
information, “original” means any printout — or other output readable
by sight — if it accurately reflects the information. An “original” of a
photograph includes the negative or a print from it.
e. A “duplicate” means a counterpart produced by a mechanical,
photographic, chemical, electronic, or other equivalent process or
technique that accurately reproduces the original.
C.
FRE 1002- Requirement of the original
i.
An original writing, recording, or photograph is required in
order to prove its content unless these rules or a federal statute
provides otherwise.
a. Includes writings, recordings, and photos
1.
Can include things similar to these
ii.
b. Used only when content of writing is in question
1.
Must look at what content we are trying to examine
Exceptions
a. More crucial the evidence the more likely the need for the best
evidence
b. FRE 1004- Admissibility of other evidence of content
1.
An original is not required and other evidence of the
content of a writing, recording, or photograph is admissible if:
a. all the originals are lost or destroyed, and not by the
proponent acting in bad faith;
b. an original cannot be obtained by any available judicial
process;
c. 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.
i.
Writing is “collateral” evidence
2.
Absence of data is not required to meet best evidence rule,
witness testimony is permitted
c. FRE 1007-Testimony or statement of a party to prove content
1.
The proponent may prove the content of a writing,
recording, or photograph by the testimony, deposition, or
written statement of the party against whom the evidence is
offered. The proponent need not account for the original.
d. FRE 1003- Admissibility of Duplicates
1.
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.
e. FRE 1006- Summaries to prove content
1.
The proponent may use a summary, chart, or
calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently
examined in court. The proponent must make the originals or
duplicates available for examination or copying, or both, by
other parties at a reasonable time and place. And the court
may order the proponent to produce them in court.
a. Voluminous
i.
1006 does not require impossibility of examining all
of the underlying evidence when considering whether a
summary should be admitted as evidence
b. In court examination not convenient
i.
IX.
Just because underlying evidence is already in
record doesn't mean can be conveniently examined in court
c. 1006 summaries are not evidence and should be instructed
to the jury as such
iii.
Degrees of evidence
a. We don't discriminate against other kinds of other evidence when
originals are not available
1.
Exception
a. FRE 1005- Copies of Public Records to prove content
i.
The proponent may use a copy to prove the
content of an official record — or of a document that
was recorded or filed in a public office as authorized by
law — if these conditions are met: the record or
document is otherwise admissible; and the copy is
certified as correct in accordance with Rule 902(4) or is
testified to be correct by a witness who has compared it
with the original. If no such copy can be obtained by
reasonable diligence, then the proponent may use other
evidence to prove the content.
iv.
FRE 1008- Functions of Court and jury
a. Ordinarily, the court determines whether the proponent has
fulfilled the factual conditions for admitting other evidence of the
content of a writing, recording, or photograph under Rule
1004 or 1005. But in a jury trial, the jury determines — in
accordance with Rule 104(b) — any issue about whether:
1.
an asserted writing, recording, or photograph ever existed;
2.
another one produced at the trial or hearing is the original;
or
3.
other evidence of content accurately reflects the content.
Testimonial Evidence
A.
Competency of Witnesses
i.
Competent= free of personal characteristics that would disable
from giving testimony before a court of law
a. Can accurately perceive
b. Accurately remember
c. Communicate
ii.
FRE 601- Competency to testify in general
a. 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.
1.
Seems minimally competent and have relevant info, should
be allowed to testify
2.
Let jury decide if they believe
3.
Children, can testify at discretion of judge
a. Factors
iii.
iv.
i.
Child's ability to receive and communicate info
ii.
Spontaneity of child's statements
iii.
Indications of coaching or rehearsing
iv.
Child's ability to remember
v.
Child's ability to distinguish between truth and lies
vi.
Likelihood that child will give inherently
improbable or incoherent testimony
b. Some states presume children over 10 competent
c. Some courts require child be able to understand the oath in
order to testify
d. Competency hearing can only be conducted on child if
court determines that compelling reasons exist and only on
motion and offer of proof of incompetency by a party
e. Psych evals on children should only be done after showing
compelling need
f. Court can allow child witness to testify outside of
courtroom if
i.
Finding of trauma will occur because of fear of ∆
a. No expert witness needed
ii.
Testimony can be observed by judge and jury
iii.
Allows for contemporaneous cross
iv.
Allows for oath
4.
∆s can testify on own behalf
a. Prohibited by old common law
b. co∆, accomplice, or accessories can also testify and be
compelled to do so by ∆
Oath
a. FRE 603- Oath of affirmation to testify truthfully
1.
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.
a. No specific words are required
b. Must be flexible enough to allow for freedom of religion
under the first amendment
c. Some oath must occur in order for testimony to be
admissible
Ability to communicate
a. FRE 604- Interpreters
1.
An interpreter must be qualified and must give an oath
or affirmation to make a true translation.
a. Some issues with assuring literal and accurate translations
b. Allowed for ∆s as well
c. To ensure accurate transcripts
i.
Reviewed for accuracy
ii.
Whether ∆ counsel was allow to highlight alleged
inaccuracies
iii.
Whether jury was instructed that the tape was
evidence rather than transcript
iv.
Whether jury was allowed to compare transcript to
tape
2.
Alternative methods of communication sometimes allowed
so as not to exclude competent witness
v.
Mental Competency
a. Psych eval of a witness infringes on privacy rights, could serve as
harassment and could deter witnesses from coming forward
b. High level of need must be shown to require a psych eval
c. Again jury gets to decide if witness is telling the truth
d. Inconsistencies in testimony can exist as long as the judge believes
the important facts of the testimony are supported and truthful
vi.
Dead Man's Statutes
a. Cannot testify about conversation with other party if that party is
now deceased
B.
Elicitation of testimony
i.
Excluding witnesses
a. FRE 615- Excluding Witnesses
1.
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;
i.
Criminal this would violate 5th/6th amendments
a. Gov't might be able to point out they could tailor
their testimony after witnesses all other testimony if
evidence exists that this is true, Portuondo
b. an officer or employee of a party that is not a natural
person, after being designated as the party’s representative by
its attorney;
c. a person whose presence a party shows to be essential to
presenting the party’s claim or defense; or
i.
Examples: agent who handled transaction being
litigated, expert needed to advise counsel in management of
litigation
d. a person authorized by statute to be present.
i.
42 U.S.C. §10606(b)(4)- victim allowed to be
present unless testimony would be materially affected
b. Lawyers not prohibited from sharing testimony with witnesses
1.
Sequestering witnesses should prevent them from talking to
others or outsiders, but not counsel for the parties
2.
Goal of sequestration is to discourage and expose
fabrication, inaccuracy, and collusion
3.
Lawyers are different from witnesses
a. Officers of the court, owe a duty of candor
ii.
iii.
b. Can't knowingly present perjured testimony
c. Should refuse to offer evidence reasonably believed to be
false
d. May not counsel or assist witness to testify falsely
e. If believes non party witness is lying must promptly reveal
to the court
4.
Duty of lawyer to uphold constitutionality outweighs the
goals of sequestration in this case
a. Criminal ∆s have right to assistance of counsel and
preparation of witnesses for testimony is part of that
c. Surprise witnesses might be okay
d. Attorney and client
1.
Disagreement over whether a lawyer should be allowed to
consult with ∆ between recesses in ∆s testimony
a. Some courts analyze this based on length
b. Some say any prohibition is unconstitutional
e. Sanctions
1.
Three categories
a. Citing witness for contempt
b. Permitting counsel or court to comment to jury on
witnesses' noncompliance as a reflection of credibility
c. Precluding witness's testimony
f. Coaching
1.
What constitutes coach vs. proper preparation by an
attorney is up for debate
Narrative testimony
a. FRE 611(a)- Mode and order examining witnesses and presenting
evidence
1.
Control by the Court; Purposes. The court should
exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to:
a. make those procedures effective for determining the truth;
b. avoid wasting time; and
c. protect witnesses from harassment or undue
embarrassment.
b. Narrative testimony allows ∆ to share story almost uninterrupted
c. Used for efficiency and must likely to reveal truth
d. Objection likely to be successful when can show real harm
Leading questions
a. FRE 611(c)- Mode and order examining witnesses and presenting
evidence
1.
Leading Questions. Leading questions should not be used
on direct examination except as necessary to develop the witness’s
testimony. Ordinarily, the court should allow leading questions:
a. on cross-examination; and
b.
c.
d.
e.
iv.
a.
b. when a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party
Should be limited to non-controversial and background areas
Exceptions
1.
Allowed as necessary to develop a witness's testimony
2.
Usually allowed when questioning about the details of a
sexual assault
3.
Less competent witnesses
4.
Allowed for hostile witnesses
5.
Allowed for witnesses identified with adverse parties
Sanction
1.
May preclude the admission of evidence
2.
Attorney will often just rephrase the question now that
witness has been alerted
3.
Not usually used to find error
Types
1.
Defined- ?s that suggest the answer
a. Could be based on inflection of the voice
2.
Yes or no ?s might be leading
a. Is leading if by answering it permits witness to answer in
the language of the ?
3.
Alternative forms
a. Amount of detail in the ? Determines if leading
4.
Conduct
a. Conduct can make an otherwise acceptable question a
leading one
Refreshing recollection
FRE 612- Writing used to refresh a witness
1.
Scope. This rule gives an adverse party certain options
when a witness uses a writing to refresh memory:
a. while testifying; or
b. before testifying, if the court decides that justice requires
the party to have those options.
2.
Adverse Party’s Options; Deleting Unrelated
Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal
case, an adverse party is entitled to have the writing produced at
the hearing, to inspect it, to cross-examine the witness about it, and
to introduce in evidence any portion that relates to the witness’s
testimony. If the producing party claims that the writing includes
unrelated matter, the court must examine the writing in camera,
delete any unrelated portion, and order that the rest be delivered to
the adverse party. Any portion deleted over objection must be
preserved for the record.
3.
Failure to Produce or Deliver the Writing. If a writing is
not produced or is not delivered as ordered, the court may issue
any appropriate order. But if the prosecution does not comply in a
v.
criminal case, the court must strike the witness’s testimony or — if
justice so requires — declare a mistrial.
4.
These need no be admissible to be used
5.
Some question as to where to draw the line here
6.
The docs are not evidence, the testimony is
7.
Opposing party entitled to have writing produced, to
inspect, to cross about it and admit in evidence any portion related
to testimony
8.
612 overrides privilege
9.
Jencks Act, 18 U.S.C.A. §3500
a. Pretrial statement used by prosecution witness need not be
disclosed until after direct examination
10.
Lack of memory
a. Courts often require that a witness's recollection must be
totally exhausted before being permitted to look a writing to
refresh recollection
b. Once refreshed must testify independent of writing
Lay Witness
a. Personal knowledge
1.
FRE 602- Need for personal knowledge
a. 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. Evidence to prove
personal knowledge may consist of the witness’s own
testimony. This rule does not apply to a witness’s expert
testimony under Rule 703.
b. This knowledge is assessed at time of trial, not at time of
event
c. Personal knowledge can include inferences and opinions as
long as grounded in personal observation and experience
d. Absolute certainty of witness is not required
e. Sometimes asserted that negative evidence is relatively
weak and unsatisfactory
2.
FRE 701- Opinion Testimony by lay witness
a. If a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
i.
rationally based on the witness’s perception;
ii.
helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
iii.
not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
b. Collective facts/congeries of circumstances/shorthand
rendition doctrine
i.
Statement of facts that result from a collection of
observations
vi.
ii.
Courts are generally flexible in application of this
rule
iii.
Usually allowed to use speech and sound to create
inferences
Expert Witness
a. FRE 702- Testimony by expert witness
1.
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form
of an opinion or otherwise if:
a. the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
b. the testimony is based on sufficient facts or data;
c. the testimony is the product of reliable principles and
methods; and
d. the expert has reliably applied the principles and methods
to the facts of the case.
2.
Jury does not have to accept expert testimony
3.
Subject matter
a. Frye general acceptance test: identification of a relevant
scientific community and express determination of a particular
degree of acceptance within that community
b. Daubert reliability test: rules of evidence assign judge task
of ensuring expert testimony is reliable and relevant
i.
Considerations
a. Whether can and has been tested?
b. Whether theory or technique has been subjected to
peer review and publication?
1.
Some scientists have stated this is not a good
measure considering how little is done in the peer
review process
c. Should consider known or potential rate of error
d. General acceptance, identification of a relevant
scientific community and express determination of a
particular degree of acceptance within that community
c. Relevancy approach: any relevant conclusions supported by
a qualified expert witness should be admissible, unless
probative value outweighed under 403
d. Questions as to which standard of review should be used
here
b. Qualifications to be an expert witness
1.
Requires witness have special knowledge regarding the
area of testimony, basis can be practical experience as well as
academic training and credentials, must possess skill or knowledge
greater than the average laymen
a. Can be liberally applied, just needs to have more
knowledge than the average layperson
b. No preference for academic training over practical
experience
2.
The abuse of discretion standard of review gives great
latitude to trial judges in making these determinations
3.
Judiciary should avoid labeling a witness an expert in front
of jury
4.
Must be an expert on the information/opinions testified to
c. Basis
1.
FRE 703- Bases of expert
a. An expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming
an opinion on the subject, they need not be admissible for
the opinion to be admitted. But if the facts or data would
otherwise be inadmissible, the proponent of the opinion
may disclose them to the jury only if their probative value
in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.
2.
Rule 705- Disclosing the facts or data underlying an
expert
a. Unless the court orders otherwise, an expert may state
an opinion — and give the reasons for it — without first
testifying to the underlying facts or data. But the expert
may be required to disclose those facts or data on crossexamination.
b. Doesn't require a foundation to be laid
c. There is some weight as to whether evidence develops from
natural research or was conducted for the purpose of litigation
d. Determinations should be made based on the principles and
methodology used, not the conclusions they generate
3.
FRE 704- Opinion on Ultimate Issue
a. In General — Not Automatically Objectionable. An
opinion is not objectionable just because it embraces an
ultimate issue.
b. Exception. In a criminal case, an expert witness must not
state an opinion about whether the defendant did or did not
have a mental state or condition that constitutes an element of
the crime charged or of a defense. Those matters are for the
trier of fact alone.
4.
FRE 706- Court appointed expert witnesses
a. Appointment Process. On a party’s motion or on its own,
the court may order the parties to show cause why expert
witnesses should not be appointed and may ask the parties to
vii.
submit nominations. The court may appoint any expert that the
parties agree on and any of its own choosing. But the court
may only appoint someone who consents to act.
b. Expert’s Role. The court must inform the expert of the
expert’s duties. The court may do so in writing and have a copy
filed with the clerk or may do so orally at a conference in
which the parties have an opportunity to participate. The
expert:
i.
must advise the parties of any findings the expert
makes;
ii.
may be deposed by any party;
iii.
may be called to testify by the court or any party;
and
iv.
may be cross-examined by any party, including the
party that called the expert.
c. Compensation. The expert is entitled to a reasonable
compensation, as set by the court. The compensation is payable
as follows:
i.
in a criminal case or in a civil case involving just
compensation under the Fifth Amendment, from any funds
that are provided by law; and
ii.
in any other civil case, by the parties in the
proportion and at the time that the court directs — and the
compensation is then charged like other costs.
d. Disclosing the Appointment to the Jury. The court may
authorize disclosure to the jury that the court appointed the
expert.
e. Parties’ Choice of Their Own Experts. This rule does not
limit a party in calling its own experts.
Credibility- witness' worthiness of belief
a. Bolstering- attempts to support the credibility of a witness before
attacked/impeached
1.
Generally not proper
2.
Justification: would lengthen trials, reduce care jurors listen
for inconsistencies and falsehoods
3.
Examples:
a. FRE 608(a)- A witness’ character for truthfulness or
untruthfulness
i.
(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. FRE 801(d)(1)(B)- prohibition on admissibility of prior
consistent statements prior to attack
4.
Plea Agreements/Proffer letters
a. Permissive approach, allowed in
i.
Justification
a. Adds nothing to law, defense can mention this
b. Jury not likely to give credence
c. Fact that gov't can impose sanction on witness if
lies does not increase gov't ability to detect whether
actually lying
b. Restrictive approach, some don’t allow or only after
credibility attacked
i.
Justification
a. Insertion of language about truthful testimony may
imply prosecution has way to verify this
5.
Plea reduction motions
a. Not permitted
i.
Justification
a. May imply gov't verified truthfulness of witness and
believes ongoing testimony is truthful, and as a reward
made motion to reduce sentence
6.
Polygraph evidence
a. Most states follow rule that per se inadmissible
i.
This includes evidence that witness was wiling to
take, took, or refused to take polygraph
b. Minority of states allow results on stipulation
c. Other states leave admissibility up to judge
7.
Exception to bolstering in rape cases, many jdx
a. Evidence of "fresh complaint" is admissible
8.
Exception for pretrial identification
b. Impeachment- elicitation or presentation of any matter for the
purpose of impairing or destroying the credibility of a witness in the
estimation of the trier of fact
1.
FRE 607- Who may impeach a witness
a. Any party, including the party that called the witness,
may attack the witness’s credibility.
2.
Prior Inconsistent statements
a. FRE 613- Witness’s prior statement
i.
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.
ii.
Extrinsic Evidence of a Prior Inconsistent
Statement. Extrinsic evidence 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 adverse party is given an opportunity to examine the
witness about it, or if justice so requires. This subdivision
(b) does not apply to an opposing party’s statement under
Rule 801(d)(2).
b. Generally out of court statements not admissible for truth
c. But can use to show witness is not believable by showing
inconsistency between testimony and prior statement
3.
Bias
a. No direct rule, although some allude to it
b. Jury has right to assess all evidence that weighs on the
accuracy and truth of a witness' statement
c. Types of bias
i.
Interest
ii.
Partiality
iii.
Corruption
d. Extrinsic evidence of bias is non-collateral
i.
Foundation must be laid by asking witness about
bias, majority jdx
e. Commonality of insurance
i.
Usually allowed if passes a substantial connection
test
f. Pay
i.
Usually allowed to show bias through how much a
witness is paid and how often testify
g. Religion
i.
FRE 610-Religious beliefs or opinions
a. Evidence of a witness’s religious beliefs or
opinions is not admissible to attack or support the
witness’s credibility.
b. But can use to show bias
4.
Mental capacity
a. Mental capacity may permit someone to testify as
competent, but doesn't mean can't use to show lack of
credibility
b. Psychological history can be used to show lack of
credibility
i.
Should consider
a. Nature of psychological issue
b. Temporal recency
c. And if witness suffered from issue at time of event
c. Psychiatric exams
i.
To impeach have sometimes been allowed
ii.
Should consider invasion of privacy of witness
d. Memory issues are fair game
e. Drug and alcohol use affect credibility with ability to
remember
i.
Can ask if under influence at time of trial to show
credibility
5.
Untruthful character
a. FRE 608(a)- A witness’ character for truthfulness or
untruthfulness
i.
(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. Character evidence for credibility purposes usually have to
relate to truthfulness and veracity
c. Foundation must be laid to show character witness'
familiarity either with the witness and relevant community in
the case of reputation proof or with witness himself in the case
of opinion
d. ∆'s character can be challenged in this same way as any
other witness
6.
Conviction of a crime
a. FRE 609- Impeachment by evidence of criminal conviction
i.
In General. The following rules apply to attacking
a witness’s character for truthfulness by evidence of a
criminal conviction:
a. for a crime that, in the convicting jurisdiction, was
punishable by death or by imprisonment for more than
one year, the evidence:
1.
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
2.
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
o
Test is: slightly more probative than
prejudicial

Factors

Impeachment value of
prior crime

Point in time of
conviction and ∆'s
subsequent history

Similarity between
past crime and crime
charged

More similar
= more prejudicial

Importance of ∆s
testimony

Centrality of the ∆'s
credibility
b. 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.
1.
CRIMEN FALSI
2.
Must be admitted, NO BALANCING TEST
3.
Advisory committee defines as crimes that
require deceit, untruthfulness or falsification like,
perjury, false statement, criminal fraud,
embezzlement, false pretense
o
Petty theft not usually included
ii.
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:
a. its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect; and
b. 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.
1.
Trumps crimen falsi
iii.
Effect of a Pardon, Annulment, or Certificate of
Rehabilitation. Evidence of a conviction is not admissible
if:
a. 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
b. the conviction has been the subject of a pardon,
annulment, or other equivalent procedure based on a
finding of innocence.
Juvenile Adjudications. Evidence of a juvenile
adjudication is admissible under this rule only if:
a. it is offered in a criminal case;
b. the adjudication was of a witness other than the
defendant;
c. an adult’s conviction for that offense would be
admissible to attack the adult’s credibility; and
d. admitting the evidence is necessary to fairly
determine guilt or innocence.
v.
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.
vi.
Tries to balance jury interest in prior conviction as
speaks to credibility with witness' interest in being
prejudiced against
vii.
Analysis of probative value under 609 is different
and less stringent than that of 404(b)
viii.
Foundation
a. Most jdx don't require a foundation be laid
ix.
Details
a. If witness conceded to conviction, follow up ?s can
usually only concern those included on the record of
conviction
x.
∆ must testify in order preserve issue of
admissibility of conviction for appeal
a. ∆ intro of conviction on direct waives issue for
appellate purposes
xi.
Misdemeanors cannot be used to impeach
7.
Instances of conduct
a. FRE 608(b)- A witness’s character for truthfulness or
untruthfulness
i.
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:
a. the witness; or
b. another witness whose character the witness being
cross-examined has testified about
ii.
By testifying on another matter, a witness does
not waive any privilege against self-incrimination for
testimony that relates only to the witness’s character for
truthfulness.
iv.
iii.
If those criteria are met judge can then analyze
under 403, and even then extrinsic evidence not allowed
a. Some jdx don't allow this type of evidence to
credibility period
8.
Contradiction
a. You're wrong or mistaken because…
b. Can impeach on collateral things, but can’t use extrinsic
evidence about facts that are collateral
9.
Prior inconsistent statements
a. Don’t usually open door to rehab testimony
b. FRE 613- Witness’s prior statement
i.
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.
ii.
Extrinsic Evidence of a Prior Inconsistent
Statement. Extrinsic evidence 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 adverse party is given an opportunity to examine the
witness about it, or if justice so requires. This subdivision
(b) does not apply to an opposing party’s statement under
Rule 801(d)(2).
c. Statements need only be inconsistent, not contradictory
d. Extrinsic evidence can be offered before giving witness
opportunity to explain or deny
10.
Learned treatise rule: basically the inconsistent statements
rule for experts and authoritative sources
a. FRE 803(18): Hearsay exceptions
i.
Statements in Learned Treatises, Periodicals, or
Pamphlets. A statement contained in a treatise, periodical,
or pamphlet 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.
ii.
If admitted, the statement may be read into
evidence but not received as an exhibit.
11.
Right to confrontation is a strong justification for allowing
broad scope of cross
a. Some limitations
b. Does not prevent a trial judge from imposing limits on
defense counsel's inquiry into potential bias
c. Trial judges have ability to impose reasonable limits on
basis of harassment, prejudice, confusion, witness safety, or
marginal relevance
c. Rehabilitation- attempts to support the credibility of a witness after
attacked/impeached
1.
Best to leave well enough alone
a. Redirect can cause more harm than good if witness was not
properly impeached
2.
Rehab appropriate depends on the circumstances
a. Depends on nature of attack
3.
Prior inconsistent statements
a. Don’t usually open door to rehab testimony
The Hearsay Rule and Confrontation
A.
Definition and rationale
X.
B.
i.
Concerns/Risks of hearsay
a. Ambiguity
b. Faulty perception
c. Faulty memory
d. Insincerity
C.
FRE 801(a)-(c)- Definitions
i.
Statement. “Statement” means a person’s oral assertion, written
assertion, or nonverbal conduct, if the person intended it as an assertion.
a. Burden is on party contending that an intention to assert is present
to show that intention existed
b. Ambiguous and doubtful cases will be resolved against him and in
favor of admissibility
c. Nonverbal, nonassertive conduct is not a statement and not subject
to hearsay
d. Readings/conclusions from animals/machines are NOT statements
because not people
ii.
Declarant. “Declarant” means the person who made the
statement.
a. This can include self quotation on the stand
iii.
Hearsay. “Hearsay” means a statement that:
a. the declarant does not make while testifying at the current trial or
hearing; and
b. a party offers in evidence to prove the truth of the matter asserted
in the statement.
1.
Examples of statements not offered for truth
a. Some statements are relevant because of their effect on the
hearer or reader
b. Verbal acts are statements that have operative legal effect
c. Prior consistent or inconsistent statement of a witness'
credibility by showing that the witness previously made such a
statement
2.
When is a statement assertive for one proposition not
hearsay because it is offered to prove another proposition?
a. Implied assertions are typically not considered hearsay
i.
Intent based tests
a. Statement should be treated as hearsay whenever it
is offered to prove the trust of an express or implied
assertion so long as trial judge finds that declarant
intended to communicate that assertion when he made
statement
b. If helpfulness depends on the trier's belief that the
declarant intended to assert a fact that supports the
proponent's case, then hearsay
c. If truth of matter directly asserted must be assumed
in order for the nonasserted inference to be drawn, then
the statement offered is for the truth of the matter and is
hearsay
d. The greater the disconnect between the implied
assertion and inference is less likely heresay but also
makes less relevant
ii.
Justification for implied assertions not being
hearsay
a. When a person acts in a way consistent with a belief
without intent to by action to communicate that belief,
one of the principal reasons for hearsay rule–to exclude
declarations whose veracity cannot be tested by cross–
does not apply because the declarant's veracity is not
involved
b. Underlying belief is sometimes self-verifying, this
guarantees the trustworthiness of the inference because
actor has based his actions on the correctness of his
belief, actions speak louder than words
3.
Commands are not assertions
4.
False statements are not hearsay
D.
Not hearsay (EXCLUSIONS)
i.
Benefits of this rule
a. Material comes in substantively, not just for impeachment
b. Don't need declarant on the stand
ii.
Prior statements of witness
iii.
Rule 801(d)(1) -Statements not hearsay when
a. Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
1.
A Declarant-Witness’s Prior Statement. 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;
i.
Includes grand jury proceedings
ii.
Many courts exclude statements given to
investigative agents under informal circumstances
iii.
Inconsistency requirement is flexibly applied
a. Can be found through evasiveness
b. Inability to recall
c. Silence
d. Changes to position
iv.
Subject to cross
a. United States v. Owens
b. Pretty much only requires that witness is on stand,
under oath, and responds willingly to questions
c. Memory loss does not take away the opponent’s
ability to cross
v.
Such statements alone are necessarily sufficient to
sustain a conviction
b. is consistent with the declarant’s testimony and is
offered:
i.
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
ii.
to rehabilitate the declarant's credibility as a
witness when attacked on another ground; or
c. identifies a person as someone the declarant perceived
earlier.
i.
Does not require the witness to correctly identify
the person in court
ii.
Recognizes superiority of pre-trial ID as opposed to
in-court ID
iii.
Pre-trial ID methods addressed by
a. Guarantee ∆ right to counsel at pretrial ID
procedures conducted after initiation of adversarial
proceedings
b. Exclude ID evidence where result of suggestive
police procedures
iv.
Requires declarant be subject to cross, BUT DOES
NOT NEED TO BE PERSON WHO SHARES ID ON
STAND
v.
Composite drawings and descriptions usually
allowed under this exception
vi.
Not to be used to allow testimony that a certain
person known to witness committed the crime
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;
b. is one the party manifested that it adopted or believed
to be true;
i.
Can silence be an admission
a. Would a reasonable person, under the
circumstances, naturally have been expected to deny
1.
Factors
o
Statement must have been heard by
party against whom it is offered
o
Must have been understood by him
o
Subject matter must have been
within personal knowledge
o
Must have been physically and
psychologically able to speak
o
Speaker or his relationship to party
or event must be such as to reasonably
expect a denial
o
Statement itself must be such that in
untrue under the circumstances it would
have been denied
b. When declarant is aware of presence of police
silence may be considered too ambiguous to =
admission
c. Who gets to make these determinations is of some
debate under Rule 104
d. Failure to respond to WRITTEN communication is
only an admission if it was reasonable under the
circumstances for sender to expect the recipient to
respond and correct erroneous assertions
e. Other forms of adoption of belief
1.
Republication of material written by
another, may qualify
2.
Drawing inferences from info provided by
others may count while merely repeating may not
f. Constitutional considerations must be considered
before adoptive admissions received
1.
One given Miranda warning, silence is
ambiguous
2.
But silence before warnings and before in
custody might be used
g. Flight is usually evidence of consciousness of guilt
h. Admissions by conduct may occur in form of
spoilation
1.
Fabrication of evidence
2.
Subornation of perjury
3.
Bribery
4.
Intimidation on witness
c. was made by a person whom the party authorized to
make a statement on the subject;
i.
This can include admissions by lawyers when made
before a jury
ii.
This may include statements from prior trials
a. Must first show that prior argument involves
assertion that inconsistent with assertion at trial
b. Should not include: speculations of counsel,
advocacy as to credibility of witnesses, arguments as to
weaknesses in prosecution's case, or invitations to jury
to draw certain inferences not admitted
c. Inconsistency should be clear and of quality which
obviates need for tried of fact to explore other events at
prior trial
d. Statements by counsel must be equivalent of
testimonial statements by ∆
1.
Formal relationship between lawyer and
client not enough to show this
e. Some participatory role of the client must be
evident
f. Hearing should be held outside of jury and
determined by PoE
d. was made by the party’s agent or employee on a matter
within the scope of that relationship and while it existed;
or
i.
Does not need to be made to a third party
ii.
After agency established this rule requires only that
the statement be in the scope of the relationship
iii.
Law enforcement personnel not usually treated as
agents of the gov't
a. Some courts have found them as agents anyway
b. Some courts based admissibility on whether
statement was made by attorney (admissible) vs.
investigative agent (inadmissible)
e. was made by the party’s coconspirator during and in
furtherance of the conspiracy
i.
Most frequently used exception
ii.
Later concealment efforts not automatically
included
iii.
Conspiracy charge not required to use this
exception
iv.
Acquittal of coconspirator does not exclude from
exception
f. The statement must be considered but does not by itself
establish the declarant’s authority under (C); the existence
or scope of the relationship under (D); or the existence of
the conspiracy or participation in it under (E).
g. Only requirement is that statement is inconsistent with
party's position at trial
h. Must be made by one party and offered by the opposing
party
i. No foundation necessary, see 613(b)
j. Admitted as evidentiary admission (not conclusive) vs.
judicial admission (conclusive)
i.
Judicial admissions = contained in effective
pleadings in the case
ii.
Evidentiary= superseded pleadings or those from
another case, guilty plea is a nonbinding evidentiary
admission
a. Some courts don't allow alternative and amended
pleadings for policy reasons
b. Pleas of nolo contendere, withdrawn guilty pleas,
and statements made to prosecuting attorneys in
conjunction with plea negotiations generally
inadmissible, see rule 410
1.
Guilty pleas for traffic offenses is admissible
as evidence of commission of act in question in a
companion civil case arising from same event
k. Former witness statements are not admissions
l. Admissions DO NOT require first-hand knowledge
i.
But still must be concerning a matter within the
scope of agency or employment
m. Admissions couched in form of opinion not objectionable
E.
Confrontation Clause
i.
Purposes
a. Ensures that witness will give statements under oath, impressing
the seriousness of the matter and guarding against the lie through
penalty of perjury
b. Forces witness to submit to cross, greatest legal engine ever
invented for the discovery of truth
1.
A witness' inability to recall either the underlying events
that are subject of an extra judicial statement or previous testimony
or recollect circumstances under which the statement was given,
does not have 6th amendment consequences
2.
Physical availability and willingness to respond to
questions satisfies Confrontation Clause
c. Permits the jury to observe the demeanor of the witness in making
his statement, and aid in assessing his credibility
ii.
Witness' prior inconsistent statements
a. Are allowed because the purposes of Confrontation Clause are met
when witness testifies
b. If unavailable met if falls within hearsay exception or has adequate
indicia of reliability (particularized guarantees of trustworthiness)
(Overturned by Crawford)
iii.
Applies to both state and federal prosecutions
iv.
Crawford
a. Examine the use of out of court statements with regard to the
Confrontation Clause
1.
Confrontation Clause relates to witnesses and testimony
2.
Not every out of court statement will amount to testimony
a. Ex parte in-court testimony or its functional equivalent=
testimonial
i.
Affidavits
ii.
Custodial examinations
iii.
Prior testimony ∆ was unable to cross examine
iv.
Pretrial statements
v.
Depos
vi.
vii.
v.
vi.
vii.
viii.
Confessions
Statements made under circumstances which would
lead an objective witness to believe that the statement
would be available for use at a later trial
3.
If unavailable to testify and statement is testimonial ∆
should have had a prior opportunity to cross examine
a. If declarant is unknown, availability turns on good faith
effort to locate
Davis
a. Testimonial statements trigger the Confrontation Clause
b. 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
1.
Bryant: expanded the time frame for what could be
considered an ongoing emergency
c. Statements are testimonial when the circumstances objectively
indicates that there is no ongoing emergency and that the primary
purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
Exceptions
a. Present confrontation: whether testimonial or not does not matter
when person who made out-of-court statements is present in court,
testifies, and is subject to cross
b. Prior confrontation and unavailability: If witness has previously
been subject to confrontation and is currently unavailable then prior
testimonial statements can be received
c. Forfeiture by wrongdoing: if ∆ engages in wrongdoing to ensure
witness won't testify and this can be shown by PoE then hearsay
statements of the unavailable witness could be considered
d. Statements not offered for truth of matter asserted: even if
testimonial, not barred if not offered for their truth
e. Dying declarations (very likely): was historical practice to admit as
an exception
f. Admission by ∆: ∆'s own admission, even if testimonial, are not
barred by Confrontation Clause
Factors to consider in determining if testimonial:
a. Made to law enforcement
b. Knowledge of gov't involvement
c. Privately made statements without intention for use at trial
d. Formality of investigation
e. Medical condition of victim
Forensic certificates and reports
a. Melendez-Diaz: sworn certificates of analysis reporting the results
of forensic analysis performed by a state laboratory at police request
were testimonial
ix.
1.
Does allow for Notice and Demand statutes where ∆ is
given notice of report and a time frame to demand right to confront
or waived
b. Bullcoming: When results of an examination are used to prove a
fact at a criminal trial bringing in an uninvolved expert witness as a
surrogate for the preparer of the report does not satisfy the
Confrontation Clause
c. Williams: testifying experts use of a non-testifying experts report
as basis for opinion nontestimonial, because didn't target individual
person (4 justices), not formal (1 justice)
Declarant's intent might matter in determining if testimonial
a. Children- with regards to abuse not testimonial, because not
intended as testimony
b.
XI.
Exceptions to the Hearsay Rule
A.
Personal knowledge is required for witness testimony (except
opponent) and this is extended to hearsay declarants
B.
Availability immaterial
i.
FRE 803- Exceptions to the rule against hearsay
a. Present Sense Impression. A statement describing or explaining
an event or condition, made while or immediately after the declarant
perceived it
1.
Spontaneity makes it trustworthy enough to let in
2.
Time requirement is debatable but probably no more than
10 mins
3.
Increased application with the advancement of instant
communication
4.
Subject matter is more strict in this application than 803(2)
b. Excited Utterance. A statement relating to a startling event or
condition, made while the declarant was under the stress of excitement
that it caused.
1.
Time and subject matter less a factor due to the excitement
of the matter
a. Excitement can last longer
2.
Spontaneity makes it trustworthy enough to let in
3.
Objectively: must be exciting
4.
Subjectively: declarant must be exciting
c. 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.
1.
Allowed to show truth of mental state, but not for truth of
past facts
2.
Mental states can be ongoing and last a while
3.
Does not permit witness to relate declarant's statements as
why holds particular state of mind
4.
Can be used to explain future conduct (and that of another)
5.
State of mind must be relevant to issues in the litigation
6.
Can exclude evidence that falls under this exception under
relevance and prejudice from 401-403
d. Statement Made for Medical Diagnosis or Treatment. A
statement that:
1.
is made for — and is reasonably pertinent to —
medical diagnosis or treatment; and
2.
describes medical history; past or present symptoms or
sensations; their inception; or their general cause.
a. Focuses on patient and relies on patient's strong motive to
tell truth because diagnosis or treatment will depend on what
patient says
b. Is the fact of a type reasonably relied on by experts in a
particular field
c. Test
i.
Is declarant's motive consistent with purpose of the
rule (seeking medical treatment)?
ii.
Is it reasonable for physician to rely on info in
diagnosis of treatment
d. Statements of cause allowed, but not fault or identity
i.
Some exceptions for child abuse cases because of
needs concerning placement
e. Exception for statements to non-physicians by children
since cannot seek medical care themselves
f. Medical can include social workers and psychologists
g. Discretion to judge when looking at statements to
psychiatrists since all statements may be relevant to diagnosis
e. Recorded recollection. A record that:
1.
is on a matter the witness once knew about but now
cannot recall well enough to testify fully and accurately;
a. Can be made up of two-party statements
2.
was made or adopted by the witness when the matter
was fresh in the witness’s memory; AND
3.
accurately reflects the witness’s knowledge.
4.
If admitted, the record may be read into evidence but
may be received as an exhibit only if offered by an adverse
party.
f. Records of regularly conducted activity. A record of an act,
event, condition, opinion, or diagnosis if:
1.
the record was made at or near the time by — or from
information transmitted by — someone with knowledge;
a. If person who provides info is outsider to business then the
reliability rationale does not apply because not compelled to
provide accurate info
i.
Requires adequate verification or other assurance of
accuracy of the info
a. Proof that business has policy of verifying
b. Proof that business possesses a sufficient selfinterest in the accuracy of the record to justify inference
of trustworthiness
2.
the record was kept in the course of a regularly
conducted activity of a business, organization, occupation, or
calling, whether or not for profit;
a. Enormous scope is recognized here
b. Even if business activity is illegal
c. Even if done by individual in course of occupation
d. Personal records kept for non business reasons do not
qualify
e. Docs prepared in anticipation of litigation is not acting in in
regular course of business
3.
making the record was a regular practice of that
activity;
4.
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
a. Broad interpretation of who is a qualified witness
b. Those who receive records are not usually qualified to
establish foundation because no knowledge of method of prep
and cannot verify accuracy
5.
neither the opponent does not show that the source of
information nor or the method or circumstances of preparation
indicate a lack of trustworthiness.
6.
Justifications
a. there are circumstances where a sincere and accurate
statement would naturally be uttered, and no plan of
falsification found
i.
Bringing in all employees who made a record in
order for cross-exam would be an obstruction of justice
g. Absence of a Record of a Regularly Conducted
Activity. Evidence that a matter is not included in a record described
in paragraph (6) if:
1.
the evidence is admitted to prove that the matter did not
occur or exist;
2.
a record was regularly kept for a matter of that kind;
and
a. Must be a tangible record, oral record does not suffice
3.
neither the opponent does not show that the possible
source of the information nor or other circumstances indicate a
lack of trustworthiness.
h. Public records and reports. A record or statement of a public
office if:
1.
it sets out:
a. the office’s activities;
i.
Allowed in a criminal case
b. 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
i.
Some courts distinguish and apply the lawenforcement exception only when the observance was
made in an adversarial setting
ii.
Usually doesn't include public servants who happen
to work for law enforcement
iii.
Often allowed if ∆ wants to use reports against
gov't
iv.
Some jdx say if ∆ takes stand this is fine since
confrontation clause is the rationale for rule
c. in a civil case or against the government in a criminal
case, factual findings from a legally authorized
investigation; and
i.
Includes conclusions or opinions based on factual
investigation
a. Must be based in factual investigation
b. Satisfy the trustworthiness requirement
c. Must be a finalized report
d. When opinions are involved looking at 702 and 703
is helpful
2.
neither the opponent does not show that the source of
information nor or other circumstances indicate a lack of
trustworthiness.
a. Factors to consider
i.
Timeliness of investigation
ii.
Special skills or experience of official
iii.
Whether a hearing was held and level at which it
was conducted
iv.
Possible motivation problems
v.
Reliance on unreliable data
a. Hearsay allowed
b. Unverified evidence or when depends on
questionable motivation may not be
C.
Unavailability required
i.
Justifiable because it is a question of no evidence vs. imperfect
evidence
ii.
FRE 804(a)- Hearsay exceptions; declarant unavailable
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;
a. This includes properly asserting a Fifth Amendment
privilege, if the Court rules the declarant exempt
i.
But Court can pursue the legitimacy of the exercise
of the 5th amendment right
ii.
Right eliminated when gov't grants immunity
b. If judge rules no privilege, than witness should be
compelled to testify, if the witness refuses then is still
unavailable
2.
refuses to testify about the subject matter despite a
court order to do so;
3.
testifies to not remembering the subject matter;
a. Testimony and judicial verification required
b. Loss of memory of some details not sufficient
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
a. When disability is temporary trial court may require a
continuance
b. Duration of illness need only be in probability long enough
so that with proper regard to the importance of the testimony,
the trial cannot be postponed
iii.
iv.
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 Rule 804(b)(1) or (6); or
i.
There is broad discretion of the judge in
determining that party seeking to admit was unable to
secure
ii.
Standard in criminal cases likely higher due to
Confrontation Clause
b. the declarant’s attendance or testimony, in the case of a
hearsay exception under Rule 804(b)(2), (3), or (4).
b. 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 the declarant from
attending or testifying.
FRE 804(b)(1)- Hearsay exceptions; declarant unavailable
a. Former Testimony1.
was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or a
different one; and
a. Motive for wanting to cross examine by opposing party
must be similar in both proceedings
i.
Does not mean identical
ii.
Factual inquiry
b. Major limits on the ability to cross-exam at prior
proceeding could render inadmissible
2.
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.
a. Again looks to similarity in motive and opportunity to
cross, this time between predecessor and current party
b. Should not be applied too strictly
c. New party has opportunity to explain why prior cross was
not adequate
d. No applicability in criminal case, ∆ must have been party in
prior suit
FRE 804(b)(2)- Hearsay exceptions; declarant unavailable
a. Statement Under the Belief of Imminent Death
1.
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 or circumstances.
a. Declarant must believe death is imminent
i.
Need not be proven by direct statements of the
declarant
v.
vi.
ii.
Can be established circumstantially
iii.
Burden is on party offering statement to show
declarant's recognition of nature of situation
iv.
Imminent means near at hand
b. Trustworthiness concerns
i.
Negative human motivations to lie don't cease near
death
ii.
Condition of declarant may distort reliability
iii.
Statement may be prompted by interested
questioners
c. Does not actually require death
d. Limited to homicide cases or civil cases
e. Statements usually limited to circumstances surrounding
death
f. Sui generis, so unique and are not precluded by
Confrontation Clause
FRE 804(b)(3)- Hearsay exceptions; declarant unavailable
a. Statement Against Interest. A statement that:
1.
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
a. How much against interest, three possibilities
i.
Facts stated be against interest
ii.
That statement itself will create an obligation
iii.
That the declarant be creating evidence which may
be used to his or her detriment
iv.
CANNOT be a social interest, not concrete
b. Collateral statements (those not explicitly against interest)
should be excluded, Williamson
i.
While not binding on states many have adopted its
analysis
2.
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.
a. Who statement is made to is a factor for consideration
b. Level of corroboration needed goes beyond a minimal level
but should not be made unrealistically severe
3.
Confrontation clause
a. If made to police in custody, probably testimonial and
violate CC, but to private individuals, not testimonial and not
excluded
FRE 804(b)(6)- Hearsay exceptions; declarant unavailable
a. Statement Offered Against a Party That Wrongfully Caused the
Declarant’s Unavailability.
1.
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.
a. Test, court must find by PoE that
i.
∆ engaged or acquiesced in wrongdoing
a. Does not necessarily need to be criminal
b. Acquiesced or procured through others require
1.
Actions taken by coconspirators
2.
Within scope of in furtherance of
conspiracy
3.
Reasonably foreseeable as a natural
consequence of conspiracy
ii.
That was intended to render the declarant witness
unavailable as a witness
a. The intention portion is necessary to also apply the
Confrontation Clause
iii.
That did in fact render the declarant unavailable as a
witness
b. Test is construed broadly
c. Some courts hold this must be decided in evidentiary
hearing, others let the evidence come out in trial
D.
Residual Exception
i.
FRE 807 (formerly 803(24) and 804(b)(5))
a. In General. Under the following conditions, a hearsay
statement is not excluded by the rule against hearsay even if the
statement is not admissible under a hearsay exception in Rule
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
a. Some factors of trustworthiness usually considered are
i.
Whether declarant had motivation to speak
truthfully
ii.
Spontaneity of the statement, including use of
leading questions to make statement
iii.
Time lapse between event and statement
iv.
Whether statement was under oath
v.
Whether declarant was subject to cross at time
statement made
vi.
Relationship between declarant and person to whom
statement was made
vii.
Whether declarant has recanted or reaffirmed
statement
viii.
Whether the statement was recorded
ix.
Whether declarant's first hand knowledge is clearly
demonstrated
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
a. Different applications
i.
Balancing trustworthiness of hearsay against other
available evidence
ii.
Statement may be more probative than other
available evidence when statements complete the picture of
a pattern of conduct otherwise not established
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, excuses a
lack of earlier notice.
1.
Interpreted flexibly
c. Should only be used in rare situations, according to commentary
1.
But in use has been used more frequently
d. Most courts allow a near miss under another exception to qualify, a
few courts use this as means to automatically reject
e. Covers situations where declarant is available or unavailable
1.
Unavailable declarant more likely to lead to inclusion under
necessity
f. Grand jury testimony used to be biggest use of this, but Crawford
now keeps that from happening
g. Child sex abuse cases are another major use of the exception
E.
Other exceptions & provisions
i.
FRE 803(b)(16)- Statements in Ancient Documents.
a. A statement in a document that was prepared before January
1, 1998, and whose authenticity is established.
ii.
FRE 803(b)(18)- Statements in Learned Treatises, Periodicals, or
Pamphlets.
a. A statement contained in a treatise, periodical, or pamphlet if:
1.
the statement is called to the attention of an expert
witness on cross-examination or relied on by the expert on
direct examination; and
2.
the publication is established as a reliable authority by
the expert’s admission or testimony, by another expert’s
testimony, or by judicial notice
XII.
b. If admitted, the statement may be read into evidence but not
received as an exhibit
iii.
FRE 803(b)(22)- Judgment of a Previous Conviction.
a. Evidence of a final judgment of conviction if:
1.
the judgment was entered after a trial or guilty plea,
but not a nolo contendere plea;
2.
the conviction was for a crime punishable by death or
by imprisonment for more than a year;
3.
the evidence is admitted to prove any fact essential to
the judgment; and
4.
when offered by the prosecutor in a criminal case for a
purpose other than impeachment, the judgment was against
the defendant
b. The pendency of an appeal may be shown but does not affect
admissibility
iv.
FRE 805- Hearsay within hearsay
a. 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.
v.
FRE 806- Attacking and supporting the declarant
a. When a hearsay statement — or a statement described in Rule
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.
Private Privilege
A.
FRE 501- General Privilege
i.
The common law — as interpreted by United States courts in
the light of reason and experience — governs a claim of privilege
unless any of the following provides otherwise:
a. the United States Constitution;
b. a federal statute; or
c. rules prescribed by the Supreme Court.
ii.
But in a civil case, state law governs privilege regarding a
claim or defense for which state law supplies the rule of decision.
B.
Spousal testimony
i.
Held by testifying spouse, cannot be required to testify, but may if
wants to
a. About anything
b. Even stuff before marriage
ii.
The rule allowing a ∆ to prevent spouse from testifying about
evidence and communications in front of a third party was overturned with
Tramell
iii.
Current rule requires a valid marriage
iv.
Most jdx don't allow for the privilege when spouse is charged with
crime against other or their property or children
v.
Some jdx recognize an exception where spouses were joint
participants in crime
vi.
Divorced spouse don't count
C.
Marital communications
i.
Held by communicating spouse
ii.
There is a rule that provides a privilege for confidential
communications made during marriage
iii.
Acts
a. Some jdx say no acts
b. Acts if done on reliance on confidential relationship, some jdx
allow
c. But certain acts like those without words may be viewed as
communications
iv.
Interspousal communications are assumed to be confidential
a. Rebuttable by showing of threats against spouse not to talk
b. Known presence of third parties destroys confidentiality
v.
Requires valid marriage
vi.
Still applies after divorce if made during marriage
vii.
Crime-fraud exception: no privilege if communication was made
with intent to commit crime or fraud and then does commit the crime or
fraud
D.
Attorney-client privilege and work product
i.
CL follows Uniform Rule of Evidence 502
a. Definitions. As used in this rule:
1.
A “client” is “Client” means a person, including a public
officer, or corporation, association, or other organization or entity,
either public or private, who is rendered professional legal services
by a lawyer, or who consults a lawyer with a view to obtaining
professional legal services from him the lawyer.
2.
A representative “Representative of the client” is one
means
a. A person having authority to obtain professional legal
services, or to act on advice thereby rendered pursuant thereto,
on behalf of the client or
b. any other person who, for the purpose of effectuating legal
representation for the client, makes or receives a confidential
communication while acting in the scope of employment for
the client.
3.
A “lawyer” is “Lawyer” means a person authorized, or
reasonably believed by the client to be authorized, to engage in the
practice of law in any state or nation.
4.
A “representative “Representative of the lawyer” is one
means a person employed by the lawyer to assist the lawyer in the
rendition of rendering professional legal services.
5.
A communication is “confidential” if not intended to be
disclosed to third persons other than those to whom disclosure is
made in furtherance of the rendition of professional legal services
to the client or those reasonably necessary for the transmission of
the communication.
b. General rule of privilege. A client has a privilege to refuse to
disclose and to prevent any other person from disclosing a confidential
communications communication made for the purpose of facilitating
the rendition of professional legal services to the client
1.
between himself the client or his a representative of the
client and his the client’s lawyer or his lawyer’s a representative of
the lawyer
2.
between his the lawyer and the lawyer’s a representative of
the lawyer
3.
by him the client or his a representative of the client or his
the client’s lawyer or a representative of the lawyer to a lawyer or
a representative of a lawyer representing another party in a pending
action and concerning a matter of common interest therein
4.
between representatives of the client or between the client
and a representative of the client, or
5.
among lawyers and their representatives representing the
same client.
c. Who may claim the privilege. The privilege may be claimed by
the client, his the client’s guardian or conservator, the personal
representative of a deceased client, or the successor, trustee, or similar
representative of a corporation, association, or other organization,
whether or not in existence. The person who was the lawyer or the
lawyer’s representative at the time of the communication is presumed
to have authority to claim the privilege but only on behalf of the
client.
d. Exceptions. There is no privilege under this rule:
1.
Furtherance of crime or fraud. If the services of the lawyer
were sought or obtained to enable or aid anyone to commit or plan
to commit what the client knew or reasonably should have known
to be a crime or fraud;.
2.
Claimants through same deceased client. As to a
communication relevant to an issue between parties who claim
through the same deceased client, regardless of whether the claims
are by testate or intestate succession or by inter vivos transaction;
inter vivos.
3.
Breach of duty by a lawyer or client. As to a
communication relevant to an issue of breach of duty by the a
lawyer to his the client or by the a client to his the lawyer;
4.
Document attested by a lawyer. As to a communication
relevant to an issue concerning an attested document to which the
lawyer is an attesting witness;.
5.
Joint Clients. As to a communication relevant to a matter of
common interest between or among two or more clients if the
communication was made by any of them to a lawyer retained or
consulted in common, when offered in an action between or among
any of the clients or.
6.
Public Officer or Agency. As to a communication between
a public officer or agency and its lawyers unless the
communication concerns a pending investigation, claim, or action
and the court determines that disclosure will seriously impair the
ability of the public officer or agency to process the claim or
conduct a pending investigation, litigation, or proceeding in the
public interest.
ii.
There is no bright-line rule on when attorney-client privilege and
attorney work product are covered, Upjohn
iii.
But all corporate employees are covered under attorney-client
privilege
a. If made for the purpose of providing legal advice for corp
b. About employee’s duties
c. Treated as confidential
iv.
Privilege only involves communications not facts
v.
Abandons the control group test in federal
a. States not compelled to also abandon
b. Many still use control group test, where privilege only extends to
those who hold control of corp
vi.
Work-product privilege
a. FRCP 26
b. In some jdx this privilege is absolute
c. Others provide extra protections
vii.
Client can waive
a. What is waiver?
1.
FRE 502- Attorney-Client Privilege; Work Product;
Limitations on waiver
a. The following provisions apply, in the circumstances set
out, to disclosure of a communication or information
covered by the attorney-client privilege or work-product
protection.
i.
Disclosure Made in a Federal Proceeding or to a
Federal Office or Agency; Scope of a Waiver. When the
disclosure is made in a federal proceeding or to a federal
office or agency and waives the attorney-client privilege or
work-product protection, the waiver extends to an
undisclosed communication or information in a federal or
state proceeding only if:
a. the waiver is intentional;
b. the disclosed and undisclosed communications or
information concern the same subject matter; and
c. they ought in fairness to be considered together.
ii.
Inadvertent Disclosure. When made in a federal
proceeding or to a federal office or agency, the disclosure
does not operate as a waiver in a federal or state proceeding
if:
a. the disclosure is inadvertent;
b. the holder of the privilege or protection took
reasonable steps to prevent disclosure; and
c. the holder promptly took reasonable steps to rectify
the error, including (if applicable) following Federal
Rule of Civil Procedure 26 (b)(5)(B).
iii.
Disclosure Made in a State Proceeding. When the
disclosure is made in a state proceeding and is not the
subject of a state-court order concerning waiver, the
disclosure does not operate as a waiver in a federal
proceeding if the disclosure:
a. would not be a waiver under this rule if it had been
made in a federal proceeding; or
b. is not a waiver under the law of the state where the
disclosure occurred.
iv.
Controlling Effect of a Court Order. A federal
court may order that the privilege or protection is not
waived by disclosure connected with the litigation pending
before the court — in which event the disclosure is also not
a waiver in any other federal or state proceeding.
v.
Controlling Effect of a Party Agreement. An
agreement on the effect of disclosure in a federal
proceeding is binding only on the parties to the agreement,
unless it is incorporated into a court order.
vi.
Controlling Effect of this Rule. Notwithstanding
Rules 101 and 1101, this rule applies to state proceedings
and to federal court-annexed and federal court-mandated
arbitration proceedings, in the circumstances set out in the
rule. And notwithstanding Rule 501, this rule applies even
if state law provides the rule of decision.
vii.
Definitions. In this rule:
a. “attorney-client privilege” means the protection that
applicable law provides for confidential attorney-client
communications; and
E.
i.
ii.
iii.
F.
b. “work-product protection” means the protection that
applicable law provides for tangible material (or its
intangible equivalent) prepared in anticipation of
litigation or for trial.
Additional Privileges
Doctor patient
Clergy communicant
Reporter's privilege
Witness’s witness’
Erroneous